EUROPEAN YEARBOOK OF MINORITY ISSUES
EUROPEAN YEARBOOK OF MINORITY ISSUES General Editors Arie Bloed Rainer Hofmann Joseph Marko James Mayall Marc Weller Managing Editors Emma Lantschner Alexander H.E. Morawa Editorial Team Marita Lampe Emma Lantschner Alexander H.E. Morawa Gabriel N. Toggenburg
EUROPEAN YEARBOOK OF MINORITY ISSUES Volume , /
M A RT IN US N IJ HOF F PU BLISHER S LEIDEN/ BOSTON
A C.I.P. Catalogue record for this book is available from the Library of Congress. Printed on acid-free paper. ISBN 90 04 13839 0 © 2004 Koninklijke Brill NV, Leiden, e Netherlands. Koninklijke Brill NV incorporates the imprint Martinus Nijhoff Publishers. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to e Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in e Netherlands.
Table of Contents – / Issue
Foreword
ix
PART I: ARTICLES A. General Articles Section e ‘Transdniestrian Moldovan Republic’: From Conflict-Driven State-Building to State-Driven Nation-Building Stefan Troebst
e Role and Activities of the OSCE Mission to Moldova in the Process of Transdniestrian Conflict Resolution Gottfried Hanne
Minorities in New European Democracies: A Source of Destabilization? Timm Beichelt
Roma Politics and Policy in Hungary - Martin Kovats
Language Legislation and Language Rights in the United Kingdom Robert Dunbar
Minorities as a reat: A Historical Reconstruction of State-Minority Relations in Turkey Dietrich Jung
Changing Concepts of Interest and the Annan Plan for Cyprus Christopher Brewin
Elaborating A Catalogue of Best Practices of Effective Participation of National Minorities: Review of the Opinions of the Advisory Committee Regarding Article of the Council of Europe Framework Convention for the Protection of National Minorities Annelies Verstichel
Table of Contents – / Issue Reversing Ethnic and Cultural Cleansing: e Role of Annex in Reclaiming History, Promoting Post-War Reconciliation and Preserving the Unique Cultural Heritage of Bosnia and Herzegovina Valery Perry
Party System, Electoral Systems and Minority Representation in the Republic of Macedonia from to Eben Friedman
Territorial Autonomy and European National Minorities: South Tyrol, the Basque Country and the Åland Islands Eduardo J. Ruiz Vieytez and Markko Kallonen
e Baltic States before EU Accession: Recent Developments in Minority Protection Vadim Poleshchuk and Boris Tsilevich
B. Special Focus: Belgium Pacifying National Majorities in the Brussels Capital Region: What About the Immigrant Minority Groups? Dirk Jacobs
Personality versus Territoriality: Belgium and the Framework Convention for the Protection of National Minorities Wilfried Swenden
e Application of the Framework Convention for the Protection of National Minorities in Belgium: e Opinion of the European Commission for Democracy through Law Simona Granata-Menghini
C. Special Focus: New Minorities e Rights of ‘Old’ versus ‘New’ Minorities Asbjørn Eide
Legal Indicators for Social Inclusion of New Minorities Generated by Immigration Roberta Medda-Windischer
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Table of Contents – / Issue PART II: REPORTS A. International Developments Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities Rainer Hofmann Developments in the Field of the European Charter for Regional or Minority Languages Antonio Bultrini
e Jurisprudence of the European Court of Human Rights Roberta Medda-Windischer
e Protection of Minorities in the Activities of the Commissioner for Human Rights of the Council of Europe Christos Giakoumopoulos and Alvaro Garcia Ormaechea
e Activities of the OSCE High Commissioner on National Minorities: June – June Matthew E. Draper
Review of the th Session of the United Nations Working Group on Minorities Rianne Letschert
e Jurisprudence of the United Nations Human Rights Committee and Other Treaty Monitoring Bodies Hannah McGlue
e Jurisprudence of the American and African Regional Human Rights Bodies Alexander H.E. Morawa
Protection of National Minorities through Bilateral Agreements Emma Lantschner
B. National Developments Constitutional Law on the Rights of National Minorities in the Republic of Croatia Antonija Petričušić
Legal Status and Rights of Minorities in Serbia and Montenegro Vojislav Stanovcic
vii
Table of Contents – / Issue e New Bulgarian Religious Law: Restrictive and Discriminatory Krassimir Kanev
e Drafting of a Law against Discrimination on the Grounds of Racial or Ethnic Origin in Germany: Constraints in Constitutional and European Community Law Frank Selbmann
e Ombudsperson Institution in Kosovo and the Protection of Minorities Jonas Nilsson
e War in Chechnya and Actions Taken by the Council of Europe Alessia Sonaglioni
Appendix List of International Norms
viii
Foreword
It is a great pleasure for the editorial team to present the second volume of the European Yearbook of Minority Issues. We very much hope that also this volume will come up to the high expectations of our readership. It was a demanding challenge again to keep our promise of providing a timely review of contemporary developments in minority-majority relations in Europe. Europe, in our understanding, does not comprise only the (present and future) member states of the European Union. Without claiming to be exhaustive, the articles and reports included in this Yearbook analyze the situation of minorities in the different parts of Europe, from Germany and the United Kingdom to Transdniestria and Chechnya, and from the Baltic states to Turkey and Cyprus. In the section on international developments much care was taken to ensure continuity of reporting on the most relevant European but also universal mechanisms for the protection of national minorities. Moreover, to the instruments analyzed in the first volume reviews of the developments in the field of the European Charter for Regional or Minority Languages and the activities of the Commissioner for Human Rights of the Council of Europe were added in this volume. An analysis of the opinion of the Venice Commission on the application of the Framework Convention for the Protection of National Minorities in Belgium was included in the special focus on Belgium. ereby the Yearbook now covers most of the mechanisms within the Council of Europe dealing with the protection of minorities. Developments in the European Union will again feature in the / issue in order to take into account ongoing developments. Similar to the first volume, the genesis of the second volume has been characterized by the sedulous commitment of the two teams at the European Centre for Minority Issues (ECMI) and the Department of Minorities and Autonomies at the European Academy Bozen/Bolzano (EURAC). e two managing editors, Dr. Alexander H. E. Morawa, Senior Research Associate of ECMI and Ms. Emma Lantschner, Researcher at EURAC, were both supported by their respective teams. Special thanks go of course to the General Editors. Without their advice and constructive suggestions to both the authors and the managing editors the Yearbook could not have been produced in such a short time and at such a high academic level. In addition to those already mentioned, it is necessary to acknowledge the huge workload that was carried by the copy editors, Ms. Marita Lampe, Publication Officer at ECMI,
Foreword and Ms. Jo Malcolm. ey were supported in their work by Ms. Marnie Lloydd and Ms. eresa M. Petosa. Joseph Marko co-Director of the department Minorities and Autonomies at EURAC
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Part I Articles
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Part A GENERAL ARTICLES SECTION
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Stefan Troebst *
e ‘Transdniestrian Moldovan Republic’: From ConflictDriven State-Building to State-Driven Nation-Building †
I. I On December , the engineer Igor’ N. Smirnov was reelected for a third time as ‘President’ of the ‘Transdniestrian Moldovan Republic’ (Pridnestrovskaja Moldavskaja Respublika, TMR).1 Smirnov, an ethnic Russian from the Kamčatka Peninsula, i.e. from the opposite end of the former Soviet Union, received his education in Čeljabinsk in the Southern Ural. For his career, he then moved to a plant for electric motors near Cherson in South Ukraine,2 and in November , took up the position of executive director of the industrial plant Ėlektromaš in Tiraspol’ (Tiraspol)3 – then the second largest city of the Moldovan Socialist Soviet Republic (MSSR) and today the ‘capital’ of the TMR. Most of the members of the TMR leadership have ‘all-union’ biographies similar to Smirnov’s. ey made their careers in the Communist Party of the Soviet Union, the Soviet Intelligence Service (KGB), the army, state bureaucracy or the planned economy in the empire between the Pacific Ocean and the Black Sea, and were taken by surprise by the implosion of the
*
†
1 2
3
Professor of East European Cultural Studies, University of Leipzig, Germany. e author thanks Nikolaj V. Babilunga (Tiraspol’), Alena Guboglo (Moscow), Gottfried Hanne (Chiinău) and Alla Skvorţova (Chiinău) for materials, advice and criticism, as well as Sarah Lemmen (Leipzig) for help with the translation. Deutsche Presse-Agentur, ‘Smirnov als Präsident der Dnjestr-Republik bestätigt’, Frankfurter Allgemeine Zeitung, December , . Igor’ N. Smirnov, Žit’ na našej zemle (Moskva, ) -. See also T. G. Dejnenko et al., Igor’ Nikolaevič Smirnov. Bibliografičeskij ukazatel’ (Tiraspol’, ) -, as well as the ‘official’ biography of Smirnov by Anna Z. Volkova, Lider (Tiraspol’, ). An electronic version of this book can be found on the website of the official Transdniestrian news agency Ol’vija-Press at http://www.olvia.idknet.com. In this article, the names of places under control of TMR authorities are given in their Russian form, names of places under control of the Moldovan government in their Moldovan/Romanian form. At the first mentioning, the equivalent of the other language is given in parenthesis.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Stefan Troebst Union of Soviet Socialist Republics (USSR) while being positioned in Tiraspol’ or one of the other industrial and russophone cities in the Dniester Valley such as Bendery (Tighina) or Rybnica (Rîbniţa). It is for this reason that observers from the outside perceive the TMR, proclaimed in on the eastern fringe of the Republic of Moldova, as a ‘museum of communism’,4 as ‘Stalin’s last colony’,5 or as a ‘Zombie Socialist Soviet Republic’.6 e main pillars the separatist Transdniestrian republic rests upon are the political will of a regional elite aiming at the preservation of its power and privileges, the economic potential of this highly industrialized region, the military force of the secessionist movement acquired with the help of Moscow and the weakness of the central government of Moldova. Within a very short time, from to , the conflict over the control of Transdniestria resulted in the emergence and consolidation of a new political entity, the TMR. And since then, TMR authorities have engaged in regionalist identity management in order to create a titular nation for the new state-like structure – the ‘Transdniestrian people’. In the following what has been called the ‘Transdniestrian exception to the Soviet rule’ is analyzed by looking at the (Soviet) prehistory and the immediate causes of the conflict as well as at the two decisive phases of conflict-driven state-building in the Dniester Valley up to and of state-driven nation-building since then. II. T TMR M e TMR is an authoritarian ‘pseudo-state’ turned ‘quasi-state’ or ‘de facto state’7 on the territory of the Republic of Moldova.8 Its , square kilometres stretch out more than kilometres along the eastern banks of the river Dniester and are inhabited by some
4
5
6
7
8
Oliver Hoischen, ‘Transnistrien ist zu einer Grauzone zwischen Ost und West geworden’, Frankfurter Allgemeine Zeitung, September , ; Matthias Rüb, ‘Das kleine Königreich des kleinen Lenin’, Frankfurter Allgemeine Zeitung, January , . Walter Mayr, ‘Stalins letzte Kolonie’, Der Spiegel, October , . R. S. S. Mancurtă in the Moldovan/Romanian original – alluding to Čingiz T. Ajtmatov’s Kazakh legend of the Mankurts. See Nicolae Dabija, Moldova de peste Nistru – vechi pămînt strămoesc (Chiinău, ), . Scott Pegg, International Security and the De Facto State (Aldershot, ); Pål Kolstø, Unrecognized States Vs. Quasi-States in International Relations, unpublished MS, January ; and Vladimir Kolossov and John O’Loughlin, ‘Pseudo-States as Harbingers of a New Geopolitics: e Example of the Transdniestr Moldovan Republik (TMR)’, in David Newman (ed.), Boundaries, Territories and Postmodernity (London, ), -. On the TMR see Klemens Büscher, ‘Separatismus in Transnistrien. Die ‘PMR’ zwischen Rußland und Moldova’, Osteuropa (), -; Frank-Dieter Grimm, ‘Transnistrien – ein postsowjetische Relikt mit ungewissen Perspektiven’, () Europa Regional (), -; Pål Kolstø and Andrei Malgin, ‘e Transnistrian Republic: A Case of Politicized Regionalism’, Nationalities Papers (), -; Constantin Chiroca, ‘Ideologia Transnistreană’, Arena Politicii (), -; Stefan Troebst, ‘Separatistischer Regionalismus als Besitzstandswahrungsstrategie (post-)sowjetischer Eliten: Transnistrien -’, in Philipp er and Holm Sundhaussen (eds.), Regionale Bewegungen und Regionalismen in europäischen Zwischenräumen seit der Mitte des . Jahrhunderts (Marburg/L., ), -; as well as the collection of documents V. F. Gryzlova and M. N. Guboglo (eds.), Nepriznannaja respublika. Očerki. Dokumenty. Chronika, vols. (Moskva, -).
e ‘Transdniestrian Moldovan Republic’ , people9 who make up about % of the total population of Moldova. Officially, Russian, Ukrainian and Moldovan are the state languages in the TMR, yet in fact Russian dominates completely. In Soviet times, on the territory of today’s TMR – % of Moldova’s territory – % of the energy, % of the gross national product (GNP) and % of the total industrial output were produced. e main producers were large-scale enterprises that belonged to the military-industrial complex of the USSR and were for the most part attached to one of the many union ministries in Moscow. As a result, they were privileged compared to enterprises of the Moldovan SSR. In , the TMR split away from what was then still Soviet Moldavia. is move triggered an armed conflict in the Dniester Valley which led to this area becoming a frontier between the two parts of the country. e conflict peaked in June when the Transdniestrian side successfully defended the city of Bendery, a bridge-head located on the right bank of the river vis-à-vis the TMR capital Tiraspol’, against the Army of Moldova. Fighting in and around Bendery resulted in up to , casualties, several thousand injured combatants and civilians, and more than , displaced people.10 While the th Soviet Guard Army, stationed in the centre of Tiraspol’ as well as in the vicinity, had remained passive though benevolent to the Transdniestrian side during the initial phase of the fighting, it soon forced both sides to sign an armistice.11 Since then, the conflict in the Dniester Valley has been frozen but not yet regulated. Until today, the ‘mini-republic’ of Transdniestria is not internationally recognized but nevertheless exists. Moreover, in socioeconomic terms, the TMR seems to be better off than right-bank Moldova, ‘Europe’s poorest country’,12 with Chiinău (Kishinev) as its capital. In , a Moldovan expert characterized the TMR economy as ‘not self-sufficient, but viable’ and named barter trade with the Russian Federation, steel-dumping on the US market, petty street trade and criminal economic activities of the TMR leadership (cigarette smuggling, arms trade, money laundering, production of fake designer clothes, etc.) as the main components of Transdniestria’s GNP.13 ‘e Trans-Dniester Republic’, according to the New York Times, ‘is unique ... in its ability to turn a fast and often illegal buck.’14 9
10
11 12 13
14
Figure given by TMR ‘foreign minister’ Valerij A. Lickaj during a meeting in Tiraspol’ on October . e TMR census of January put the number of inhabitants at ,, while in the figures came up to ,. Cf. ‘Dniester Moldavian Republic’, in Dniester Moldavian Republic, Atlas of the Dniester Moldavian Republic (Tiraspol’, nd ed. ), , and Nikolaj V. Babilunga et al., Fenomen Pridnestrov’ja (Tiraspol’, ), . Of these, about , fled to neighbouring as well as distant countries, mainly to Germany. See Valerij Mošnjaga [Valeriu Moneaga], ‘Vooružennyj konflikt v Respublike Moldova i problema peremeščennych lic’, Moldoscopie. Problemy političeskogo analiza. Sbornik statej, vol. VII (Chiinău, ), -. Vladimir Socor, ‘Russia’s Fourteenth Army and the Insurgency in Eastern Moldova’, () Radio Free Europe/Radio Liberty Research Report (), -. Elfie Siegl, ‘Der mühselige Weg der kleinen Moldau-Republik aus der Krise’, Frankfurter Allgemeine Zeitung, December , . Anatolij Gudym, Evolution of the Transnistrian Economy: Critical Appraisal (Chiinău, ), at http://www.cisr-md.org/reports/cont-transn.html. For an official portrayal of the TMR industry, see A. Palamar’ and N. Elagin, Izgotovleno v Pridnestrov’e. Reklamno-informacionnyj spravočnik (Tiraspol’, ). Michael Wines, ‘Trans-Dniester ‘Nation’ Resents Shady Reputation’, New York Times, March , at http://www.globalpolicy.org/nations/sovereign/statehood/expment//trans.htm.
Stefan Troebst In the TMR, eastern Romance-speakers, i.e. Moldovans or – depending on one’s ethnopolitical point of view – Romanians,15 make up one third of the population thus constituting the relative majority of the population. ey are followed by Ukrainians and Russians, each representing about one quarter of the population (see Table ). Yet since Ukrainians and Russians, together with the smaller groups of Bulgarians, Jews, Gagauzes, Belarusians, Poles and others, form in linguistic terms, as well as politically, a russophone bloc, here Moldovans/Romanians are a minority. In west-bank Moldova, population numbers are the other way around: Here, Russians and other russophones make up one third of the population, Moldovans/Romanians two thirds. Again, the linguistic reality is somewhat different: Moldovan cities like Chiinău or Bălţi (Bel’cy) are also predominantly russophone – surrounded by a Moldovan/Romanian-speaking countryside.16 Officially, in Moldova only Moldovan/Romanian has the status of a state language with Russian having been downgraded in to a ‘language of interethnic communication’. Table . Ethnic Structure of the TMR () and the MSSR () Moldovans/Romanians Russians Ukrainians Bulgarians Jews Gagauzes other Total
TMR (in %; January )17 MSSR (in %; January )18 . . . . . . .
. . . . . . .
For the conflicting aspects of Moldovan nation-building, see Charles King, e Moldovans. Romania, Russia, and the Politics of Culture (Stanford, ); Id., ‘Moldovan Identity and the Politics of Pan-Romanism’, () Slavic Review (), -, and Claus Neukirch, Die Republik Moldau. Nations- und Staatsbildung in Osteuropa (Münster, ). On language issues, see Klaus Heitmann, ‘Sprache und Nation in der Republik Moldova’, in Wilfried Potthoff (ed.), Konfliktregion Südosteuropa. Vergangenheit und Perspektiven (München, ), -; Klaus Bochmann, ‘Moldauisch’ oder ‘Rumänisch’. Linguistische, kulturelle und politische Aspekte der Amtssprache’, (-) Der Donauraum (), -, and Charles King, ‘Ambivalence of Authenticity, or How the Moldovan Language was Made’, () Slavic Review (), -. 16 According to the last census in the USSR, in in Tiraspol’ % of the , inhabitants were Russians or Ukrainians. % of the , inhabitants of Bendery and % of the , inhabitants of Chiinău were non-Moldovans, i.e. mainly Eastern Slavs. Even the city of Bălţi with its purely Moldovan surroundings has an absolute Russian-Ukrainian majority of %. See Valerij Mošnjaga et al., Konflikt v Moldove: Opyt ėtnopolitičeskogo analiza (Kišinëv, ), . 17 Babilunga et al., Fenomen Pridnestrov’ja, . 18 King, e Moldovans …, . 15
e ‘Transdniestrian Moldovan Republic’ III. T T E L S R According to the political scientist David D. Laitin, the eastern part of the Republic of Moldova represents ‘the only exception to the absence of ethnic conflict directed at Russians in the union republics’.19 Across the USSR, this was the only case of a militant movement of Russians or Russian-speakers in the so-called ‘Near Abroad’ – an exception that even resulted in the foundation of a state-like entity. is course of events differed considerably from that in other regions such as Estonia, Latvia or the Ukraine. Yet another feature is also unique about Transdniestria: Before , nothing pointed to the building up of interethnic tensions in the Dniester Valley. Accordingly, during the Perestroika period, the region did not figure in any of the many scenarios of late Soviet ethnopolitical conflict. Up until this point in time, even the regional denomination ‘Transdniestria’ existed, if at all, only as a geographical term, not as an administrative, let alone a political one.20 e main motive for the protagonists of the ‘Transdniestrian revolution’21 was (and still is) the maintenance of privileged positions in administration, the economy and other segments of society. e regional elites in the Dniester Valley differ greatly in their socio-professional, linguistic and demographic structure from those of the more agrarian right-bank parts of the MSSR, the historical Bessarabia. Among the russophones, the Moldovan claim for alterity triggered a process of regional identification with the nonhistorical region Transdniestria – a ‘reactive nationalism’.22 As in other parts of the Near Abroad, it was not the ‘beached’ imperial minority of the Russian-speakers but the new majority, i.e. the titular nation, whose political moves increased interethnic tension. What are the reasons for the swift success of the policy of maintaining positions and privileges even by force pursued by the elites of Transdniestria? First, the fact that the political elite here was (and still is) to a large extent congruent with the economic elite must be noted. Second, and probably of equal importance, was the external factor, i.e. the role of Moscow with its military presence, its political support for the separatist leadership and its psychological influence on the russophone majority of the population. ird, the normative power of the actual existence of the TMR since , which initiated a relocation of social processes and a veritable ‘Transdniestrization’, has to be taken into account. Taken together, these three driving forces allowed the authorities in Tiraspol’ to embark on the project of forging the ethnically diverse, yet linguistically united inhabitants of David D. Laitin, Identity in Formation. e Russian-Speaking Populations in the Near Abroad (Ithaca, NY; London, ), . See also Id., ‘Secessionist Rebellion in the Former Soviet Union’, Comparative Political Studies (), - and Louk Hagendoorn et al., Intergroup Relations in States of the Former Soviet Union. e Perception of Russians (Philadelphia, PA, ), -. 20 Uwe Halbach, ‘Die Nationalitätenfrage: Kontinuität und Explosivität’, in Dietrich Geyer (ed.), Die Umwertung der sowjetischen Geschichte (Göttingen, ), . 21 D.F. Kondratovič, ‘Pridnestrovskaja revoljucija, - gg.’, Ežegodnyj istoričeskij al’manach Pridnestrov’ja (), -. 22 William Crowther, ‘e Politics of Ethno-National Mobilization: Nationalism and Reform in Soviet Moldavia’, Russian Review (), -, at . See also Jeff Chinn and Steven D. Roper, ‘Ethnic Mobilization and Reactive Nationalism: e Case of Moldova’, Nationalities Papers (), -.
19
Stefan Troebst the Dniester Valley into what they initially called ‘the multinational people of the TMR’ and what is currently termed the ‘Transnistrian people’.23 e main components of these TMR ‘politics of history’ are a Greater-Russian ‘mental mapping’ based on geopolitics, language, culture and religion, a new historical master-narrative reaching far back into the past, politics of remembrance focusing on the ‘heroic’ early years of the new state and the Battle of Bendery of , as well as a new personality cult of ‘President’ Smirnov. Opinion polls and election results point to the fact that a relative majority of the inhabitants of the TMR have adopted the view that they form a new Transdniestrian demos – with the potential to turn into an ethnos. While the attempt at state-building by the Transdniestrian leadership is an exception in all of the Near Abroad, the project of turning the local russophones into a new East Slav and ‘Russic’ nation of ‘Transdniestrians’ – next to the ‘Little Russians’ of the Ukraine, the ‘White Russians’ of Belarus’, and the ‘Greater Russians’ of the Russian Federation – is even more remarkable. In justifying their experiment in the TMR test tube, the nation-builders in Tiraspol’ go far back into history, even into mythology: ‘Since times immemorial, the Transdniestrian lands hold an extraordinarily important position in the vast spaces of Eurasia’ runs the first sentence of the official History of the Transdniestrian Moldovan Republic in Two Volumes, compiled with the help of historians from Moscow and published in Tiraspol’ in and .24 e reference to Eurasia, which invokes the anti-Western current in Russian thought,25 is underlined by a stress on the ‘Skythian’ tradition of Transdniestria.26 ‘Looked upon with the eye of the high-flying eagle’, thus states a textbook published in in Tiraspol’, ‘Transdniestria – this thin strip of land along the grey-haired river Dniester – resembles a Skythian arc.’27 With reference to Aleksandr A. Blok’s famous poem ‘e Skythians’ (Skify), TMR identity management portrays Transdniestria as a Slavic bullwark at the crossroads of Europe and Asia. For example, a map on the TMR’s geopolitical position in the official English-language Atlas of the Dniester Moldavian Republic represents the territory of the TMR as being much more compact than the geodetic facts suggest, as well as being located in a geopolitically crucial central position between East and West. In doing so, this alleged ‘centrality’ of the TMR relates 23 24 25
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Stefan Troebst, ‘‘We Are Transnistrians!’ Post-Soviet Identity Management in the Dniester Valley’, () Ab Imperio (), -. V. Ja. Grosul et al., Istorija Pridnestrovskoj Moldavskoj Respubliki v dvuch tomach, vol. (Tiraspol’, ), . Mark Bassin, ‘Russia and Asia’, in Nicholas Rzhevsky (ed.), Cambridge Companion to Russian Culture (Cambridge, ), -. See also Caroline Humphrey, ‘‘Eurasia’, Ideology and the Political Imagination in Provincial Russia’, in Christopher M. Hann (ed.), Postsocialism. Ideals, Ideologies and Practices in Eurasia (London; New York, NY, ), -, and Marlène Laruelle, L’idéologie eurasiste russe ou comment penser l’empire (Paris, Montreal, ). Grosul et al., Istorija, -. N. V. Babilunga and B. G. Bomeško, Stranicy rodnoj istorii. Učebnoe posobie po istorii dlj klassa srednej školy (Tiraspol’, ), inside cover. For the context, see also Stefan Troebst, ‘Wie ein skythischer Bogen. Transnistrien als slawisches Bollwerk zwischen dem Orient und Europa’, Frankfurter Allgemeine Zeitung, October , , and on mental mapping in Eastern Europe in general, Id., ‘‘Intermarium’ und ‘Vermählung mit dem Meer’: Kognitive Karten und Geschichtspolitik in Ostmitteleuropa’, () Geschichte und Gesellschaft (), -.
e ‘Transdniestrian Moldovan Republic’ to two constellations: First, the TMR is portrayed as being located right in the middle between the ‘brotherly states’ of Belarus’ and the Russian Federation on the one side and the equally ‘brotherly’ – owing to their common Christian-Orthodox heritage – Balkan countries of Bulgaria, Macedonia and Serbia on the other. Second, it is depicted as being encircled by the hostile NATO members Poland, Hungary, Greece and Turkey.28 Moldova, which according to TMR propaganda is a hotbed of ‘Chiinău-style Nazism’ and a stomping ground of ‘Romanian cannibals’,29 as well as the Ukraine – in Tiraspol’s perception notoriously unreliable with regard to Christian-Orthodox and eastern Slav solidarity30 – are perceived as two blocs of the same anti-Russian vice. However, in the perception of the TMR leadership Transdniestria is of primary geostrategic importance for Moscow. In this context, the Kaliningrad parallel is frequently invoked by TMR officials, and this not only in military terms but also in terms of international status: e TMR – thus the message – should be turned into a second Kaliningrad Oblast’, i.e. it should become a subject of the Russian Federation. e self-stylization of the TMR as ‘a tiny bit of the Great Russian state’, as described by Smirnov in in a speech in the Moscow City Duma,31 corresponds with another metaphor of Transdniestria being ‘Russia’s historical enclave on the doorsteps to the Balkans’.32 is ‘fact’ is interpreted as a safety guarantee by Moscow for Tiraspol’ and is emphasized by the permanent stationing of the th Soviet Army in and around Tiraspol’, a ‘beached’ military force of some , men which currently functions as Operative Group of the Armed Forces of the Russian Federation. At least at first glance, the peculiar position of the Transdniestrian movement is striking: Its state-building separatism defines itself as being primarily regional and explicitly nonethnic, but allegedly multinational and multilingual. An official publication in entitled e Phenomenon of Transdniestria, published in Tiraspol’, states that the TMR was not ‘founded on national or even nationalist grounds, but on humanistic, multiethnic principles of a civil society’.33 e fact that it differs greatly from other self-appointed See the map ‘Geopolitical Position’ in Dniester Moldavian Republic (ed.), Atlas …, . For the term kišinevskij nacizm, see Volkova, Lider, Introduction, and for the slander rumynskie ljudoedy, a photograph dated June showing Transnistrian volunteers on a truck whose tailboard carries the graffiti ‘Death to the Romanian cannibals!’ (Smert’ rumynskim liudoedam!) in a brochure by Valerij Kruglikov and N. Vorob’eva, Bendery. Leto-. Vojina (Fotoal‘bom) (Bendery, ), . 30 e TMR’s relationship with the neighbouring Ukraine is ambivalent: On the one hand, in TMR diplomacy succeeded in securing Kiev’s participation as a co-mediator in the conflict between Tiraspol’ and Chiinău – along with the Russian Federation and the OSCE – and in having Ukrainian blue helmet troops deployed in order to safeguard, together with Russian, Moldovan and Transnistrian troops, the Security Zone established after the armed clash over Bendery in July along the Dniester. On the other hand, Smirnov’s personal relationship to the eastern neighbour has been seriously strained by the fact that in September he was kidnapped in Kiev by the Moldovan secret service and brought to Chiinău – with the knowledge and obviously also the consent of the Ukrainian authorities. After several weeks in jail he was released. See Volkova, Lider, chapter V. 31 I. Smirnov, ‘Pridnestrov’e – častička velikogo rossijskogo gosudarstva’, Dnestrovskaja pravda, September . 32 Babilunga et al., Fenomen Pridnestrov’ja, . See also Nicholas Dima, Moldova and the Transdnestr Republic. Russia’s Geopolitics toward the Balkans (Boulder, CO; New York, NY, ).
28 29
Stefan Troebst post-Soviet ‘statelets’ such as South Ossetia, Chechnya, Abkhazia, or Nagorno-Karabakh because of its ‘viability and self-sufficiency’ is given as further proof of the ‘uniqueness’ of the TMR.34 Following this argument, the economic potential of the ‘Moldovan Ruhr’ allows for the autarchy of the highly industrialized region along the Dniester. is economic prowess, in combination with its military strength, is seen to guarantee the continued existence of the ‘phenomenon of Transdniestria’.35 Along this line of argumentation, the equally decisive ethnic factor has habitually been downplayed. In this aspect the political activities of the russophones in the Dniester Valley are comparable to those of the Russians in eastern Ukraine: As the geographer David J. Meyer stated, ‘the Donbas Russians need not mobilize ethnically when they can mobilize more easily, efficiently, and effectively as a purely political and regional force that operates in cooperation with Russified Ukrainians as well as with other regions.’36 In examining the driving forces, the motivation and the effect of the separatist regional movement of the russophone elites in the Dniester Valley, the context of the Soviet project of building a new Moldovan nation, the influence of perestroika, the implosion of the USSR, the Moldovan-Transdniestrian war in , as well as post-war developments, have to be taken into account. Up until , conflict-driven fears of Moldovan aggression were the most important mechanism for the regional movement to be able to mobilize its target group. Since , however, state-driven identity management by focusing on ‘politics of history’ has been the main reason for the strengthening of the loyalty of the population to the regime and for a broadening of the regime’s legitimacy. IV. S P C Like all domestic and international conflicts, the conflict in Transdniestria has its prologue, and, as in other violent conflicts which broke out not only due to a territorial dispute, but also to questions of identity, this prologue is multilayered and difficult to reconstruct. e conflict between Tiraspol’ and Chiinău shows special features, however, which keep prehistory short: First, the parties involved did not reach the current stage of conflict by going through a long process of escalation, but rather because of sudden and significant changes in basic political conditions which occurred almost overnight. Secondly, the causes of the conflict in the Dniester Valley arose fairly recently and are only to a small extent endogenous. Mainly they are exogenous, stemming from the merger of Soviet foreign policy doctrine with Stalinist nation-building policy. After Soviet foreign policy had turned to Babilunga et al., Fenomen Pridnestrov’ja, . For a ‘forerunner’ of this book see Nikolaj V. Babilunga and Boris G. Bomeško, Pridnestrovskij konflikt: Istoričeskie, demografičeskie i političeskie aspekty (Tiraspol’, ), and for an ‘enlarged version’ Grosul et al., Istorija. 34 Babilunga et al., Fenomen Pridnestrov’ja, . 35 Ibid., . On the coining of the expression Moldavskij Rur see ibid., . 36 David J. Meyer, ‘Why Have Donbas Russians Not Ethnically Mobilized Like Crimean Russians Have? An Institutional/Demographic Approach’, in John S. Micgiel (ed.), State and Nation Building in East Central Europe: Contemporary Perspectives (New York, NY, ), -, at . 33
e ‘Transdniestrian Moldovan Republic’ political realism in , Moscow became interested in the historical region of Bessarabia. is region had since been Russian but in had to be handed over to Romania. Its territory was largely identical to the Republic of Moldova of today.37 Since a unification of eastern Romania with the Soviet Union was unrealistic on both diplomatic and military terms, the Bolsheviks turned to an expansionist orientation and ethnically based policy of indigenization. A Moldovan Autonomous Socialist Soviet Republic (MASSR) was founded in on the territory of the Ukrainian SSR, based on a Byzantine tradition to give one’s own province that was geographically the closest to an enemy’s province one planned to conquer the name of this object of aggression.38 e territory of MASSR was to a large extent the same as the territory of the TMR today, although it also included regions further east, including Balta, the administrative centre of the new autonomous republic. In , the function of MASSR capital was then transferred to Tiraspol’. According to Soviet statistics from , the Ukrainians constituted the absolute majority (%) of the , inhabitants of the MASSR. Moldovans/Romanians represented %, Russians %, Jews % and others %, these others being Germans, Swiss, Bulgarians, Poles, Belarusians, Tatars, Armenians, and Czechs.39 In the ‘capital’ Balta only several dozen Moldovans were living and even in Tiraspol’ they amounted to a mere .%.40 e purpose of the founding of MASSR was, as the name clearly shows, the building of a new Moldovan nation. On the day Bessarabia and its Romanian majority were to become part of the USSR, the ‘Moldovan’ cadres, created in the MASSR, were to carry out the deromanization of Bessarabia through a ‘Moldovization’. e possibility to accomplish this ambitious plan came earlier than expected. On the basis of the Hitler-Stalin Pact in , the USSR moved its western border to the river Pruth, and in the summer of Bessarabia became part of the Soviet Union. e MASSR, the purpose of its existence being fulfilled, was eliminated and its institutions and leaders were transferred to the other side of the Dniester. When the new MSSR was founded on August , only the five districts of the former MASSR closest to the Dniester were integrated into the new state. e other eight, including the former capital, Balta, remained in the Ukrainian SSR, although they were now no longer autonomous. To reduce the protests of the Ukrainian leadership in Kiev about the separation from the river, Stalin decreed that the Ukraine should receive as compensation the southern part of the now Soviet Bessarabia, the district of Izmail, which reached up to the Danube and the Black Sea. e boundary between the westernmost part of Transdniestria, which now belonged to the MSSR, and the Ukraine, as well as the boundary between the two republics in the southern part of Bessarabia was decided exclusively according to administrative criteria. Neither ethnic, King, e Moldovans …, -. Wim van Meurs, ‘Carving a Moldovan Identity Out of History’, Nationalities Papers (), -; Charles King, ‘Ethnicity and Institutional Reform: e Dynamics of ‘Indigenization’ in the Moldovan ASSR’, Nationalities Papers (), -; Id., ‘e Moldovan ASSR on the Eve of the War: Cultural Policy in s Transnistria’, in Kurt W. Treptow (ed.), Romania and World War II (Iai, ), -. 39 Oleg Galuščenko, Naselenie Moldavskoj ASSR (- gg.) (Kišinev, ), . 40 Babilunga et al., Fenomen Pridnestrov’ja, . 37
38
Stefan Troebst lingual, historical nor confessional criteria, not even economic criteria or questions of infrastructure played any role in this decision. In other words, the MASSR, which due to its character as a Soviet administrative unit was in a certain way a predecessor of a Transdniestrian ‘statehood’, was in divided between the Ukrainian and the new Moldovan Soviet republics. e results of this division were confirmed in , when the Romanian rule over Bessarabia and Transdniestria, renewed in , ended and the process of the establishment of the MSSR, begun in and interrupted in , continued. Until , the ‘unnatural’ borderline in the East and the South of the MSSR did not lead to any visible negative effects. is can be explained by the rigid control of Moscow, as well as by various pragmatic solutions which the governments in Chiinău, Kiev and the administrations of the districts in the ‘border zone’ found for several urgent problems, such as, for instance, the irrigation of arid Southern Bessarabia, the so-called Bugeac area. e striving for independence by Moldova from the late s not only provoked a countermovement in Transdniestria, but resulted for the Bugeac region in a fast radicalizing ethno-regionalism of the Gaugauzes as well as in the political mobilization of the Bulgarians there. In contrast to the situation in the Dniester Valley, the central government of Moldova satisfied the Gagauz claims for self-determination by granting territorial autonomy, whereas the Bulgarian demands were to a large extent met with a de facto national district, the judeţ Taraclia.41 However, the Chiinău masterplan to use the Gagauz statute of autonomy as a blueprint for the regulation of the conflict with Tiraspol’ caused fierce opposition from the Transdniestrian side. e constellation of factors shaping the conflict in Transdniestria can be described as a late result of Stalin’s dictatorial politics. It is a conflict whose most problematic features – like borders, economic resources, and demographic structure – were imposed ‘from the top’ rather than developing ‘from the bottom’. At first glance this statement might show – besides some historical value – little practical usefulness. Yet, knowledge of the arbitrary practices of the decisions concerning borders followed by Stalin while Commissioner of Nationalities from on and then as dictator from to is essential for understanding the escalation of the conflict, the orientation of the people involved as well as the possibilities for third parties to contribute to deescalation or even provide a ‘solution’.
41
On the Gagauzes, a Turkic-speaking Christian-Orthodox group, see Paula ompson, ‘e Gagauz in Moldova and eir Road to Autonomy’, in Magda Opalski (ed.), Managing Diversity in Plural Societies. Minorities, Migration and Nation-Building in Post-Communist Europe (Nepean, Ontario, ), -; Jeff Chinn, Steven D. Roper, ‘Territorial Autonomy in Gagauzia’, () Nationalities Papers (), -; Stefan Troebst, ‘Von ‘Gagauz Halkı’ zu ‘Gagauz Yeri’: Die Autonomiebewegung der Gagausen in Moldova -’, () Ethnos – Nation (), -; on the Bulgarians of the Bugeac, Id., ‘Die bulgarische Minderheit Moldovas zwischen nationalstaatlichem Zentralismus, gagausischem Autonomismus und transnistrischem Separatismus (-)’, (-) Südosteuropa (), -.
e ‘Transdniestrian Moldovan Republic’ V. C-D S-B, 1989-92 Like in the Baltic republics, Gorbachev’s policies of glasnost’ and perestroika produced an autochthonous popular front movement also in the MSSR. Shortly thereafter, the republic’s titular nation, previously underrepresented in the party, the administration and the economy,42 on August used its majority of seats in the Supreme Soviet to proclaim Moldovan/Romanian the official language – now to be written in Latin, no longer in Cyrillic script. e non–Moldovan-speaking third of the population, i.e. the Russian-speakers, perceived this act as a first step towards Moldova joining neighbouring Romania, as well as a way to marginalize as ‘migrants’, ‘newcomers’ and even ‘occupants’ all those whose mother tongue was not the new state language. According to the new law, those with ranking positions in state, economy or society had to prove their proficiency in Moldovan/Romanian and therefore had to acquire the required mastery of the language quickly, or give up their position. e Russians and the Russian-speaking population in Moldova, who held two thirds of all leading positions in the industry of the republic in , were not able to demonstrate these language skills. Only % of the , ethnic Russians in the MSSR were able to speak Moldovan/Romanian.43 e figures for Ukrainians, Gagauzes, Bulgarians and others are likely to have been as low. e situation became more difficult when Moldova’s Supreme Soviet resolved to adopt the Romanian tricolor as the national flag of the MSSR and to introduce the Romanian national anthem ‘Wake up, Romanian, from your deadly slumber’ as the Moldovan one. In the perception of the nontitulars of the country and of many Moldovans, the formal act of unification of the MSSR with its western neighbour seemed very close. erefore, the slogan of the protesting russophones throughout the republic was ‘We don’t want to be Romanians!’44 e supporters of the Popular Front of Moldova answered with the russophobe slogan ‘Suitcase – station – Russia!’45 Interestingly these slogans were chanted in the language of the addressees.46 Protests and strikes in the urban-industrial centres of the Dniester Valley, coordinated by the United Council of Work Collectives (Ob’edinennyj Sovet trudovych kollektivov, OSTK), were particularly intensive and covered the entire area.47 e OSTK was under 42
43 44 45
46 47
Accordingly, only .% of all leading positions in the industry of the MSSR in were held by members of the titular nation. See Vladimir Solonari and Vladimir Bruter, ‘Russians in Moldova’, in Vladimir Shlapentokh et al. (eds.), e New Russian Diaspora. Russian Minorities in the Former Soviet Republics (Armonk, NY; London, ), -, at . Tat’jana Mlečko, ‘‘Bereg levyj, bereg pravyj ...’ Russkie v Moldavii’, Rossijskaja Federacija (), -, at . Nu vrem să fim români! See Babilunga et al., Fenomen Pridnestrov’ja, . Čemodan – vokzal – Rossija! See I. F. Selivanova, ‘Pridnestrovskij konflikt i problemy ego uregulirovanija’, Ėtnopolitičeskie konflikty v postkommunističeskom mire, vol. (Moskva, ), -, at . Cf. Babilunga et al., Fenomen Pridnestrov’ja, . For basic information, see Airat R. Aklaev, ‘Dynamics of the Moldova-Trans-Dniester Ethnic Conflict (late s to early s)’, in Kumar Rupesinghe and Valery A. Tishkov (eds.), Ethnicity and Power in the Contemporary World (Tokyo, ), - and Pål Kolstø et al., ‘e Dniester Conflict. Between Irredentism and Separatism’, Europe-Asia Studies (), -. From the Moldovan national point of view, see Conflictul din Transnistria: adevărul aa cum a fost el. Materialele conferinţei tiinţifico-practice ‘Interesele
Stefan Troebst the control of the informal ‘Board of Executive Directors’ of the large-scale regional enterprises, including among others Smirnov, the executive director of the Ėlektromaš plant in Tiraspol’. On the ticket of the OSTK, he was elected as chairman of the City Soviet of Tiraspol’ and as member of the Supreme Soviet of the MSSR. With this step, the engineer reached a key political position in Transdniestria. On June , the OSTK answered the declaration of sovereignty of the MSSR by the summoning of the Second Extraordinary Congress of the People‘s Representatives at All Levels of the Transdniestrian Region, which people attended. On September , under Smirnov’s leadership this body declared a new Soviet Republic with Tiraspol’ as the capital – the Transdniestrian Moldovan Socialist Soviet Republic (Pridnestrovskaja Moldavskaja Socialističeskaja Sovetskaja Respublika, TMSSR).48 With this act, Transdniestria seceded from the Moldovan SSR but stayed within the Soviet Union. Only after the secession of the MSSR from the USSR as the Republic of Moldova, executed by Chiinău with the Declaration of Independence on August , and in the wake of the imminent disintegration of the Soviet Union did Tiraspol’ strive for Transdniestrian statehood. On December , the election for the ‘presidency’ of the TMSSR and a referendum on independence were held. e official statistics report an % turnout. Allegedly % of all votes were pro-independence. Smirnov, the newly elected ‘president’, who was reported to have received % of all votes, proclaimed the ‘independence’ of Transdniestria the same day, now already using the name Transdniestrian Moldovan Republic. is ‘independence’ was possibly to take place, as stated in the text of the referendum, ‘within a renewed Soviet Union’49 – a formulation, that was already outdated on New Year’s Eve of . de stat i rolul organelor de interne în asigurare ordinii constituţionale i libertăţilor omului în raionele de est ale Republicii Moldova’ (Chiinău, ); Anatol Ţaranu, ‘Pridnestrovskij konflikt v Respublike Moldova: protivostojanie identičnostej?’, in Valeriu Moneaga (ed.), Moldova între Est i Vest. Identitatea naţională i orientarea europeană (Chiinău, ), -; Gheorghe E. Cojocaru, Separatismul în slujba Imperiului (Chiinău, ). For the Moldovan russophone point of view, see Petr M. Šornikov, Pokušenie na status. Etnopolitičeskie processy v Moldavii v gody krizisa - (Kišinev, ). e Transnistrian viewpoint is represented by Andrej Safonov, ‘Vzaimootnošenija Moldovy i Pridnestrov’ja: Istorija problemy i perspektivy (osnovnye aspekty)’, in Valeriu Moneaga (ed.), Statul naţional i societatea polietnică: Moldova în anii . Materiale I simpozion moldo-german (Chiinău, - octombrie ) (Chiinău, ), -, and Valerij A. Lickaj, ‘Status i garantii’, in Valeriu Moneaga (ed.), Ot ėtnopolitičeskogo konflikta k mežnacional’nomu soglasiju v Moldove. Materialy naučno-praktičeskogo seminara (Flensburg, Germanija, i B’erremark, Danija, - sentjabrja ) (Kišinëv, ), -. 48 See ‘Postanovlenie Vtorogo Črezvyčajnogo s-ezda narodnych deputatov vsech urovnej Pridnestrovskogo regiona, sentjabrja g.’, and ‘Deklaracija ob obrazovanii Pridnestrovskoj Moldavskoj Sovetskoj Socialističeskoj Respubliki’, in Vasilij N. Jakovlev et al. (eds.), Bessarabskij vopros i obrazovanie Pridnestrovskoj Moldavskoj Respubliki. Sbornik oficial’nych dokumentov (Tiraspol’, ), - and -. See also Aleksandr A. Karaman, ‘O samoprovozglašenii i priznanii Pridnestrovskoj Moldavskoj Respubliki’, Ežegodnyj istoričeskij al’manach Pridnestrov’ja (), -, and Vasilij N. Jakovlev, Ternistyj put’ k spravedlivosti (Tiraspol’, ), as well as Id., Voleiz-javlenie naroda vsesil’no i neotmenno (Tiraspol’, ). 49 Klemens Büscher, ‘Die ‘Staatlichkeit’ Transnistriens – ein Unfall der Geschichte?’, paper presented at the international conference ‘Die ‘zweite nationale Wiedergeburt’. Nationalismus, nationale Bewegungen und Nationalstaatsbildungen in der spät- und postkommunistischen Gesellschaft’ at the University of Mannheim, Germany, - February , .
e ‘Transdniestrian Moldovan Republic’ At the time of the referendum, the tension between the central government in Chiinău and the separatists in Tiraspol’ had already turned violent. e Transdniestrian leadership had since not only built its own administrative structures including a judiciary arm, a customs department, and a national bank, but also its own security system with a militia, secret service, and the nucleus of an army.50 Until the end of , the political fight for power between the Transdniestrian movement and the leaders of the MSSR over the urban-industrial centres in the Dniester Valley had been led very emotionally, but mostly without violence. e situation changed when the conflict reached the rural regions on the left bank of the Dniester. e Transdniestrian villages close to the river were, unlike the towns, inhabited mostly by Moldovans. Chiinău tried, with police force, to prevent the seizure of the communal administration by emissaries from Tiraspol’ – a move which led to armed clashes with TMR power structures as well as with Cossack volunteers coming to the defence of Transdniestrian independence from all over the Soviet Union. e conflict took on a new quality in the course of the political events in the second half of . e Moldovan Popular Front, at that time the ruling party in Chiinău, expected the TMR to weaken in the course of the collapse of the USSR and increased the military pressure on the eastern part of the country and especially on Bendery, which was controlled by Tiraspol’. e president, the parliament, and the central government of Moldova felt supported by the international community, to which the country formally belonged since its admission to the Conference on Security and Co-operation in Europe (CSCE) on January . In insisting on territorial integrity and the refusal of a unilateral change of borders, Chiinău saw itself in line with the basic principles of the Helsinki process. A first sign of this new self-esteem was a military action undertaken by special forces of the Moldovan Department of the Interior against the Transdniestrian forces inside the building of the City Soviet of Bendery on April . is action ended unsuccessfully and involved heavy losses. On March, Transdniestrian units had already driven the Moldovan police out of Dubossary,51 a district capital on the left bank. Now all urban centres along the Dniester, to which the TMR laid claim, were under the control of Tiraspol’. e tense situation was made even more complicated by various political and military personnel in Moscow who publicly favoured the struggle for independence. ings were aggravated even further by contradictory statements and moves made by Major-General Jurij Netkačev, the commander of the th Army. On the one hand, he declared himself and his troops neutral in the Moldovan-Transdniestrian conflict. Yet on the other hand, quite a number of officers, noncommissioned officers (NCOs) and troops of the th Army took part in military actions of the separatists against Chiinău – ‘on their own initiative’, as was officially announced – and some officers even retired from service to head the creation of a regular Transdniestrian army.
50 51
See Z. G. Todoraško, Istorija gosudarstvennych učreždenij Pridnestrovskoj Moldavskoj Respubliki. Vysšie organy vlasti i upravlenija - (Tiraspol’, ). On the battle of Dubossary, see Nikolaj P. Rudenko, Dubossary – gorod zaščitnikov PMR (Dubossary, ) and Viktor V. Djukarev, Dubossary - gg. Za kulisami politiki (Tiraspol’, ).
Stefan Troebst By May , the security structures of the central government had been forced to retreat to a small number of bridgeheads in Transdniestria. is defeat incited the Moldovan President Mircea Snegur to a military action in order to strengthen his ailing reputation. In the afternoon of June , he ordered the Army of Moldova, with the support of armed units of the Department of the Interior, including the regular police, the special police units and the carabinieri, as well as volunteer formations and units of self-defence of the villages to take the centre of Bendery, which was controlled by the Transdniestrian administration. It is still not known what made Snegur believe that the Moldovan side was militarily superior to its Transdniestrian counterpart, and that he could keep the th Army out of the fighting or probably even gain support from it. After an initial exchange of shots, the Moldovan units, which had at their disposal tanks as well as artillery, gained control over the major part of the city centre of Bendery as well as the only bridge on the Dniester leading to Transdniestria.52 On the evening of June, the Transdniestrian forces launched a counterattack and soon regained control over parts of the city centre. In doing so they were supported by members of the th Army as well as the militia, the secret service, the volunteer battalion ‘Dnestr’, cossack units and snipers of the Union of the Women Defenders of Transdniestria. On and June, both sides confronted each other along a frontline running right through the city centre and several suburbs. e heavy fighting caused about half of Bendery’s , inhabitants to flee across the Dniester or into bordering Moldovan villages. Already on June, Moldovan units had begun to attack the village of Parkany (Parcani), and on June this village was bombed by Moldovan fighter planes. Due to the superior strength of the Transdniestrian forces, in the night of to June, the Moldovan army had to begin its retreat from the city centre. e army withdrew almost completely into the surroundings by June, with only the suburb Leninskij Mikrorajon and the neighbouring village of Varniţa (Varnica) remaining under the control of Chiinău. Until July, the Moldovan artillery, situated on a strategic height to the west of the city, kept the Transdniestrian positions under fire. At the height of the Battle of Bendery, Moscow appointed Lieutenant-General Aleksander I. Lebed’ as the new commander-in-chief of the th Army. Lebed’ immediately separated the two sides and accomplished a provisional settlement of the conflict in the form of a trilateral security zone along the river Dniester. A blue-helmet force was set up and stationed in this zone, including soldiers from Russia, the Ukraine, Moldova and 52
For detailed reports on the fighting, see Erika Daley, Human Rights in Moldova. e Turbulent Dniester (New York, NY; Washington, DC, ), -, Neil V. Lamont, ‘Territorial Dimensions of Ethnic Conflict. e Moldovan Case, – March ’, () Journal of Slavic Military Studies (), - and ‘Doklad pravozaščitnogo centra ‘Memorial’: Massovye i naibolee ser’eznye narušenija prav čeloveka i položenie v zone vooružennogo konflikta v g. Bendery za ijun’-ijul’ g.’, Nezavisimaja gazeta, September , -. e Romanian point of view is represented by Victor Bârsan, Masacrul inocenţilor. Războiul din Moldova, martie – iulie (Bucureti, ); the Moldovan one in Conflictul din Transnistria…; the Russian one by Edward Ozhiganov, ‘e Republic of Moldova: Transdniester and the th Army’, in Alexei Arbatov et al. (eds.), Managing Conflict in the Former Soviet Union: Russian and American Perspectives, (Cambridge, London, ), -; the Transnistrian one by Grigorij V. Volovoj, Krovavoe leto v Benderach. Chronika pridnestrovskoj tragedii (Bendery, ); Nikolaj V. Babilunga and Boris G. Bomeško, Bendery: rasstreljannye nepokorennye (Tiraspol’, ); and Id., Kniga pamjati zaščitnikov Pridnestrov’ja (Tiraspol’, ).
e ‘Transdniestrian Moldovan Republic’ Transdniestria, while the command lay with the Army of the Russian Federation.53 Until today, the city of Bendery is a zone of increased security within the general security zone. e Russian military commander of the city is in charge of two police formations – the Transdniestrian militia and the Moldovan police. But it is obvious that the Russian high command tolerates serious offences against the demilitarization of the security zone by the Transdniestrian side, such as the stationing of troops and war material in the historical forts of Bendery. Since the summer of , the conflict between Chiinău and Tiraspol’ has come to a stalemate with a permanent solution yet to be found – despite serious negotiations on the part of the CSCE/OSCE and numerous international non-governmental organizations (NGOs) as well as by the Russian Federation and the Ukraine.54 A process of bilateral talks between the two parts of the country, which began slowly in but was seen by the Transdniestrian side primarily as a diversion, came to a standstill in due to a zigzag course taken by the new communist government of Moldova. No serious political intention to reach a lasting compromise has been visible on either side of the Dniester – and probably neither in Moscow nor in Kiev. e result has been a decade of stagnation. VI. T E C C Research on the motives and driving forces behind the Transdniestrian conflict and its development has intensified since the outbreak of open violence a decade ago. Initial analyses of the conflict tended to interpret it as being ethnic, that is, as a conflict between ‘(Eastern) Slavs’ or ‘Russians’ on the one hand and ‘(eastern) Romance-speakers’ or ‘Moldovans’ (or ‘Romanians’) on the other hand. At the time, some experts on the region criticized this characterization by stressing the ideological aspects of the conflict and by depicting the participants of the conflict as ‘Soviet nostalgics’ and ‘democrats’. In , however, no less than ten studies were published, offering a much wider range of explanations: – e Norwegian political scientist Pål Kolstø and his Ukrainian colleague Andrej Mal’gin interpreted the Transdniestrian movement and the TMR as ‘a case of politicized regionalism’: Following this argument, the conflict had ethnic and ideological components, but neither ethnicity nor ideology were the driving force. ey identified the different regional identities on both sides of the Dniester as the real cause – identities which had developed due to divergent historical experiences.55 Jeff Chinn, ‘e Case of Transdniester (Moldova)’, in Lena Jonson and Clive Archer (eds.), Peacekeeping and the Role of Russia in Eurasia (Boulder, CO; Oxford ), -, and Gerald B.H. Solomon, Peacekeeping in the Transdniester Region. e Test Case for the CSCE. Report of the Political Committee of the North Atlantic Assembly (Brussels, ). 54 Concerning the negotiation process and the mediating role of the CSCE/OSCE see Gottfried Hanne’s contribution to the present volume ‘e Role and Activities of the OSCE Mission to Moldova in the Process of the Transdniestrian Conflict Resolution’. 55 Kolstø, Malgin, ‘e Transnistrian Republic…’, -. 53
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is revisionist viewpoint caused a direct response by two political scientists from the United States, Stuart J. Kaufman and Stephen R. Bowers, who continued to see the conflict as an ethnic one in the classical sense. According to them, this ethnic character was difficult to decipher as the intervention of the Russian Federation in support of the TMR and to forestall a unification of Moldova with Romania, gave the conflict a touch of ‘great power politics’.56 e German political scientist Gottfried Hanne also took a position opposed to that of Kolstø and Mal’gin arguing that the conflict was ‘not so much regional as rather of an ideological, power political, economic and in part ethnic character.’ 57 e focus on territory, i.e. the building of the OSTK on the eastern bank and in Bendery was, according to Hanne, a result rather than a cause of the conflict. Andrew Williams, a British political scientist, gave a verdict on the causes of the conflict that seemed surprising for a non-historian: ‘e conflict in Moldova has its origins in rival interpretations of history by the various parties concerned.’58 In a study about how the CSCE/OSCE dealt with this conflict, I myself have classified the positions of the conflicting parties as ‘group interests of late Soviet elites vs. Moldovan nationalism’, and depicted the ethnicizing aspects of the conflict as a rational strategy, aimed at the mobilization of political support.59 e Russian-American team of geographers John O’Loughlin, Vladimir Kolossov, and Andrej Čepalyga, diagnosed ‘a new regional identity’60 of the inhabitants of the TMR, which had triggered the conflict: ‘In the TMR the visible signs of a new national construction are evident and in less then a decade, a new identity has taken shape.’61 e Moldovan political scientists Valeriu Moneaga and Alexei Tulbure declared the different economic developments of the two parts of the country, together with their sociodemographic consequences and mental effects as both reasons for, and characteristics of, the conflict: ‘e social basis of the population [of Transdniestria] became Stuart J. Kaufman and Stephen R. Bowers, ‘Transnational Dimensions of the Transnistrian Conflict’, Nationalities Papers (), -. See also Stuart J. Kaufman, ‘Spiraling to Ethnic War. Elites, Masses, and Moscow in Moldova’s Civil War’, International Security (), -. Gottfried Hanne, Der Transnistrien-Konflikt: Ursachen, Entwicklungsbedingungen und Perspektiven einer Regulierung (Köln, ), . Andrew Williams, ‘e Conflict in Transnistria: Its Dynamics and Possible Solutions’, MS, Brussels, Ebenhausen (= Stiftung Wissenschaft und Politik – Conflict Prevention Network Briefing Paper, November ), . See the same in Leilah Bruton (ed.), e Republic of Moldova: Time for a New EU Strategy (Brussels, Ebenhausen, ), - (= Stiftung Wissenschaft und Politik – Conflict Prevention Network Selected Contributions Nr. , and at http://www.swp-berlin.org/cpn/main/moldovsc.pdf ). Stefan Troebst, ‘Der Transnistrienkonflikt und seine Bearbeitung durch die OSZE’, in Günter Baechler and Arno Truger (eds.), Friedensbericht : Afrikanische Perspektiven: eorie und Praxis ziviler Konfliktbearbeitung (Chur, Zürich, ), -, at . John O’Loughlin et al., ‘National Construction, Territorial Separatism, and Post-Soviet Geopolitics in the Transdniester Moldovan Republic’, Post-Soviet Geography and Economics (), -, at , and at http://www.colorado.edu/IBS/PEC/johno/pub/PsgeTMR.doc. Ibid., .
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(and still is) the workers and managers of numerous large union-level industrial enterprises. ese groups were dependent on Moscow rather than Kishinev in psychological and economic terms. For them, the very idea of the disintegration of the USSR was perceived to be an error of history, and the existence of an independent Moldova an absurdity.’62 Another Moldovan political scientist, Mihai Gribincea, saw the stationing of the Soviet th Army in Transdniestria as a destabilizing factor in the Dniester Valley and thus as the core factor for the conflict. In addition to the military weight of the Moscow-commanded troops he stressed the psychological effect of reassurance they had on the Transdniestrian separatist movement.63 On behalf of the offical Transdniestrian side, the two Tiraspol’ historians Nikolaj V. Babilunga and Boris G. Bomeško published a treatise characterizing the violent events of - as the ‘resurrection of the [Transdniestrian] republic’, putting it thus in a historical line with ‘the first republic on the Dniester’, i.e. interwar-MASSR. e founding act of is presented as one of several ‘major steps in the heroic struggle of the people of the TMR for the building of a free, democratic and civilized state.’64 In this perspective, the ‘self-proclamation of the statehood of the TMR as the realization of the identity of the people’ was answered by ‘the aggression of Moldova against the TMR’ – hence the conflict.65 Finally, Klemens Büscher, another German political scientist, in a study provocatively entitled ‘e ‘Statehood’ of Transdniestria – An Accident of History?’, portrayed the Transdniestrian movement as ‘a complex combination of various cross-cutting and interactive driving forces’.66 Among them he named ‘nationalism of the ethnic groups residing in Transdniestria, Soviet patriotism, beginnings of a regionalist movement, ideology-driven actors, economic and political motivations of old and new elites.’67 According to Büscher’s analysis of the carriers of the movement, ‘[i]n Transdniestria, in the surroundings of the strategically important heavy industry and arms industry mighty clan-like structures of the top echelon of the party, town Soviets, state administration and enterprises – all being tangled up with each other – emerged.’68 Due to frequent rotation in their functions as well as a high number of interethnic marriages, this new regional elite was in itself unusually self-contained, and due to its close ties and intense communication with the central authorities in Moscow, it considered itself decidedly ‘Soviet’ and definitely not ‘Moldovan-republican’. Valeriu Moneaga and Alexei Tulbure, ‘Some Aspects of the Trans-Dniestrian Problem’, in Hans-Georg Ehrhart and Oliver ränert (eds.), European Conflicts and International Institutions: Cooperating with Ukraine (Baden-Baden, ), -, at . Mihai Gribincea, Trupele ruse în Republica Moldova: Factor stabilizator sau sursă de pericol? (Chiinău, ). Babilunga and Bomeško, Pridnestrovskij konflikt ..., . Ibid., and . Büscher, ‘Die ‘Staatlichkeit’ Transnistriens ...’, . Ibid. Ibid., .
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Some of these hypotheses and theories have in common an emphasis on social, political and economic structures and argue that in-group actors such as Smirnov polarized, instrumentalized, radicalized and finally mobilized the urban population in the Dniester Valley. Others stress ethnic, regional and other identity markers. However, all agree that (a) already before there were significant differences between the right and left bank parts of the MSSR and (b) that the visible cracks in the Soviet Empire at the time were of decisive importance. Since , research on the causes, conduct and cures of the Transdniestrian conflict has further intensified,69 even resulted in book-length studies.70 A carefully balanced summarizing report is Pål Kolstø’s conclusion to a collection of essays edited by himself on national integration and violent conflict in post- Estonia and Moldova. Based on his own findings, on contributions to the volume by Alla Skvortsova, Igor Munteanu and Claus Neukirch71 as well as on reader’s reports on the book by David D. Laitin, Charles King and Klemens Büscher, in explaining the outbreak of communal violence in Moldova Kolstø arrives at three consolidated findings: First, ‘divisions among the ethnic Moldovan elites – some were pro-Romanians, some pro-Moldova, and some pro-Soviet – made them vulnerable to an anti-titular rebellion’; second, ‘the low respect that the Russians [of Moldova] had for Moldovans gave Russian radicals the strategic advantage over Russian moderates in that country’; and third, ‘the presence of the Fourteenth Army in the Russian zone in Moldova gave Russian radicals there the resource necessary to challenge the Moldovan state.’72 What is still missing, however, is a detailed and multilayered study of the policies of the various political actors in the Russian Federation regarding the Transdniestrian issue, i.e. the state Duma, president, ministries of foreign affairs, of defence, and of the interior, command of the armed forces, various political parties, the City of Moscow, patriotic associations, Cossack leadership, media, etc. en the complicated mosaic of conflict in Transdniestria can finally be completed. See, for example, Andrew Williams, ‘Conflict Resolution After the Cold War: e Case of Moldova’, Review of International Studies (), -; Stuart J. Kaufman, Modern Hatreds. e Symbolic Politics of Ethnic War (Ithaca, NY; London, ), - and -; Anatol Caranu, ‘K voprosu o genezise pridnestrovskogo konflikta v Respublike Moldova’, in Valeriu Moneaga (ed.), Mežėtničeskie otnošenija v postkommunističeskich gosudarstvach (Chiinău, ), -; Gheorghe Balan, ‘Cauzele conflictului transnistrean’, in Valeriu Moneaga (ed.), Minorităţile naţionale i relaţiile interetnice - tradiţia europeană i experienţa noilor democraţii pentru Moldova (Iai, ), vol. , -. 70 Claus Neukirch, Konfliktmanagement und Konfliktprävention im Rahmen von OSZE-Langzeitmissionen. Eine Analyse der Missionen in Moldau und Estland (Baden-Baden, ), and Klemens Büscher, Transnationale Beziehungen der Russen in Moldova und der Ukraine. Ethnische Diaspora zwischen Residenz- und Referenzstaat (Frankfurt/M., forthcoming). 71 Alla Skvortsova, ‘e Cultural and Social Makeup of Moldova: A Bipolar or Dispersed Society?‘, in Pål Kolstø (ed.), National Integration and Violent Conflict in Post-Soviet Societies. e Cases of Estonia and Moldova (Lanham etc., ), -; Igor Munteanu, ‘Social Multipolarity and Political Violence’, ibid., -; and Claus Neukirch, ‘Russia and the OSCE: e Influence of Interested ird and Disinterested Fourth Parties on the Conflicts in Estonia and Moldova’, ibid., -. 72 Pål Kolstø, ‘Conclusion’, ibid., . 69
e ‘Transdniestrian Moldovan Republic’ VII. C S P B T I T F What most authors underlined, namely the striking differences between the Bessarabian and Transdniestrian parts of post-Soviet Moldova, coincides with the results of an almost forgotten book on Soviet political elites. In , the British sociologist Ronald J. Hill published a case study on Tiraspol’ which contains in a nutshell the explanation for the conflict. His detailed study on the various elite groups during the years of forced industrialization from - in what was then a provincial Moldovan town describes ‘a common system of recruitment to these positions’ – that is, positions in the City Soviet, the Municipal Committee of the CPSU, and in CPSU district committees – ‘with members apparently moving in a more or less random basis between positions in the party, the state apparatus, industry and perhaps other branches of administration’.73 is process of rotation led Hill to conclude that ‘the chances of their establishing strong informal ties seem to be high, and this would add further to their dominant position. ey are linked, moreover, by a common interest in maintaining the success – economic and otherwise – of the town.’74 Yet in Hill’s view the then district capital Tiraspol’ did not represent a closed system: ‘ere is ... a high level of recruitment from outside the town to leading positions in all categories of administration.’75 e case of TMR ‘President’ Smirnov, who came from Sibiria via the Urals and the Ukraine, has therefore been anything but an exception. And as Büscher’s study shows, several hundred thousand skilled workers, engineers, administration experts, party officials, officers, NCOs, as well as retired military personnel have, since the late s, moved from all over the Soviet Union to the Dniester valley. Two thirds of the Russian-speaking population in today’s TMR are immigrants or their descendents.76 e mostly Moldovan locals, who in still represented % of the population, were already then underrepresented in leading positions in industry, administration, the party and the army. Today their share of the population is a mere %. Nevertheless, % of all marriages cross the ethnic borders between Moldovans and non-Moldovans – a rate that exceeded the Soviet, and to an even greater extent, the Moldovan average. During the seven decades of Soviet rule, and primarily since the end of the Second World War, an economic structure based on industry was established in the cities of the Dniester Valley. e results were visible in the social, demographic, linguistic and ethnocultural structure of the population, which differed from the agrarian Southwest of the Ukraine as well as from the equally rural Bessarabia, which became part of the USSR only in and respectively. On the territory of today’s Transdniestria, an urban russophone elite in economics, administration, the military, culture and the party emerged, which, due to a strong rotation of functions, similar interests and a high rate of interethnic marriages, was extremely closed in itself and, due to the numerous and strong contacts to 73 74
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Ronald J. Hill, Soviet Political Elites. e Case of Tiraspol (London, ), . Ibid. Ibid., . Solonar, Bruter, ‘Russians in Moldova’, .
Stefan Troebst the Soviet capital, imagined itself closer to power in Moscow – an ‘imperial’ population, one could say. Since the employees of the larger state-owned enterprises were bound by conditions of patronage and allegiance, this elite also won quantitative power as expressed in the number of votes. e bon mot of a ‘conspiracy of the executive directors’77 coined by the Moldovan side in relation to the Transdniestrian movement appropriately describes the situation. e unusual cohesion of the regional elites was the precondition for a successful policy of securing positions and privileges as well as for its uncompromising enforcement – if necessary by force. e Battle of Bendery of was proof of this attitude, as was the liquidation of democratic dissidents from the ranks of the Transdniestrian movement which followed it and the expulsion of groups classified as unwanted or untrustworthy, such as Jews, journalists or supporters of the central government. Accordingly, the political system of the TMR clearly shows authoritarian and even dictatorial traits.78 Together with the ‘push factor’ of intimidation, the regional elite also used several ‘pull factors’ to both legitimize their power and increase the loyalty of the population.79 is goes in particular for maintaining Soviet maxims in the economic sphere, and also for retaining state-owned enterprises and social security systems80 – a policy in favour of bluecollar and white-collar workers as well as retired people, the latter representing one third of the TMR population. A deep crisis of the economy, the currency and the finances of the TMR between and , however, undermined the success of these policies.81 As a result, less capital-intensive policies became important, e.g. the ‘politics of history’ aiming at building a ‘Transdniestrian people’. Since the mid-s, TMR identity management has proclaimed five core elements – ‘self-sufficiency’ (samobytnost’), ‘statehood’ (gosudarstvennost’), ‘multiethnicity’ (poliėtničnost’), ‘eastern (orthodox) Slavic-Russian orientation’ (vostočnyj [pravoslavnyj] slavjansko-rossijskij vektor) and ‘Moldovanism’ (moldovenizm) – the latter understood not in the ethnic, i.e. east Romance, sense of the word but in a historical and regional sense, taking the early modern Moldovan principality which was allied with Muscovy as well as Soviet Moldavia as points of reference. Whereas up to the mid-s ‘Moldovanism’ and ‘Slavic-Russian orientation’ were perceived as a contradiction even by Transdniestrians, the significant reduction in TMR rhetorics of ‘Russia-ness’ (rossijskost’) 77 78 79
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D.F. Kondratovič, ‘Predystorija Pridnestrovskoj Moldavskoj Respubliki’, Ežegodnyj istoričeskij al’manach Pridnestrov’ja (), -, at . Dan Ionescu, ‘Media in the ‘Dniester Moldovan Republic’: A Communist Memento’, () Transition (), -. Troebst, ‘‘We Are Transnistrians!’’, Id. ‘Staatlichkeitskult im Pseudostaat. Identitätsmanagement in Transdnistrien’, () Osteuropa (), -, as well as Alla I. Skvorţova, ‘Transnistrian People - an Identity of Its Own?’, () Moldovan Academic Review () (Special Topic Issue ‘Dniestria: From Past to Future’), at http://www.iatp.md/academicreview//en/article.htm, and Vladimir Solonari, ‘Creating ‘a People’: a Case Study in Post-Soviet History Writing’, () Kritika (), -. Grimm, ‘Transnistrien …’. Dan Ionescu, ‘Life in the Dniester ‘Black Hole’’, () Transition (), -; Julie Mostov, ‘Trading Priorities: Transdniestria and the Moldovan Economy’, Analysis of Current Events () , and ; ‘Sharp Drop in Value of Transdniester Ruble’, () Radio Free Europe/Radio Liberty Newsline ().
e ‘Transdniestrian Moldovan Republic’ – not, however, of ‘Russian-ness’ (russkost’) – has eased this opposition.82 Here, the Russocentric core of Transdniestrian self-perception becomes obvious, and this notwithstanding the permanent stress on multiethnicity and trilingualism. In line with a ‘new Russian national idea’ proclaimed semi-officially in Moscow in , the ‘communitarian whole of all Russians’83 is the Transdniestrian framework of reference. Accordingly, the five Transdniestrian key terms are perfectly compatible with the Muscovite ‘six principles of Russianness’, i.e. ‘patriotism’, ‘communitarianism’, ‘emotionality’, ‘morality’, ‘realism’ and ‘sociability’.84 What entitles TMR ‘politics of history’ to be treated as a success? On the one hand, of course, the mere fact that more then a decade after its self-proclamation this de facto state is still there. On the other hand, however, there are some data on how the inhabitants of the TMR themselves see things. is applies, for example, to an opinion poll on ethnonational processes, language relations, and regional identity carried out in spring on behalf of the Carnegie Endowment by sociologists from Moldova, the TMR, the Russian Federation and the United States. e main result of this poll, which included inhabitants of the TMR whose ethnic composition reflected the overall ethnic structure of the region, was that ‘processes of the formation of a territorial socio-cultural identity of the Transdniestrians’85 could be proven: % of the participants in the poll opted for the preservation of TMR statehood and % stated that ‘a unique unified community ... of the Transnistrian people’ existed.86 More recent data is provided by another poll of April on Moldovan and Transdniestrian identity undertaken by the Moscow-based political scientist Vladimir Kolossov.87 is time, inhabitants of the TMR as well as of right-bank Moldova were interviewed. Whereas on both sides of the river the degree of political and territorial identification with the respective regions (and thus states) was almost the same, significant differences existed with regard to the perception of one’s own standard of living and the standard of living of the other side: Transdniestrian considered their own socioeconomic situation in general to be poor, yet still much better than the one
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For example, TMR Minister of Defence col. Štefan F. Kicak during the May celebrations of in Tiraspol’ harshly criticized ‘the complaisance of Russia with regard to the advance of NATO to the East’. Russia, he warned, runs the risk that it will ‘degenerate into a mere Principality of Muscovy’. See Tat’jana Georgiu, ‘Pridnestrovcy vystupajut za samostojatel’nost‘ svoego gosudarstva’, Ol’vija-Press. Informacionnoe agentstvo, May , at http://www.olvia.idknet.com/ol--.htm. Gurij V. Sudakov, ‘Šest’ principov russkosti, ili Kogda v Rossii pojavitsja praznik Datskogo korolevstva?’, Rossijskaia gazeta, September , . Ibid. Nikolaj V. Babilunga, ‘Territorjal’naja identičnost‘ kak faktor političeskoj stabil’nosti Pridnestrov’ja’, in Michail N. Guboglo (ed.), Ėtničeskaia mobilizacija i mežėtničeskaja integracija (Moskva, ), . Ibid. See also Michail N. Guboglo, ‘Mežnacional’naja naprjažennost‘ v real’nosti i v predstavlenijach graždan’, in Guboglo (ed.), Ėtničeskaia mobilizacija, -; and Nikolaj V. Babilunga, ‘Ėtničeskaja identičnost‘ naselenija Pridnestrov’ja’, Ėtničeskaja mobilizacija i mežėtničeskaja integracija: Istorija. Faktory. Gorizonty. Naučno-praktičeskaja konferencija. sentjabrja g. Doklady i soobščenija (Kišinev, ), -. Vladimir Kolossov, ‘A Small State vs. a Self-Proclaimed Republic: Nation-Building, Territorial Identities and Prospects of Conflict Resolution (e Case of Moldova-Transdniestria)’, in Stefano Bianchini (ed.), From the Adriatic to the Caucasus. e Dynamics of (De)Stabilization (Ravenna, ), -.
Stefan Troebst on the right bank.88 In addition, the degree of trust in the TMR leadership was considerably higher than figures in mainland Moldova: .% of those interviewed trusted TMR ‘President’ Smirnov, .% trusted the TMR government, and .% the TMR Supreme Soviet. e highest figures of trust, however, were achieved by two non-political but politicized institutions: e Orthodox Church with .% and, an unrivalled number one, the armed forces of the TMR with .%.89 VIII. T TMR I B S: A D S- N-B, 1992-2002 ‘Transdniestria and the Transdniestrian’, stated TMR ‘President’ Smirnov in , ‘that is a peculiar region with an astonishing people which has self-sacrificingly fought for its statehood. Our state became reality. And that is the most important event of these last ten years.’90 What Smirnov calls here ‘the truth about our little but freedom-loving and viable state’91 cannot be rejected offhand, i.e. the fact that this state-like entity still exists, has mastered a number of internal problems and has survived considerable external pressure and even an armed conflict. Taking into account the shaky economic basis of the TMR during the s as well as its uneasy position in between a hostile Moldova and an indifferent Ukraine, with the Russian Federation as ‘protector state-to-be’ being far away, the situation in seems to have become stabilized. is impression of stability is, of course, partly due to the massive repression by the regime of the remnants of political opposition in the TMR. But it is unlikely that this is the only reason. e fact that Smirnov has won the ‘presidential’ elections three times in a row – , and (this time against at least one serious competitor, the pro-Putin mayor of Bendery Tom M. Zenovič)92 – speaks for itself. Also the ‘Moscow factor’ does not fully explain this relative stability: For a number of years already, Moscow has constantly reduced the strength of the th Army as well as of the Russian blue helmets in the quadrilateral peacekeeping force in the security zone, and has transferred arms, ammunition and equipment from the garrisons in Transdniestria to western Russia. us, the assumption that the stability of the TMR is at least partly ‘homemade’ and that the history-based identity management described above is one of the key factors in this development seems plausible. e political mobilization of the elite and large parts of society in the Dniester Valley in the late s resulted in a powerful movement for autonomy which turned into separatism. At first this movement did not have any ethnic background, even though it was Ibid., -. Ibid., . 90 I. Smirnov, ‘Dorogie čitateli!’, in Babilunga et al., Fenomen Pridnestrov’ja …, . 91 Ibid. 92 at Zenovič was perceived by Smirnov as a serious competitor is demonstrated by the fact that the latter in his capacity as president dismissed Zenovič as mayor of Bendery at the peak of the election campaign. See Aleksandr Isaev, ‘Ljuboj cenoj uderžat’sja u vlasti. Smeščen s dolžnosti glavnyj sopernik Smirnova na prezidentskich vyborach v Pridnestrov’e’, Nezavisimaia Moldova, November , . 88 89
e ‘Transdniestrian Moldovan Republic’ triggered by the language policy of the Moldovan Popular Front. e struggle to maintain the positions and privileges of the regional elites was successfully transformed into a regional movement in the Dniester Valley. Until the outbreak of armed conflict between this new movement and the central government of Moldova, the regional identity of the Transdniestrians had been defined in a negative way – as not being like the Moldovan titular nation. In the following decade, the definition became a positive one – due to regionalist identity management. is is one of the reasons why a ‘solution’ to the Transdniestrian conflict through granting territorial autonomy to Transdniestria inside a unitarian (or even federalized) Moldovan state sought by international mediators such as the OSCE could be an illusion. e TMR has de facto reached its goal of statehood and is striving for external consolidation – be it by ‘reintegration’ into the Commonwealth of Independent States (CIS), by joining the anaemic Russian-Belarusian Federation or even by concluding a confederation with Ukraine. e Republic of Moldova could cope well with the loss of the east bank, which it had acquired as late as , and partly even recognizes the political and social advantages of getting rid of the artificial and problematic appendix on the other side of the Dniester. At the same time, the west bank, i.e. the Bessarabian part of Moldova, is debating its own reunification with Romania to which it had belonged from to and again from to . In other words: In terms of the constitutional future of the Republic of Moldova and the TMR, quite a number of options are at hand and possess various degrees of likelihood – with the option of a reintegration of the TMR into Moldova being among the less likely of them. However, with regard to all options listed above the explosive question of the future status of the city of Bendery, controlled by Transdniestrian authorities yet lying on the west bank, remains unanswered. Bendery, which TMR ‘Foreign Minister’ Valerij A. Lickaj calls ‘our West Berlin’,93 is by now ethnically cleansed and as a result has developed into an almost entirely russophone city. Moreover, even for people like Andrej Safonov, one of few remaining democratic Transdniestrian separatists, Bendery represents ‘something like a sacral symbol’.94 When in May the leadership of the TMR proposed to administratively unite the two geographically close cities of Bendery and Tiraspol’ into a ‘new capital of Transdniestria’, the situation was aggravated further.95 Accordingly, it is no coincidence that Bendery is at the very focus of TMR propaganda. In the Museum of History and Regional Geography of Bendery an inscription in golden letters on red velvet puts Transdniestrian identity management in a nutshell: ‘We are Transdniestrians! One cannot deprive us of our history, our name, our native tongue and national culture. e TMR is the guarantor for this.’96
In an interview on September in Flensburg. Safonov, ‘Vzaimootnošeniia Moldovy i Pridnestrov’ja’, . 95 ‘Novaja stolica Pridnestrov’ja (k voprosu ob-edinenija Tiraspolja i Bender)’, Ol’vija-press, May , at http://www.olvia.idknet.com/ol--.htm. 96 My – pridnestrovcy! Nas ne lišit’ istorii, imeni, rodnogo jazyka, nacional’noj kul’tury. PMR tomu garantija’. Benderskij istoriko-kraevedčeskij muzej. 93 94
Stefan Troebst As demonstrated, there is considerable evidence for the fact that the message of this inscription is shared by a relative majority of the inhabitants of the TMR, i.e. that a ‘Transdniestrian people’ in the sense of a demos exists. Whether this ‘people’ has the potential to develop into an ethnos is an open question for the time being. In , the historian of Southeastern Europe Mathias Bernath stated with regard to the similar case of post Macedonian nation-building inside Tito’s Yugoslavia that ‘today the existence of an almost full-fledged nationality in Vardar Macedonia is a hypothesis to be taken seriously, and tomorrow it will be an irreversible fact provided within the next two generations no shifts in the territorial shape of Yugoslavia and Bulgaria occur.’97 e same could also be said for the TMR. It seems as if after the success of conflict-driven state-building of the early s, the regional elite succeeded in laying the foundations for a nation-building process – thereby proving correct Miroslav Hroch’s view that while nations are invented by political entrepreneurs, without a hard core of previously existing allegiances, be they language, region, faith, class, or something else, state-driven nation-building does not work.98 In this regard, the fact that the ‘Ruritanians’ on the left bank of the river Dniester had previously belonged to the Soviet ‘Megalomanians’ is not unusual: ‘Megalomanians can become Ruritanians’, as David Laitin has demonstrated in the examples of other post-Soviet cases.99 What in fact is unusual in the case of the TMR is that here the former ‘Megalomanians’ did not accept the inversion of their status to ‘Ruritanians’, i.e. from a dominant to a non-dominant group as did, for example, the Russian-speakers in the Baltic states, in the Donbass or in the Crimea.100 Whereas in international law and international relations secession in general, and an unpeaceful one in particular, is perceived as being part of the problem and not of the solution, the political scientist Ulrich Schneckener recently came up with the formula of ‘secession as conflict resolution’.101 His proposals for defusing the conflict triangle of Serbia, Montenegro and Kosovo by granting statehood to all three of them would probably also apply to the TMR and Moldova: e conflict potential inherent in any given de facto state is in most instances higher than the one of an internationally recognized and thus legally bound subject of international law. is does not, of course, answer the question of what the future status of the TMR could be: an infinitive prolongation of the volatile status quo? An independent and diplomatically recognized ‘mini-state’ squeezed in 97
98 99 100 101
Mathias Bernath, ‘Das mazedonische Problem in der Sicht der komparativen Nationalismusforschung’, Südost-Forschungen (), . For the decisive decade of Macedonian nation-building, see Stefan Troebst, ‘Yugoslav Macedonia, -: Building the Party, the State and the Nation’, in Melissa K. Bokovoy et al. (eds.), State-Society Relations in Yugoslavia, - (New York, NY, ), -. See Miroslav Hroch, ‘Real and Constructed: the Nature of the Nation’, in John A. Hall (ed.), e State of the Nation. Ernest Gellner and the eory of Nationalism (Cambridge, ), -. Laitin, Identity…, . On the Ruritanians-Megalomanians metaphor, see Ernest Gellner, Nations and Nationalism (Ithaca, NY, ), -. Laitin, Identity ..., . Ulrich Schneckener, ‘Sezession als Konfliktlösung – Unabhängigkeit für Montenegro und Kosovo?’, Leviathan (), -. See also Id., Auswege aus dem Bürgerkrieg. Modelle zur Regulierung ethno-nationalistischer Konflikte in Europa (Frankfurt/M., ).
e ‘Transdniestrian Moldovan Republic’ between Moldova and the Ukraine? ‘Reunification’ with the distant Russian Federation? Or junior partner in a new Russian-Belarusian-Ukrainian confederation called ZUBR?102 ings become even more complicated when we take into account the Republic of Moldova’s own serious crisis of identity which runs parallel to a severe crisis in the economy and society causing mass poverty and mass migration. As in the early s and again in the early s, the option of Moldova’s reunification with Romania has strong support within the Moldovan-speaking majority of the country.103 e closer Romania moves towards NATO and the European Union, the more attractive the reunification option becomes for impoverished Moldova. is development has a twofold effect on Tiraspol’: e old guard of separatists around Smirnov takes any rapprochement between Bucharest and Chiinău as another justification for their deep mistrust towards the political class of the new Moldova, be they pro-Romanian nationalists or, like the present Moldovan government, Russian-speaking communists. However, more flexible TMR politicians such as Lickaj or Zenovič and, in particular, the majority of Transdniestrian entrepreneurs and businessmen, favour a double-track policy combining close relations with Moscow with a Transdniestrian ‘road to Europe’. Not incidentally, in December – shortly after Romania had been officially named as a candidate for NATO and the EU – an NGO called For Europe. Mutual Understanding and Cooperation was founded in Tiraspol’ with the tacit blessing of the regime.104 Since even policy makers in Tiraspol’ know that Transdniestria’s ‘road to Europe’ inevitably leads via Chiinău, the ‘common state’ option is also still open – hence renewed Transdniestrian-Moldovan talks facilitated by the Russian Federation, the Ukraine, and the OSCE in December in Moscow.105 To sum up: Due to the high volatility of political developments in the southwestern corner of the CIS, a large number of scenarios for Transdniestria have to be taken into account. According to some of them, the TMR has a fair chance to retain its status of a de facto state, maybe even to become internationally recognized. e longer the present status lasts, the higher the likelihood that TMR identity management achieves its aim, i.e. triggers a Hrochian ‘Phase B’ in the process of building a ‘Transnistrian people’. For 102 ZUBR stands for Za Soiuz Ukrainy, Belorussii i Rossii (‘For a Union of the Ukraine, Belarus‘ and Russia’).
Yet the Russian word zubr, meaning literally wisent, i.e. a European bison, in a figurative sense also stands for an arch-reactionary. 103 Taras Kuzio, ‘History, Memory and Nation Building in the Post-Soviet Colonial Space’, Nationalities Papers (), . For the zigzag course in the post-Soviet continuation of Soviet-style Moldovan nationbuilding by indigenization, see Charles King, ‘Moldovan Identity and the Politics of Pan-Romanianism’, Slavic Review (), -; Vladimir Solonari. ‘Narrative, Identity, State: History Teaching in Moldova’, East European Politics and Society (), -; Sergei Musteaţă, ‘’My – rumyny?’ Prepodavanie istorii v Respublike Moldova v poslednie desjat’ let’, () Ab Imperio (), -; and Andrei Cusco, Viktor Taki, ‘’Kto my?’ Istoriografičeskij vybor: rumynskaja nacija ili moldavskaja gosudarstvennost’’, ibid., -. 104 Andrej Mospanov, ’Pridnestrov’e: Trudnyj put‘ k Evropu’, Ol’vija-Press, December , at http//www.olvia.idknet.com/ol--.htm. e fact that this report was published by the official TMR press agency indicates that the ‘Za Evropu. Vzaimoponimanie i sotrudničestvo’ NGO led by the journalist Anatolij Panin has considerable support from above. 105 ‘Moskovskie itogi: Vse-taki na dogovornoj osnove’, Ol’vija-Press, December , at http://www.olvia.idknet.com/ol--.htm.
Stefan Troebst the time being, however, what has been constructed by Tiraspol’ still does not seem to be irreversible.
Gottfried Hanne *
e Role and Activities of the OSCE Mission to Moldova in the Process of Transdniestrian1 Conflict Resolution
I. I On April , more than nine months after the armed conflict between Moldovan government and Transdniestrian separatist forces was brought to an end by the intervention of the Russian th Army and the signing of the Russian-Moldovan Moscow Agreement (hereinafter ‘the Moscow Agreement’),2 the CSCE3 Mission to the Republic of Moldova started its operation in Chisinau.4 Already occupied with the crisis in the former Yugoslavia, and with its mechanisms and institutions for conflict prevention and management not effectively in place, the CSCE did not play any preventive role during the - escalation of the conflict. In March , a CSCE Rapporteur Mission, look*
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Gottfried Hanne is a political scientist and worked in the OSCE Mission to Moldova from April to November . Currently he is writing his Ph.D. on the Transdniestrian conflict at the Free University of Berlin. e Transdniestrian region of Moldova is referred to as ‘Transnistria’ by most of the Romanian-speaking population of Moldova, as well as by many Western researchers. is name, deriving from Latin, means, according to the Romanian and Moldovan geographic perspective from the West, the territory ‘beyond’ (trans-) the river Dniester (Romanian: Nistru). Most of the Russian-speaking population of Moldova refers to the region as ‘Pridnestrov’e’, meaning, according to the Russian and Ukrainian geographic perspective from the East, the territory ‘on this side’, or also ‘at’ (including both sides) (Russian: pri-) of the river Dniester (Russian: Dnestr). e Latin-Slavic hybrid form ‘Transdniestria’ or ‘Transdniester/Transdniestrian region’ came into use in the English language reports and documents of the CSCE/OSCE and other international organizations, as well as in the work of some English language Western researchers since the armed conflict in Moldova attracted international attention in , and will also be used in this article. Agreement ‘On the Peaceful Settlement of the Armed Conflict in the Transdniestrian Region of the Republic of Moldova’, July . Conference for Security and Co-operation in Europe (CSCE), since Organization for Security and Co-operation in Europe (OSCE). e two abbreviations will be used according to the time of reference. For an analysis of the causes, dynamics and consequences of the conflict, see the contribution of Stefan Troebst, ‘e ‘Transdniestrian Moldovan Republic’: From Conflict-Driven State-Building to State-Driven Nation-Building’, in this volume.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Gottfried Hanne ing into the state of implementation of CSCE commitments in Moldova, had sounded the alarm on mounting tensions in the Transdniestrian region.5 Following the June appeal by the presidents of Moldova, the Ukraine, Romania and the Russian Federation to the CSCE that it should contribute to the settlement of the conflict, on August , the CSCE Chairman-in-Office appointed Dr. Adam D. Rotfeld, the Director of the Stockholm International Peace Research Institute (SIPRI), as his Personal Representative, giving him the task of consulting with the sides to the conflict and representatives of interested countries as to how the CSCE might best contribute to the resolution of the conflict.6 On the basis of the Personal Representative’s reports and recommendations,7 the CSCE Committee of Senior Officials decided on February to establish a CSCE Mission of Long Duration in Moldova.8 e role and activities of the CSCE/OSCE Mission to Moldova have been described, analyzed and critically assessed during recent years by various authors and researchers.9 is article, therefore, attempts to give a short overview of the Mission’s activities, concentrating on more recent developments. 5 6 7
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‘Report of the CSCE Rapporteur Mission to Ukraine, Moldova and Belarus’, CSCE Communication No., Prague, April . Decision of the th Meeting of the Committee of Senior Officials in: CSCE Journal No., Prague, August . Interim Reports: CSCE Communication No., Prague, September ; CSCE Communication No./Add., Prague, November , CSCE Communication No./Add., Prague, December . Final Report and Recommendations: CSCE Communication No., Prague, February . e text of the decision is reprinted in Adam Rotfeld’s comprehensive account of his activity as Personal Representative in: Adam Daniel Rotfeld, ‘In Search of a Political Settlement: e Case of the Conflict in Moldova’, in Staffan Carlsson (ed.), e Challenge of Preventive Diplomacy: e Experience of the CSCE (Stockholm, ), -, at -. e most recent, comprehensive and profound analysis is Claus Neukirch, Konfliktmanagement und Konfliktprävention im Rahmen von OSZE-Langzeitmissionen: Eine Analyse der Missionen in Moldau und Estland (BadenBaden, ) . Other analyses can be found in P. Terrence Hopmann, ‘e OSCE Role in Conflict Prevention before and after Violent Conflict: e Cases of Ukraine and Moldova’, Studien und Berichte zur Sicherheitspolitik (), -; Klemens Büscher, ‘Die Missionen in der Republik Moldau und in der Ukraine: Eine doppelte Bilanz’, in Institut für Friedensforschung und Sicherheitspolitik an der Universität Hamburg / IFSH (ed.), OSZE-Jahrbuch (Baden-Baden, ), -; Id., ‘Möglichkeiten und Grenzen des OSZE-Konfliktmanagements in Moldova’, () Ethnos – Nation (), -; Stefan Troebst, ‘Der Transnistrienkonflikt und seine Bearbeitung durch die OSZE’, in Günter Baechler and Arno Truger (eds.), Afrikanische Perspektiven: Friedensbericht : eorie und Praxis ziviler Konfliktbearbeitung (Zürich, ), -; Id., ‘Kein spektakulärer Erfolg, aber Spannungen reduziert: Die OSZE in der Republik Moldova’, () Wissenschaft und Frieden (), -; Id., Die OSZE in der Republik Moldova -, (/) Der Donauraum (), ; Id., ‘Internationale Vermittlungsbemühungen zwischen Moldova und der selbsternannten Transnistrischen Moldavischen Republik: Als KSZE-Diplomat beiderseits des Dnestr’, Berliner Osteuropa Info (), -; Id., ‘Die Langzeitmissionen der KSZE/OSZE in Mazedonien und Moldova aus der Binnensicht’, in M.A. Hatschikjan and P.R. Weilemann (eds.), Nationalismen im Umbruch: Ethnizität, Staat und Politik im neuen Osteuropa (Köln, ), -; Rolf Welberts, ‘Der Einsatz der OSZE in der Republik Moldau’, in Institut für Friedensforschung und Sicherheitspolitik an der Universität Hamburg / IFSH (ed.), OSZE-Jahrbuch (Baden-Baden, ), -. For a critical, but partly uninformed assessment, see Vladimir Socor, ‘e OSCE and ‘Federalization’ Failing in Moldova’, Institute for Advanced Strategic & Political Studies (IASPS) Policy Briefings: Geostrategic Perspectives on Eurasia, No., Washington D.C., January .
e Role and Activities of the OSCE Mission to Moldova II. T M’ At the present time, the mandate of the Mission includes five main tasks: First, facilitating and providing assistance with negotiations between the sides to the conflict for a lasting political settlement that would ensure the territorial integrity of Moldova, as well as an agreement on a special status for the Transdniestrian region; second, an early-warning function and the prevention of a reescalation of the conflict10 through monitoring of the situation in the region, ensuring CSCE visibility, and establishing contacts with all sides to the conflict, local authorities and local populations; third, the encouragement of RussianMoldovan negotiations on the withdrawal of Russian troops; fourth, providing advice and expertise in the field of human and minority rights and democratization.11 In December , the mandate of the Mission was extended to include the fifth task, namely to ensure the transparency of the removal and destruction of Russian ammunition and armaments and the coordination of financial and technical assistance offered by OSCE participating states to facilitate such withdrawal and destructions.12 As Klemens Büscher has pointed out, the formulations of the mandate were kept relatively broad, resulting in a relatively high level of independence for the Head of Mission in his choice of concrete strategy and activities.13 However, since the appointment of Personal Representatives of the Portuguese and later Dutch Chairmen-in-Office for and , the degree of independence of the Head of Mission has decreased and currently depends on the mutual understanding and effective coordination and cooperation between Head of Mission and Personal Representative. III. P C M’ From the very beginning, the CSCE/OSCE was constrained in its work for a political settlement by at least four factors. First, the OSCE was confronted in the resolution of the Transdniestrian conflict with a close interconnection and mutual stabilization14 of Russian interests in Moldova with the interests of the Transdniestrian separatist regime. Although the conflict has its root causes mainly in internal Moldovan policies during and after Soviet times, conservative Soviet politicians had politically and materially helped Transdniestrian elites to establish their separate quasi-state structures as a way to hinder Moldova leaving the Union. After the end of the Soviet Union, nationalist and commuKlemens Büscher has called this part of the Mission its ‘implicit mandate’. See Büscher, ‘Möglichkeiten und Grenzen ...’, . 11 For the original text of the mandate, see the Committee of Senior Officials (CSO) decision of February and the terms of reference, approved by the CSO Vienna Group preliminary on March and finally on April . 12 Decision of the th Plenary Meeting of the OSCE Permanent Council, in PC Journal No., December . 13 Büscher, ‘Möglichkeiten und Grenzen ...’, . 14 Neukirch, Konfliktmanagement …, . 10
Gottfried Hanne nist political forces in Russia, as well as some branches of the Russian government, have continued this policy of support for, or at least silent consent with, the existence of the Transdniestrian quasi-state as a lever to ensure the compliance of Moldova with major Russian (geo-)political, military and economic interests, e.g. concerning NATO enlargement, Russian military presence and integration into the Commonwealth of Independent States. e existence of the Transdniestrian quasi-state is convenient for the Russian Federation in so far as it offers the possibility, on the one hand, to blame Transdniestrian non-cooperation in political negotiations and troop withdrawal as cause for lack of progress and for Russian ‘inability’ to effectively fulfil its commitments, and on the other hand, to stabilize this situation by not exerting existing Russian influence on Transdniestrian authorities to encourage greater cooperation from them. Second, the lack of interest of leading Western OSCE participating states adds to the special role of the Russian Federation not only as guarantor of military security, but also as mediator in political negotiations. With the nomination of a Plenipotentiary Representative of the president of the Russian Federation to the political negotiation process on October , the Russian Federation potentially withdrew important political support from the CSCE/OSCE mediation. e nomination of the Russian (and since autumn Ukrainian) Plenipotentiary Representatives could lend important support to the OSCE mediation if the mediators closely cooperated and coordinated their efforts and their different levels of influence on the sides to the conflict. However, such cooperation and coordination has not been the rule. e interest of Western OSCE participating states in Moldova emerged very late and is predominantly focused on the withdrawal of Russian troops. e political negotiation process, however, has remained outside the core interest of Western OSCE participating states. ird, as the CSCE did not play any role in ending the armed conflict, the tripartite Russian-Moldovan-Transdniestrian peacekeeping operation was established by the July Moscow Agreement without CSCE participation. e peacekeeping regime, therefore, is not under supervision of an international organization, but under the command of an interested third country, the Russian Federation. As troops of the warring parties were included in the peacekeeping forces, the consensus principle in the Joint Control Commission ( JCC), the tripartite supervisory body of the operation, effectively prevented important peacekeeping decisions from being made and implemented, e.g. concerning the demilitarization of the security zone or confidence-building measures. In , the Mission received only an observer status without a right to vote in the JCC and thus had only limited means of influencing its decisions. Discussions within the OSCE about changing the present peacekeeping format and establishing OSCE supervision have been superficial. Eventually, the shape of the peacekeeping operation, its ineffectiveness in most questions other than the mere supervision of the ceasefire, the refusal of the Russian Federation (and of Transdniestrian authorities) to change the format of the operation, as well as the lack of political will of Western OSCE participating states to undertake serious efforts to change the peacekeeping format, helped Transdniestrian authorities to stabilize their power, to consolidate separate quasi-state structures and to establish full control over profitable economic resources and illegal trade channels in the region.
e Role and Activities of the OSCE Mission to Moldova Fourth, the Moldovan government was consequently more inclined to compromise in political negotiations and cooperate with the Mission from the beginning. Transdniestrian authorities were unwilling to compromise and from the beginning remained suspicious of the CSCE/OSCE mediation. To date, this position remains unaltered. For this reason, the CSCE/OSCE Mission receives no tangible support or cooperation from Transdniestrian authorities in the implementation of its mandate. e Mission is in fact often hindered in its activities, thus being unable to carry out in the region basic activities within its tasks of conflict management. e Mission’s conflict management efforts therefore had no significant impact in the Transdniestrian region.15 e OSCE has no direct influence on the unrecognized authorities of Transdniestria and has to rely on its relations with them, on moral and political arguments, and on its indirect influence through the co-mediators, both interested participating states with special relations to Transdniestria, the Russian Federation and the Ukraine. IV. M P N In its mediation of political negotiations, the Mission is aiming at facilitating continued and regular negotiations on a political settlement between the sides to the conflict, as well as at providing them with advice, expertise and guidance to ensure that any political settlement elaborated is acceptable for both sides and is in line with OSCE principles. In times of regular negotiations, the Mission, through its Head of Mission (since partly together with the Personal Representative of the Chairman-in-Office), is attending toplevel negotiations (meetings between the Moldovan president and the Transdniestrian leader), as well as negotiations on the level of meetings between the chief negotiators, but not, however, those between sectoral expert groups. In times of negotiation breakdown the Mission engages in intensive shuttle diplomacy between the sides to maintain the contact between them and act as a go-between for messages, to initiate and facilitate unofficial meetings of the chief negotiators, and to consult with the sides about the possibilities and terms for a restart of negotiations. In this way, the Mission ensures that even in times when official negotiations are not taking place, the dialogue between the sides continues. Over the years, the co-mediation of the OSCE, the Russian Federation and, since autumn , the Ukraine has proven to be difficult. On the one hand, the effective cooperation of the three mediators and the coordinated use of their different levels of influence on the sides to the conflict have in some instances led to decisive steps forward in facilitating compromises and in the elaborating and signing of various documents. On the other hand, however, the mediators have often differed significantly in their views and approaches. e national interests of the Russian Federation and the Ukraine, their bilateral relations and competition as mediators, as well as the ambiguous attitude of 15
E.g. linking up with moderate groups, dissemination of balanced information among the population, development and empowerment of civil society, establishment of democratic institutions etc. See Neukirch, Konfliktmanagement …, -.
Gottfried Hanne the Russian Federation towards the OSCE,16 have often led to differences between the mediators, some of which even needed their own mediation.17 As a result the mediators often did not support each other in their initiatives. e Russian Federation in particular was in several instances reluctant to support initiatives of the other mediators.18 Being aware of its special influence on Transdniestrian authorities and of the dependence of the other mediators on Russian cooperation, the Russian Federation is only seldom using its influence on different Transdniestrian actors and thus contributes to the failure of initiatives of other mediators. ese Russian actions are an expression of the lack of Russian interest in a quick political settlement that could reduce Russian influence on Moldova by eliminating the Transdniestrian ‘lever’. In its role as mediator, the Ukraine, though relatively inactive, has long been supportive of OSCE initiatives. However, with its increased activity since , the Ukraine is also partly withholding support for other mediators’ activities. Transdniestrian authorities have quickly learned to use differences between the mediators for their own benefit. Transdniestrian authorities lobby for support in Russia and the Ukraine and often successfully play Russian and Ukrainian mediators off against each other or against the OSCE and its Mission. Although in a number of instances steps forward in the negotiation process were only possible due to pressure from the Russian mediator on Transdniestrian authorities, the OSCE Mission has to be considered the most active of the three mediators, pushing for a political settlement. In November , the Mission presented its first proposal for granting special status to Transdniestria. Refusing the Transdniestrian proposal of a confederation, as well as the Moldovan idea of a unitary state, the Mission proposed to set up a ‘Special Region of Transnistria’ as an integral part of the Republic of Moldova with its own regional executive, legislative and judicial branches and competencies, as well as adequate representation in central political institutions.19 After some reluctance, in April , Moldovan President Snegur and, under Russian pressure, Transdniestrian leader Smirnov accepted the proposal as a basis for further negotiations, and agreed to set up an expert group and to negotiate all questions of mutual interest without preconditions.20 During the following 16
17 18
19 20
e former Plenipotentiary Representative of President Yeltsin, Yuri Karlov, went so far as to call the inclusion of the OSCE Mission into the mediation of the conflict ‘not very productive’. See Ju. E. Karlov, ‘Pridnestrovskij Konflikt: Geopolitičeskie, pravovye i organizacionnye aspekty uregulirovanija’, Issledovanie CMI MGIMO No., (Moscow, ), at . us, in the Ukrainian Plenipotentiary Repesentative had to mediate in disputes between the Russian Plenipotentiary Representative and the OSCE Mission. See Neukirch, Konfliktmanagement…, . us, two concrete models for a political settlement elaborated by international experts, including Russian experts, together with Moldovan and Transdniestrian representatives in a Ukrainian initiated and OSCE supported workshop in Kiev in March did not result in any step forward in the negotiation process, as in the aftermath of the workshop, the Russian mediator did not support any actions on the basis of these models. In another instance in , the Russian Federation refused an OSCE proposal to invite the sides and mediators to a conference in Baden near Vienna to restart negotiations. e Mission proposal is included in Mission Report No. ( November ) at http://www.osce.org/ moldova/documents/files/Report.pdf. Neukirch, Konfliktmanagement ..., -.
e Role and Activities of the OSCE Mission to Moldova months, a number of agreements on technical questions were signed and in September , both sides provided the Mission with non-papers on their proposals for the status of Transdniestria. However, no compromise between the positions of the sides was found. Whereas the Moldovan side drew on the Mission proposal and presented a politically and legally acceptable proposal giving relatively broad autonomy to Transdniestria, Transdniestrian authorities mainly repeated their proposal for a confederation of two sovereign states. During , no progress was made in the negotiation process. Since spring , the sides and the mediators have concentrated on the elaboration of a basic document to at least establish the framework for a political settlement. However, it was not until May that this Memorandum on the Bases for Normalization of Relations between the Republic of Moldova and Transdniestria (hereinafter ‘the Memorandum’) was signed in Moscow. During , Moldovan President Snegur and the OSCE Mission withdrew their support for the first draft which they considered did not sufficiently provide for the territorial integrity of Moldova. A compromise was found in April , when Russian Foreign Minister Primakov enforced on the sides the inclusion of an additional provision stating that Moldova and Transdniestria will build their relations within a ‘common state’.21 To make use of the momentum, on June , the mediators proposed to all sides a draft political settlement, mainly elaborated by the OSCE Mission. However, negotiations on this draft failed within a few months due to the different positions of the sides and their differing interpretation of the Memorandum. Whereas the Moldovan side interpreted the term ‘common state’ to mean the Republic of Moldova (as did the mediators), Transdniestrian authorities still insisted that the ‘common state’ had to be built from the ‘two sovereign states Moldova and Transdniestria’. During -, no progress on the status question was made. Neither a Ukrainian proposal about a ‘phased settlement’ (November ), nor a plan of the former Russian Prime Minister Primakov (August ) brought a breakthrough. e proposals presented to the mediators by the sides proved that positions were not changing. Whereas Moldovan proposals continued to stress the unitary character of the state, but offered considerable autonomy to Transdniestria, Transdniestrian proposals remained mere rephrasings of the earlier confederation proposal. Transdniestrian authorities even radicalized their position, demanding the recognition of Transdniestria as a precondition for building a ‘common state’. To support the negotiation process, the OSCE Mission, between and , initiated, organized, cooperated in or supported about a dozen scientific-practical workshops, conferences, round tables and seminars, aimed at bringing the negotiating teams of the 21
e Memorandum stipulated the establishment of state-legal relations between the Republic of Moldova and Transdniestria, the participation of Transdniestria in the implementation of Moldova’s foreign policy as far as Transdniestrian interests are concerned, and granted Transdniestria the right to own international contacts in economic, scientific-technical, cultural and other spheres to be agreed by the parties. Text of the Memorandum at http://www.osce.org/moldova/documents/files/memorandum.pdf.
Gottfried Hanne different sides together in an informal atmosphere and in a different format, enlarged by representatives of different social groups, scientists and international experts. Either alone or in cooperation with international non-governmental organizations (NGOs) and scientific institutes,22 with these additional activities the Mission was aiming at informing the sides about existing and theoretical models of decentralization, autonomy and federalism, as well as at enabling the sides to learn in greater detail the arguments, positions and underlying perceptions of the opposite side. However, despite awareness thus increased, no progress on the status question was reached. From spring , new movement in the negotiation process seemed possible, after the Communists’ landslide victory in early parliamentary elections ( out of seats) and the election of Communist Party Secretary Voronin as president of Moldova. Voronin, who as opposition politician had more than once stressed the need for a federalization of Moldova and had made the settlement of the Transdniestrian conflict one of the priorities of his programme, announced that he would present a fundamentally new proposal for a political settlement. However, until summer , the Moldovan side did not provide any new proposal. During Voronin’s meetings with Transdniestrian leader Smirnov in spring and summer , Voronin made a number of concessions on technical questions. In the status question, however, the position of the sides remained unchanged. e intransigence of Transdniestrian authorities led Voronin to break off negotiations in summer . In September , Moldovan authorities introduced new customs documents and stamps in line with the rules of the World Trade Organization and refused to share them with Transdniestrian authorities, thereby effectively cutting legal foreign trade of Transdniestrian economic agents not willing to register in Chisinau.23 Transdniestrian authorities called this action an ‘economic blockade’ and refused further negotiations until Moldova would lift this ‘blockade’. Since that time Moldovan authorities have tried to increase economic pressure on Transdniestria; Transdniestrian authorities have answered with a number of retaliatory measures.24 In this situation, after months of shuttle diplomacy, the OSCE Mission took the initiative to restart negotiations. e Mission consulted intensively, especially with the Moldovan side, about the new proposal announced by President Voronin in . However, the Moldovan side was not ready to put forward any new document. On the Mission’s initiative, the mediators, therefore, on the basis of their discussions with the Moldovan Cooperation partners in these side activities were the Centre for Conflict Analysis at the University of Kent in Canterbury, the British NGO ‘Moldova Initiative Committee of Management’ (MICOM), the European Institute for Minority Issues (ECMI), the International Foundation for Security, the Moldovan Helsinki Citizens Assembly, and the Moldovan Committee for Reconciliation and Democracy. 23 As the Transdniestrian leadership threatened with sanctions those economic agents in the region willing to register according to Moldovan demands, the foreign trade of Transdniestria decreased dramatically after September . As a result, the Transdniestrian budget for the year fell by nearly % in comparison to . 24 For instance, the introduction of taxes on Moldovan products, confiscation of land of Moldovan villages from the left-bank enclaves under Moldovan control, blockade of Moldovan prison no. in Bendery, pressure on Moldovan schools in Transdniestria that teach the Moldovan curriculum and in the Latin script. 22
e Role and Activities of the OSCE Mission to Moldova chief negotiator and President Voronin, and with the help of renowned international legal experts, elaborated a draft document proposing the federalization of Moldova, and handed it over to the sides on July in Kiev.25 e draft represents a proposal as a basis for further discussion and negotiation. us, the proposal deals in detail with the distribution of competencies, but does not determine the number of entities and the structure of the federation (asymmetrical or symmetrical). Fundamentally new, however, is the character of the proposal in so far as it does not merely deal with a special status for Transdniestria, but with the complete change of the state structure of Moldova, requiring a new Moldovan constitution.26 However, in the following months it became clear that due to the differing positions of the sides, no fast breakthrough was possible. Even in relation to the first basic articles no agreement could be found. As a consequence, in early negotiations stalled again. Finally, in February , President Voronin proposed that the sides should jointly draft a new federal constitution of Moldova to be adopted before February .27 However, some internal contradictions in Voronin’s proposal (using both the terms ‘unitary state’ and ‘federal state structure’) make it doubtful that the Moldovan side has a concrete new proposal for the future state structure and the status of Transdniestria. Transdniestrian leader Smirnov and official Transdniestrian media reacted in a characteristic manner when they called Voronin’s initiative a step forward but reiterated the Transdniestrian confederation proposal.28 It remains too early to judge whether the federalization project or the proposal of President Voronin will bring a breakthrough in the political negotiations. In April , the sides, on the proposal of the OSCE Mission, agreed to set up a joint commission for the elaboration of a new constitution. However, discussions about the joint commission showed that the positions of the sides have not changed fundamentally. e increasingly difficult economic situation of Transdniestria, as well as the introduction in late February of EU and US sanctions against the Transdniestrian leadership in the form of a travel ban for leading Transdniestrian politicians, give slight hopes for some concessions from the Transdniestrian side in the future. However, if positions will not change, negotiations in the joint commission on a new constitution might get stuck again quickly.
For an unofficial translation of the text into English and a well-founded critique of the draft, see Bruno Coppieters and Michael Emerson, ‘Conflict Resolution For Moldova and Transdniestria rough Federalization?’, Centre for European Policy Studies, CEPS Policy Brief No. (Brussels, August ), also at http://www.ceps.be. See also Vladimir Socor, ‘Federalization Experiment in Moldova’, () Russia and Eurasia Review ( July ), at http://russia.jamestown.org/pubs/view/rer___.htm. 26 Neukirch, Konfliktmanagement …, . 27 Russian text in Nezavisimaya Moldova, February or at http://www.nm.md/daily/article/// /.html. 28 Olvia Press, February at http://www.olvia.idknet.com/newwebru.htm. 25
Gottfried Hanne V. A M S In the military sphere, the Mission’s work concentrates on two major issues: first, the monitoring of the military situation, especially in the security zone, and the promotion of military transparency and confidence-building with the aim of preventing a reescalation of armed confrontation; and second, the facilitation of the withdrawal of Russian troops. e Mission’s activities in the military sphere have from the very beginning been watched with suspicion by Transdniestrian authorities, as well as partly by the Russian Federation. us, in spite of Moldovan support for the Mission, Transdniestrian and Russian authorities did not agree to sign the ‘Principles of Cooperation between the CSCE Mission and the JCC’ until July . ese principles granted the Mission only limited rights of attendance at JCC meetings (observer without vote) and limited freedom of movement within the security zone.29 More generous principles were not signed until early .30 Currently, Mission members take part regularly in the weekly JCC meetings, less often in the tri-lateral (since November quatro-lateral, including Ukrainian observers) patrols of military observers, and sometimes in meetings of the Joint Military Command ( JMC). In its work, the Mission is closely following the implementation of the demilitarization of the security zone under the July Moscow Agreement and is aiming at initiating transparency and confidence-building measures between the sides. Due to the lack of political and popular will to use violent means again, the probability of a reescalation of the armed confrontations are today minimal. e Mission therefore aims at influencing the sides to fully demilitarize the security zone and to normalize the situation by reducing the number of peacekeepers and peacekeeping posts as far and as fast as possible. Furthermore, the Mission is trying to promote decisions increasing the effectiveness of the JCC work. However, progress in the demilitarization of the security zone and in confidence-building is very slow. JCC sessions are characterized by a lack of confidence and by confrontational behaviour amongst the sides, leading to a lack of cooperation and effectiveness, and to a nearly full paralysis of the JCC. 31 e signing in March of the so-called Odessa Agreement on Confidence Measures and Developments of Contacts between the Republic of Moldova and Transdniestria (hereinafter ‘the Odessa Agreement’) was an attempt to improve this situation.32 e Odessa Agreement stipulated the reduction of peacekeeping forces and peacekeeping checkpoints, as well as of ‘border’ posts, and provided for the opening of the repaired bridge over the Dniester in Dubasari. Furthermore, the sides agreed to analyze the implementation of the Moscow Agreement. At the present time, this agreement and the
29
30 31
32
Russian text and unofficial translation into English in the Annex to Mission Report / ( July ). Mission Report / ( February ), . us, sometimes the JCC is not even able to agree on the working agenda for the sessions. In other instances no agreement is possible on the protocol of the session or on reports of the JMC. Text at http://www.osce.org/moldova/documents/files/odessa-agreement.pdf.
e Role and Activities of the OSCE Mission to Moldova relevant JCC decisions for its implementation, and likewise the demilitarization under the Moscow Agreement, have not been fully implemented by the sides. However, the Odessa Agreement and the analysis of its implementation were followed up in September by a seminar in Grainau/Germany, initiated by the Mission and coorganized with the George C. Marshall European Centre for Security Studies. Possible transparency and confidence-building measures, military guarantees for a political settlement, as well as formats for peacekeeping operations were discussed. However, the recommendations made during the seminar were not followed up with concrete actions by the sides. Transdniestrian authorities and the Transdniestrian JCC delegation in particular have been blocking many initiatives of the Mission and of other JCC delegations. Transdniestrian authorities are unwilling to make major compromises, refuse to agree to the full demilitarization of the security zone and use the paralyzed peacekeeping operation to maintain the status quo, which stabilizes the Transdniestrian de facto ‘statehood’. Transdniestrian authorities continue the presence of unauthorized armed formations in the security zone, e.g. in the fortress of Bendery, to which, they do not give access to other JCC delegations. At the same time Transdniestrian authorities have unilaterally stepped up the control of the administrative demarcation line in the security zone, installing ‘border’ and ‘custom’ posts that severely hinder the free movement of people, goods and services. Overall, the peacekeeping operation has to be considered effective only in keeping the ceasefire. In most of its other tasks, especially in confidence-building, the operation is paralyzed and ineffective, contributing to the perpetuation of the status quo. e fact that the Russian Federation has not used its influence to make the peacekeeping operation more effective, testifies to the lack of political will on the Russian side to allow for major changes and its tacit consent to the further existence of a de facto ‘state’ in Transdniestria and the division of Moldova. e question of Russian military presence in Transdniestria has been, and continues to be, the topic of fierce discussions between the Republic of Moldova, the Russian Federation, Transdniestrian authorities and the OSCE. After the end of the armed conflict in the escalation of which the officer corps of the th Army33 played a major role by providing Transdniestrian separatists with weapons and soldiers,34 Russian armed forces remained only in the Transdniestrian region and consisted of about , troops. eir equipment included many pieces of heavy weaponry subject to the Treaty on Conventional Forces in Europe (CFE), as well as about , tons of ammunition.35 Moldovan e military units and formations of the th Soviet Guard Army were divided between Moldovan and CIS jurisdiction by an agreement between the government of Moldova and the Command of CIS Armed Forces on March . Already on April , however, those units and formations that came under CIS jurisdiction were transferred to Russian jurisdiction by a legally doubtful decree of Russian President Yeltsin. From April the former th Soviet Guard Army thus was referred to as th Russian Army until its reorganization into the Operational Group of Russian Forces (OGRF) on July . See Mihai Gribincea, e Russian Policy on Military Bases: Georgia and Moldova (Oradea, ), at -. 34 Neukirch, Konfliktmanagement …, -. 35 William Hill, ‘Making Istanbul a Reality: Moldova, Russia, and Withdrawal from Transdniestria’, () Helsinki Monitor (), -, at . 33
Gottfried Hanne authorities have demanded the withdrawal of Russian (former Soviet) troops from Moldova since the country’s independence in August . A number of important OSCE documents support Moldovan authorities in their position.36 e Russian Federation, by agreeing to the mandate of the CSCE Mission in February , accepted its obligation to withdraw its troops from Moldova. However, the Russian government had to deal with strong opposition and resistance to the withdrawal from nationalist and communist political forces in the Russian state Duma, as well as from Transdniestrian authorities. ese groups consider the Russian troops in Transdniestria to be a guarantee against new armed confrontations.37 Many observers believe that, under the same pretext and against its official position, the Russian government is trying to put pressure on Moldova to accept a permanent Russian military presence in the country.38 us, the Russian Federation refused to allow the participation of the Mission in its negotiations with Moldova on the withdrawal. On August , a Russian-Moldovan treaty on the withdrawal was signed, establishing a link between troop withdrawal and political settlement by providing for the Russian withdrawal by the end of in ‘synchronization’ with a political settlement. e synchronization approach has never been accepted by the OSCE or critics of the treaty within Moldova. Whereas the Moldovan parliament ratified the treaty, the Russian state Duma did not.39 Nevertheless, between and , the Russian Federation reduced the number of troops to about ,, destroyed a sizeable amount of ammunition and withdrew some military equipment.40 e withdrawal and destruction of ammunition and equipment came under harsh criticism from Russian opposition and Transdniestrian authorities. e latter argued that all military equipment and ammunition of the Operational Group of Russian Forces (OGRF) were the Transdniestrian share of the property of the Soviet Army, and used public organizations to protest against the destruction and withdrawal, blocking roads, railroads and airport runways. With its armed forces outnumbering the OGRF, Transdniestrian authorities were able to effectively block the movement of OGRF personnel and the transport of equipment, weaponry and ammunition. However, they were not able to entirely stop the OGRF from continuing with the destruction of ammunition and weaponry on its own territory. Nevertheless, the Russian Federation failed to fulfil the conditions of the Agreement. As expected, Russian authorities blamed Transdniestrian non-cooperation for the slow pace of withdrawal and destruction. 36 37
38
39
40
See the OSCE Summit documents from Budapest () and Lisbon (), and the OSCE Ministerial documents from Copenhagen () and Oslo () at http://www.osce.org/documents. Hill, ‘Making Istanbul a Reality ...’, . Mihai Gribincea, e Russian Policy on Miltary Bases: Georgia and Moldova (Oradea, ), ; Dov Lynch, Russian Peacekeeping Strategies in the CIS: e cases of Moldova, Georgia and Tajikistan (Basingstoke, Hampshire, ), . Hill, ‘Making Istanbul a Reality ...’, . However, as most th Army personnel had settled with their families in the region or married into the local Transdniestrian population, most officers and soldiers stayed in the region, joining Transdniestrian armed forces or retiring.
e Role and Activities of the OSCE Mission to Moldova Already in early , the OSCE Mission and the Commander of the OGRF had proposed that OSCE participating states should contribute to the orderly destruction of parts of the ammunition and weaponry and in the purchasing of other parts.41 To overcome Transdniestrian resistance, the Russian Federation, in March , agreed with Transdniestrian authorities to share on equal terms the proceeds of any sales. Aware of their military strength in comparison to Moldova, from that point on, Transdniestrian authorities considered the withdrawal as an economically profitable project. After OSCE participating states pledged to consider ways to assist the Russian Federation’s withdrawal at the end of , the Russian Federation presented, in mid, a schedule for the withdrawal and destruction of weaponry, ammunition and other equipment by and a number of Western OSCE participating states in return offered concrete financial assistance.42 Finally, at the OSCE Istanbul Summit in late , the Russian Federation, under pressure from Western OSCE participating states, agreed to fully withdraw its troops from Moldova by the end of and all CFE–Treaty-limited equipment by the end of .43 An OSCE voluntary fund to support the withdrawal was set up and the Mission’s mandate extended. During , the Head of Mission was designated as executive agent of the OSCE Secretary General to administer the money of the voluntary fund.44 Since then, the Mission has been monitoring the destruction and withdrawal of ammunition, arms and other equipment, and has been compensating the Russian Federation for the relevant costs. Transdniestrian authorities, however, reacted negatively to these developments. e Transdniestrian leadership further limited the freedom of movement of OGRF personnel and equipment and, using public organizations, started to block OGRF buildings, as well as railways and runways used for withdrawal or transport to destruction sites within Transdniestria. On the OGRF territory, however, destruction of CFE–Treaty-limited heavy weaponry continued. To overcome Transdniestrian resistance, in June the OSCE Mission and the Russian Federation included Transdniestrian authorities in a tripartite working group and elaborated a number of projects for the on-site destruction of most of the ammunition. When Transdniestrian authorities became aware that the profit of the projects was much smaller than expected, they started to demand from the Russian Federation compensation for the withdrawal and destruction. Under pressure due to the deadline for CFE–Treaty-limited equipment, in the second half of the Russian government negotiated an agreement with Transdniestrian authorities in relation to such compensation ( million USD were to be written off Transdniestria’s gas debt to Russia, and some non-offensive military equipment was to be handed over to Transdniestria from the OGRF arsenals). Finally, Transdniestrian authorities allowed the OGRF to withdraw Neukirch, Konfliktmanagement ..., . e US Congress alone allocated up to million USD to support the Russian withdrawal from Moldova and Georgia. See Hill, ‘Making Istanbul a Reality …’, . 43 Text of the relevant Istanbul decisions at http://osce.org/documents. 44 Hill, ‘Making Istanbul a Reality ...’, . 41
42
Gottfried Hanne the remaining CFE–Treaty-limited equipment. e Russian Federation in late November therefore met the first deadline of its Istanbul commitments. However, during Transdniestrian authorities demanded further compensation from the Russian government. In response, the Russian Ministry of Finance refused to write off the agreed million USD gas debt.45 In order to meet the deadline, the Russian Federation’s Ministry of Defence and the OSCE Mission agreed to transport most of the ammunition, together with the rest of the equipment and weaponry, to Russia. e resulting loss of profit fueled Transdniestrian anger even further. ‘Helpless’ against the Transdniestrian blockade, the Russian Federation ultimately failed to fulfil the deadline for complete withdrawal. At the OSCE Ministerial Meeting in Porto in December , the Russian Federation reiterated its commitment to completely withdraw its troops ‘as early as possible’ and announced its intention to do so by December ‘provided the necessary conditions are in place’.46 In , destruction of non-CFE–Treaty-limited equipment is continuing on the territory of the OGRF. Withdrawal is also continuing but at a slow pace. Every train leaving for Russia has to be personally approved by Transdniestrian leader Smirnov and compensated for by the handing over of non-offensive military equipment from the OGRF to Transdniestrian authorities. However, in early , the OGRF ran out of non-offensive military equipment. After the European Union and the United States in late February declared a travel ban for leading members of the Transdniestrian regime to their respective countries,47 the Transdniestrian leadership finally agreed not to hinder the Russian withdrawal anymore and started to concentrate on negotiations with the Russian Federation about the future of the peacekeeping operation, which both Russia and Transdniestria would like to see under Russian, not under international command. Most Western OSCE participating states have agreed to make their funding in support of the Russian withdrawal also available during . For the time being, the OSCE Mission is continuing to inspect destruction and withdrawal and is refunding the Russian Federation for related costs from the voluntary fund. Against the background of this overall situation, the completion of the Russian withdrawal by the end of seems possible. e Russian Federation has not announced any plans regarding when and how it intends to withdraw its soldiers, giving rise to further suspicions that the Russian government is continuing to hide behind Transdniestrian resistance, hoping to find an agreement with Moldova on a permanent Russian military presence or an enlarged peacekeeping operation under Russian command. However, during the number of OGRF troops was reduced to about ,, out of which about are deployed as peacekeepers and another as reserve peacekeepers for rotation into the peacekeeping forces.48 Whether the new deadline will be met by the Russian Federation or not, it will have, at least in the form of the peacekeepers, a military presence in Moldova even after the end of . 45
46 47
48
Information received from OSCE Mission members in February . Text of Porto documents at http://www.osce.org/documents. BASA press, March . Information received by OSCE Mission members on March .
e Role and Activities of the OSCE Mission to Moldova VI. A H D In its human dimension work, the Mission is concentrating on those aspects of human and minority rights as well as the democratization process, that have a direct link to the Transdniestrian conflict and its political settlement. e Mission is active in the prevention and management of regional and local conflicts, in confidence-building measures, as well as in general democratization activities. As the Mission does not have its own budget for these issues, it is closely coordinating its activities in this sphere with relevant OSCE institutions, specialized international organizations, and international and local NGOs. e general democratization work of the Mission, especially in Transdniestria, can be considered as part of the Mission’s efforts to create the necessary conditions in politics and society for a political settlement and for its successful implementation. e Mission has closely cooperated with the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and its Observation Missions in the monitoring of elections.49 In addition to this, the Mission supports and participates in democratization activities of local NGOs under financial support of ODIHR.50 With the progressing democratization process in Moldova proper and the increasing activities of the Council of Europe (CoE), the European Commission and other donors, the Mission has reduced its activities in this field. In Transdniestria, however, the Mission is trying to continue its democratization efforts, as other international organizations and international NGOs have only sporadically gained access to the region. e Mission’s democratization work in Transdniestria is watched with suspicion by Transdniestrian authorities. Against the background of the lack of democratization in that region, increasing democratization might pave the way for a younger, more democratically thinking generation of politicians and social activists who, in the future, may be willing to compromise with Moldova. Transdniestrian authorities are therefore often hindering the Mission in carrying out its democratization activities in the region. Currently, the Mission’s democratization work in Transdniestria is limited to the participation in NGO youth seminars and the distribution of materials on human and minority rights, as well as on democratization issues. e Mission does not assess or monitor elections in Transdniestria, but is gathering information and assessing the situation before and after elections in order to provide information to OSCE participating states. From the beginning, the Mission was also hindered by Transdniestrian authorities in its attempts to build confidence between the populations on both sides of the Dniester.51 In April , the Mission organized the first Transdniestrian-Moldovan-Gagauz Between and , six elections were monitored on the right bank of the Dniester in Moldova proper by the ODIHR. Furthermore, the Mission assessed the regional elections in the autonomous region of Gagauzia in , and . Neukirch, Konfliktmanagement ..., . 50 Earlier activities include the Mission’s and ODIHR’s participation in the discussions on a new constitution (-), the discussions on a new media law, as well as the organization of a NGO training seminar (). 51 For early examples see Büscher, ‘Möglichkeiten und Grenzen …’, -.
49
Gottfried Hanne NGO workshop held in Transdniestria. e outcome of this workshop was a number of cooperation projects of Transdniestrian, Moldovan and Gagauz NGOs in the field of democratization and human and minority rights. However, Transdniestrian authorities are closely following these developments. In many cases, Transdniestrian security organs have summoned participants of such cooperation activities to interrogations in order to gather information and to intimidate them. In other cases, NGO activists have been prevented from leaving the region to undertake cooperation activities outside Transdniestria or have even been physically attacked. In April , when the Mission supported a roundtable of journalists from both sides of the Dniester, Transdniestrian security organs evicted participants from the local premises.52 us, although the Mission is continuing to support cooperation activities between Transdniestrian and Moldovan NGOs, many of these activities have to be carried out on the right bank of the Dniester. Nevertheless, since , NGO cooperation between Moldova and Transdniestria has been growing. Overall, however, the democratization and confidence-building effect of these activities in Transdniestria is meagre, due also partly to a lack of funding by OSCE participating states. e circumstances of the human rights work of the Mission are similar. e Mission is dealing with individual human rights complaints from both sides of the Dniester. e majority of complaints pertain to torture and ill treatment in police stations, pre-trial detention institutions and prisons, as well as to violations of the right to fair trial, the right to property, and social and economic rights. While the Mission receives some support from Moldovan authorities in individual cases, Transdniestrian authorities do not render the same support. Although the exchange of information with Transdniestrian authorities about individual cases has improved over the years, effective cooperation is not the rule. Transdniestrian authorities are especially reluctant to cooperate in politically delicate cases, such as the case of the imprisoned Ilascu group,53 the confiscation and harassment of the independent newspaper Novaya Gazeta and the crackdown on political opposition groups. Mission members in the latter cases closely followed court proceedings and reported to OSCE participating states. However, no decisive influence on Transdniestrian authorities was exerted through these activities. e same is true for individual cases of harassment of journalists and teachers in Moldovan schools. In all these cases of intimidation and harassment on political grounds, the Mission’s activities have not achieved positive results. 52
53
See Mission Report No. /. Ilie Ilascu was sentenced to death in Tiraspol in and four other members of his group were sentenced to long-term imprisonment for alleged murder and terrorist acts committed during the armed conflict. e Mission tried in vain to find a third country willing to hold a retrial of the case, proposed by ODIHR experts who assessed the trial (Rzeplinski Report at http://osce.org/moldova/documents). Since then the Mission has tried to maintain international attention by reporting on the case. e Mission has also often mediated between Transdniestrian authorities and the wives of the prisoners and in relation to the conditions of visits, delivery of food and medication, as well as of medical examinations. In March , the European Court of Human Rights (ECtHR) held court hearings on the case in the premises of the Mission in Moldova. e Mission also mediated a compromise solution with Transdniestrian authorities, to enable the ECtHR to visit and speak to the three not-released prisoners from the Ilascu Group.
e Role and Activities of the OSCE Mission to Moldova Positive developments in these cases, such as the release of Ilascu in May and some court decisions in favour of Novaya Gazeta or the political opposition, were not results of the Mission’s activities, but of exterior pressure on Transdniestrian authorities or internal power struggles.54 e Mission’s conflict management and conflict prevention work in the human dimension pertains mainly to three issues: e language question, Moldovan schools in Transdniestria, and Gagauzia. From the beginning of its activity the Mission has been trying to ameliorate relations between ethnolinguistic groups in Moldova. In October , the Mission provided the Moldovan government with recommendations on the implementation of the Law on the Functioning of Languages (hereinafter, ‘the Language Law’). In particular, the Mission recommended the postponement of the language examinations, due to start in .55 e requirement of successfully passing language exams in order to keep one’s position in the public administration or in the economic sector had been one of the most disputed stipulations of the Language Law during -. It gave the Transdniestrian autonomy movement a basis for mobilization of Russian-speakers – who as a rule do not know the newly introduced Moldovan (this is in fact Romanian) state language – against Moldovan authorities. In January , the Moldovan parliament decided to postpone the language exams. During , the Mission requested legal expertise recommendations of the OSCE High Commissioner on National Minorities (HCNM) on a draft amendment to the Law on Advertisement, which prescribed that all advertisement was to be in Romanian (with possible translation into Russian), as well as on the Law on Radio and TV, which prescribed that % of broadcasting of all public and private channels was to be in Romanian. Both (draft) laws were fiercely debated between the Moldovan- (Romanian-) and Russianspeaking populations. e HCNM stated in his legal expertise and his personal meetings with government and parliament representatives, that both amendments infringed upon the freedom of expression by seeking to regulate the private sphere. e Moldovan parliament later dropped the draft law on advertisement from consideration and issued an interpretative law on the Law on Radio and TV. In order to provide a counterexample of how to promote the Moldovan (Romanian) state language without infringing the rights of national minorities, the HCNM, in close cooperation with the Mission, in May organized a seminar on his Hague and Oslo Recommendations on the language and educational rights of national minorities and their implementation. Follow-up consultations with the Moldovan government led to the initiation of a HCNM project to improve the teaching of Moldovan (Romanian) language in schools of national minorities.56 54 55
56
us, the release of Ilascu in May was mainly due to pressure from the Russian government which feared the pending ECtHR proceedings on the Ilascu case against Moldova and the Russian Federation. See Mission Report No./. Within the project, teachers of the Romanian language in minority schools are trained in modern teaching methodologies. e project started in October and is still continuing today. Most of the language teachers of the th to th grades have been trained. By the end of , about EUR , had been donated for the project, which has become the second-largest project of the HCNM.
Gottfried Hanne e language question in Transdniestria and the resulting problems of Moldovan schools in that region are another issue dealt with by the Mission. Whereas Moldova returned to the Latin script for Moldovan (Romanian) in , Transdniestrian authorities in reinstated the Cyrillic script and introduced their own school curriculum. Most Moldovan schools in Transdniestria were forced to return to the Cyrillic script and to accept the Transdniestrian curriculum. However, seven schools were able to preserve teaching in the Latin script and the Moldovan curriculum. During -, -, and -, the Mission was involved in mediating the recurring conflict between these schools, their teachers, parents and pupils on the one side, and Transdniestrian authorities on the other side. e latter are aiming at closing these schools on the basis of various technical and legal arguments, as they consider them to be the last hotbeds of ‘Romanian nationalism’ in Transdniestria. Between and , the Mission, together with the United Nations High Commissioner for Refugees (UNHCR),57 tried to deescalate the conflict through its presence and negotiations with both sides about compromise solutions. In different instances, e.g. , and , compromises were agreed upon but later not maintained by one of the sides. Presently, the Moldovan schools using the Latin script and the Moldovan curriculum are again being threatened with closure in spring . e Mission is therefore again trying to negotiate a compromise. However, as the language question and the question of the curriculum are closely related to the political-ideological positions of the sides to the conflict, the school issue can only be solved in the framework of an overall political settlement.58 In Gagauzia, the Mission has been following political developments since the beginning of its activity in Moldova.59 In , the Mission quickly established contacts with the relevant Gagauz and Moldovan authorities and closely followed the elaboration of the Law on the Special Legal Status of Gagauzia during -. After the adoption of the law in December , the Mission followed developments in Gagauzia from the perspective of post-conflict rehabilitation. e autonomy model of Gagauzia was also considered as a possible example for a political settlement with Transdniestria.60 Although, after , Moldovan authorities watched the Mission’s engagement in Gagauzia with suspicion, the Mission’s work in that region can be considered important from the perspective of early warning, conflict prevention, conflict deescalation and conflict management. us, between and , in a phase of increasing disagreement between Gagauz regional authorities and Moldovan central authorities, the Mission e UNCHR during - equipped the schools with furniture and providing funding for improvement of the premises as a measure to prevent internal displacement. 58 Aware of this, the HCNM is consequently taking the role of an observer, as the school conflict is not a separate interethnic issue that could be solved with the means available to the HCNM. 59 e Gagauz, a Turk people of Christian-Orthodox faith concentrated in the Southeast of Moldova, declared their own republic in August , protesting against Moldovan language policy and fearing a union of Moldova with Romania. However, the conflict never escalated into open violence and since , Moldovan and Gagauz authorities have been discussing an autonomy status for the region. 60 However, OSCE participating states did not react to the Mission’s initiative to support the stabilization and development of Gagauzia with concrete economic and democratization projects. See Neukirch, Konfliktmanagement ..., . 57
e Role and Activities of the OSCE Mission to Moldova reported extensively to OSCE participating states on developments, and through its presence in the region as well as its intervention at the central level, worked to prevent the disagreements from turning into conflict. In December , the Mission organized a workshop on center-region relations in which international experts and representatives of the central Moldovan and regional Gagauz legislative and executive branches discussed concrete solutions to existing disagreements.61 Although the new communist government did not follow up the recommendations of the workshop, the Mission continued to be engaged in the discussions during about the inclusion of the status of Gagauzia into the Moldovan Constitution. e Mission’s activities and its close cooperation with the CoE’s Congress of Local and Regional Authorities of Europe, played a deescalating role in particular during , when the disagreements between Chisinau and Gagauzia threatened several times to turn into open conflict, e.g. when a group of deputies of the Gagauz regional legislative chamber, with the support of central authorities, tried to organize a referendum against the democratically elected governor. However, the deescalating effect of the Mission’s work was devaluated by the fact that the conflict was ultimately solved when central authorities convinced the incumbent governor to leave his post and in early elections pushed through their candidate on the basis of legally questionable decisions of the Gagauz Election Commission. e Mission was eventually able to prevent the conflict from escalating, but was not able to facilitate a legally and politically satisfactory solution. Aside from these activities, since mid- the Mission has also become active in the fight against the trafficking of human beings. In cooperation with ODIHR, the CoE, the International Organization for Migration and the Moldovan Ministry of Labor and Social Protection, a first conference was held in September , bringing together representatives of government, parliament, international organizations and NGOs dealing with the issue.62 In , the Mission, together with ODIHR experts, helped the parliament to draft necessary amendments to the draft criminal and criminal procedural codes to combat trafficking.63 At the present time, the Mission is intensifying its cooperation in this field with other international organizations and NGOs, and has started with concrete project work to support victims of trafficking. VII. C It is difficult to give an overall assessment of the OSCE Mission’s activity in Moldova. During the ten years of its work, the Mission has not been able to mediate a political settlement between Moldova and its Transdniestrian region. In spite of the Mission’s activity, the division of the country is more profound than ever. During this time, the Transdniestrian conflict has moved away from its original causes. e main concern of the Transdniestrian authorities is no longer to protect the interests of the TransdniesMission Report No./. See Mission Report No./. 63 See Mission Report No./ and No./. 61
62
Gottfried Hanne trian population, but merely to safeguard the status quo from which the leadership of the separatist regime profits enormously. Transdniestrian authorities have shown flexibility in signing all kinds of agreements and documents, but then ignoring them or interpreting them against their very spirit, obstructing any real progress in the negotiation process. e same obstruction policies are used by Transdniestrian authorities within the peacekeeping operation, as well as towards the Mission’s conflict management activities in the human dimension in the breakaway region. As any political settlement would in effect reduce the political and economic control over the region by Transdniestrian authorities, and given the lack of sufficient outside pressure from the Russian Federation, the Ukraine, as well as Western OSCE participating states, for the time being it seems unlikely that Transdniestrian authorities will seek any quick political settlement. On the other hand, the Moldovan side lacks a clear vision about a political settlement. Furthermore, parts of the Moldovan political and economic class have developed vested interests in the existence of Transdniestria as uncontrolled territory allowing them to profit from illegal trade through the breakaway region. Most of all, however, the Russian Federation, with its important influence on Transdniestrian authorities and thus the most influential mediator, does not seem to have an interest in achieving a political settlement quickly or in exerting real pressure on Transdniestrian authorities. e unresolved Transdniestrian question continues to provide the Russian Federation with an important lever on Moldova in (geo-)political, military and economic questions touching upon Russian national interests. us, Russian interests in Moldova continue to coincide and link up with Transdniestrian interests. e lack of serious political interest of Western countries in the political negotiation process have reinforced and stabilized this situation. All of these factors have made much of the Mission’s conflict management activities, which may have worked in a different geopolitical environment, ineffective. e extent to which Mission activities in more cooperative geopolitical circumstances can promote solutions in practical terms was demonstrated by the Mission’s effective role in the withdrawal and destruction of Russian CFE–Treatylimited equipment. e lack of progress in the political settlement of the conflict can thus not be attributed to the OSCE Mission’s failure. On the contrary, the Mission has developed and used a broad variety of conflict management techniques and activities over the years. Furthermore, even under these unfavourable circumstances, the Mission’s work has had a direct influence on the development of the conflict. us, the institutionalization of the negotiation process, achieved mainly through the efforts of the Mission, had a confidencebuilding effect. e Mission’s activity in local conflict management and conflict prevention in the military (security zone) and human dimension spheres, also helped to build confidence between the sides to the conflict and, between national and linguistic communities, as well as between other groups of regional and local populations. In particular, the mediation of the language question through the HCNM, with Mission support, has been successful in reducing an escalation of the conflicts in this area.64 In addition, the Mission activities in Gagauzia and the continuous efforts to provide mediation in the conflict 64
Neukirch, Konfliktmanagement ..., .
e Role and Activities of the OSCE Mission to Moldova concerning Moldovan schools in Transdniestria have contributed in various instances to preventing the escalation of disagreements into open conflict. As an overall result of the Mission’s activities, the increased confidence between the sides has reduced the probability of a reescalation of armed confrontations to a minimum.65 In today’s still existing, unfavourable geopolitical circumstances, the OSCE Mission has to continue with great patience its difficult, often frustrating, but necessary and valuable work to keep up the negotiation process and, using confidence-building measures in the political, military and human dimension spheres, to prepare the ground for a still possible political settlement under more favourable geopolitical circumstances. e slowly growing interest in Moldova within the European Union and the rapprochement between the Russian Federation and the West since September could change the structure of geopolitical interests in the region significantly and, in the case of greater influence and pressure and/or incentives for the Russian Federation through Western countries, the EU and OSCE, could lead to a situation in which the further non-cooperation of Transdniestrian authorities could be counterproductive for the Russian Federation in ensuring its national interests in the region. Only in such a situation could the Russian Federation exert its full influence on Transdniestrian authorities and only in such a situation could the conflict management activities of the OSCE Mission to Moldova effectively contribute to a lasting political settlement of the Transdniestrian conflict. As the incumbent Moldovan president, parliament and government seem to be ready for much more far-reaching concessions than any other previous Moldovan central authorities, the international community has to take concrete steps in this direction soon, so as not to miss this unique, but possibly last chance for a successful political settlement in Moldova.
65
For a similar assessment see Neukirch, Konfliktmanagement ..., .
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Timm Beichelt *
Minorities in New European Democracies: A Source of Destabilization?
I. I In this text, I shall examine the influence of ethnic minorities on the development of the new democratic regimes in post-socialist Europe. Minorities have played an important and sometimes decisive role in a number of countries. In Bulgaria, Estonia, Latvia, Lithuania, Macedonia, Romania and Slovakia, the political elites of the ethnic majority have to deal with one or more ethnic minorities.1 In this article, these countries will be taken into consideration as ‘similar cases’ in the sense that in each country a single ethnic minority accounts for more than about % of the total population and is settled in one or more regions where it forms a strong minority or even a majority. ese criteria were chosen for the research topic of this article, which focuses on established democracies in which minorities have (already) been afforded the right of political participation.2
* 1 2
Currently Junior Professor of European Studies, European University Viadrina Frankfurt (Oder), dissertation on the Consolidation of Democracy in Post-socialist Europe, University of Heidelberg. For more detailed data, see Table . Figures are taken from Christoph Pan and Beate Sybille Pfeil, Die Volksgruppen in Europa. Ein Handbuch (Wien, ). at excludes from consideration autocratic or non-consolidated regimes (Albania, Belarus, Bosnia-Herzegovina, Croatia, Moldova, Russia, Serbia and Ukraine) as well as ethnically homogeneous regimes (Albania, Belarus, Czech Republic, Hungary and Slovenia). Also excluded is the Roma minority which, for various reasons, largely remains outside of political participation (see Zoltan Barany, ‘Minderheiten, Ethnopolitik und die Osteuropäischen Roma’, () Ethnos-Nation (), -; Erin Jenne, ‘e Roma of Central and Eastern Europe: Constructing a Stateless Nation’, in Jonathan P. Stein (ed.), e Politics of National Minority Participation in Post-Communist Europe (Armonk and London, ), -. e criteria for democratic consolidation are derived from Timm Beichelt, Demokratische Konsolidierung im Postsozialistischen Europa. Die Rolle der Politischen Institutionen (Opladen, ). Croatia is excluded because there have not been two consecutive ‘free and fair’ elections yet (only one). Moldova cannot be classified as a consolidated democracy because of the intentional marginalization of opposition inside and outside of parliament since about . Russia and Ukraine are excluded because of the unfair character of the presidential elections in and .
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Timm Beichelt e right of participation is relevant to the consolidation of democracy, particularly if the political problems of ethnic minorities affect the majority’s public life. e interests of small minorities may be preserved by the granting of low-level territorial autonomy or by the granting of personal autonomy through the support of cultural activities by the state.3 For example, the German minority in Poland is well integrated into political life in Poland despite the obvious historical liabilities.4 As a rule of thumb, political conflicts only become relevant on the national level when a minority is so numerous that its pursuit of political, cultural and social rights interferes with the same rights of the ethnic majority (or those of other ethnic minorities). Quite in contrast to their brutal overall record, the autocratic or semi-autocratic regimes of socialist Europe were able to manage interethnic conflict relatively well. After Stalin, and apart from the widespread anti-Semitism in many socialist regimes, the autocratic character of the regimes silenced most ethnic groups, which had previously been all too ready to fight with each other. Between the s and the late s, the ethnic minorities of the region did not challenge the political order which, not least because of its centralized character, had not been their most desired outcome. Even if some experts have previously seen ethnic ruptures as a major reason for the destabilization of the Soviet Union,5 conflicts with an ethnic flavour reappeared only during Mikhail Gorbachev’s perestroika and glasnost.6 During this phase of liberalization, which soon spread to most of Eastern, Central and Southeastern Europe, the role of ethnic minorities differed sharply. In simple terms, we have to distinguish between a path to violent (mostly ethnic) conflict and a path to democracy. At first, the striving of minorities for independence and sovereignty seemed to be directed mainly against the constraints of the autocratic regimes. In some countries, such as the former Yugoslavia, Moldova and the southern border of Russia (Chechnya, Abkhazia), the violent character of the conflicts between minorities and majorities increased in intensity. As it turned out, the main goal of the conflicting parties was not to establish democratic regimes from the ruins of socialist states, but to dominate minorities. e interrelationship between violence and democracy is striking: With the single exception of Slovenia (where the war with Yugoslavia and its Serbian-dominated elites lasted only ten days), no state which entered into violent ethnic conflict during the phase of liberalization has been able to develop a fully functioning democracy. In other words, whereas liberalization took off almost everywhere in socialist Europe, it seemed that the phase of democratization could be entered into only in those (old or new) states where the conflicts between majorities and minorities had been solved peacefully. 3
4
5
6
See Georg Brunner, ‘Autonomiekonzepte zum Minderheitenschutz – Bestandsaufnahme und Perspektiven’, in Gerrit Manssen and Boguslaw Banaszak (eds.), Minderheitenschutz in Mittel- und Osteuropa (Frankfurt, ), -. See Agnieszka Malicka, ‘Der Schutz der Deutschen Minderheit in der Republik Polen’, in Ibid., -. Hélène Carrère d’Encausse, L’empire Eclaté. La révolte des Nations en URSS (Paris, ). Michail Gorbatschow, Perestroika. Die Zweite Russische Revolution (München, ).
Minorities in New European Democracies During democratization,7 the role of ethnic minorities differed in different states. In Estonia, Latvia, Lithuania, Macedonia and Slovenia, the uprising of an ethnic minority within an old federal state had led to founding elections in new states and eventually to democratic constitutions.8 Again, with the exception of Slovenia, these new states were confronted with ‘new’ minorities within their borders. Political leaders who had risen to power due in large part to their emphasis on ethnicity issues had to understand the need for legitimacy across ethnic borders. In Slovakia, it was not the protest of the Slovak minority but rather the conflicting interests of each subfederal state’s political leaders which led to separation.9 Slovakia then inherited the Hungarian minority which had become a part of Czechoslovakia after World War I, whereas the Czech Republic became a more or less homogeneous nationstate. e Slovak elites faced the added difficulty of having to build up a state structure while dealing with a minority that had more than doubled in relative weight and now had obvious grounds for asking for a degree of autonomy never granted during the existence of Czechoslovakia. Altogether, the only ‘old’ states able to enter into the democratization process with any previous experience of dealing with ethnic minorities on the level of the central state were Bulgaria and Romania. ere, too, the respective Turkish and Hungarian minorities felt that democracy should lead to more political representation and cultural self-determination. is short overview shows that despite the differences between the countries, democratization in multiethnic states was accompanied by problems not existing elsewhere. Democratization in the multiethnic states of Europe was intrinsically more difficult than in the homogeneous national states of the region. ese difficulties had to be dealt with during the phase of democratic consolidation. Robert Dahl names ‘inclusion’ and ‘participation’ as the two major criteria of a functioning, or consolidated, democracy.10 e problem of multiethnic democracies is precisely that its leaders have to ensure inclusion and participation of ‘the people’ regardless of an individual’s ethnic affiliation. Some post-socialist democracies faced difficulties with this requirement, which led to regimes such as that of Latvia being classified as ‘incomplete’ or ‘defective’ democracies during their first period of consolidation.11 Indicators for democratic inclusion are, among others: the range of electoral participation, the relative weight of the minorities’ representation in parliament and government, and the guarantees of I am following the typology of liberalization – democratization – consolidation as described by Guillermo A. O’Donnell and Phillipe C. Schmitter (eds.), Tentative Conclusions about Uncertain Democracies (Baltimore, ). 8 For an overview, see Roger East and Jolyon Pontin, Revolution and Change in Central and Eastern Europe (London, ). 9 Karel Vodička, ‘Wie der Koalitionsbeschluß zur Auflösung der CFSR zustande kam’, () Osteuropa (), -. 10 Dahl named these functioning democracies ‘polyarchies’, see Robert A. Dahl, Polyarchy. Participation and Opposition (New Haven and London, ). 11 See Juan Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation (Baltimore and London, ) and Wolfgang Merkel, Systemtransformation (Opladen, ). It needs to be underlined, however, that these classificationswere made some years ago and would probably look different today. 7
Timm Beichelt individual and group rights to ethnic minorities. ese will be looked at in the next section, which will also give an overview of various strategies for dealing with ethnic minorities in post-socialist democracies. However, the question remains whether the strategies of partial exclusion in some countries severely damaged the basis for democratic consolidation or whether the more limited scope for inclusion affected the quality of democracy only temporarily. In this article, my arguments support the latter statement. My hypothesis, as set out above, is that the leaders of multiethnic transition states had to face difficulties which did not burden the transition of homogeneous nation-states. In cases such as Estonia, Latvia, Lithuania and Macedonia the new elites even had to take into consideration a growing and succeeding irredentist movement – comparable to the Slovak one within Czechoslovakia. Additionally, the situation in the neighbouring kin-states of the ethnic minorities, Albania (to Macedonia) and Russia (to the Baltic states), seemed quite unpredictable at times, which made it even more difficult to reach reliable agreements with the respective ethnic minorities. In Section III of this article, I will therefore try to underline that all multiethnic postsocialist democracies were successful in reaching multiethnic political inclusion. As I will try to show, a strategy of not immediately granting minority participation rights may not only lead to complete democratic consolidation in the midterm but also to a more solid consensus about the character of the multiethnic democratic regime in the longer term. II. I P M P L When looking at democratic inclusion, we are not concentrating on inclusion in the sense of an objective or subjective line between the poor, marginalized ‘excluded’ and the rich, integrated, educated ‘included’. Although that is to some extent also an issue in theoretical debates on democracy,12 liberal democratic theory relates much more to political rather than to social inclusion. Robert Dahl, among many others, argues that the only criterion to exclude certain persons from democratic participation is ‘qualification’ – members of the demos need to be permanent residents of a country (i.e., not tourists or short-term migrants) and they need the competence to follow and understand public issues (which, for example, excludes children).13 It is apparent, however, that in the case of ethnic minorities we need an indicator for Dahl’s criterion of ‘qualification’. Is a person who came to one of the Baltic states in the period of soviet occupation competent to participate in the political life of a former occupied territory? What if this person does not even speak the language of the formerly occupied country although he has lived there for many years and may even have been born there? On the other hand, why should a child of long-term legal residents not be granted citizenship? ese questions of belonging to a demos hint at the necessity for looking at the guarantees of political rights as the basis for political participation. 12 13
David Held, Models of Democracy (Cambridge, ). Robert A. Dahl, Democracy and its Critics (New Haven, ), -.
Minorities in New European Democracies A. Political Rights of Ethnic Minorities Many political rights of minorities are in one way or the other linked to citizenship, notably the right to vote, the right to be elected or the right to enter into processes of interest aggregation. e political rights of minorities are laid down in individual and group rights accorded to the citizens of a country regardless of ethnicity. ere is certain legislation on which members of minorities can rely. Article of the International Covenant on Civil and Political Rights (CCPR) provides for the right of members of ethnic, religious and linguistic minorities to lead their cultural lives and use their own languages. e Council of Europe’s Framework Convention for the Protection of National Minorities raises the issue of minority protection as a fundamental component of international law. In substance, the material standards for minority participation as mentioned in these international norms overlap with individual human rights supposedly accorded to everyone by the European Convention on Human Rights (ECHR).14 Most of these rights are not tied to citizenship. For example, religious freedom and freedom of expression are granted to everyone by the ECHR and other international treaties on a territorial basis.15 In the multiethnic states of post-socialist Europe, however, the guarantee of citizenship remained the most important device of minority policy in the early years of consolidation. Estonia, Latvia, Lithuania, Macedonia and Slovakia were new states which in principle were able to start ‘from scratch’ as long as the provisions of the ECHR were followed. Each state opted for different paths. Macedonia and Slovakia granted citizenship to the members of their respective Albanian and Hungarian minorities from the beginning. erefore, problems did not arise in relation to the most important political rights, but rather in the traditional fields of minority conflict, such as the use of the minority language in education and vis-à-vis state authorities. In Macedonia, these conflicts lead to violence several times. In the first half of the s, fights around the Albanian Mala Recica University left several people dead.16 During the Kosovo war, when the Albanian population grew significantly due to an influx of refugees, things became even worse. e conflicts concerning symbols of nationhood led to increased violence, not least because the example set by the Kosovo National Liberation Army (UÇK), showing that violent strategies may very well serve a minority’s interests. After a situation resembling civil war, the situation calmed down after the Peace Agreement of Ohrid in August . Problems in Slovakia arose mainly during the period of leadership of Vladimir Mečiar, who governed, with a short interruption in , from to . For some time, Mečiar’s government included the right-wing radical Slovak National Party (SNS), On international law and minority protection, see Robert Uerpmann, ‘Völkerrechtliche Grundlagen des Minderheitenschutzes’, in Manssen and Banaszak (eds.), Minderheitenschutz ..., -. 15 See, for example, Articles and ECHR. 16 Carsten Wieland, ‘Ein Makedonien mit drei Gesichtern. Innenpolitische Debatten und Nationskonzepte’, () Südosteuropa (), -. 14
Timm Beichelt which advocated strongly against minorities. is damaged Slovakia’s reputation significantly, but it was in fact more the political environment than the minority’s political participation which suffered. Within the Baltic states, the developments were different. Whereas Lithuania granted citizenship to ethnic Lithuanians as well as to permanent residents as early as ,17 Estonia and Latvia were more hesitant to do so. In both countries the Russian minority made up for a considerably larger percentage of the population, approximately one third in Estonia and almost one half in Latvia.18 Real or not, the danger of foreign infiltration was taken much more seriously. erefore, in its citizenship law of January , Estonia set out several conditions which were difficult for non-Estonians to meet. For example, knowledge of Estonian, basic knowledge of the constitution and even the citizenship law, as well as the relinquishment of other citizenships, were seen as preconditions for obtaining Estonian citizenship.19 None of the conditions were unique or atypical of modern citizenship laws in western democracies. Despite this, many Russians who had settled in Estonia or were born in the Soviet Estonian Republic strongly opposed them and found support in the international community which established, in , the High Commissioner on National Minorities (HCNM) of the Organization for Security and Co-operation in Europe (OSCE). e Commissioner, in the person of Max von der Stoel, was repeatedly involved with the drafting of relevant minority laws and gradually reached solutions compatible with the principles of the OSCE, the Council of Europe (CoE) and international law in general.20 e situation was similar in Latvia. As in Estonia, the general situation of minority rights was in accord with what was required by international law. In the Latvian constitution, Article explicitly mentions national minorities and their right to preserve and develop their language and cultural identity. However, some other laws contained provisions contradicting those standards. Until , Latvia’s citizenship law contained the so-called ‘windows system’ which generally made citizenship possible only for individuals belonging to a certain age group. In a heavily debated amendment process culminating in a referendum, the Latvian public narrowly voted for meeting the OSCE recommendations for more moderate naturalization and citizenship rights of non-citizen children born in Latvia.21 In June , more reforms on naturalization were enacted: e fees to apply for citizenship and language exam requirements were eased. is was a reaction to
Egidijus Šileikis, ‘Verfassungsrechtliche und Einfachgesetzliche Ausgestaltung des Minderheitenschutzes in Litauen’, in Manssen and Banaszak (eds.), Minderheitenschutz ... , -, at . 18 Juan Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation (Baltimore, London, ), at . 19 A complete list of requirements of the citizenship law of can be found in Carmen iele, Selbstbestimmung und Minderheitenschutz in Estland (Heidelberg, ), -. 20 See Ibid. 21 Constitution Watch’, () East European Constitutional Review (), -. 17
Minorities in New European Democracies the fact that only about , of the , non-citizens had successfully completed the naturalization process by .22 Another area of conflict was the law regarding the state language. Its version states in Article that only in a few exceptional cases may languages other than Latvian be used when communicating with state bodies. Education is to be provided only in Latvian, as Article of the same law states.23 Although President Vike-Freiberga vetoed that version of the law, the final version still contained contestable provisions, such as the one declaring that state employees should speak Latvian ‘to the extent necessary for performance of their professional duties’. Private sector employees are bound to Latvian if their work concerns ‘legitimate interests of society’.24 All of these formulations, although not strictly in conformity with Article CCPR, were accepted by the OSCE. During the painful process of making it possible for members of the Russian minority to obtain citizenship, the European Union used its powers to a lesser and lesser extent to ensure minority protection. In , the ‘protection of minorities’ had been mentioned as one of the political Copenhagen Criteria for EU accession.25 e importance of this formula remained unclear for some time but was eventually established when the EU put the non-cooperative governments of countries like Romania and Slovakia under pressure. Whereas usually it was the CoE and the HCNM who commented on minority issues, in the second half of the last decade the EU also became interested in the holding of elections with regard to minorities. For example, both the European Parliament and the European Commission financed election observation teams in countries with poor reputations for minority inclusion. However, as the Latvian example shows, during the enlargement negotiations these originally tough positions did not become real obstacles for the enlargement process. is author’s hypothesis is that two developments were responsible for this fact. First, after the initial wave of NATO expansion in , it soon became clear that Russia would not prevent a further enlargement including the Baltic states. In fact, the second enlargement of NATO was decided in Prague in . is removed a lot of pressure from the Baltic states. Furthermore, instead of taking steps to protect the Russian minority within the Baltic states, Russia’s President Putin had encouraged repatriation of Russians in May .26 Second, negotiating the situation of minorities in Central Europe made attention turn to all minorities in the ‘New Europe’.27 is meant that the European Parliament and 22 23
24 25
26 27
Constitution Watch’, (/) East European Constitutional Review (), . See Ineta Ziemele, ‘Die Ausgestaltung des Minderheitenschutzes in Lettland: ein Lehrstück für Europa’, in Manssen and Banaszak (eds.), Minderheitenschutz ... , -, at . For this and the quote before, see ‘Constitution Watch’, (/) East European Constitutional Review (), . See http://europa.eu.int/comm/enlargement/enlargement.htm. Constitution Watch’, (/) East European Constitutional Review (), . See John T. Ishiyama and Marijke Breuning, Ethnopolitics in the New Europe (Boulder and London, ); Peter Cumper and Steven Wheatley (eds.), Minority Rights in the ‘New’ Europe (e Hague, ).
Timm Beichelt other EU bodies had the choice of either getting involved with all unresolved minority conflicts in Europe, including those in Northern Ireland and the Basque territories, or remaining silent on the issue in Central Europe as well. Obviously, the EU bodies realized that it would not be possible to ask for a level of minority integration from the new member states which could not be demanded from some of the more important current members. In other words, the EU had to accept that minority conflicts in the enlargement area could not be resolved to a greater extent than in the existing EU itself. B. Participation of Ethnic Minorities e scope of political participation of ethnic minorities is, of course, dependent on the strength of minorities in relation to the majority population. e theory of representation would suggest that normatively this relative strength should be mirrored in the demographics of legislative and executive powers.28 ere are several reasons, however, why ethnic minorities are often underrepresented in the institutions of political power. One reason is procedural and concerns the electoral system itself. Various elements of electoral systems are designed in order to keep marginalized political forces from representation. e reasons for this cannot always be found in the discriminatory intent of a given majority. e first purpose of exclusive elements of electoral systems is rather to seek a reasonable balance between representation and efficiency.29 Low thresholds for participation mean high degrees of fragmentation which may be considered a burden for smooth decision-making processes. However, this argument can also be used as a pretext for keeping certain groups out of the political process altogether. Levels of electoral thresholds are a subject of decisionmaking and they are not always designed to enable the highest degree of minority participation possible. Table shows that even some of the stronger minorities of post-socialist Europe have had to organize themselves effectively in order to be able to enter national parliaments. For example, the Roma in Bulgaria und Romania as well as the Turks in Macedonia face electoral thresholds higher than the percentage of the total population they make up. ese minorities, as well as the large number of smaller minorities not listed in the table, generally have to ally with other minority or majority groups in order to be represented at all in the national parliaments.30
Ernst Fraenkel, ‘Die Repräsentative und Plebiszitäre Komponente im Demokratischen Verfassungsstaat’, in Ernst Fraenkel (ed.), Deutschland und die Westlichen Demokratien (Frankfurt, ). 29 Giovanni Sartori, Demokratietheorie (Darmstadt, ). 30 at is, however, not true for Romania where some seats in the chamber of deputies are granted to ethnic minorities exempted from electoral thresholds. In Lithuania, there existed a lower threshold of two% for the Polish minority until , when this exception was cancelled. See ‘Constitution Watch’, (/) East European Constitutional Review (), . 28
Minorities in New European Democracies Table . Electoral resholds in Multiethnic Post-socialist Democracies31 Country, year of last census Bulgaria () Estonia () Latvia () Lithuania () Macedonia () Romania () Slovakia ()
Main ethnic minorities Turkish Roma Russians Ukrainians Russians Belarusians Russians Polish Albanians Turkish Hungarians Roma Hungarians
Population share of ethnic minority (%) . . . . . . . . . . . disputed .
reshold in electoral system* (%) /** *** / //
Gaining representation is made more difficult for some of the large minorities as well. In countries where the electoral threshold is only a few percentage points higher than the relative strength of the minority, minority elites face the task of trying to include a large majority of their population into one political organization. at is certainly true in Lithuania, Romania and Slovakia, but was also important in Estonia and Latvia during the period when only a small number of minority members were granted citizenship. In Romania and Slovakia, problematic rules were introduced whereby thresholds for common lists were raised in order to keep politically divided minorities out of parliament as a whole.32 Lithuania raised its threshold from four to five% in , giving rise to strong criticism from both the Polish and Russian minorities.33 On the other hand, some measures, which appeared on their face to be acts of deliberate minority discrimination, did not lead to the intended consequence of subduing the minority. In Slovakia, the notoriously divided Hungarian minority finally decided to combine forces in the Hungarian Coalition Party (SMK) before the election of and became a strong political player with an important ‘blackmail potential’.34 In Romania, the Hungarian Democratic Union (UDMR) included other minorities in their caucus, strengthening minority representation as a whole (see Table ). Sources: Pan and Pfeil, Die Volksgruppen in Europa ..., and Beichelt, Demokratische Konsolidierung ..., * Figures divided by an oblique mean that additional thresholds exist for common lists. ** seats in parliament. seats in single member districts, hurdle of % applies to seats in one constituency. *** seats in parliament. seats in single member districts, hurdle of % applies to seats in one constituency. 32 See figures in Beichelt, Demokratische Konsolidierung ... . 33 See ‘Constitution Watch’, (/) East European Constitutional Review (), . 34 For the concept of blackmail potential, see Giovanni Sartori, Parties and Party Systems (Cambridge, ). 31
Timm Beichelt Table . Election Results of Ethnic Parties in Multiethnic Post-Socialist Democracies35
Bulgaria Estonia
Latvia
Lithuania
Macedonia
35
Name of ethnic st party election Movement . for Rights and Freedoms (DPS) Our Home is n.a. Estonia, United People’s Party (EÜRP), Equality (LT), n.a. Socialist Party (LSP), People’s Harmony (PCTVL), For Human Rights in a United Latvia, Polish Union, n.a. Electoral Action of Lithuanian Poles (LLRA), + Union of the Russians, Party of Democratic .* Prosperity of Albanians in Macedonia (PDP) Democratic Party of Albanians (PDSh), and National Democratic People’s Party (NDP) Democratic Union for Integration (BDI),
Election Results (votes) nd rd th election election election . . . .
.
.
.
.
.
.*
.
.
th election .
.
.
Source: http://www.electionworld.org/ as well as coverage by daily press, mainly Frankfurter Allgemeine Zeitung. * Percentage of seats (not votes). No data for percentages of votes available.
Minorities in New European Democracies Romania Slovakia
Hungarian Democratic Union (UDMR) Hungarian Christian Democratic Movement (MKDH), Living Together (ESSW), - Hungarian Coalition Party (SMK), +
.
.
.
.
.
.
.
.
.
ere is one general consequence of keeping up the pressure on minorities via electoral thresholds. When being part of a minority becomes the main reason for political cooperation among minority elites, other topics – e.g. in the fields of economic or social policy – become secondary. Minority issues dominate the discourse of minority elites, parties or other organizations. Minority groups are defined by their ‘otherness’. e ethnic divide becomes more important than any other cleavage when electoral thresholds are designed to avoid political fragmentation in multiethnic societies. In this way, putting high thresholds in place to enforce minority coalition building may have the unintended consequence of politically separating the minority from the majority to a greater extent than if those high thresholds had not been in place. When looking at the development of ethnic parties in post-socialist democracies, different paths can be identified. In Bulgaria and Romania, only one party in each country has represented the respective Turkish and Hungarian minorities from the very beginning. Considering an average rate of voter abstention, virtually all minority members in both states have supported the Movement for Rights and Freedoms (DPS) in Bulgaria and the UDMR in Romania. As already mentioned, in some elections the UDMR was able to gain a relative weight stronger than the percentage of the minority population, which hints at the party’s integrative potential for non-Hungarian minorities. In other countries, political organizations had more difficulties integrating the whole minority population. Slovakia is a special case because several parties, including Living Together (ESSW) and the Hungarian Christian Democratic Movement (MKDH), agreed to form the Hungarian Coalition Party (SMK), which has been a stable entity since . In other countries, attempts at merging organizations failed. In Estonia, the Russians finally succeeded in forming a party to pass the electoral threshold when Our Home is Estonia gained around six % of the vote in . e party did not survive until the next election, however, and was succeeded by e United People’s Party (EÜRP). at political grouping was in turn stable for a short time only and does not form a parliamen-
Timm Beichelt tary faction in today’s Riigikogu (parliament); the most prominent politician from the EÜRP list, Viktor Andreev, enjoys the status of an independent deputy.36 e Estonian Russian minority has not yet succeeded in forming a stable political organization representing their interests. is may, however, change in the next few years when the percentage of ethnic Russian citizens rises through the naturalization process, giving the Russian elites more room for voter mobilization. In contrast to Estonia, the Latvian Russians were able to gather support on a much larger scale. is was possible because the minority politicians were able to combine forces with well-known Latvian politicians who in a way were guarantors for the loyalty of the minority leaders. In , a party called For Human Rights in a United Latvia gained .% of the votes. e group is not an ethnic party in the literal sense. Its faction is led by Jānis Jurkāns, an ethnic Latvian, and its profile may be described as being friendly to Russian citizens and non-citizens in contrast to the open hostility these groups are facing by parties such as, amongst others, Fatherland and Freedom (TB), and the National Party of Independence (TB/LNNK).37 e Latvian model is one of uncoupling minority influence from the relative strength of an ethnic political party. Until , the strategy of linking socialist ideology to Russian voters did not have great success. One election later, People’s Harmony (PCTVL) was able to gain .% of the vote in . For Russians in Latvia, as well as in Estonia and Lithuania, the option of remaining under the influence of Yeltsin’s instable Russia was not very attractive: While Russia fell from one recession into the next, the Baltic countries’ economies grew quickly and made living there advantageous for the minority as well as for the majority populations. In Macedonia, the minorities’ political representation was to a large extent affected by the instability of the whole region. Although Macedonia was the only former Yugoslav republic not involved in the wars of independence, the Albanian minority was heavily affected by violence: Both the chaos in Albania in and the Kosovo conflict destabilized ethnic relations. On the one hand, Albanian refugees flooded the country, making the Macedonian majority suspicious of the sheer size of the minority. On the other hand, radical Albanian political forces gained ground in Macedonia when they were supported by radicals who had had to flee Kosovo during the worst days of unrest. erefore, it is no surprise to have observed the rise and fall of several minority parties in Macedonia. e Party of Democratic Prosperity of Albanians (PDP) for a long time stood in strong contrast to the more ‘radical’ Democratic Party of Albanians (PDSh). In , however, both parties entered elections on a common list, together with the National Democratic People’s Party (NDP), and the PDSh even formed a coalition government with the nationalist Interior Revolutionary Macedonian Organization (VRMO-DPMNE). is is one of the striking elements of Macedonian party competition: Political forces may use strong rhetoric to discredit one another, but in the end, they 36 37
See http://www.riigikogu.ee/pa_factions.html#P_. See Axel Reetz, ‘Die Dritten Parlamente der Esten, Letten und Litauer’, () Zeitschrift für Parlamentsfragen (), -.
Minorities in New European Democracies are even ready to form governing coalitions.38 In the elections, the newly formed Democratic Union for Integration (BDI) was able to gain more than half of the Albanian vote, thus cutting down the traditional Albanian parties. Again, formerly irreconcilable positions were overcome when the BDI, which is lead by the former National Liberation Army (UÇK) leader Ali Ahmeti, went into a coalition with the post-communist Social Democratic Union (SDSM).39 With the BDI, Albania has seen minority parties in a government coalition for four consecutive terms. In other countries, the minority parties had much more difficulty entering government. When they did, they joined forces with the ‘democratic’ camp against the ‘old’ forces which had been able to reestablish themselves in political power. is was the case in Bulgaria, Romania and Slovakia (and, of course, in many former republics of the Soviet Union). In these countries, changes of power coincided with a push for political minority recognition when the DPS in Bulgaria, the UDMR in Romania and the SMK in Slovakia showed their readiness for society’s democratization. is process of democratization also coincided with a strong commitment to Western integration among the minorities. is was not self-evident because another strategy of the minority elites could have been achieving stronger ties with their kin-states.40 In fact, by joining forces with the anti-establishment forces in the three countries named, the minorities not only accepted but also supported the international community’s point of view that minority problems in Europe were not to be resolved by border revision but by autonomy within the existing states. In consequence, government participation by the minorities gave the consolidation of democracy a strong push in a number of countries. is is a remarkable difference to the situation in the Baltic states where minorities have not only had difficulties in gaining citizenship but also in being represented in parliament or government at all. As Table shows, the Russian, and – in the Lithuanian case – Polish minorities have been heavily underrepresented in all three Baltic states. Even with the relatively successful party For Human Rights in a United Latvia (see above), a huge number of ethnic Russians remain unrepresented. e situation on the local level is slightly better; the Lithuanian Seimas (parliament), for example, extended the right to vote in local elections to non-citizen permanent residents in .41 Still, an initial view from the perspective of democratic theory indicates that the minorities’ possibilities of self-determination within the Baltic states remain scarce. However, as the author will now argue in Section III, the simple demand of equal representation bears its own share of problems.
Klaus Schrameyer, ‘Makedonien. Friedlichkeit, Maß und Vernunft - mit balkanischem Charme’, () Südosteuropa (), -. 39 See Frankfurter Allgemeine Zeitung, October . 40 In relation to the Hungarian minority in Slovakia, see Andrea Riemer, ‘Die ungarische Minderheit in der Südslowakei - ein multidimensionales Krisenpotential?’, () Osteuropa (), -. 41 See Marianna Butenschön, Litauen (München, ), . 38
Timm Beichelt Table . Representation of Minority Parties in Parliament and Government, -42 Country
Population share of largest ethnic minority (%)*
Average votes Average seats for ethnic parties, in national - (%) parliament, * (%) . .
Bulgaria
.
Estonia Latvia Lithuania
. . . (Russian) . (Polish) .
. .
. .
.
.
. .
. .
. .
Macedonia** Romania Slovakia
Ethnic parties in government coalitions, - - None None None - - - - -
III. M T: S B D For formerly autocratic countries, granting political rights to ethnic minorities and ensuring their participation is a necessary step in the course of democratization. As seen above, this does not so much follow from international legal obligations concerning ethnic minorities but from general principles of democracy which must apply to all political subjects of a given territory, including minorities. However, during the transformation process of the multiethnic states of post-socialist Europe, different strategies of granting those democratic rights have been applied. e ‘old’ states of Bulgaria and Romania simply continued to be multiethnic states. Of the ‘new’ states, Lithuania, Macedonia, and Slovakia were ready to grant citizenship to their minorities from the very beginning of democratization, whereas Estonia and Latvia tried to make their minorities’ assimilation a precondition for citizenship. e author has demonstrated in the previous section, that due to international pressure, the two northern Baltic states were forced to soften that approach. Some signs of discrimination still exist as most international law on minority inclusion is ‘soft law’, setting pre-legislative standards which become relevant in political discourse, but are largely non-enforceable.43 Where a consensus among the majority or the majority’s political leadSource: author’s calculations. * See Table ** Results of and are measured by percentage of seats (not votes). 43 Robert Uerpmann, ‘Völkerrechtliche Grundlagen des Minderheitenschutzes’, in Manssen and Banaszak (eds.), Minderheitenschutz ..., -. 42
Minorities in New European Democracies ers exists, assimilation pressure may be exercised simultaneously with a denial of the right of adequate political participation. is path may be normatively inferior to the strategy of opening up the demos in the earliest possible stage of transition. From a functional perspective, however, the approach bears many signs of rationality. Can we envisage what may have happened if the Russian populations of Estonia and Latvia had gained citizenship immediately following the declarations of independence in spring and the final breakaway in September ? In Moldova and Ukraine, where citizenship was granted, the political forces representing the Russian minority never accomplished the breakaway from (post-) communist ideology. Although the Communist Party was abolished in both countries, it came back after some time and managed to build up an image of defending Russian interests within, as they saw it, an at least partly hostile environment. e consequences for democracy in both countries were severe. By linking their interests to communist political forces, the Russians sent discouraging signals of backwardness to the majority population. Even more significantly, the Communist Party of the Russian Federation frequently issued statements underlining the greatness of the Soviet Union, which, after all, meant Russian domination of the ‘near abroad’. Regularly, the Russian communists allied with right-wing extremist forces and claimed back the lost territories of the post-Soviet states.44 In any case, and without the direct support from Moscow, the Russian dominated Communist Party of Moldova managed to cut down political rights substantially within a short period of time after coming back to power in .45 In Estonia and Latvia, barring most of the minority population from participation meant avoiding the rise of an ethnically defined minority party. Of course, it cannot be taken for granted that a large Russian party would have turned to an ideology of postSoviet communism.46 e hostility of both the Estonian and Latvian majorities against the adherents to the former occupational power makes it probable, however, that there would have been at least severe conflicts between the two political camps. As it happened, with the exclusion of the Russian minority, the political elites of Estonia and Latvia were able to keep a potentially destabilizing cleavage out of the political process. Whereas the setbacks in the Moldovan and Ukrainian transformation process had a direct link to (nonviolent) ethnic conflict, Estonia and Latvia were able to consolidate their democracy on a very firm elite consensus. On the other hand, keeping away non-assimilated minorities from political participation in the long run means denying substantial political rights, which turns any regime into a semi-democratic one. Already some time ago Robert Dahl identified some examJohn T. Ishiyama, ‘Strange bedfellows: explaining political cooperation between communist successor parties and nationalists in Eastern Europe’, Nations and Nationalism (), -; Judith Devlin, Slavophiles and Commissars. Enemies of Democracy in Modern Russia (Houndsmills, ). 45 Claus Neukirch, ‘Moldovan Headaches. e Republic of Moldova days after the Parliamentary Elections’, Working Paper Nr. of the Centre for OSCE Research (CORE) (). 46 In fact, in one of the two major Russian parties in Estonia, the People’s Party, sided with the post-communist Work Party, see Reetz, ‘Die Dritten Parlamente der Esten, …’, -. 44
Timm Beichelt ples of this type, e.g. the United States before the Civil Rights Movement, South Africa during apartheid or Switzerland before women’s suffrage in .47 From the point of view of democratic theory, withholding democratic rights from ethnic minorities may thus be justified only in the (always uncertain) cases when the temporary homogenization of the electorate helps avoid the ‘breakdown of democracy’.48 is insight can be turned into a theoretical one in combination with one major finding of transition studies: the sequencing of the transformation process as already shortly mentioned in the beginning of this text. e phasing of liberalization, democratization and consolidation originally goes back to Guillermo O’Donnell and Philippe Schmitter49 and is widely used in transition literature. Liberalization is the period during which the old regime disintegrates into different blocks and finally ceases to exist. e notion of democratization covers the institutionalization of democracy, one of the most important events being the constitutionalization of the regime. Finally, consolidation means the stabilization of the democratic regime structure up to the point where democracy is ‘the only game in town’.50 is author’s hypothesis is that the contribution of ethnic minorities to the transformation process differs with the phase of transformation. Some time ago, two German scholars argued similarly in relation to civil society as a whole.51 Lauth’s and Merkel’s point was that civil society may be one of the major sources of liberalization but can turn into a burden on democratization and consolidation. is author’s line of argumentation runs similarly: e inclusion and participation of ethnic minorities can be a great resource of liberalization. When institutionalizing the regime and getting closer to the phase of consolidation, however, some strategies of ethnic minorities can slow down the stabilization of democracy and make consolidation more difficult. Liberalization: Towards the end of an autocratic regime, minorities can form one of the groups greatly enhancing regime liberalization. Even if some form of autonomy is ensured within the autocratic regime, the right of self-determination as laid down in international law is always at a minority’s disposal. In the long range of possible regime solutions, there is always something to be sought from a central power to progressively realize a minority’s self-determination. When cracks in the old regime appear, the temptation grows to seek ever-increasing autonomy. e very nature of the relationship between majority and minority in autocratic regimes implies discontent among the minority population. An autocratic use of power See Robert A. Dahl, Polyarchy. Participation and Opposition … . Juan Linz, e Breakdown of Democratic Regimes. Crisis, Breakdown & Equilibration (Baltimore, ). 49 Guillermo A. O’Donnell and Phillipe C. Schmitter (eds.), Tentative Conclusions about Uncertain Democracies (Baltimore, ). 50 is dictum is from Juan Linz, ‘Transitions to Democracy’, () Washington Quarterly (), -. e interpretation of the notions liberalization, democratization and consolidation is from Wolfgang Merkel, Systemtransformation (Opladen, ). 51 Hans-Joachim Lauth and Wolfgang Merkel, ‘Zivilgesellschaft und Transformation. Ein Diskussionsbeitrag in revisionistischer Absicht’, () Forschungsjournal NSB (), -. 47
48
Minorities in New European Democracies means militarization, restriction and repression. In multiethnic autocracies, suppression is rarely a phenomenon of multiethnic elites but most likely ethnic majority leaders suppressing both the majority and minority populations. is offers any minority in a multiethnic autocratic regime various arguments against the central power. Asking for a more democratic variant of self-determination is one option which becomes more evident in some circumstances, for example if democracy is common in a given region (like in Europe) or if national history knows a period of democratic rule. is is exactly what happened in some parts of socialist Europe. In almost all Republics of the Soviet Union as well as some (but not all) parts of Yugoslavia, ethnic minorities were at the forefront of demanding liberalization, typically linking their protests against the old regime to demands of self-determination. In this sense, almost any ethnic protest in an autocratic regime bears a democratic nucleus. Democratization: Once the autocratic regime has fallen, things change. e striving for self-determination comes into conflict with the understanding of the ethnic majority, which usually had envisioned an end of the regime but not a split-up of the state. e strategic position of the minority changes as a whole. During liberalization, the oppositional forces of both the majority and the minority share the goal of destroying the old regime. When the goal of liberalization is reached, different groupings are likely to appear. e story may not be over for some minority elites for whom self-determination within the old state boundaries is not enough. Other groups within the minority may argue that democracy generally offers possibilities to realize the minority’s interests. After all, stable multiethnic democracies have existed for a long time in states like Belgium and Switzerland.52 A similar split may exist within the majority elite. Only in rare cases are the elites of the old regime completely swept off the political scene at the beginning of the democratization process. More commonly, it is the ‘second guard’ of the old elite that stays in the power system, e.g. in the administration or parliament, or even comes back to power with the first democratic elections.53 In such a case, elements of the strategy of political exclusion may persist in the new regime because of the continuity of the membership of the elite. But even if the change of the elite is comprehensive, the new politicians may choose a strategy of partial exclusion. ey may directly appeal to anti-minority sentiments in order to attract votes, or they may seek to form coalitions with political forces which have national goals on their agenda. erefore, we have to draw a line between integrationist and exclusionist political forces on both sides of the ethnic divide. is means that destructive forces may exist within the minority camp as regards the further development of democracy. roughout the negotiations concerning institutional structure and constitutional principles, no regime is able to guarantee stability and could easily drift away from the course of democKenneth D. McRae, Conflict and Compromise in Multilingual Societies. Vol : Switzerland (Waterloo and Ontario, ); Ibid., Conflict and Compromise in Multilingual Societies. Vol : Belgium (Waterloo and Ontario, ). 53 See Klaus von Beyme, Systemwechsel in Osteuropa (Frankfurt, ), -. 52
Timm Beichelt racy. For example, seeking a level of autonomy that has not existed in the previous regime may result in a strengthening of those ‘soft liners’54 of the old regime who were already opposed to a complete opening up of the regime. In addition, a minority’s appeal to brothers in the ‘external homelands’55 may generate hostile feelings among the majority elites and the general population. In short, there are several arguments as to why the minority elites may in fact gain more inclusion from a restrained approach to democratization. Empirically, the examples of countries such as Estonia, Moldova, Romania, Russia, Czechoslovakia and many others, show that the intensity of ethnic conflict grew after the gain of sovereignty and the establishment of a new regime. It was the principle of democratic pluralism which enabled the articulation and aggregation of contradicting ethnic interests. However, it was only where the power vacuum was filled by ‘new’ actors who were willing to shape democracy in an integrationist way, that the development of democracy did not get stuck.56 For example, in Moldova and Russia some of the minorities within the new regimes – some Russians in Moldova, and many Chechens in Russia – sought levels of autonomy which could not be accommodated in the liberalized regime without endangering the integrity of the state as a whole. is, however, was the doctrine of most majority elites, leaving them with two options. First, the doctrine itself could be changed and the breakdown of the state could be accepted. at is what happened in Czechoslovakia, albeit the only peaceful breakup of a state in twentieth century Europe. e factual breakaway of Transdniestria from Moldova seems a more typical example, both impeding the development of democracy in Moldova and, of course, leading to a reasonably traditional Soviet-style autocratic regime in Transdniestria. Second, the aim of maintaining the integrity of the state could be so important that the realization of democratic principles is sacrificed. e Russian case is an example of this approach. Russia tolerated, or arguably even initiated, the most serious human rights violations in Chechnya, leading to a semi-autocratic regime in the whole state: A country violating the most basic human and political rights in a part of its territory cannot be classified as a democracy. ese examples show that certain minority strategies, even if they can be justified by the principle of self-determination, have a potential to seriously endanger the transformation process during the phase of institutionalization. Consolidation: e separation between integrationist and exclusionist minority strategies remains relevant also during the period of consolidation. However, the stakes are lower during this phase because the regime has already had some time to stabilize. e options are no longer whether to maintain or break up the state – by definition, democracy itself has already gained support among both elites and the general population. A supportive consensus about the principles of democracy has been established and to some extent been tested. ose forces within the minority favouring self-determination in a separate 54 55
56
O’Donnell and Schmitter (eds.), Tentative Conclusions… . Rogers Brubaker, Nationalism Reframed. Nationhood and the National Question in the New Europe (Cambridge, ). For this argument, see again Lauth and Merkel, ‘Zivilgesellschaft und Transformation. ...’ .
Minorities in New European Democracies state have been marginalized and the extent of autonomy and development granted by the majority is large enough to satisfy most minority members. If it were otherwise, the stability of the new regime would be threatened to such an extent that it would be difficult to speak of a process of consolidation. Democratic consolidation can wear different faces, however. e path to a fully developed polyarchy in the understanding of Robert Dahl means high rates of inclusion for the whole population and, following from that, adequate representation in political institutions. is is certainly a supportable aim of democracy. However, exactly which political forces are represented in parliament or even government also matters. Exclusive regimes are not fully democratic, but polarized regimes have a strong tendency of becoming nondemocratic.57 In the whole region, the polarization of party systems has proved to be one of the major factors for deciding the quality of democratic consolidation.58 It is for this reason that the temporary exclusion of minorities from political participation may be justified from a theoretical perspective. e argument can go in two directions. First, avoiding an ethnic divide on the party level in the first years of consolidation lowers the potential dangers of polarization, destabilization and an eventual withering away of democracy. Second, the minority elites are pushed towards an integrationist policy by being offered representation in a period when the first rewards of democratization have appeared. In the case of the Baltic states, the ethnic Russian citizens enjoy privileges their relatives in Russia are not able to enjoy. Being able to travel to other democratic countries, the beginnings of a constitutional state and the lesser extent of corruption are all features of features of democracy, a system of holding those in power responsible to those not in power. All of this points to a sequential model of minority influence on the development of democracy. During liberalization, the minorities of Central and Eastern Europe have been a major promoter of democracy. During democratization and the early phase of consolidation, the active role of minorities may threaten the thin consensus on the character of the democratic regime. Further into the consolidation process, the political rights of ethnic minorities can serve as a major indicator of the quality of democracy in the new regime. As not all multinational states in Europe have become fully developed democracies, this model may also have relevance beyond the seven countries discussed in this article.
57
58
See Giovanni Sartori, Parties and Party Systems (Cambridge, ). Timm Beichelt, Demokratische Konsolidierung im Postsozialistischen Europa. Die Rolle der Politischen Institutionen (Opladen, ), -.
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Martin Kovats *
Roma Politics and Policy in Hungary 1999-2003
I. I One of the most remarkable features of post-communist Hungary has been the emergence of ‘Roma’ as a significant political phenomenon. e Roma issue is characterized by an apparent paradox. On the one hand, there has been rapid growth in public political activity amongst Roma people1 and in the construction of specific government policy designed to address their needs. On the other hand, most Roma people have experienced deepening impoverishment and social exclusion. In other words, despite unprecedented growth in the political promotion of Roma people’s interests (through political activity and in government), this has conspicuously failed to translate into improvement in the living conditions and life chances of most of those people who were meant to be assisted. Since the turn of the millennium, the Roma issue appears to have been moving into a new phase. During the general elections, the two largest mainstream political parties both included high-profile Roma activists on their electoral lists, leading to four being elected to the new parliament. e Roma policy of the new socialist-liberal coalition2 has placed particular emphasis on social inclusion, and the election of the third National Gypsy (Minority) Self-Government saw a wholesale change in personnel, promising significant improvement in the quality of national level Roma political leadership. *
1
2
Dr. Martin Kovats has been researching the development of Roma politics in Hungary since . He is currently Marie Curie Research Fellow at the Budapest University of Economic Sciences and Public Administration, Hungary. ‘Roma’ is the term increasingly used to replace the traditional collective designation ‘Gypsy’. In Hungary today ‘Roma’ and ‘Gypsy’ (cigány) are interchangeable. e subject of this article is a political phenomenon and its related discourse and it uses both the terms ‘Gypsy’ and ‘Roma’. e use of the term ‘Roma’ in this article should not be taken as an endorsement of the view that ‘Roma’ constitute a single and distinct ethnic group (either in Hungary or internationally) nor of an ethnic-based nationalism. e use of the term ‘Roma or Gypsy people’ is to emphasize the humanity rather than solely the supposed ethnicity of those to whom Roma/Gypsy identity is applied. Hungarian Socialist Party (MSP), Alliance of Free Democrats (SDS).
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Martin Kovats However, recent developments need to be seen within broader historical, economic and political contexts. Analysis of these contexts indicates that the prospects for progressive change are far more limited than may at first appear. Indeed, the main economic, political and ideological tendencies that determined the development of the Roma issue throughout the s are likely to persist and even strengthen in the years to come. Of particular concern is the rise of Roma nationalism, which will create further obstacles to the development of effective political relations between the Hungarian state and its (Roma) citizens. II. T R B R P P H ‘Roma politics’ can be defined as public political activity based upon Roma identity. Similarly, ‘Roma policy’ is the activity of governmental authorities which explicitly targets Roma people. e nature of the relationship between the two should not be assumed but, as with all other political relationships, needs to be understood in accordance with the political conditions within which the relationship occurs. A. Politics for Equality e formal entry of Roma people into the public political arena in the late twentieth century represents an historical process of social development reflecting the modernization of society. Together with all other citizens, Roma people are, to a greater or lesser degree, dependent on extra-communal (mainstream) authorities/institutions for securing the resources, opportunities and protection necessary to survive and prosper. Political activity is a means of maintaining relations (promoting interests) with these authorities, the fundamental purpose of which is to increase the amount allocated to Roma people in the competition for scarce public goods and services. As such, the politicization of Roma people is driven by the aspiration for equality of opportunity and itself represents a means of achieving social inclusion as citizens. Unfortunately, Roma are a very weak interest group. In addition to linguistic, cultural and communal diversity, as well as differences in socioeconomic circumstances and political interests within the notional political community, the Roma minority possesses few of the tools conventionally required for an effective lobby, such as money/economic power, an electoral base, popularity, political experience and traditions, developed institutions and support networks. e economic, political and social changes that have accompanied the post-communist transition have not eliminated the need for Roma people to establish effective relations with mainstream institutions, but have made this more difficult to achieve for most. Mass impoverishment, resulting primarily from unemployment, has dramatically reduced incomes and thus increased the dependence of most Roma people on mainstream agencies. At the same time, the accessibility and range of services provided by the state have declined. erefore, the politicization of Roma people has been conditioned by the simultaneous increase in need and the reduced ability of the state to address these needs.
Roma Politics and Policy in Hungary - B. Politics as Policy is situation also creates a problem for the state, which must manage the political challenges resulting from the needs of its citizens with resources limited due to both integration into the global economy and commitments from Hungary’s membership of supranational institutions. e demands of the contemporary market heavily influence the allocation of scarce public resources, which leads to priority being given to attracting foreign investment, increasing the profitability of domestic enterprises, improving the marketability of labour and reducing taxation and government borrowing. Citizens ‘disadvantaged’ by factors such as a lack of marketable skills, low levels of education, physical isolation from centres of wealth creation, as well as age and disability, are thus additionally disadvantaged in the allocation of public resources. As a consequence, society is fragmenting and becoming more unequal, with those at the bottom having little prospect of upward social mobility due to the ‘inordinately’ high cost of their reintegration into the mainstream economy. ough such disadvantages are not Roma-specific, the definition of Roma as a distinct political concept provides advantages for the state in terms of managing both social change and emerging Roma political consciousness. Drawing on traditional stereotypes and low expectations based on perceptions of Roma social/cultural ‘difference’ and marginalization, Roma policy obfuscates the responsibility of the state towards this (disproportionately problematic) section of its citizenry. Time is required to map out new policy areas, and the prohibition of ‘ethnic’ statistics combined with the absence of established standards undermine accountability in this novel policy paradigm. In addition, the ‘gypsification’ of policy means that promoting the cheaper abstraction of Roma culture and identity becomes the twin (and not necessarily compatible) aim of policy alongside the establishment of equal opportunities. State Roma policy requires legitimation through its endorsement by at least some Roma people. Promoting separate Roma representation enables the state to establish lines of communication through relationships, which reflect the profound imbalance in political power between the state and Roma people. erefore, Roma representation is an integral part of Roma policy, which itself is based upon the political management of deepening social division.3 III. T E R R e nature of the contemporary Roma issue and the relationship between Roma representation and policy can be illustrated by a comparison between communist and postcommunist periods. In , the newly installed regime of János Kádár endorsed the creation of a Gypsy Alliance (Cigányszövetség) as part of the development of a Gypsy policy. However, when the policy was launched four years later, the Alliance was abolished 3
Martin Kovats, ‘Hungary: Politics, Difference and Equality’, in Will Guy (ed.), Between Past and Future – the Roma of Central and Eastern Europe (Hatfield, ), -.
Martin Kovats on the grounds that it was a Gypsy-specific institution, which were deemed ‘erroneous and harmful as they conserve the Gypsies’ separateness and slow down their integration into society’.4 Kádár’s policy was explicitly assmilationist. Gypsy ‘culture’ was seen as a folkloristic anachronism that had no place in a modern, socialist society, and Gypsy identity was considered a focus for prejudice. However, the fundamental motivation behind the policy was to raise the quality and accessibility of Gypsy people’s labour by abolishing obstacles to social and economic mobility. Over the following years, substantial progress was made in eliminating isolated slums and enabling Gypsy people to enjoy better housing conditions in established settlements. Access to education and health services improved together with unprecedented economic security through the realization of full employment. However, the policy was unable to overcome all disadvantages and, to a certain extent, even contributed to their reproduction. Roma workers remained disproportionately overrepresented amongst the less skilled and those on the lowest incomes. e size and quality of their housing was lower than the national average, as was Roma educational attainment. Antipathy towards Roma did not disappear, neither did Gypsy identity. Not only did the number of Gypsies rise rapidly, but better access to education and more extensive social relations provided a more sustainable basis for the articulation of Gypsy identity, both culturally and, eventually, in terms of political activity. A. New Consensus Nevertheless, it was not the contradictions within the integration policy that led to its demise, but the disappearance of the economic basis to the policy. e economic crisis of the early s signalled the start of Hungary’s long change of system. In , it was decided that not only had assimilation failed but also that integration policies were prohibitively expensive. A ‘new consensus’ was introduced whereby instead of having a policy aiming to eliminate the obstacles facing a ‘disadvantaged social group’, Gypsies would be seen as a distinct cultural community with their own representation. e new consensus was soon implemented in the form of Roma political and cultural institutions (national and local Gypsy Councils (Cigánytanácsok) and the Cultural Alliance of Hungarian Gypsies (Magyarországi Cigányok Kulturális Szövetsége). However, the economic implications of this policy change became apparent only in the early s when (male) Roma employment fell from its peak of % in to % in .5 Political transition required a more sophisticated approach to Roma representation. In , the government’s Gypsy expert warned that the lower priority given to Gypsies, combined with ethnic political consciousness, could lead to a social explosion, and advised 4 5
For the full text of the decree (in Hungarian) see B. Mezey, A magyarországi cigánykérdés dokumentumokbam - (Budapest, ), -. G. Havas, G. Kertesi and I. Kemény, ‘e Statistics of Deprivation’, (Summer) e Hungarian Quarterly (), -.
Roma Politics and Policy in Hungary - that a mechanism be set up to give Roma activists a position in public life and thus a stake in the system.6 is fear was given credibility by the effective mobilization of ‘opposition’ Roma to defeat an attempt to create the Democratic Alliance of Hungarian Gypsies (MCDS), the successor to the Gypsy Council as a post-communist monopoly forum for Roma representation. However, in the early s, no such mechanism existed and policy therefore focused on providing state funds to Roma organizations, which resulted in their rapid proliferation and ensured that Roma people were unable to construct an effective lobby during the most intensive period of transition defining the country’s new economic and social structure. IV. T M S-G S e policy of treating Roma as a distinct cultural and political community was reaffirmed in with the passage of the Law on the Rights of National and Ethnic Minorities.7 e Law provides Hungary’s officially recognized minorities with an extensive set of individual and collective minority rights and aims to allow communities ‘cultural autonomy’. e Law also established a mechanism for minority political representation, the minority self-government system. Each community can set up a local self-government in every local government area. In addition, each can elect a National Minority Self-Government to act as the government’s legitimate negotiating partner. e system is designed to encourage cooperation between the minorities and the state (local and national government). Self-governments have little authority and are usually financially dependent on local authorities. Due to the prohibition of any electoral register based on ethnicity, all citizens are entitled to vote for the local self-government, and national self-governments are chosen by a college of the minority’s local representatives. During the early s, the initiative in Roma politics was taken by activists who had been excluded from the Roma organizations of the communist period and espoused an ideology of self-organization independent from the state. ey were highly critical of the Antal government’s failure to tackle racism and rising unemployment and the position of these activists was gradually undermined by the allocation of state funds to more cooperative organizations. e primary beneficiary was the organization Lungo Drom, led by a former stalwart of the Gypsy Council system, Flórián Farkas. e status of Farkas as the favoured leader of the Roma was confirmed in January with the holding of the first election of the National Gypsy Minority Self-Government (Országos Cigány Kisebbségi Önkormányzat, hereinafter ‘NGMS-G’) in the provincial town of Szolnok where Lungo Drom has its headquarters. e result: e Lungo Drom list took all fifty-three seats on the NGMS-G and Farkas was subsequently elected its president. 6
7
e full text (in Hungarian) of János Báthory’s analysis ‘e Aspiration for National Unity and the Gypsy Ethnic Movement’ can be found in Phralipe IV, nos -, , -. Between and , Báthory was deputy president of the Office for National and Ethnic Minorities. In , he was appointed its president. One of only five to vote against the Minorities Law was the then Alliance of Free Democrats member of parliament, Aladár Horváth. e Minorities Law uses the term cigány (Gypsy).
Martin Kovats A. Roma Policy and Politics - e consolidation of national Roma representation allowed for the introduction of a comprehensive Roma policy. Within months, the government produced a resolution on the ‘most urgent tasks relating to the Gypsy minority’.8 However, this brief document represented a statement of intentions and not concrete policy proposals. It was not until July that a formal Medium-Term Action Plan for Improving the Living Standards of the Gypsies (MTAP) was adopted.9 e MTAP covered a variety of areas including education, employment, housing and discrimination, and was promoted as the product of cooperation between the government and the NGMS-G. However, its implementation was limited as, in the following year, Horn’s Socialist-Liberal government was replaced by a right-wing coalition led by Viktor Orbán, supported in parliament by the far-right Hungarian Justice and Life Party (MIÉP). Within weeks, the MTAP was withdrawn for review and it was over a year before Roma policy was revived with the publication of a second MTAP. As a new institution, the first NGMS-G faced the challenge of identifying its role within the political system. It contributed to the development of the MTAP and participated in the government’s Roma policy committees (Roma Programme Committee and the Coordination Council for Gypsy Affairs). e NGMS-G also provided Roma representation on the main public foundations dealing with Roma/minority programmes and initiatives (Public Foundation for Gypsies, Public Foundation for National and Ethnic Minorities (Cigányokért Közalapítvány, Nemzeti és Etnikai Kisebbségekért Közalapítvány), and Flórián Farkas had a seat on the Council of Public Works. However, as the ‘legitimate’ leader of the Roma population, Farkas’ ambitions extended to control of all Roma-related policy. He demanded the abolition of the Office for National and Ethnic Minorities, control of the Gandhi Grammar School and the allocation of all Roma programme monies into a central fund overseen by the NGMS-G. He even lobbied for the establishment of ‘welfare autonomy’ i.e. placing the payment of state benefits on an ethnic basis under NGMS-G supervision. None of these initiatives was successful, demonstrating that, despite its status, the NGMS-G possessed no intrinsic political power.10 V. T S NG(M)S-G Despite a notable failure in achieving concrete results, the self-government system enabled Flórián Farkas to consolidate his dominant position within Roma politics at the expense of his rivals. e NGMS-G’s monopoly of Roma participation in state activities meant that activists unable to secure a position on the Lungo Drom election list were 8
9
10
Government Resolution / (XII.). Government Resolution / (VI.). For a review of the activities of the first NGMS-G, see Martin Kovats, ‘e Political Significance of the First National Gypsy Minority Self-Government’, () Journal on Ethnopolitics and Minority Issues in Europe, at http://www.ecmi.de/jemie/download/Foeusll-/Kovats.pdf (Autumn ).
Roma Politics and Policy in Hungary - excluded not only from the policy process but also, crucially, from influencing the allocation of funds for Roma projects provided by public foundations or other government programmes. ough based on the principle of representation, the self-government system provides no role for an ‘opposition’, as its aim is to encourage cooperative relationships between minority communities and the state (local and national government) rather than to directly assist the internal political development of minority populations. Local self-government elections in saw the number of Roma institutions almost double,11 demonstrating continued interest in exploring the possibilities of the system despite the difficulties experienced during the first cycle.12 At the national level, critics of Farkas were organizationally divided and proved unable to articulate a credible critique of the novel self-government system or to provide an alternative political strategy to that of Lungo Drom. Consequently, when the electors met to vote for the second NGMS-G in January , the Lungo Drom alliance repeated its sweeping victory of four years earlier. Of the representatives elected, half had been members of the first NGMS-G. Critics such as József Krasznai, (who was later to play a leading role in supporting the asylum claim of the Zámoly Roma), were replaced by new allies including Béla Osztojkán (Phralipe) and Gyula Naday (MCDS). A. Presidential Rule Flórián Farkas was reelected as president and the organization was renamed the National Gypsy Self-Government (NGS-G). e NGS-G proved to be even more of a presidential operation than its predecessor. e day-to-day management was carried out by Farkas himself and an office of nine staff, supported by contracted experts, selected by Farkas. e number of committees was reduced from eight to two (Financial Supervision, Ethics), with a third (Regional Development) meeting on an ad hoc basis. Corporate matters were dealt with at fortnightly meetings of the Executive, composed of the president, his deputy and nine vice-presidents (all elected by the Assembly on the basis of Farkas’ nomination). e Assembly was only scheduled to convene for one day four times a year to approve reports and budgets presented by the Executive, although in practice it met less often.13 As In , local Gypsy minority self-governments were elected; in , the figure rose to . Due to lack of resources and to inexperience, combined with the limited authority of self-governments and inconsistencies between the Minorities Law and other legislation, most Gypsy self-governments experienced considerable difficulties in simply functioning, let alone achieving desired results. In addition, the self-government system is not designed to address the welfare-related problems that most Gypsy selfgovernments have to deal with and the self-governments are largely dependent on the good will of local officials, which is not always forthcoming. Problems in making contact with the huge number of self-governments and in acquiring reliable data as to their activities, means that research into the operation of the system is far from comprehensive. e most extensive survey was carried out by the Hungarian Academy of Sciences at the end of the first self-government cycle in and published in F. Csefkó and I. Pál Kovács, Kisebbségi Önkormanányzatok Magzarországon, (Budapest, ). 13 Jelentés az Országos Cigány Önkormányzat pénzügyi-gazdasági tevekénysége utóvizsgálatának ellenőrzési tapasztalatairól (Állami Számvevőszék, ). 11
12
Martin Kovats one frustrated Assembly member put it, the operating procedures of the NGS-G ‘exclude the representatives from taking decisions or expressing objections. e Executive and the outside experts can make recommendations about a programme or a decision which the representatives can only subsequently approve’.14 In , the NGS-G moved into its new headquarters in a fashionable suburb of Budapest. e organization inherited a number of organizations set up by its predecessor including the Gypsy Research Institute and the Social Construction Public Work Company. e latter has continually suffered from financial problems, management crises and legal disputes with contractors. Despite acting as a conduit for considerable sums of state money allocated for housing projects, it has proved incapable of producing homes on the scale promised by Farkas or of becoming a model for resolving Roma housing problems as originally envisaged. e Rom Druck printing company was an even greater disappointment and eventually collapsed after running up losses. More successful was the NGS-G monthly paper Világunk which replaced the journal Cigány Hírplap. e NGSG continued to support the Roma Chance foundation school in Szolnok, a joint venture with Lungo Drom. B. e NGS-G and Lungo Drom e most notable addition to the NGS-G’s portfolio was the opening of the National Gypsy Information and Cultural Centre. e centre provides facilities, including a theatre, for the use of Roma artists and performers. e NGS-G has management (but not property) rights over the building and receives an annual grant from the state to cover operational costs. A long-time Lungo Drom activist was appointed as the centre’s director. It is indicative of the operation of the NGS-G that not long after opening, the centre’s Oversight Committee reported financial irregularities and requested the NGS-G leader take steps to resolve them. e result was that the members of the Oversight Committee were replaced.15 e NGS-G continued its close cooperation with Lungo Drom, including organizing joint events, providing financial support and even paying for a full-time secretary in Lungo Drom’s Szolnok headquarters. One of the main organizational achievements of the first NGS-G was the establishment of regional offices, which were partly to compensate for the lack of provision for country-level representation within the self-government system. For financial reasons, these were abolished in . In their place, two NMS-G members were given responsibility for coordinating regional activities, which in practice were carried out by Lungo Drom county activists. Although these activists received money from the NGS-G for their work, it appears that Assembly members were not kept informed of their activities.16 14
15 16
‘Vizsgálat az OCÖ-nél’, Amaro Drom (March, ), -. Ibid. Personal communication.
Roma Politics and Policy in Hungary - e Minorities Law entitles self-governments to develop links with whichever organizations they choose. Nevertheless, the use of NGS-G’s status and resources to promote an organization that provides the institutional base for winning elections to the NGS-G appears ethically dubious and incompatible with the development of democratic Roma politics. However, the NGS-G is a part of Roma policy, the aim of which is to ensure that Roma representation conforms to the priorities of the government, which are not necessarily the same as those of Roma people. VI. T R P O G Farkas’ reelection enabled the Orbán government to issue its own MTAP. Despite being under review for a year, this plan and its accompanying Interministerial Committee on Gypsy Affairs (ICGA) differed little from what had previously been abolished, reflecting the fact that ‘the implementation of action programmes concerning the Roma population is characterized by a policy of continuity’.17 Launching the document in May , Flórián Farkas agreed with the prime minister that the previous version had amounted to nothing more than ‘lines on paper’,18 confirming that despite four years of formal Roma policy and almost a decade after the change of system, nothing of substance had been achieved to improve the living conditions of Roma people. e role of the MTAP is to make an ethnically defined concept (Roma policy) compatible with the activities of a variety of (nonethnic) task-defined ministries. e bulk of the MTAP’s provisions provide guidance to individual ministries in giving attention to Roma in the course of their work. Annual action plans are drawn up and individual ministries are required to report to the ICGA on their progress, including noting the sums allocated for these activities in their departmental budgets. e process allows the government to provide a long list of Roma-related initiatives and to demonstrate its increasing financial commitment to the subject by aggregating actual and notional sums spent on ‘Roma’.19 At the same time, the content and implementation of the MTAP is essentially an internal government matter and not subject to the same level of parliamentary or public accountability as conventional policy activities. e most tangible result of the second MTAP was the rapid expansion of the system of grants to support Roma school pupils and higher education students paid through the public foundations and money provided by the Ministry of Justice. In , it was estimated that almost , Roma received support, the majority of whom were primary school pupils. Another interesting development was the awkwardly named Ministry of T. Doncsev, Measures taken by the state to promote the social integration of Roma living in Hungary, Ministry of Foreign Affairs (Budapest, ), . 18 ‘A miniszterelnök leszámolt az illuziókkal’, Lungo Drom, ( July ), -. 19 In his review of government Roma policy for the World Bank, János Zolnay calculated that only around two thirds of the HUF .bn (EUR m) claimed by the government in actually went to Roma projects and that in relation to need, the amounts allocated for Roma in state budgets were a ‘pittance’. J. Zolnay, ‘Cigányügyi számmisztika’, Beszélő (September, ), -. 17
Martin Kovats Justice Roma Client Service Network for Anti-Discrimination. e Network is composed of established legal practices located in every county. e practices have a long-term contract with the ministry, which undertakes to cover all the costs of advice, case preparation and court representation in cases involving discrimination against a Roma person on the grounds of ethnicity. Nevertheless, despite the adoption of the Race Directive by the European Union in and lobbying by a variety of civil groups (as well as the Parliamentary Commissioner for National and Ethnic Minorities Rights), the government was not convinced of the need for an anti-discrimination law and limited itself to establishing a committee for further consideration of the matter.20 A notable feature of the Orbán government’s Roma policy was an increased emphasis on the European dimension, allowing Hungary to win greater sums for Roma projects from the EU Phare programme.21 e Roma issue also played a role in Hungary’s political relationship with the EU. Within the enlargement negotiations the situation of the Roma was criticized in the EU’s Regular Reports Towards Accession; however, Hungary was always deemed to have complied with the political criteria, partly as a result of the existence of the MTAP, which demonstrated the government’s written commitment to addressing Roma-related problems. In addition, in , the government invited a consultant from the Council of Europe (CoE) to assist with the development of a long-term Roma strategy based on a continuation of the approach to Roma policy adopted in the MTAP.22 However, the strategy was not presented to parliament before the general election of and was subsequently withdrawn for further consultation by the incoming Medgyessy government.23 Alongside the growing number of Roma initiatives and the increased professionalism with which policy was presented, the influence of Roma representation on policy remained minimal. e single biggest problem facing most Roma people, impoverishment, continued to be addressed through active employment measures (public work, subsistence farming schemes) characterized by their low cost to the state. On several occasions, Flórián Farkas argued that these programmes only served to conserve Gypsy poverty,24 yet he proved to be unable to persuade the government to support the creation of longer-term jobs with proper remuneration. In fact the material situation of many of the poorest Roma deteriorated as a result of changes to the child benefit and income support. e NGS-G also demonstrated its inability to cope with the political consequences of policy failure when, in , six Roma families from Zámoly publicly left the country, 20 21 22 23
24
For a full list of Roma-related government activities, see Ministry of Justice, Kormánybeszámoló a Magyar Köztársaság területén élő nemzeti és etnikai kisebbségekról (October, ). Phare is one of the EU’s pre-accession instruments for countries of Central Europe; for more information, see http://europa.eu.int/comm/enlargement/pas/phare/#what. D. Rosenberg, ‘Final report on a long-term strategy for the Roma of Hungary’, Council of Europe (CoE) MG-S-ROM (), Lungo Drom (December, ), . e full text of the draft long-term Roma strategy can be found (in Hungarian) in a special edition of Kisebbségi Hiradó, produced by the ICGA or in the NGS-G’s journal Világunk (October-November, ), -. Lungo Drom (March, ), -.
Roma Politics and Policy in Hungary - eventually receiving political asylum in France. e failure of the authorities to re-house the families after their homes were destroyed in a storm in , left one person dead and the country embarrassed abroad, and produced an hysterical political atmosphere in which the government spread the story that the migration was organized by the Russian secret service as part of a plot to undermine Hungary’s membership in the EU. Zámoly was also a defeat for the NGS-G, which had intervened to build homes that were rejected by the families. However, lack of success is no obstacle to progress in the Roma issue. A year later, Flórián Farkas and the parties of the governing coalition signed an election pact in order to continue the productive relationship established between the NGS-G and the government over the previous years.25 VII. R P – M P e Lungo Drom electoral pact with the Young Democrats (Fidesz) and the Hungarian Democratic Forum (Magyar Demokrata Fórum, MDF) was a milestone in the development of Roma politics, though its long-term significance remains to be seen. One effect of the introduction of the minority self-government system had been the disappearance of Roma from the Hungarian parliament.26 In Hungary’s enthusiasm to embrace minority rights, the Constitution was amended in to provide minority populations with the right to representation in parliament but the issue was not resolved in the Minorities Law. Failure to implement the constitutional provision led to censure by the Constitutional Court; however, when the question was debated again in , members of parliament (MPs) found it impossible to find an acceptable mechanism within Hungary’s unicameral system. e rejection of special minority representation was a blow for Farkas who had unrealistically advocated that the minorities should receive seats in proportion to their size within the population. He revived the idea that Lungo Drom would form its own political party, which might get to parliament by mobilizing the Roma electorate.27 However, in late this approach was abandoned in favour of joining the electoral coalition of the right. In return for campaigning for Roma to vote for the government, Lungo Drom received three places high on the coalition’s national election list. e agreement extended beyond the parliamentary elections in April to the local elections the following autumn which would not only help Lungo Drom to win seats in local government but also to enjoy the support of the mainstream parties in the Roma minority self-government elections held on the same day. On being returned to power, the government coalition promised to set Flórián Farkas’ speech given to the preelection congress of the Young Democrats (Fidesz), Lungo Drom (March, ), -. 26 Two Roma were elected in (see above) with a third coopted (by the HSP) in . After the election only one Roma sat in Parliament (Antónia Hága) and there were none following elections in . 27 It is highly improbable that a Roma political party could attract sufficient and concentrated support to win a seat in parliament. At the general election in , the only Roma organization to run a county list, the Hungarian Roma Party, polled only votes (.%) (in Szabolcs-Szatmár-Bereg county ). 25
Martin Kovats up an Office for Gypsy Integration which would have its own budget and would oversee the activities and expenditure of ministries on Roma-related projects.28 e electoral pact is most significant in its reversal of the widely held assumption that Roma people do not participate in elections, and that embracing Roma ‘issues’ is a certain vote loser for mainstream parties. In , the sociologist János Ladányi demonstrated that the voting behaviour of Roma people was not significantly different from that of comparable social groups, both in terms of turnout and in having a preference for rightwing parties.29 is latter observation might surprise those from western democracies where minorities and the poor tend to support the left. However, in post-communist Hungary, inhabitants of small towns and villages, and those with less education prefer the populism of the right rather than the more urbane and technocratic politics of liberals or reformed communists. e electoral pact also reflected the belief that through supporting Roma leaders/organizations, a ‘Roma vote’ could be delivered at election time. In response, the Hungarian Socialist Party (MSP) felt the need to find a high-profile Roma candidate, eventually selecting László Teleki, Farkas’ number two in the NGS-G.30 is means that the current Hungarian parliament has four Roma MPs, more than ever before. A. Greater Opportunity for Roma Activists at the National Level Not only did the Lungo Drom pact (and the MSP response to it) create a general impression of closer integration of the Roma issue with mainstream politics, but it also brought the issue into the realm of competitive party politics. is should not be seen as heralding the end of the long-standing elite consensus concerning Roma because, despite a slight shift in emphasis towards social inclusion, Roma policy is likely to maintain the continuity represented by the two MTAPs (with the eventual adoption of a long-term strategy). However, it does mean that that party patronage can provide an alternative base of support for Roma activists and allow Roma politics to move on from its initial ideological division (pro or contra the state’s aspiration for monopoly representation) towards one more closely related to differences within mainstream politics. Despite raising his personal status to that of an MP, in backing the losing side, Flórián Farkas also found himself, for the first time in his career, in opposition to the government of the day. Apart from the advantage of acting as the gatekeeper to the resources allocated within Roma policy, the underdevelopment of Roma politics has meant that Farkas’ influence amongst Roma activists has been based on his claim of having the best chance of influencing policy due to his strategy of loyalty to whoever is in power. With Farkas on the opposition’s benches, a vacancy arose for other Roma activists to claim to have the support of a government which, in turn, had an incentive to promote the status and activities of Roma who were not part of its mainstream opponents’ camp. Lungo Drom (March, ), -. J. Ladányi, ‘Baloldali hátrányok és előnyök’, Népszabadság, October . 30 Tibor Benga Olah also ran on the HSP national list, but did not secure a mandate.
28 29
Roma Politics and Policy in Hungary - e local elections in October were a major defeat for the mainstream right. Minority self-government elections held on the same day saw the number of Roma selfgovernments rise to , though these were rarely contested on a party political basis.31 In anticipation of the election of the NGS-G, there was intensive political activity to win over the more than , members of the Electoral College (EC). In December, the Democratic Roma Coalition was formed to challenge the Lungo Drom list. e coalition was made up of disaffected former allies of Farkas, regional activists who had developed their own power bases over the years, and long-standing critics of Farkas.32 When the EC met on January , it soon became clear that the list system would this time result in total defeat for Lungo Drom. Accusing his opponents of cheating, Farkas led his faction away before voting, thus ensuring a DRC victory. Farkas’ boycott led to the election being annulled. When it was re-run in March , Farkas was reinstated, but in penultimate place with all but two of the representatives elected coming from the DRC list. VIII. C G e parliamentary election of spring resulted in the narrow and unexpected victory of the socialist-liberal coalition. As noted above, the new government suspended ratification of the Long-Term Roma Strategy and the Roma policy has continued along the lines of the second Medium-Term Action Plan. Nevertheless, the new administration has contributed to change, notably in the governmental structure for addressing the Roma issue as well as by placing a greater emphasis on social inclusion. Reversing the decision of the previous regime, the new government took responsibility for minority issues away from the Ministry of Justice and returned it to the Prime Minister’s Office. In addition, László Teleki was appointed as a Secretary of State specifically for Roma affairs. e government also plans to establish positions for six commissioners to oversee the Roma-related activities of certain ministries, the first of whom was appointed in July to the Ministry of Education. e ICGA has also been replaced by the Roma Coordination Council. e council is scheduled to meet four times a year, twice under the chairmanship of the prime minister. e council extends accountability beyond the ministries and the NGS-G by its inclusion of Roma activists from self-organized groups as well as by including selected experts including the former president of the Hungarian Academy of Science. e chairman of the Roma Civil Rights Foundation (Roma Polgárjogi Alapítvány), Aladár Horváth, was named as personal advisor to the prime minister. e new government has placed greater emphasis on issues of social inclusion and cohesion. In addition to giving substantial wage increases to public sector workers, the government has established an Equal Opportunities Department within the Department of Employment and Labour Affairs focusing on the disabled, women and Roma. 31 32
Over % of candidates in local government elections in Hungary run as independents with parties formally sponsoring candidates only in larger towns and at the county level. I. Riba, ‘Balkanyar’, HVG ( January ), -.
Martin Kovats Roma were also specifically included in the first draft of the National Development Plan (NDP) which recognized that a failure to address the social problems and exclusion of disadvantaged sections of the population (especially Roma) could produce ‘incalculable consequences and lead to serious social and ethnic tensions’.33 is acknowledgement is potentially significant as the NDP will determine the use of over HUF , billion (EUR m) of development funds (including Hungary’s share of EU Structural and Cohesion Funds) and will guide Hungary’s financial relations with the EU through to the end of the latter’s - budget cycle. In relation specifically to Roma policy, in August , the government announced plans to reform the method of providing money for special needs classes, which had been recognized as providing a financial incentive for schools to segregate Roma pupils.34 IX. T I R At the start of , it seems we may be on the threshold of significant changes with respect to Roma policy and politics in Hungary. Government policy is exhibiting a greater concern for social cohesion and equal opportunities, i.e. treating Roma people as citizens in contrast to the complacent promotion of some essential Roma ‘difference’. Politically, Roma politics have reached a stage of development where they may begin to escape the ghetto of separate, ethnic-based representation and thus have a chance of building broader political relations on both the institutional and ideological levels. However, the Roma issue (throughout Europe) is characterized by new starts and hopes for a better future. erefore, to evaluate the likely course of events, one should not begin with short-term developments or the promises of new initiatives, but should adopt a longer historical perspective and examine the wider political context within which the Roma issue exists. A. Structural Impoverishment e single biggest problem facing the Roma population in Hungary is poverty, more accurately, impoverishment resulting from economic transition. Alongside the inadequacy of welfare benefits and low wages, the primary cause of poverty is unemployment. Not all Roma are poor and more ‘non-Roma’ than Roma live in poverty in Hungary today. e over-representation of Roma at the bottom of society is not a unique, ethnic phenomenon, but rather an extreme manifestation of socioeconomic fragmentation in a country where employment has fallen by one third and income inequality has almost doubled since the mid-s. Roma policy and discourse serve to ethnicize objective social problems without resolving them. Despite years of ‘positive discrimination’ in active employment measures and training programmes, a recent report for the United Nations noted that ‘the proportion of ‘Magyarország Nemzeti Fejlesztési Terve -’, Office of the NDP and EU Support-Prime Minister’s Office ( September ), . 34 ‘A felzárkoztatás nem tarthat nyolc évig’, Népszabadság ( August ), . 33
Roma Politics and Policy in Hungary - Roma in total unemployment nearly doubled between and ’.35 In addition, the Hungarian Household Panel Survey showed that between and , the number of Roma households living on less than half the national median income doubled from .% to .% with those in the poorest fifth of the country’s population rising by one quarter.36 e Roma discourse has not only undermined solidarity amongst poorer people (thus entrenching their political impotence), but has also allowed the state to focus attention on the cheaper and less problematic creation of a conspicuous Roma ‘middle class’. It also places emphasis on culture, including discrimination (while at the same time confirming prejudices that Roma really are ‘different’ from other people) rather than economic failure. ough prejudice certainly exists and can affect the employment chances of individuals, if it were eliminated tomorrow, not one new job would be created. On the other hand, if there were an increase in demand for the labour of Roma workers’ discrimination would become economically dysfunctional. e inclusion of Roma within the NDP raises the possibility of significantly greater resources being allocated for improving the living conditions of poorer Roma people and supporting their economic integration. However, this is only a possibility. e purpose of the NDP is to guide investment to improve the functioning of the economy as a whole. us Roma people must compete with many powerful interests on an agenda (economic growth) where they have little bargaining power. Indeed, the NDP contains no new ideas about how to improve the situation of Roma but envisages a continuation of past practices that have not proved notably successful to date. Overall, because of its emphasis on flexible labour markets and technology driven economic growth, the vision of the NDP is not conducive to assisting already marginalized groups in society. However, failure to ensure that Roma people benefit significantly from EU funds will perpetuate impoverishment for years to come. B. Collective Culture and Individual Need Despite the fact that prejudiced attitudes are based on the view that Roma people are essentially ‘different’ from everyone else, and also that the putative ‘Roma community’ is highly diverse (in terms of language, culture, religion, identity, history, economic status, education, ambition, social relationships, etc.), the post-communist period has seen an unprecedented promotion of ‘Roma culture’. e idea of Roma as representing a culturally distinct collective is vital for justifying the concept of Roma policy. It enables the strengthening of the abstraction of Roma identity to become a policy aim equivalent to the far more expensive challenge of establishing equal opportunity. It also enables Roma politics to be located within the minority self-government system for the purpose of exercising collective minority rights and the realization of ‘cultural autonomy’. 35
36
United Nations Development Programme, ‘Avoiding the Dependency Trap’ (Bratislava, ), . T. Kolosi, I. Tóth and Gy. Vukovich (eds.), Társadalmi Riport (Tarki and Budapest, ), .
Martin Kovats e promotion of the collective abstraction of ‘Roma culture’ stands in sharp contrast to the failure to address the most specific of personal needs, the health of individual human beings. During the s, a review of the far from comprehensive health data relating to Roma demonstrated far higher rates of morbidity and lower life expectancy than the general population, and also that poor health was closely related to poor living conditions and low socioeconomic status.37 Despite health issues being included within both MTAPs, as noted above, Roma policy has failed to prevent deepening impoverishment and thus it is very likely that health circumstances have deteriorated further. Research in showed that Roma suffered rates of tuberculosis and heart disease over ten times greater than in the population as a whole and significantly higher rates of almost all major health problems (cancers ., anaemia , asthma and gastric illness . times higher than the national average). e conclusion: ‘improvement in health status can only be expected with raising the skill levels of Roma, employment, improving living conditions and a general rise in their standard of living’,38 all of which post-communist Roma policy has failed to deliver. C. Housing Insecurity of tenure and overcrowded/unsanitary living conditions are both effects of impoverishment and contributory factors to poor health and educational disadvantage, as well as a source of tension with neighbours and authorities. A major achievement of communist integration policies was the elimination of isolated slum settlements, allowing Roma people to move to areas closer to centres of employment and improving their access to the social and physical infrastructure of modern society. e post-communist period has seen a process of ‘resettlement’ with over settlements identified by the government in . e infrastructure of the settlements is far below the average national standards with most only being accessible by dirt road and almost half having no piped water supply, yet they are home to many thousands of (mainly Roma) people.39 e increased costs of housing and related services, combined with the collapse of public housing construction in the post-communist period, has forced those on low incomes into less desirable accommodations (in terms of size, quality and location). Inability to pay bills and illegal occupancy have led to a rising number of evictions and increased homelessness. As they are responsible for most welfare costs, local authorities have an interest in removing poorer residents from their jurisdiction. is situation produced the most conspicuous political failure to date with respect to Roma policy when, as previously mentioned, in , six Roma families from Zámoly won political asylum in France. A similar problem in Paks in was addressed more effectively by the new L. Puporka and Zs. Zádori, e Health Status of Roma in Hungary (Roma Press Centre, Budapest), . Delphoi Consulting, Borsod-Abaúj-Zemplén megye roma népessége – szóciális gazdasági tényezők, egészségügyi állapot (Budapest, ). 39 Béla Berkes, ‘Luxusgettók, putrisok helyett?’, Népszabadság ( June ). 37
38
Roma Politics and Policy in Hungary - government, but not before villagers had wrecked one house to prevent its occupancy by a Roma family. D. Education Given the close correlation between educational attainment and life chances, the main focus of Roma policy has been on education, encompassing the creation of Roma schools and hostels, providing grants to students and extra money for schools to run special minority education or catch-up classes, adopting changes within teacher training, publication of textbooks and Roma-related pedagogical materials, as well as undertaking extensive research and allowing Roma representatives in self-governments to become involved in decisions affecting local educational provision. As a result of the (historical) integration process, the proportion of Roma pupils completing basic education has continually risen since the s. Since the change of system, more Roma have entered secondary and higher education than ever before. At the same time, educational attainment has risen throughout society. Educational progress represents success for individuals and is a vital component for achieving a major aim of Roma policy – the creation of a Roma middle-class. However, the efforts and resources expended on Roma educational initiatives have failed to lead to greater equality of opportunity. Reviewing surveys on Roma educational attainment, the sociologist Gábor Havas concluded that over the s ‘there appears to be no significant difference in the proportion of [Roma] pupils going on to secondary school’ and, with respect to higher education, ‘the divide between Roma and non-Roma has basically remained intact’.40 Rather than facilitating integration, Roma policy has coincided with the strengthening of segregation in education. Survey data indicates that the percentage of Roma pupils attending elementary schools with a mainly Roma intake almost tripled between and from .% to .%. is is partly accounted for by demographic factors (higher birth rate and an increasing residential segregation), one result of which is that almost one third of Roma primary pupils attend schools in small villages, where their chances of going on to higher education are negligible. However, the liberalization of education which allows parents the right to chose to which school they send their children, has reinforced this tendency, enabling parents to threaten to withdraw their child from a school they believe has too many Roma. ere has also been a marked increase in segregation within schools, often through a combination of specialized, high-quality classes on the one hand, combined with auxiliary classes for less able pupils on the other. e proportion of Roma children in remedial education has continually risen with the Parliamentary Commissioner for National and Ethnic Minorities Rights noting that ‘neither nationally nor at the local-regional level is there any educational conception which includes provision for regulation, supervision, 40
G. Havas, ‘e School as Break-out Point’, in E. Kallai (ed.), e Gypsies/e Roma in Hungarian Society (Budapest, ), -, at .
Martin Kovats institutional and pedagogical development, evaluation, research or financing which, in the foreseeable future, may reduce the level of discrimination against minority pupils.’41 X. Q I As a distinct political concept, the promotion of Roma contains both the objective circumstances of Roma people and the abstract idea of (national) identity. Increasing marginalization/segregation and a decline in the living conditions and life chances of most Roma people in Hungary over the s has meant that the challenges of addressing objective needs and realizing equality of opportunity in the new millennium are costlier and even more complex than a decade earlier. At the same time, the relationship between identity and politics is also likely to become more problematic, both with respect to the evolution of the Hungarian national identity and the growth of Roma nationalism. A. Reunification of the Hungarian Nation e declining role of the nation-state as a result of the end of the Cold War and prospective EU enlargement has provided an unprecedented historical opportunity to recreate a political community embracing all Hungarians. e promotion of minority rights in Hungary is a policy based on disconnecting ethnic/national identity from state identity so that by providing an opportunity for other states to support their ‘co-nationals’ (minority communities in Hungary), the Hungarian state and society may give assistance to Hungarian minorities abroad. In , this process was taken a stage further with the passage of the Law on Hungarians Living in Neighbouring States, commonly known as the ‘Status Law’.42 e most conspicuous element of the Status Law is the ‘Hungarian Card’, which symbolizes membership of the Hungarian (culture) nation and which Hungarians abroad may apply for. e Status Law entitles the holder of the Hungarian Card to certain benefits within Hungary, as well as support in their home countries. However, the Law has proved to be controversial with some neighbouring governments and has been criticized by the EU and the CoE. In territories that were part of the Hungarian state prior to , there are estimated to be up to , Hungarian-speaking Gypsies that often identify themselves as Hungarians. Individuals apply for a Hungarian Card, however, as its possession entails tangible benefits; applications have to be approved by local committees following guidelines as to whether or not the applicant is ‘Hungarian’. During the drafting of the Status Law, the question was raised whether Gypsies would be entitled to the card. It was acknowledged that ‘if the Hungarian government openly undertook to support Gypsies in neighbouring states this would prove unpopular with Hungarian taxpayers’, however the Hungarian Office of the Ombudman for Minority Rights, A kisebbségi Ombudsman jelentése a kisebbségek oktatásának átfogó vizsgálatáról (Budapest, ), -. 42 évi LXII törvény a szomszédos államokban élő magyarokról. 41
Roma Politics and Policy in Hungary - Card could also provide an incentive for Gypsies to identify themselves as Hungarian in census returns. Ultimately, it was decided not to form a central policy but to allow local committees to develop their own policy toward Gypsy applicants.43 At present, Roma identity is not incompatible with Hungarian identity, however, the process of redefining the relationship between national/ethnic identity and political authority is very much in flux and will continue to evolve (away from the unambiguous link between states and their citizens) within the context of a united Europe. e former Prime Minister Viktor Orbán has expressed a preference for ‘a Europe of national, religious, linguistic and cultural communities, which defines precisely the powers at the various levels – that is the levels at which the citizens and the communities can sort out their affairs’.44 In this context, the aim of the draft Long-Term Roma Strategy to ‘create the conditions whereby the Roma communities and their leaders can take responsibility for and be the primary fashioners of their fate’ appears to be more a threat than bland platitude.45 B. e Institutionalization of the Roma ‘Nation’ Even more problematic is the promotion of Roma as a national identity and the encouragement of this process by mainstream political forces, including its prospective institutionalization at the European level. Whilst the Hungarian state has been at the forefront of separating the issues of Roma people from those of other citizens, other countries with large and problematic Roma populations have faced similar pressures and have sought to have the Roma issue defined as a ‘European’ matter rather than a domestic problem (notably the Czech Republic and Slovakia). e Roma issue has also proved attractive to nongovernmental organizations that profit from taking over tasks that are properly the responsibility of the state. During the s, European institutions became progressively more deeply engaged with the Roma issue. In part, this reflected the enlargement process and the fact that the EU wished to ensure prospective member states’ conformity with accession criteria (but it was also with respect to migration). However, the Roma issue has also been exploited for its symbolic role in demonstrating the failure of nation-states and thus justifying supranational governance.46 e main advocate of this process has been the CoE although, as the chair of its Specialist Group on Roma/Gypsies admitted in , years of explicit Roma initiatives had not resulted in tangible improvements in the lives of Roma people.47 In late , negotiations were concluded over the creation of the European Roma Forum (ERF), which may be established by the CoE as soon as . e bland title ‘Roma-státuskedvezmények?’, Nepszabadság ( March ). ‘Hungarian Premier Explains Vision of Europe of Communities’, BBC Monitoring ( September ). 45 A hossú távú roma társadalom-és kisebbségpolitikai stratégiai irányelvei (Világünk, October-November ), -, at . 46 Kovats, ‘e Emergence of European Roma Policy’, in Guy (ed.), Between Past and Future …, -. 47 Guy, ‘Romani Identity and Post-communist Policy’, in Guy (ed.), Between Past and Future …, -, at . 43
44
Martin Kovats disguises the fact that this will be a quasi-parliament with two ‘representatives’ from each European country, as well as nominees from two international Roma organizations (International Romani Union and Romani National Congress) and from each vaguely defined Roma cultural community or religious affiliation.48 e ERF is the first officially endorsed institution of Roma nationalism. ough formally an initiative of the President of Finland, the call for official representation for the Roma ‘Nation’ was in fact made by the International Romani Union in as part of its ‘Declaration of a Nation’. e ERF is purely symbolic and has no authority; however, it will undermine Roma politics at the national level by requiring activists to orient their activities abroad rather than establishing effective relationships with the national and local authorities whose decisions affect the lives of Roma people. It also contributes to the prospective exclusion of Roma people in the redefinition of the Hungarian nation. e creation of this pseudo-representative body conforms to the recommendations of the report of Csaba Tabajdi (a senior member of the MSP and leader of the country’s delegation in the parliament of the CoE) which was approved by the parliament of the CoE and which envisages the creation of separate legal and financial bodies for Roma (ombudsman, Roma Development Fund).49 e danger is that by creating the institutions for a virtual Roma (nation-)state, the CoE is encouraging already extant tendencies towards the political and administrative segregation of Roma from their fellow citizens. So far, Roma in Hungary have been largely immune to Roma nationalism. No Hungarian Roma attended the World Romani Congress in and leading activists such as Aladár Horváth and Jenő Zsigó have spoken out strongly against the ERF, because of its lack of democracy and because it undermines the work of lobbying the Hungarian state and society to treat Roma people as equal citizens and as human beings. Unfortunately, the history of Roma political development indicates that it is the conditions determined by wider political forces, not Roma people themselves, that determine the course of policy towards Roma people. XI. C As a political phenomenon, the Roma issue in post-communist Hungary stands in stark contrast to the situation in the communist period. From the early s, government policy aimed at the full social and economic integration of Roma people through the elimination of all the disadvantages sustaining inequality. Separate institutions and representation were not endorsed as it was anticipated that Gypsy identity would disappear through assimilation. is approach has been replaced by the unprecedented official promotion not only of Roma identity and cultural ‘difference’, but also of political ‘difference’. e latter takes the form of defining Roma not only as a separate political community 48 49
‘Initiative to Set Up a European Forum for the Roma’, speech given by the Finnish Ambassador to Hungary, Mr. Pekka Kujaslo, at the Friedrich Ebert Foundation, Budapest ( November ) (unpublished). ‘Legal situation of the Roma in Europe’, Report of the Committee on Legal Affairs and Human Rights, CoE Parliamentary Assembly Doc ( April ).
Roma Politics and Policy in Hungary - with its own ethnic representation, but also as a distinct policy concept. e politicization of Roma identity has coincided with the dramatic deterioration in the living conditions and life chances of most Roma people, both in absolute terms and relative to that of their fellow Hungarian citizens. is contrast in Roma politics reflects changes in economic and political conditions in Hungary. ‘Transition’ has reduced the economic need for Roma labour, hence the state has less incentive to ‘invest’ in the social and economic advancement of (most) Roma people. Rather than aiming to reduce inequality or reverse disintegration, Roma policy is constructed to facilitate and manage social fragmentation through ethnicizing objective problems. e political weakness of Roma as an interest group means it has been relatively easy for the state to find ‘representatives’ to legitimate this process. As such, Roma policy has shown itself to be an essentially racist phenomenon, racializing poverty and obstructing the democratic development of Roma interest representation. However, Roma political activity also reflects the aspiration to use politics to achieve equality. e scale of the challenge and the contradictions of the Roma issue mean that we are only at an early stage in what will prove to be a sustained and increasingly significant political phenomenon. At the beginning of , both Roma policy and politics in Hungary appeared to have moved into a new phase characterized by a greater emphasis on social inclusion and greater opportunities for a wide variety of Roma activists. Although these are important developments in themselves, one should be cautious regarding the extent to which they represent a break with past tendencies. Indeed, as both the economic and ideological bases for segregation intensify further, we may have seen only the close of Act One, but the tragedy has still to play itself out.
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Robert Dunbar *
Language Legislation and Language Rights in the United Kingdom
e overwhelming presence of the English language in British life, together with its increasing use as a – perhaps the – lingua franca in the age of globalization, leads many to conclude that the issues posed by societal multilingualism are ones which British people do not have to confront. However, considerable linguistic diversity does exist in the United Kingdom (UK), and has done so from time immemorial.1 Still, the law has been very slow in responding to this diversity, with the result that British legislative activity with respect to minority languages has too frequently been ad hoc, and driven by events and political pressure rather than principle. Indeed, while there is, arguably, a discernable policy in the UK with respect to minorities in general, there has not yet emerged a clear policy with respect to linguistic minorities. is article evaluates the legal position of linguistic minorities in the UK. It begins with a consideration of a number of matters which impact on minority language policy and legislation, such as the demographic position of minority languages and the broader legal and policy context. It then describes the existing legislative and administrative measures which have been taken in respect of the UK’s minority languages. It concludes with an assessment of the adequacy of these measures, particularly in light of the UK’s existing commitments under international law. I. T L L C A large number of languages are spoken in the UK. In addition to English, there are the ‘autochthonous’ languages (Celtic languages such as Welsh, Scottish Gaelic, Irish and Cornish, and Germanic languages such as the various dialects of Scots and its variant spoken in Northern Ireland, Ulster-Scots), languages brought by relatively recent *
1
Senior Lecturer in Law, School of Law, University of Glasgow. See, for example, Michael Beloff, Q.C., ‘Minority Languages and the Law’, Current Legal Problems (), -, at -.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Robert Dunbar immigrant populations (for example, Urdu, Hindi, Panjabi, Gujarati, Cantonese, Turkish, Yoruba), and sign languages used by the hearing-impaired. Legislative measures have generally only been enacted with respect to three autochthonous languages, however – Welsh, Scottish Gaelic, and Irish – and such measures are considered more closely in Section II of this article. e demographic and institutional/legal histories of minority languages in the UK tell a similar story, and these histories are obviously related: e institutional and legal ascendancy of the English language as the sole medium of public and societal discourse has marginalized and consequently weakened all other languages. is Section begins with a brief exploration of these two issues – the historical legacy of British politics of monolingualism and the demographic realities facing the UK’s minority languages. ese are fundamental issues which any attempts to legislate for language must confront. Other issues of relevance to the question of the legal status of languages other than English include the slow development of a ‘rights’ culture and the general approach to minority issues in UK law, the impact of devolved government in Wales, Scotland and Northern Ireland, and the UK’s international obligations of relevance to the question of language legislation. A. e Historical Legacy of Politics of British Monolingualism e UK has no single written constitutional document, and no statute or other legal instrument has designated any particular language as the UK’s official language.2 Nonetheless, English is, as a matter of convention, the sole language of parliament, of legislation, of public administration and of the courts – subject to what is said below concerning Welsh and, to a more limited extent, Scottish Gaelic and Irish.3 While the UK has generally not taken measures to prevent the private use of any particular language, the rise of the modern administrative nation-state has inevitably led to linguistic standardization in most of the higher register linguistic domains, including public administration, the legal system, government and the economy, and this has tended to favour English at the expense of other languages. e legal and institutional legacy in the UK is generally one of monolingualism. e process of linguistic standardization started early, and can be seen most clearly in the history of the use of language in the courts and civil administration. e main concern was the persistent use of legal French and Latin in English courts – a product of the Norman Conquest of .4 It was only in the eighteenth century that this process was completed: e Courts of Justice Act required the use of English in all courts of justice in England (including Wales) and, significantly, in the court of exchequer in Scotland; the 2 3
4
Interestingly, the British Nationality Act provides that in order to acquire British citizenship, a person must, inter alia, have sufficient knowledge of English, Welsh, or Scottish Gaelic (Section and Schedule I). Beloff, ‘Minority Languages and the Law’, at . e process of enhancing the status of English in the English courts – and by extension, those of Wales and Ireland – is described in Ruth Morris, ‘Great Mischiefs – An Historical Look at Language Legislation in Great Britain’, in Douglas A. Kibbee (ed.), Language Legislation and Linguistic Rights, (Amsterdam, ), -, at .
Language Legislation and Language Rights in the United Kingdom Administration of Justice (Language) Act (Ireland) had the same effect with respect to the courts in Ireland. While these statutes were, as noted, primarily directed at the problem caused by the widespread use of legal French and Latin in English courts, they also had the effect of excluding the autochthonous languages from the courts; they specifically provided that neither Latin nor French, nor ‘any other tongue or language whatsoever’5 could be used. In the wake of the and legislation, the legal system in the UK as a whole switched from a multilingual to a monoglot ethos.6 Although the legislation was repealed by the Civil Procedure Acts Repeal Act ,7 English remained the sole language of the courts. Significantly, the legislation was never repealed, and so it still applies in Northern Ireland, effectively preventing the use of Irish in the courts there. e Celtic-speaking peoples of the periphery posed a particular problem for the construction of an English-speaking English – then British – state. Indeed, political and economic integration into a wider British polity have generally worked to the significant disadvantage of all languages in the British Isles except for variants of standard English, and there have been various legislative measures which have encouraged anglicization and have thereby fostered assimilation. In Wales, the process of political integration into England began in earnest in the late thirteenth century.8 It was under Henry VIII, however, that more significant steps were taken to integrate Wales into England, and these were to have consequences for the Welsh language. In , the Act of Union formally incorporated the Principality of Wales into England and provided that English would be the language of the courts in Wales and that only those able to speak English could hold public office. is Act, together with another in , generally aimed at creating a uniform legal and administrative system throughout England and Wales. Forced to learn English, the Welsh aristocracy became increasingly anglicized, and slowly ceased to be patrons of Welsh-speaking society.9 Increasingly, Welsh became a language restricted to the rural peasantry, artisans and lower clergy.10 A similar process took place in Scotland. Compared to Wales, and Cornwall – where Cornish, a language closely related to Welsh, was spoken, and where political and administrative integration into England also occurred at an early stage – Scotland maintained its autonomy from England for a considerably longer period. Scottish independence from England effectively ended only in , with the Treaty of Union, under which the kingdoms of England and Scotland were united into one kingdom under the name of Great Britain, and the Scottish and English parliaments also became one. e erosion of the 5 6
7
8
9
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Both the Courts of Justice Act and the Administration of Justice (Language) Act (Ireland) contain this phrase. Morris, ‘Great Mischiefs...’, . Ibid., . Kenneth O. Morgan (ed.), e Oxford History of Britain (Oxford, ), . Janet Davies, ‘Welsh’, in Glanville Price (ed.), Languages in Britain and Ireland (Oxford, ), -, at . See, generally, Janet Davies, e Welsh Language, (Cardiff, ). Ibid., . e status of the Welsh language was assisted by one piece of legislation: an Act of Parliament in required the translation of the Bible and the Book of Common Prayer into Welsh, ensuring that Welsh tended to become the language of religious worship in Wales.
Robert Dunbar Gaelic language, however, began in the eleventh century, when it was displaced in the Scottish court by Scots, a Germanic language closely related to English. By the fourteenth century, Gaelic was restricted mainly to the Scottish Highlands and the islands of the west coast, and from the fifteenth century, the Scottish, then British crown sought to fully integrate this region more effectively and saw the anglicization of the Highlands as a means of doing so. From the mid-sixteenth century, though, Scots was also subjected to a gradual process of anglicization, due to at least two important factors: e Reformation increased political and social ties between Scotland and England; and, the ascension of James VI of Scotland to the English throne in and the subsequent Union of the two Crowns and of the Scottish and English parliaments in led to the displacement of Scots by English as the language of public administration and, increasingly, of ‘polite’ society.11 Like Wales, Ireland was nominally subject to English control from a fairly early period, but actual control was weak, and many of the Norman-French aristocratic families who had settled in Ireland were assimilated fairly quickly into Irish Gaelic culture. In August , however, Henry VIII of England defeated a rebellion of the Irish lords and imposed direct English rule. As in Wales, the local language, Irish, remained predominant throughout most of the country, but the English Crown actively sought to impose English rule on Ireland and, in the process, to destroy its cultural distinctiveness.12 With the defeat of the Earls of Ulster at the beginning of the seventeenth century, the old Irish-speaking political and social order was brought to an end; in addition to his measures taken against the Gaelic-speaking Scottish Highland aristocracy, James VI and I13 sought to break the unity of the Gaelic world permanently by beginning a policy of planting Protestant Scots and English in the north of Ireland.14 e nineteenth century saw more concerted attempts to standardize language use throughout the UK, notably through the school system, and these efforts continued to act to the detriment of the autochthonous languages. For example, the Education Act, for England and Wales and the Education (Scotland) Act, for Scotland introduced universal state-supported education, but only through the medium of English. Arguably, such legislation did not directly aim at eliminating the autochthonous languages, but rather at equipping the speakers of such languages with standard English; there was, however, a clear hostility to the Celtic languages, which were perceived to be backward, barbaric, inferior, and generally opposed to the ‘progressive’ spirit of the day. e prevailing approach to minority languages in education in the UK, given expression in the legislation of the s, has been described in the following terms:
See, generally, European Bureau for Lesser Used Languages (EBLUL) Scotland: a linguistic double helix, European Languages (Dublin, ), at -; Jeremy J. Smith, ‘Scots’, in Price (ed.), Languages in Britain and Ireland, - and Mairi Robinson (ed.), e Concise Scots Dictionary, (Aberdeen, ), ix-xii. 12 EBLUL, Irish: Facing …, . 13 King of Scotland as James VI -, of England as James I -. 14 See, for example, J. C. Beckett, A Short History of Ireland (London, ). 11
Language Legislation and Language Rights in the United Kingdom Inasmuch as a language policy existed in Britain in the first half of the twentieth century, it focussed on the unacceptability of Celtic languages and non-standard dialects of English in education, and the importance of teaching the standard. British schools were monolingual, monocultural institutions, one of whose functions was to enlighten those who departed from received linguistic and cultural norms.15 is approach was replicated in other domains; the Local Government Act , for example, made English the sole language of the newly formed local authorities throughout both England and Wales. Changes have taken place, largely in the last twenty or so years, and these are discussed in Section II. Institutionally, however, the UK remains an overwhelmingly English-speaking state, and one in which linguistic diversity still tends to be viewed as a ‘problem’ which must be overcome rather than a resource which should be fostered. B. e Demographic Context Perhaps the single greatest current challenge to the autochthonous languages is a demographic one, as Welsh, Gaelic and Irish, in particular, have been under considerable pressure for generations. is demographic situation is unquestionably related to the institutional situation just described. With respect to Welsh, by the time of the British census of , , respondents, or .% of the Welsh population, reported themselves as Welsh-speaking; , were monoglots.16 By the census, absolute numbers of Welsh speakers continued to rise, to ,, but they were only .% of the total Welsh population, and the number of monoglots continued to fall. From onwards, however, both absolute numbers and percentages of Welsh-speakers fell.17 ere are now signs that this process has been arrested, and Welsh enters the twentyfirst century as unquestionably the strongest of Britain’s autochthonous languages. e UK census revealed that the percentage of the roughly . million inhabitants of Wales who spoke Welsh was .%, down slightly from the figure of .% in the census; however, the number of persons able to speak Welsh, ,, had increased slightly since , when , persons were reported.18 e census shows an Vivian Edwards, ‘Language Policy in Multicultural Britain’, in John Edwards (ed.), Linguistic Minorities, Policies and Pluralism (Toronto, ), -, at . 16 Davies, ‘Welsh’, at . 17 Colin Williams, ‘Welsh in Great Britain’, in Guus Extra and Durk Gorter (eds.), e other languages of Europe (Clevedon, ), -, at -. 18 Davies, e Welsh Language, -. e vast majority of Welsh-speakers also speak English. While the Census does not record levels of linguistic competence, a Welsh Office survey, Arolwg Cymdeithasol Cymru : Adroddiad ar y Gymraeg (March, ), estimated that about , spoke Welsh as a first language, on a slightly higher estimate of the numbers of Welsh-speakers, , than that recorded in the Census. 15
Robert Dunbar increase in both absolute numbers of speakers and percentages: , people identified themselves as being able to speak Welsh, or about .% of the population aged three and over.19 e census also confirms some of the positive trends reflected in the census, such as, for example, the increase in the numbers and percentages of young people who speak the language. On the other hand, the language continues to be under considerable stress in its traditional heartland in the rural northwest, and patterns of language use and transmission are weaker than is reflected by gross census statistics.20 In short, while the future of Welsh is far from secure,21 there is good reason for guarded optimism. As we shall see, part of the reason for this is due to government policy in general and a supportive legislative framework in particular. With regard to Scottish Gaelic, the results from the census show that the long decline of the language continues, although the extent of the decline from to was not as great as had been feared, and these results indicate that the rate of decline may be slowing. In the census, , people reported themselves as being able to speak Gaelic, or about .% of the Scottish population, a , person and a .% decline from .22 A slightly higher figure of , persons (.% of the population aged three or over) were reported as being able to speak, read or write Gaelic, down slightly from .23 As noted, the rate of decline between and , though significant, is only about half of that which occurred between and , when the number of Gaelic-speakers dropped by about ,. A comparison with the census figures from , however, shows the extent of the longterm decline: ere were then , Gaelic-speakers, representing about .% of the population, and a significant number of these were monoglots (there are none today). A closer analysis of the census provides stark evidence of a language community on the brink of terminal decline. Over half of all Gaelic-speakers were aged or more, and Gaeldom’s leading demographer noted that the numbers of young Gaelic-speakers were ‘quite insufficient to reverse the inexorable downward trend of Gaelic-speakers across the age-spectrum’.24 e 19 20
21 22
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Office of National Statistics, available at http://www.statistics.gov.uk/census/profiles/rank/ walskills.asp. See, for example, Davies, e Welsh Language, . See also, Kenneth MacKinnon, ‘Celtic Language Groups: Identity and Demography in Cross-Cultural Comparison’, in Black, Gillies and Ó Maolalaigh (eds.), Celtic connections: proceedings of the tenth international congress of celtic studies (East Linton, ), -, at . For a good review of the present demographic position of Welsh and of the key demographic issues facing the language, see Williams, ‘Welsh in Great Britain’. Scotland’s Census : e Registrar General’s Report to the Scottish Parliament, February, ; available at http://www.gro-scotland.gov.uk/grosweb/grosweb.nsf/pages/file/$file/rg_report_parliament.pdf. In , , reported themselves to be Gaelic-speakers, or approximately .% of the Scottish population aged or over. For , see e Scottish Parliament Information Centre, Gaelic (Gàidhlig), Devolution Series /, March, . While the census did not solicit information on linguistic competence, the great majority of those reported as Gaelic-speakers were almost certainly native speakers, and fully bilingual. In , there were , people, or .% of the population, in this category. Kenneth MacKinnon, ‘Neighbours in Persistence: Prospects for Gaelic Maintenance in a Globalising English World’, in Gordon McCoy and Maolcholaim Scott (eds.), Aithne na nGael/Gaelic Identities (Belfast, ), -, at .
Language Legislation and Language Rights in the United Kingdom census figures generally confirm these long-term trends, and this overall pattern is, in part, a reflection of the policy and legislative framework surrounding the language which, as we shall see, has not been particularly supportive. Gaelic is not the only autochthonous language spoken in Scotland: Scots, a Germanic language first brought to Scotland by the Anglian peoples of the English North-East, and influenced by Anglo-Danish, Norman French, Dutch and to a limited extent Gaelic, had become the tongue of urban centres and much of the lowlands by the middle ages; by the mid-fifteenth century, it had replaced Latin as the language of the Scottish court and of public administration25 and had also become the principal literary language of the country. In the early seventeenth century, the Protestant King James VI and I sought to break the power of the Catholic and Gaelic-speaking earls of the North of Ireland, and to break the unity of the Gaelic cultural zone which stretched from Cork in the South of Ireland to Lewis in the Scottish Hebrides, and therefore pursued a policy of settling Scottish and English Protestants in the North of Ireland. ose Scots coming from lowland areas brought their language with them, and this speech has been preserved to the present day as Ulster Scots. As noted earlier, though, from the mid-sixteenth century, Scots-speakers have, like speakers of the Celtic languages, been subject to a gradual process of anglicization.26 In spite of these anglicizing forces, Scots continues to survive, both in Scotland and in Northern Ireland, not least as a language of a still-vibrant literary and musical tradition.27 While it is true that there are elements of Scots in the speech of the overwhelming majority of the population of Scotland and, arguably, Northern Ireland, the actual position of the Scots tongue is less clear. It has been noted that the language of contemporary lowland Scotland is fluid, … marked by a wide and almost infinitely variable range of speech-styles, ranging from the full Scots of some fisher-folk and farming people in the North-East, through various intermediate ‘mixtures of Scots and English’, to a variety of Standard English spoken in a Scottish accent.28 It is, therefore, difficult to quantify a precise number of speakers of Scots or Ulster Scots.29 However, the language faces a number of significant challenges: the similarity to English, 25 26 27 28 29
As noted above, Gaelic had been displaced from the court and public administration in the eleventh century. See, generally, EBLUL, Scotland: a linguistic double …, -, Smith, ‘Scots’, and Robinson (ed.), e Concise …,ix-xii. Scotland: a linguistic double…, - and Robinson (ed.), e Concise…, xii-xiii, respectively. See also, J. Derrick McClure, Why Scots Matters, (Edinburgh, ). Robinson, e Concise…, at xii. ere was no question on Scots in the census in Scotland or on Ulster Scots in the census in Northern Ireland. e Ulster Scots Language Society has estimated the number of speakers of Ulster Scots, sometimes referred to as ‘Ullans’, at ,: e Ulster Scots Language Society, ‘What is Ullans?’, Ullans, Vol. , , at .
Robert Dunbar which not only creates problems in establishing the demographic facts but raises difficult issues in developing language programmes; the relative lack of political activism amongst the supporters of the language (at least until very recently) and their relative inability to articulate a vision and a plan for the revival and promotion of the language; and, the almost total lack of state support for it. e Irish language has, like the other Celtic languages, suffered a steady decline in numbers and percentages of speakers over a long period. While the Irish language hung on into the nineteenth century amongst the rural peasantry, famine and emigration, as well as other social forces, took a devastating toll. By the twentieth century, communities in which Irish continued to be the dominant language were limited mostly to the extreme west coast, primarily in Galway and Mayo, Cork and Clare, and Donegal, all in the Republic of Ireland, which gained independence from the UK in . Irish had all but died out as the native tongue of people in what is now Northern Ireland. Irish has managed to fare somewhat better in the twentieth century in the Republic of Ireland than in the North, due at first to a vigorous language restoration movement and later to various measures of positive support from the government of the Irish Free State and the Irish Republic, although the number of native speakers of the language has continued to decline.30 While the language revival movement has continued to play an important role with respect to Irish in Northern Ireland, the language has largely been deprived of the benefits of a supportive state. According to the census,31 some , people, or .% of the Northern Irish population of ,,, reported themselves as having an ability to speak Irish. is is a significant increase over the census, in which some , people, also roughly % (as the large majority of Irish-speakers there are Roman Catholics, this is over % of that community), reported themselves as having an ability to speak Irish.32 As with the census figures for Welsh and, to a lesser extent, Gaelic, the numbers for Irish in Northern Ireland do not give an accurate picture of actual linguistic competence or use. Unlike Welsh and Gaelic, however, a very small percentage of Irish-speakers in Northern Ireland are native speakers, and only a minority of those reported in the census as Irish-speakers actually speak fluently and use the language regularly.33 Unlike the situation in Wales and Scotland, therefore, the language movement in Northern Ireland is ‘essentially and unambiguEBLUL, Irish: Facing …, . e census results for Northern Ireland were released on December . 32 Aodan Mac Poilin, ‘e Irish Language Movement in Northern Ireland’, in Mairead NicCraith (ed.), Watching One’s Tongue (Liverpool, ), -, at . Surprisingly, given the starkly different state policies towards Irish, the percentage of Irish-speakers in the Roman Catholic community in Northern Ireland is broadly similar to the percentage of the population of the Irish Republic who had identified themselves as Irish-speakers; see Irish: Facing …, . 33 A survey of those claiming to speak Irish in Northern Ireland indicated that only % claimed full fluency; % claimed to never use Irish at home, % used it occasionally, and only % claimed to use it on a daily basis: e Eurolang service of the European Bureau for Lesser Used Languages: http:// www.eurolang.net/State/uk.htm. While , people claimed in the census to be fully fluent in Irish, this is likely an overestimation. 30 31
Language Legislation and Language Rights in the United Kingdom ously a revivalist phenomenon’.34 If anything, it has received even less State support than those other Celtic languages. Cornish, the last of the Celtic languages still spoken in the UK, is purely a revivalist phenomenon.35 It is estimated that there are now about competent Cornish-speakers.36 Finally, reference should also be made to the languages of Britain’s large recent immigrant communities, some of whose languages have been spoken in the UK over several generations and by a significant number of people. While recent UK censuses had questions relating to ethnicity, no questions were included on language, and so the numbers of speakers of these languages – referred to in the UK as ‘community languages’ – is difficult to determine. e census revealed that .% of the UK population was comprised of ethnic minorities; however, ethnicity does not necessarily imply linguistic ability. Recent fieldwork in London shows the remarkable linguistic diversity of the capital: In , English was estimated to be the home language of only about two thirds of , London school children, and over languages were spoken in households of such children. Based on this research, it is estimated that in London alone, there are as many as , Panjabi-speakers, , Gujarati-speakers, , Hindi/Urdu-speakers, , Bengali- and Sylheti-speakers, , Turkish-speakers, , Arabic-speakers, , Cantonese-speakers, and , Yoruba-speakers.37 While speakers of community languages generally do not benefit from any language legislation, they may be relevant to wider UK minority language policy, for a number of reasons: Absolute numbers and physical concentrations in urban areas of speakers of many community languages are greater than those of the autochthonous languages, with the exception of Welsh; considerable numbers of speakers of community languages have a limited competence in English, which is generally not true of speakers of the autochthonous languages; and, members of immigrant communities often face different social, economic and other barriers to integration. Indeed, such language policies as exists for speakers of such languages are generally directed at equipping them with English language skills, for example through English as a Second Language (ESL) programmes, in order to assist their integration into British society.
MacPoilin, ‘e Irish Language Movement…’, . It is estimated that perhaps , people spoke Cornish in , but the language suffered a steady decline, and it appears that the last person with a traditional knowledge of Cornish was believed to have died in about . See Philip Payton, ‘e Ideology of Language Revival in Modern Cornwall’, in R. Black, W. Gillies and R. Ó Maolalaigh (eds.), Celtic connections: proceedings of the tenth international congress of celtic studies, (East Linton, ), -, at , , and e Cornish and the Council of Europe Framework Convention for the Protection of National Minorities, http://www.biscoe.org.uk/cnmr.htm, at para. .. 36 See Philip Payton, ‘Cornish’, in Price (ed.), Languages in Britain and Ireland, -, at . 37 Vivian Edwards, ‘Community languages in the United Kingdom’, in Extra and Gorter (eds.), e Other Languages of Europe, -, at -. 34 35
Robert Dunbar C. e ‘Rights Culture’ and Protection of Minorities in the UK Not surprisingly in a country without a written constitution and in which the doctrine of the legislative supremacy of parliament is so deeply rooted, the idea of enacting legislation which gives people rights against the state is a relatively unorthodox one. While the UK was an early party to the European Convention on Human Rights (ECHR), that treaty was only made part of domestic UK law with the passage of the Human Rights Act , and even under this legislation, the theoretical – and practical – supremacy of parliament has been preserved. e long hegemony of the English language has meant that the UK has seldom had to address constitutionally or legislatively the question of the claims of linguistic groups. us, the legislative creation of language ‘rights’ is an even more exotic idea, and we shall see that, even under the Welsh legislative model, the range of language ‘rights’, as opposed to administrative ‘obligations’, is relatively modest. ese concepts are developed in the context of the discussion of Wales, in Section II.A. With regard to minorities generally, there is a fairly clearly articulated policy in the UK which has been given a legislative basis. However, this policy is generally not concerned with the maintenance of distinct group identities, but with the integration of minorities into British society and the protection of members of such minorities from the sort of prejudice and violence that would impede full integration. Within this policy, the maintenance of minority identity is not actively discouraged, but neither is it promoted; it is simply treated as a private matter. e basis of the prevailing UK minority policy is two-pronged: First, it seeks to protect members of minorities from discrimination based on their minority group membership, under legislation such as the Race Relations Act and under the non-discrimination provisions of the ECHR, which became part of UK law by virtue of the Human Rights Act ; and, second, it criminalizes acts which threaten members of minority groups, for example through the offence of inciting racial hatred, created under the Public Order Act and the crime of racially aggravated harassment, created under the Crime and Disorder Act . ese measures, while important, have limited value for speakers of autochthonous languages, who are not simply concerned with discrimination, which is generally not a serious problem for them, but with a lack of positive state support for their languages. Furthermore, it is not even clear that speakers of such languages are necessarily protected by the Race Relations Act and the other legislation which draws on its terminology, because at least one court decision has cast doubt on whether they would be a ‘racial group’, the relevant concept which engages the Act’s protective mechanisms.38 is predominant approach to minorities in the UK has the potential to cause confusion with respect to autochthonous linguistic minorities, whose needs, aspirations and problems tend to be of a different nature from those of more recent immigrant popula38
See, generally, Wilson McLeod, ‘Autochthonous language communities and the Race Relations Act’ [], Web Journal of Contemporary Legal Issues, at http://webjcli.ncl.ac.uk//issue/mcleod.html and Robert Dunbar, ‘Legislating for Diversity: Minorities in the New Scotland’, in Lindsay Farmer and Scott Veitch (eds.), e State of Scots Law, (London, ), -, at -.
Language Legislation and Language Rights in the United Kingdom tions. Because present policy and legislation is directed at non-discrimination and protection of minorities, and aims at integration of members of minorities within broader British society, a policy which aims at preserving and even promoting distinct identities, including the maintenance of distinct languages, can be misunderstood and even perceived as dangerously illiberal. e confusion to which the prevailing approach can give rise was illustrated in written evidence of the Commission for Racial Equality, Scotland (CRE) – the body set up under the Race Relations Act to promote racial equality, among other matters – to the Scottish parliament’s Education, Culture and Sport Committee in January , in respect of the Gaelic Language (Scotland) Bill.39 is bill, which was introduced by a private member who was an opposition party spokesperson for Gaelic, was only supported by the Scottish Executive at a very late stage, and died with the conclusion of the first Scottish parliament in April . It would have imposed obligations on certain public bodies in certain parts of Scotland to offer services to the public, giving effect to the principle that the Gaelic and English languages should be treated on the basis of equality. e CRE objected to the bill, partly because of its resource implications; the CRE argued that allocation of resources for translation and interpretation ‘should be made on the basis of meeting needs in an equal way’, and that ‘the development of Gaelic services should not be prioritised over other minority language needs’. Significantly, however, the CRE concluded that, as Gaelic speakers are generally bilingual, whereas many immigrants are not, priority should be given to languages spoken by such immigrants, to ensure that they are not excluded from participation in society. Even more significantly, the CRE felt that ‘to promote one language and its associated culture above others to the degree that this Bill proposes’40 could actually be harmful to race relations in Scotland. While the concern with access to services for non-English-speakers is wholly appropriate, the CRE has, it is suggested, conflated a number of distinct minority issues. Given the narrow preoccupation of the CRE in particular and UK minority policy in general with issues relating primarily to integration, this outcome is disappointing, but hardly surprising. It should be noted that the CRE in Wales has taken a much different approach to the question of the promotion of the Welsh language, and is supportive of existing legislation, illustrating that a more nuanced approach, and one which is in keeping with the UK’s international commitments (which will be discussed in Section I.E.), is possible. D. Welsh and Scottish Devolution Perhaps the most interesting development for the autochthonous minority language communities in the UK has been the creation of devolved government. Devolution in Scotland, Wales and Northern Ireland has taken somewhat different forms. In Scotland, the Scotland Act created a Scottish parliament with legislative authority over a substanWritten evidence of January , of the Commission for Racial Equality , Scotland, available at http://www.scottish.parliament.uk/official_report/cttee/educ-/edr--vol-.htm#g. 40 Ibid. 39
Robert Dunbar tial range of matters, including most matters relating to Gaelic and Scots, with the notable exception of broadcasting, which remains a matter for the national government in Westminster alone. us, the Scottish parliament has the power to make significant advances in the legislative protection of Gaelic. A similar approach was taken in Northern Ireland under the Northern Ireland Act , with the result that the Northern Ireland Assembly also has significant legislative authority with respect to Irish and Ulster Scots.41 In Wales, devolution under the Government of Wales Act took a more limited form. e National Assembly for Wales has no power to create new primary legislation or, indeed, to amend existing primary legislation; it can only pass secondary legislation, and then only in respect of matters which were generally within the administrative remit of the Secretary of State for Wales prior to devolution. us, there is a much more limited scope for further development of the legislative framework for Welsh. Nonetheless, as we shall see in Section II.A., the Government of Wales Act itself contains some important provisions with respect to the Welsh language, and creates the possibility of significantly advancing the promotion of Welsh through administrative, rather than legislative means. A significant number of the members of the Welsh Assembly are Welsh-speakers, and the Welsh Assembly and the Welsh Assembly government have both made clear their strong support for the Welsh language and have articulated the ambitious goal of creating a fully bilingual nation, described further in Section II.A. In spite of the greater legislative power of the Scottish parliament, the prospects for Gaelic and Scots are much more constrained. Only two of its members are native Gaelic-speakers, and only a few others have even limited ability in the language. Many, if not most, are indifferent, and some, perhaps, are mildly hostile. In this, the Scottish parliament merely reflects the Scottish electorate. Nonetheless, the parliament has created opportunities for Gaelic. is is partly because there is more parliamentary and committee time for matters such as Gaelic than was ever available at Westminster. In the first parliament (May to April ), the Education, Culture and Sport Committee conducted a detailed investigation of Gaelic-medium broadcasting – ironically, a matter over which the parliament, as noted, does not have any legislative competence – and considered the Gaelic Language (Scotland) Bill, referred to above. ere is also a Cross Party Parliamentary Group on Gaelic, which meets regularly to consider issues of relevance to the language. e parliament’s public petitions procedure has also allowed Gaelic organizations and individual Gaels to petition the parliament with respect to Gaelic matters, and all of this has significantly raised the profile of the language amongst Scottish parliamentarians, bureaucrats, journalists and the public. While many, if not most, of the members of the parliament regularly use Scots words and phrases, this is merely a reflection of wider patterns of speech in Scotland, and none have expressly sought to use Scots as a matter of principle. Indeed, Scots has not benefited nearly as much from the parliament as Gaelic – partly due to the relatively lower amounts of activism from advocates of the language 41
e legislative framework for languages in Northern Ireland will be considered further, in Section II, below, in the context of the discussion of Irish in Northern Ireland.
Language Legislation and Language Rights in the United Kingdom – although once again, certain members of the parliament are strongly supportive of the Scots tongue, and there is also a Cross Party Parliamentary Group on Scots. e prospects for Irish and Ulster-Scots in the Northern Ireland Assembly are limited by the weaknesses in that assembly itself, which has been suspended on two occasions and is still in a state of suspension. Language issues in Northern Ireland are highly political, and given that Irish has come to be closely associated with the Nationalist, Catholic community and Ulster-Scots has increasingly been championed by members of the Unionist, Protestant community, it is likely that progress on one of the languages will have to be made in conjunction with at least some progress in respect of the other. Nonetheless, as in Scotland, devolved government has created a greater opportunity to consider language issues. e Northern Ireland Human Rights Commission has been engaged in the process of trying to develop a Bill of Rights for Northern Ireland, and language issues, including language rights, have featured in the consultation process and in the thinking of the commission. When combined with international developments, the prospects for continued progress are perhaps not as limited as the current political impasse in Northern Ireland may lead observers to suspect. E. e International Context A final aspect of the framework within which minority language policy and legislation is developed is the international context, as defined primarily by the UK’s treaty commitments. e single most important development here was UK ratification of the European Charter for Regional or Minority Languages (EChRML) on March . e EChRML came into force for the UK on July of that year, and the UK submitted its Initial Report on July .42 In many ways, the immediate impact of the Charter has been limited, mainly due to the restrictive and unimaginative approach that the UK has taken to its ratification and implementation. Nonetheless, it constitutes a treaty obligation of the UK, and it makes clear that the UK owes special obligations to its autochthonous minority language communities and, in particular, that it is obliged to take positive measures both to protect and promote such languages. Part II of the Charter contains a statement of the principles which should guide state practice, and this is also significant, as governments in the UK have never clearly expressed the principles which guide their approaches to minority languages, with the possible exception of Welsh. e state reporting process may also be beneficial. Although many international lawyers are rightly critical of such enforcement mechanisms, the EChRML’s mechanism has given a platform to language groups and activists to raise with a Council of Europe treaty body, the Charter’s Committee of Experts, a range of issues relating to the autochthonous languages, and the visit by some members of that body to the UK in January 42
Space does not permit an analysis of the impact of the EChRML, but for an analysis, see Robert Dunbar, ‘e Ratification by the United Kingdom of the European Charter for Regional or Minority Languages’, Working Paper No. , January , at http://www.ciemen.org/mercator/index-gb.htm.
Robert Dunbar marked perhaps the first time that most public bodies in Scotland, Wales, and Northern Ireland had to account for their decisions and explain their policies with respect to these languages. is is itself a significant step forward. Finally, the EChRML has helped to clarify which minority languages should benefit from positive measures of state support. e Charter itself excludes from its protection those languages spoken by more recent immigrant populations. While the Charter does not prevent states from taking positive measures in support of such languages, it creates obligations only in respect of the autochthonous languages. It also recognizes that many speakers of regional or minority languages are also speakers of the official or dominant language of the state, but makes clear that special state obligations exist nonetheless. In this way, the Charter challenges the prevailing understanding of minority issues described above and reflected in the views of the CRE in relation to the Gaelic Language (Scotland) Bill: it makes clear that the UK and the devolved governments are required to take special measures of positive support in respect of the autochthonous language communities, with a view to preserving and promoting such communities. is is a fundamental challenge to the existing approach in the UK. e UK has chosen to apply the more detailed provisions of Part III of the Charter in respect of Welsh, Scottish Gaelic and Irish, and it has recognized in its instrument of ratification and in a subsequent instrument that Ulster-Scots, Scots, Cornish and Manx in the Isle of Man are ‘regional or minority languages’ within the meaning of the Charter therefore and benefit from the provisions of Part II. In Northern Ireland, the Belfast Agreement between the governments of the UK and the Republic of Ireland is also of significance, and a fuller discussion of its relevance will be given in Section II.C. II. L M W, S N I In Wales, Scotland and, especially, in Northern Ireland, measures of legislative support for autochthonous languages are recent phenomena, and only the legislative measures taken in respect of Welsh could be described as amounting to a legislative ‘model’. In fact, language legislation, and to a considerable extent language planning more generally, has largely been ad hoc, and has generally lacked an underlying strategy. Again, this is less true in Wales, but even there, measures have tended to be driven by events and by the exercise of political pressure, rather than exhibiting a proactive approach based on a comprehensive legislative plan. ere are, in spite of the major differences between the three jurisdictions, also some elements of similarity. e first is a reluctance to create a legislative model that is strongly based on the concept of legally enforceable individual rights. e Welsh model could be described as more of an ‘administrative enabling’ or a ‘planning-based’ model than a rights-based model. is reflects the traditional reluctance in UK law to contemplate clearly enforceable rights which can be used to hold governments to account. ere are both advantages and disadvantages to this approach, and I shall discuss theses primarily in the context of the Welsh model. Its main limitation lies in its reliance on the acceptance by public sector bureaucracies of the basic premises of the language project and on
Language Legislation and Language Rights in the United Kingdom a willingness by them to accommodate the imperatives of the language planning process. Where such conditions do not exist, an administrative enabling or planning-based model, unsupported by a rights regime, is generally insufficient to ensure that the needs of the minority language community are met. A. Welsh in Wales Of all the UK’s autochthonous languages, Welsh has benefited most from supportive state policies and from legislative measures. e historical position, alluded to in Section I.A., which comprised early hostility, followed by and alternating with neglect, began to change in the s: e Welsh Courts Act repealed the provisions of the Act, described early and allowed for some use of Welsh in the courts, and the Education Act enabled the establishment of Welsh-medium schools. e Welsh Language Act removed the remaining barriers to the use of Welsh in the courts, and allowed ministers to prescribe Welsh versions of official documents.43 e Broadcasting Acts and established Sianel Pedwar Cymru (SC), the Welsh language television channel, which started broadcasting in . en, three acts of the Westminster parliament further greatly enhanced the status of the Welsh language in crucial areas of Welsh life: the Education Reform Act (education), the Welsh Language Act (public life generally), and the Government of Wales Act (devolved government in Wales). e present position of Welsh in a variety of domains is now briefly considered. Welsh-medium education44 dates to the late s and early s, but both Welshmedium education and the teaching of Welsh as a subject was significantly enhanced by the Education Reform Act ,45 which ensured Welsh a fundamental place in the national curriculum in Wales.46 In particular, the curriculum for students between the age of and must include core and foundation subjects,47 and Welsh is a core subject in Welsh-speaking schools48 and a foundation subject in non–Welsh-speaking schools.49 e government’s goal was to ensure that ‘all children should by the time they complete their compulsory schooling at sixteen and after eleven years’ study of Welsh in school have acquired a substantial degree of fluency in Welsh’ (emphasis added).50 Even before 43
44 45
46 47
48
49
50
Although these Welsh versions were to have ‘like effect’ as versions done in English (subsection (), Welsh Language Act ), in cases of doubt, the English versions prevailed (paragraph ()(a), Welsh Language Act ). Education in which Welsh, not English, is the medium of instruction in the classroom; this is to be contrasted with the teaching of Welsh as a subject in an English-medium curriculum. , c. (hereinafter the ‘ Act’). ese provisions were retained in the Education Act , c. (hereinafter the ‘ Act’). Section , Act, and section , Act. A ‘Welsh-speaking school’ is defined as one in which more than half of the subjects other than English, Welsh and religious education are taught wholly or partly through the medium of Welsh: s. (), the Act, and s. (), the Act. See sections ()(b) and ()(c), Act, and sections ()(b) and ()(d) of the Act. Welsh Office, Welsh for Ages -: Proposals of the Secretary of State for Wales (Cardiff, ), at .
Robert Dunbar the inclusion of Welsh in the national curriculum, Welsh-medium education was already reasonably well established, and it is now generally possible for parents to opt for Welshmedium education at both primary and secondary levels in all parts of Wales. us, in -, there were primary schools in which Welsh was the sole or main medium of instruction with , children in attendance51 and secondary schools designated as Welsh-speaking schools, with , pupils in attendance.52 ere are a number of matters to bear in mind, however. First, in the early period of Welsh-medium education, government policy and legislative measures tended to follow, rather than anticipate the lead set by parents and local councils. e approach was one of ‘enabling’ parents through the creation of funding mechanisms which would lubricate the development of Welsh-medium education, rather than ‘empowering’ parents through the creation of rights.53 is is related to the second point: Developments in Wales have not been based on the creation of any statutory ‘right’ to Welsh-medium education. Indeed, the Act has, in a sense, an element of coercion to it, in that it makes instruction in the Welsh language a fundamental part of the national curriculum, and therefore one which students generally cannot avoid, but it does not coerce or even create a right to Welsh-medium instruction. e significant expansion of Welsh-medium education shows that such an educational model can be created without necessarily relying on a statutorily-based right. However, the rather particular conditions in Wales which favoured the development of such education must be borne in mind, especially the willingness of a fairly large and politicized language community to maintain sustained pressure on public institutions; and, even now, some in Wales argue that Welsh-medium provision is not free of problems, and that a right to such education is still necessary. Welsh-language broadcasting has also made considerable progress, primarily in the last twenty years, and a similar legislative approach is evident. e British Broadcasting Cooperation’s (BBC) all-Welsh radio service, Radio Cymru, currently broadcasts over hours a week in Welsh,54 and there are also a number of bilingual local radio stations. With regard to television, undoubtedly the most important development has been the is is approximately .% of all primary schools and .% of all students; there are no primary schools where no Welsh is taught, and virtually all of the remaining students take Welsh as a subject: Schools in Wales: General Statistics (Government Statistical Service, ), at -, at http://www.wales.gov.uk/ keypubstatisticsforwales/content/publication/schools-teach//siwgs/siwgs.htm. 52 is is approximately .% of all secondary schools and .% of all students; there are no such schools where no Welsh is taught and only about % of secondary pupils are not taught Welsh at all (ibid.). It should be noted that a somewhat smaller number of secondary pupils, ,, were taught Welsh as a first language (ibid.). 53 For example, Section of the Education Act enabled the Secretary of State for Wales to grant aid to local education authorities and other bodies to overcome some of the additional costs associated with Welsh language education, and introduced the Education (School Information) Regulations , which required local education authorities to publish policies regarding the use of Welsh. See Edwards, ‘Language Policy in Multicultural Britain…’, -. 54 See Davies, e Welsh Language, at , and e Welsh Language Board, Yr Iaith Gymraeg, http://www.Bwrddyr-iaith.org.uk. Radio Cymru started broadcasting on January . 51
Language Legislation and Language Rights in the United Kingdom establishment of a separate channel, the Welsh Fourth Channel Authority, now Sianel Pedwar Cymru, or SC, in to consolidate and expand Welsh-language broadcasting. e core funding of SC is statutorily guaranteed in the Broadcasting Acts and .55 e scheduling of Welsh-language programming on the service is also regulated. In particular, amongst the duties of SC is to ensure that a ‘substantial proportion’ of the programmes broadcast on SC are in Welsh and that the programmes broadcast between . p.m. and p.m. ‘consist mainly of programmes in Welsh’, and to ensure that programmes in Welsh maintain ‘a high general standard in all respects (and, in particular, in respect of their content and quality)’, and ‘a wide range in their subject matter.’56 To enable SC to comply with its obligations with respect to hours of Welsh-language programming, a duty was imposed on the BBC to provide SC free of charge with sufficient television programmes in Welsh to occupy not less than ten hours’ transmission time per week.57 As a result, SC now broadcasts about hours per week in Welsh, much of it in prime time.58 Once again, there is no statutory ‘right’ to Welsh-medium broadcasting, but there is a well-defined statutory framework to support wide access to such programming. And again, it was sustained political pressure, including a hunger strike in the early s, which ultimately spurred government action. Perhaps the single most significant piece of legislation, however, has been the Welsh Language Act .59 In the mid-twentieth century, Welsh had almost no public status in Wales. e Act, building on the Welsh Language Act , changed the situation considerably. ere are two points with respect to this legislation which must be borne in mind. First, it is primarily based on the ‘administrative enabling’ or ‘planning-based’ model described above; it creates very few individual rights. Second, it is almost completely concerned with the public sector; generally, language legislation in Wales has not sought to regulate language use in the private or voluntary sectors. e one clearly articulated minority language ‘right’, as such, created under the Welsh Language Act is in respect of the courts. Subsection () provides that [i]n any legal proceedings in Wales the Welsh language may be spoken by any party, witness or other person who desires to use it, subject in the case of proceedings in a court other than a magistrates’ court to such prior notice as may be required by rules of court; and any necessary provision for interpretation shall be made accordingly. 55
56 57
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e formula set out in S. of the Broadcasting Act was replaced by Ss. () of the Broadcasting Act , which provided that the Secretary of State would set a base amount which would then be subject to an annual percentage increase determined by reference to the rate of price inflation. SC received GBP . million in Government funding in under this formula (see the Annual Report, available at http: //www.sc.co.uk/e_index.html; an additional GBP . m. was generated through commercial ventures). Broadcasting Act , sections ()(b) and (c). Ibid., section (). Yr Iaith Gymraeg. Paragraph ()(b) of the Broadcasting Act obliges SC to ensure that all the programmes in Welsh which are also broadcast on SC are broadcast on SC Digital at the same time. , c. .
Robert Dunbar To make this right effective, section provides that the Lord Chancellor may make rules as to the provision and employment of interpreters of the Welsh and English languages.60 e detailed implementation of these provisions has been particularized in the Welsh language schemes of e Court Service of England and Wales and of the Magistrates Courts.61 e Court Service has adopted the general principle ‘that in the conduct of public business and the administration of justice in Wales it will treat the English and Welsh languages on the basis of equality’; as we shall see, this is consistent with the requirements of the Welsh Language Act . ese provisions are the most recent in a series of legislative measures that, starting with the Welsh Courts Act ,62 have sought to redress the provisions of the Acts of and , which, as noted, effectively required that all court proceedings take place in English. For some language activists, however, even the Act has not gone far enough; they argue that there will be no full parity between Welsh and English until Welsh is the language of the court itself, used not only by litigants and witnesses, but by lawyers and judges and other court officials and, where applicable, by juries. e Act does not create a right to a trial through the medium of Welsh.63 e Welsh Language Act made a number of other changes which were significant in increasing the presence of Welsh in the world of the law; provisions generally allow for the Welsh Assembly to make Welsh versions of public documents and forms, to confer on public bodies, offices or places Welsh versions of the name, and so on.64 e most important aspects of the Welsh Language Act , however, are the creation of the Welsh Language Board, or Bwrdd yr Iaith Gymraeg (Bwrdd), and the statutory framework for the preparation of Welsh Language Schemes by public bodies in Wales.65 e Bwrdd is created under Part I of the Act. It has the general function of ‘promoting and facilitating the use of the Welsh language’66 and three somewhat more specific 60
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Subsection () authorizes the inclusion in the rules of the courts of provisions relating to the use of documents in the Welsh language, and Section authorizes the Lord Chancellor to translate into Welsh any form of any oath or affirmation to be administered and taken or made by any person in any court. See http://www.courtservice.gov.uk/about_us/our_performance/welsh_lang/e_welshlang/foreward.htm. A separate scheme exists for the Magistrates Courts. & Geo. ., c. [Eng.]. Section of this Act repealed Section of the Act of Union, and went on to provide that the Welsh language may be used in any court in Wales ‘by any party or witness who considers that he would otherwise be at any disadvantage by reason of his natural language of communication being Welsh’. us, unlike Section of the Act, this provision did not create an absolute right to use Welsh in the courts; in practice, the determination of whether it was necessary to use Welsh was made by the presiding judge, and the provision was interpreted restrictively. See Ruth Morris, ‘Great Mischiefs…’, . Section of the Act is almost identical to subsection () of the Welsh Language Act , and in a series of trials held in the s, the requirements imposed on the courts by this provision were interpreted rather narrowly. See, generally, Zenon Bankowski and Geoff Mungham, ‘Political Trials in Contemporary Wales: Cases, Causes and Methods’, in Zenon Bankowski and Geoff Mungham (eds.), Essays in Law and Society, (London, ), -, at . See, generally, sections -. Parts I and II of the Act, respectively. Subsection ().
Language Legislation and Language Rights in the United Kingdom functions: to advise the National Assembly67 on matters concerning the Welsh language; to advise persons exercising public functions on the ways in which to give effect to the principle that, in the conduct of public business and the administration of justice in Wales, the English and Welsh languages should be treated on the basis of equality; and to advise those and other persons providing services to the public on the use of the Welsh language in their dealings with the public.68 e Bwrdd is also active in funding a wide range of linguistic activities.69 Perhaps the most significant function of the Bwrdd, however, is that which it plays in relation to Welsh language schemes. e preparation of Welsh language schemes by public bodies is the primary means by which the use of the Welsh language in the public sector is to be advanced, and the regime with respect to such schemes is set out in Part II of the Act. Crucially, the Act does not create any individual or collective ‘right’ to public services through the medium of Welsh, and while Welsh-speakers are not left entirely without recourse in respect of their ability to use Welsh in dealing with public sector bodies, they do not have a claim that is based on a legally-enforceable rights entitlement. e key provision is Section of the Act. It provides that every public body to which a notice is given by the Bwrdd and which either provides services to the public in Wales or exercises statutory functions in relation to the provision by other public bodies of services to the public must prepare a Welsh language scheme.70 e scheme is to specify the measures which the public body proposes to take as to the use of the Welsh language in connection with the provision of services by it. In specifying such measures, the public body is to give effect to the principle that in the conduct of public business and the administration of justice in Wales, the English and Welsh languages should be treated on the basis of equality.71 e term ‘public body’ is defined in Section , which also contains a long list of such bodies; additionally, the National Assembly can designate other bodies that are not listed, and has done so on several occasions. e extent of the obligation imposed on public bodies with respect to the implementation in their schemes of the principle of linguistic equality is not absolute; they need only implement the principle ‘so far as is both appropriate in the circumstances and reasonably practicable’.72 us, considerations such as numbers of Welsh-speakers, actual and potential demand, costs, and so on could result in the less than full implementation of the prin67
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e Act generally anticipated that the Secretary of State would perform a range of functions and have a range of supervisory and other powers under the Act. Pursuant to the Government of Wales Act , the functions of the Secretary of State for Wales under the Act were generally transferred to the National Assembly. Subsection (). In -, the Bwrdd made grants of GBP ,, for promoting the use of Welsh (e.g. book publishing, cultural festivals, community language planning bodies (the mentrau iaith) and other language initiatives) and a further GBP ,, to support Welsh-medium and bilingual educational initiatives. See Welsh Language Board, Annual Report, -, available at the Bwrdd’s website http://www.Bwrdd-yriaith.org.uk/. Subsection (). Subsections () and (). Subsection ().
Robert Dunbar ciple. e application of the principle and the scope of this important qualification are not, however, left to public bodies themselves to determine; the Bwrdd has a very important role in the process. Specifically, the Bwrdd is required to issue guidelines as to the form and content of the schemes.73 In its notice to the public body, the Bwrdd is required to set a timetable for the submission of the scheme,74 and the public body is required to carry out consultations with the public in respect of the scheme.75 e scheme which is ultimately submitted to the Bwrdd for approval must set out both a timetable for giving effect to the measures contained in the scheme and the ways in which the public body will ensure that the scheme is publicized.76 If a scheme is not submitted on time by the public body, or if the scheme is not approved by the Bwrdd, the Bwrdd (or, in the case of a failure of approval, the Bwrdd or the public body) may submit the scheme to the National Assembly, which may ultimately impose a scheme on the public body.77 A further consideration is that the Welsh Language Act refers to the equality of treatment obligation in terms of the conduct by public bodies of their ‘public’ business. By qualifying the obligation in this way, it is not clear that public bodies are under the same obligation with respect to the conduct of their internal operations (for example, with respect to the use of Welsh in the workplace).78 To date, about Welsh language schemes have been approved by the bwrd, and public bodies which are subject to such schemes include the National Assembly for Wales, central government departments and agencies active in Wales, all county councils, health authorities and police and fire authorities, and a range of bodies in the administration of justice and education sectors. A crucial issue in any minority language legislation relates to the enforcement of the legislative scheme. Under an individual rights-based model, the user of the service usually has a range of remedies, one of which may be to go to court and to force the recalcitrant public body or, indeed, the government itself to satisfy the right-holder’s claim. As already noted, the Welsh Language Act does not explicitly create rights for individual speakers. Section of the Act provides that persons who are directly affected by a failure of a public body to carry out an approved Welsh language scheme may make a written complaint to the Bwrdd, and it may investigate such a complaint.79 However, the Bwrdd is not required to carry out such an investigation.80 If the Bwrdd has concluded that the public body has failed to carry out the scheme, it may make recommendations to the public 73 74
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Section . e Bwrdd has done so. Paragraph ()(b). Section . Subsection (). Section . See Colin H. Williams, ‘Law, Language and Politics’, in W. John Morgan and Stephen Livingston (eds.), Law and Opinion in Twentieth-Century Britain and Ireland (Basingstoke, ), -, at . e provision in the Act is contrasted with the wider provision in the Government of Wales Act , in this section. Subsection (); indeed, the Bwrdd may even carry out an investigation on its own initiative where it believes that the public body has failed to carry out a scheme. Subsection ().
Language Legislation and Language Rights in the United Kingdom body as to what it must do to correct the failure.81 If it appears to the Bwrdd that the public body has failed to act on the recommendations, it may then refer the matter to the National Assembly. If the National Assembly is satisfied that the public body has failed to take the recommended action, it may give whatever directions it pleases to the public body, and these shall be enforceable in the courts through the administrative law remedy of mandamus, which is essentially a court order to a public body to carry out a duty.82 us, the Welsh Language Act provides for a fairly detailed system of enforcement. However, the power of the individual complainant in the process is not particularly strong. e Bwrdd does not necessarily have to act on a complaint, and even if it does act, the National Assembly may choose not to give a direction to the public body in question. In such cases, it is not clear, as a matter of public law, whether the complainant has any further recourse; however, the Act clearly provides both the Bwrdd and the National Assembly with a discretion, rather than creating an obligation, and the failure to exercise such discretionary powers is generally much more difficult to challenge through the courts.83 e final piece of relevant legislation is the Government of Wales Act , which made considerable provision for the Welsh language in the Welsh Assembly and entered into force on July . is Act provides that the Assembly shall, in the conduct of its business, give effect, so far as is both appropriate in the circumstances and reasonably practicable, to the principle that English and Welsh should be treated on a basis of equality.84 It may be significant that, unlike the Welsh Language Act , the Government of Wales Act does not qualify this obligation by reference to the conduct of the Assembly’s ‘public’ business, thereby perhaps implying a more thoroughgoing obligation, and one which would apply to the Assembly’s internal operations as well as in respect of its services to the public.85 e Assembly has the power to pass subordinate legislation in both English and Welsh, and where it does so, both versions are equally authoritative.86 Members of the Welsh Assembly may speak in English or Welsh in both the Assembly and in its Committees, and simultaneous translation facilities are provided for speeches made in Welsh.87 Members of the public may use Welsh when communicating with the Assembly;88 indeed,
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Subsections () and (). Section . See, for example, A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law (London, ), et seq, and in particular, et seq. Government of Wales Act , subs. (). As noted, the Assembly is also subject to a Welsh language scheme which is similar in nature, although the obligation imposed under that scheme is limited to the conduct of its ‘public’ business. See Williams, ‘Language, Law and Politics’, . Subs. (), the Government of Wales Act . Standing order . and .. Indeed, subs. () of the Government of Wales Act requires that the standing orders be in both in Welsh and English. Williams, ‘Legislation and Empowerment’, .
Robert Dunbar the Assembly’s Welsh language scheme contains significant commitments to Welsh language services.89 Section , paragraph (c) of the Government of Wales Act provides that the National Assembly for Wales ‘may do anything it considers appropriate to support the Welsh language’, and while the Assembly may have been able to take such measures even without the authority of this provision (as there is nothing in the law which would otherwise have prevented the Assembly from taking such action), it is of at least symbolic importance. Importantly, both the Assembly and the Assembly government have shown a willingness to act pursuant to this provision. In July , for example, the Culture Committee and the Education and Lifelong Learning Committee of the Assembly produced a very substantial policy review of the Welsh language entitled ‘Our Language: Its Future’.90 Among its key recommendations were that the Assembly should provide strategic leadership in developing a bilingual Wales and that the Assembly government should produce a language strategy, monitor its implementation and ensure that promotion of the Welsh language becomes a theme that cuts across all policy areas. Within a month, the Assembly government issued a policy statement, ‘Dyfodol Dwyieithog/Bilingual Future’,91 in which it reiterated that it was ‘wholly committed to revitalizing the Welsh language and creating a bilingual Wales’,92 and that its vision was that: In a truly bilingual Wales both Welsh and English will flourish and will be treated as equal. A bilingual Wales means a country where people can choose to live their lives through the medium of either or both languages; a country where the presence of two national languages, and other diverse languages and cultures, is a source of pride and strength to us all.93 Finally, in December, , the Assembly government produced a comprehensive document, ‘Iaith Pawb:94 a National Action Plan for a Bilingual Wales’,95 in which the government set out in detail the specific initiatives by which it seeks to strengthen the Welsh language.96 89
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e extent to which the Assembly has become a bilingual institution is impressive, although the full achievement of true bilingualism is still not without its obstacles. e Assembly government seems to have made less progress than the Assembly towards this objective. For an excellent account of the real linguistic situation within both institutions, see Williams, ‘Language, Law and Politics’, -. Cardiff: e National Assembly for Wales, July ; at http://www.wales.gov.uk/keypubassemculture/ content/welshlanguagereview/final-report-e.pdf. Cardiff: Welsh Assembly Government, July, ; also available at http://www.Bwrdd-yr-iaith.org.uk/pdf/ adolygiadpolisi/datganiadpolisi-e.pdf. Ibid., . Ibid., . ‘Everyone’s language’. Available at http://www.wales.gov.uk/subiculture/content/action-plan-e.pdf. In particular, the government has set a number of targets to be met by , including: increasing the numbers of people able to speak Welsh by % over the levels which appear in the census results; arresting the decline in numbers of communities in which Welsh is spoken by at least % of the population; increasing the
Language Legislation and Language Rights in the United Kingdom To conclude, while the future of the Welsh language is not secure, demographic trends are now more promising than they have been for perhaps a century, and the legal and administrative framework within which development is taking place is now fairly well developed, and has permitted significant strides to be made with respect to integrated language planning. While much remains to be done, the devolved institutions created under the Government of Wales Act have shown a considerable commitment to the language, and a willingness to engage in meaningful planning for its future development. e challenges to this legislative framework are generally twofold. First, while the National Assembly has considerable scope for administrative action under existing legislation, it has no powers to create primary legislation, and therefore any future development of the Welsh model will depend to a considerable degree on Westminster. It is not likely that any new legislative initiatives will occur in the foreseeable future, particularly given the apparent successes of the existing mechanisms. e second challenge is that the role of the empowered, rights-bearing individual is not very great under the present model. Aside from those provisions relating to Welsh in the courts, individual Welsh-speakers do not, strictly speaking, have very many language rights and, crucially, do not have very much power in redressing failures in the system through the courts. What has been created is a fairly bureaucratic model. is is not without its advantages. Language planning is a complex technical subject, and expertise is essential; to its credit, the Bwrdd has successfully built up a great deal of such expertise. ere is, however, the danger that too much power is wielded by administrative personnel who are not directly accountable to the Welsh language community itself.97 In an era of both growing suspicion in the UK about methods of appointments to and the role of quasi-autonomous non-governmental organizations such as the Bwrdd in British public life, and of a renewed interest in and awareness of individual human rights, which has been ushered in by the Human Rights Act , one must wonder whether this ‘administrative enabling’ or ‘planning-based’ model alone will continue to fully satisfy the needs and desires of the Welsh language community. B. Scottish Gaelic and Scots in Scotland Until the mid-s, government support for Gaelic was virtually non-existent, and in spite of recent developments, Gaelic still has no official status, is recognized in only a percentage of children receiving Welsh-medium preschool instruction; increasing the percentage of families in which Welsh is the medium of communication; and ensuring that more services are delivered through the medium of Welsh by public, private and voluntary organizations (para. .). e Assembly government also aims to increase the use and visibility of Welsh in all aspects of daily life (para. .). e Assembly government has committed itself to setting up a Welsh Language Unit within the government to implement the action plan and monitor and review its impact (paras. .-.). It has also allocated an extra GBP million to the Welsh Language Board over the next three years – in -, the Board’s budget will rise to GBP . million, an increase of over GBP . million from - – to fund a range of initiatives (paras. .-.). 97 For example, members of the Bwrdd are not appointed in any way that could be said to be directly reflective of the will of Welsh-speakers; rather, they are appointed by the National Assembly – in effect, the National Assembly government.
Robert Dunbar small number of statutes, and receives only about GBP million in direct support from the state. In virtually every respect, the contrast with developments in Wales is sharp, and is to the disadvantage of Gaelic. Scots, however, is in an even weaker position, as it enjoys no legislative support whatsoever. Perhaps the most important recent development for Gaelic has been the expansion in Gaelic-medium education (GME). Although it had long been possible for students to take Gaelic as a subject, GME only became available in , when a Gaelic-medium stream, or ‘unit’, was introduced in two schools, one in Glasgow, and one in Inverness. In -, there were , primary school pupils receiving GME at units and one Gaelic-medium school, in Glasgow.98 At secondary level, there were students receiving some, but not all, of their education through the medium of Gaelic at secondary schools, and there were students studying Gaelic as a subject for fluent speakers and , studying as a subject for learners.99 Unlike in Wales, this recent expansion has no firm statutory or clearly articulated policy basis, and depends heavily on the work of interested parents, of Gaelic promotional organizations, and, crucially, on the capricious goodwill of the local education authorities which have responsibility for delivering education. In Wales, Welsh-medium education is perhaps the single most important factor in turning the demographic tide; in Scotland, GME must expand considerably in order to perform the same role, and there is little evidence that this is close to occurring. Kenneth MacKinnon has noted that the growth rate in GME ‘will be quite insufficient to prevent a further decennial collapse of Gaelic amongst young people’ by the time of the census and that ‘[f ]or an education-led language revival, Gaelic-medium schooling would need to be expanded six-fold and become universal in the principal Gaelic areas’. In the Western Isles, where roughly % of the population is Gaelic-speaking, only % of eligible children are enrolled in Gaelicmedium schooling.100 e approach taken has been almost entirely aimed at ‘facilitating’ the voluntary expansion by local education authorities of GME, and governments have consistently rejected anything stronger or more fundamental.101 is school, the first all-Gaelic primary school in Scotland, was opened in August . See Gaelic (Gaidhlig). 100 MacKinnon, ‘Neighbours in Persistence…’,. Similar conclusions have been reached by the Ministerial Advisory Group on Gaelic, appointed by the minister in the Scottish Executive with responsibility for Gaelic: A Fresh Start for Gaelic/Cothrom Ùr don Ghàidhlig (Edinburgh, May, ), at para. . of the ‘National Plan for Gaelic’. e Ministerial Advisory Group estimated that, in order to arrest the decline of Gaelic, intake into Gaelic-medium education would have to be about % of all primary students; at present, such intake is only about .%. 101 A very general statutory obligation with respect to Gaelic under Section of the Education (Scotland) Act has been of limited practical value; a scheme of grants, worth GBP . million for -, under the Grants for Gaelic Language Education (Scotland) Regulations has been of some value in assisting local education authorities with start-up costs of Gaelic-medium education. Under the Standards in Scotland’s Schools (etc.) Act , local education authorities are required to provide an annual account of the ways in which or the circumstances in which they will provide GME and, where they do provide GME, of the ways in which they will seek to develop their provision. is, however, creates no real statutory obligations with respect to the expansion of GME nor, crucially, does it create any enforceable entitlement to 98
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Language Legislation and Language Rights in the United Kingdom Both the scheme of Gaelic-specific grants and the standards in education mechanism look similar to the approach that had been taken in Wales in the early s. e context, however, is much different, largely due to the significantly higher levels of demand in Wales. Most Gaelic advocates are agreed that there is a need for a firmer and clearer statutory basis for GME, and Comunn na Gaidhlig (CNAG), Scotland’s leading Gaelic development agency, has recommended the creation of a right to GME at both primary and secondary level, subject to sufficiency of demand, as measured by absolute numbers requesting such an option. is would avoid the creation of any compulsion on students to learn any Gaelic – unlike the existing Welsh model, no student would have to take Gaelic as a core aspect of the curriculum – but such a right would ensure that local education authorities would have to meet demand and, consequently, that they and the Scottish Executive would in effect be forced to plan for the development of GME. us far, the Scottish Executive has refused to consider such an approach. With respect to broadcasting, there has also been an expansion in Gaelic-medium services over the last fifteen years. In -, BBC Radio nan Gàidheal broadcast about hours per week of Gaelic-medium radio programming, and there were about hours of original Gaelic-medium television programming offered by BBC in Scotland and the private sector Grampian Television, Scottish Television and Channel .102 Much of this programming is funded by a Gaelic Broadcasting Committee (CCG), set up under the Broadcasting Act ,103 which currently has an annual budget of GBP . million. Once again, though, Gaelic suffers in comparison with Welsh. e CCG can only fund the production of Gaelic-medium programming, but it has very little control over how, when and even if such output is aired; that power lies with the broadcasters, such as the BBC and the independent Scottish Television. e funding of the CCG is not guaranteed by statute, but is now at the discretion of the Scottish Executive, the devolved government set up under the Scotland Act ; the budget of the CCG has declined in real terms over several years, and had actually been cut by GBP , in -, although GBP , of that has recently been restored on a one-off basis.104 With respect to Gaelic in public life – the government and administration and the judicial system – Gaelic is once again in a much weaker position than Welsh. ere is no equivalent of the Welsh Language Act , although CNAG has been campaigning such education. For an analysis of the limitations of these arrangements in terms of the maintenance of the Gaelic language, see Robert Dunbar, ‘Gàidhlig in Scotland – Devising an Appropriate Model for a Changing Linguistic Environment’, in Comhdháil Náisiúnta na Gaeilge, Comhdháil Idirnáisiúnta ar Reachtaíocht Teanga/International Conference on Language Legislation, - October, , Dublin, -, at , and Robert Dunbar, ‘Minority Language Rights Regimes: An Analytical Framework, Scotland, and Emerging European Norms’, in John M. Kirk and Dónall P. Ó Baoill (eds.), Linguistic Politics: Language Policies for Northern Ireland, the Republic of Ireland, and Scotland (Belfast, ), -, at et seq. 102 e numbers of broadcast hours are taken from A Review of Aspects of Gaelic Broadcasting, prepared for the Scottish Office Education and Industry Department, Arts and Cultural Heritage Division, by Fraser Production & Consultancy, May , at -, and Appendix . 103 , c. . 104 For an analysis of the present system of support for Gaelic broadcasting, see Dunbar, ‘Minority Language Rights Regimes…’, -.
Robert Dunbar for a similar piece of legislation which would create similar structures for the Gaelic language and similar rights for its speakers.105 As noted above, a Gaelic Language (Scotland) Bill had been introduced into the first Scottish parliament which, drawing on some of CNAG’s proposals, would have required a broad range of public bodies working in designated parts of Scotland – in the first instance, in an area which roughly corresponds with the historical ‘heartland’ of the language in the Highlands and Islands – to produce plans to give effect in the provision of services to the public and in their internal processes and so far as is both appropriate in the circumstances and reasonably practicable, to the principle that the Gaelic and English languages should be treated on the basis of equality.106 is bill died with the end of the first parliament, in April . However, the Scottish Labour and the Scottish Liberal Democratic Parties, who under a coalition agreement of May have formed the Scottish Executive in the second parliament, made a commitment to legislate ‘to provide secure status for Gaelic through a Gaelic Language Bill’, and would ‘give local authorities and other public bodies a responsibility to draw up a languages plan which reflects the communities they serve’.107 It is expected that a draft bill was made public in October , and although it is understood that it may create obligations similar to those in the Gaelic Language (Scotland) Bill, those obligations would not be restricted to the historical heartland of the Gaelic language. With respect to the courts, legal proceedings are generally conducted exclusively through the medium of English, and Gaelic-speakers have no right to use their language in court unless they can demonstrate an insufficient command of English.108 ere is some limited scope for dealing with the Scottish Land Court through the medium of Gaelic in respect of crofting matters, but such arrangements are not based on any statutory right. By virtue of an Act of Court of June made by the Sheriff Principal of Grampian, Highland and Islands, a litigant or other party to civil proceedings may, from July , give oral evidence in Gaelic in sheriff courts in three sheriff court districts, Portree (on the Isle of Skye), Lochmaddy, and Stornoway (both in the Outer Hebrides), and in appeals to higher courts from those three sheriff courts, but the person must make written application to do so not less than days prior to the court date. is provides a very limited scope for the use of Gaelic in a small number of civil proceedings in a very limited judicial area; it falls far short of the provisions of the Welsh Language Act , which create an absolute right to use Welsh in all proceedings and before all courts in Wales. 105 See Comunn na Gaidhlig, Inbhe èarainte dhan Ghàidhlig/Secure Status for Gaelic (December, ), and id.,
Inbhe èarainte dhan Ghàidhlig: Draft Brief for a Gaelic Language Act ( June, ); see Dunbar, ‘Minority Language Rights Regimes…’, -, for a discussion of the proposals. 106 Paras. (), and , Gaelic Language (Scotland) Bill, at http://www.scottish.parliament.uk/parl_bus/ legis.html#. 107 A Partnership for a Better Scotland, at http://www.scotland.gov.uk/library/government/pfbs-.asp, . 108 Taylor v. Haughney, SCCR. ; as there are no monolingual Gaelic-speakers, this means that Gaelic will not be heard in Scottish courts. As both the Scottish Land Court and the Crofters’ Commission are statutorily required to have one member who speaks Gaelic, this may imply a right to use Gaelic before both of these tribunals: see AC Evans, ‘e Use of Gaelic in Court Proceedings’, Scots Law Times, -, at .
Language Legislation and Language Rights in the United Kingdom Finally, although no mention was made of Gaelic in the Scotland Act ,109 the new Scottish parliament has given some recognition to Gaelic. Under the parliament’s Standing Orders, Gaelic may, with the permission of the presiding officer (i.e. the Speaker), be used in parliamentary debates and before committees.110 e signage for the parliament is fully bilingual. And the parliament has appointed two Gaelic Officers. Scottish Executive policy has been less clear. It has appointed a minister with responsibility for Gaelic, it follows the practice of replying in Gaelic to letters received in Gaelic, it issues bilingual press releases where the subject matter has particular relevance to Gaelic, and it has continued the Scottish Office practice of producing Gaelic versions of important national documents. e response of the first Scottish Executive (-) to the need for more significant legislative and administrative action to protect and promote Gaelic was, however, characterized largely by prevarication. In particular, the former Junior Minister with responsibility for Gaelic, Alasdair Morrison, established two task forces, one in December and a second, the Ministerial Advisory Group on Gaelic (MAGOG), in December , to consider a range of Gaelic matters. MAGOG’s May report, ‘A Fresh Start for Gaelic/Cothrom Ùr don Ghàidhlig’,112 recommended the creation of both a unit within the Scottish Executive to deal with Gaelic matters and of a Gaelic Development Agency, or Gaelic Language Board, to oversee development, as well as a Gaelic Language Act, based on CNAG’s proposals.113 In response, the first Scottish Executive did, in the summer of , create a language board, Bòrd Gàidhlig na h-Alba (Gaelic Board of Scotland), and appointed a chairman of the board in October , and five other board members in January . e board does not yet have any statutory basis, any clearly defined powers or, as yet, any fixed budget. Again, the contrast with the Welsh Language Board is stark. e new language board would, however, be given a more formal statutory role under the proposed language bill, referred to above. To conclude, while there has been some increase in government support for Gaelic, particularly Gaelic-medium education and broadcasting, developments in other areas, particularly in respect of public services, have been much more limited, and there is a very 109 , c. .
110 Statutory Instrument No. , e Scotland Act (Transitory and Transitional Provisions)
(Standing Orders and Parliamentary Publications) Order , Art. , Schedule, Rules .., .., and ... e likelihood that much Gaelic will be used is, however, small. Gaelic is not permitted in many important types of parliamentary business, such as motions, petitions and questions, and it will not be used in legislation. 111 See, for example, Alasdair MacCaluim and Wilson McLeod, ‘Revitalising Gaelic? A Critical Analysis of the Report of the Taskforce on Public Funding of Gaelic’, October , at http://www.arts.ed.ac.uk/celtic/ poileasaidh/index.html. 112 Edinburgh, May ; available at http://www.magog.org.uk/. 113 While the recommendation did not make explicit reference to CNAG’s proposals, it said that there should be an act which would provide ‘secure status’ to Gaelic. e term ‘secure status’ has no particular meaning in law; it is simply the form of words used by CNAG to describe their proposals for a language act. References to ‘secure status’ should, therefore, be understood to mean the concept which was created and promulgated by CNAG.
Robert Dunbar inadequate legislative basis to support most of these developments. Gaelic development has generally not been based on any coherent language policy; rather, developments have tended to be reactive and ad hoc, and often merely tokenistic. Crucially, Gaelic development has an insufficient statutory and institutional basis, with the result that Gaelic organizations and activists face considerable uncertainty, and must often fight the same battles on a recurrent basis. Legislative development has followed neither an administrative enabling/ language planning model nor a rights-based model. e limitations of such an approach are clear for all to see – one need simply look at the census figures, discussed above. e position of Scots is even more rudimentary; there is no legislative support at all for the language. Unlike Gaelic, Scots is neither the medium of instruction nor a separate subject in Scottish schools, although many students are exposed to Scots as part of their instruction in Scottish literature, and new materials such as dictionaries have been produced for use in schools. Some organizations also receive a limited amount of discretionary public funding: e Scottish National Dictionary Association, which produces Scots dictionaries and conducts linguistic research, and the Scots Language Resource Centre, which develops educational materials, publishes in Scots and acts as a pressure group.114 C. Irish and Ulster-Scots in Northern Ireland Due to its association with Irish nationalism, Irish was treated with hostility by the government of Northern Ireland in the period from until the dissolution of the Stormont parliament in , the first period of devolved government in Northern Ireland. Education was the only area in which state support for the language was provided; Irish was generally available as a subject in the largely independent grant-maintained schools run by Roman Catholic religious orders.115 Irish-medium primary schools were opened in West Belfast in the s, but initially received no government support whatsoever. Irish-language broadcasting was banned until , and no funding was made available for Irish-language arts initiatives until the late s. It was only in the s, when Northern Ireland was under direct rule from Westminster, that government policy began to change. In , state funding for Irish-medium education began. In , there were primary schools offering Irish-medium education, nineteen of which were freestanding Irish-medium schools, and there was one freestanding Irish-medium secondary school, Meánscoil Feirste in Belfast, and two other secondary level schools with Irish-medium units, in Armagh and Derry. In total, there were , pupils in Irish-medium education at both levels.116 Irish continues to be taught 114 Scots: A linguistic double helix, -.
115 Irish: Facing the future, -. See, generally, Liam Andrews, ‘e very dogs in Belfast will bark in Irish: e
Unionist Government and the Irish Language -’, in Aodan Mac Poilin (ed.), e Irish Language in Northern Ireland (Belfast, ), -. 116 Submission by Pobal, an umbrella organization representing Irish language bodies in Belfast, to the Committee of Experts on the Charter, e European Charter for Regional or Minority Languages: e Implementation of the Charter with regard to the Irish language July -July (Belfast, ), at .
Language Legislation and Language Rights in the United Kingdom as a subject at both the primary and post-primary maintained Roman Catholic schools and a number of the newer inter-denominational schools. With respect to the media, BBC Northern Ireland broadcasts about . hours per week of radio programming in Irish, which includes some repeat programming, but in - broadcast only hours of television programming, hours of which was repeat programming for adult learners of Irish.117 With respect to cultural life, the Northern Ireland Arts Council offers grants for various Irish-language events. Finally, the ULTACH Trust/Iontaobhas ULTACH, with a Board of Directors of both Roman Catholics and Protestants, was founded in with government funding with the purpose of promoting the Irish language throughout the entire community in Northern Ireland.118 Like Scots in Scotland, Ulster-Scots is neither the medium of instruction nor a separate subject in schools in Northern Ireland, and the amount of Ulster-Scots that is broadcast is minimal – indeed, only about hours of radio programming per year is broadcast by the BBC in Northern Ireland in Ulster-Scots, and the only BBC television programming of relevance to Ulster-Scots was a documentary about the language which was, however, conducted primarily through the medium of English. e position of Irish, and to a more limited extent, Ulster-Scots has been altered somewhat by the Belfast Agreement between the Irish and UK governments, reached on Good Friday .119 Language issues were dealt with in a separate section of the Belfast Agreement, and both paragraph and of this section draw heavily on the wording of the EChRML, in particular the commitments in Part II, Article . Paragraph of the Belfast Agreement, for example, refers to the recognition by all parties to the agreement of ‘the importance of respect, understanding and tolerance in relation to linguistic diversity, including in Northern Ireland the Irish language, Ulster-Scots and the languages of various ethnic communities’, language which draws heavily on Article () of the Charter. Paragraph of the Belfast Agreement makes particular reference to Irish, and commits the UK government to ‘take resolute action to promote the language’, to ‘facilitate and encourage the use of the language in speech and writing in public and private life where there is appropriate demand’, and to ‘seek to remove, where possible, restrictions which would discourage or work against the maintenance or development of the language’; these commitments echo Article () c, d, and () EChRML. e provision in paragraph of the Belfast Agreement relating to consultation is ‘an enlightened interpretation of Article : of the Charter’.120 Paragraph of the Belfast Agreement contains further commitments with respect to Irish in Northern Ireland which are certainly in 117 Ibid., at .
118 Irish: Facing the Future, -, , , -.
119 For a much more complete discussion of this subject, see Aodan Mac Poilin, Director of the ULTACH
Trust, ‘e Belfast Agreement and the Irish Language in Northern Ireland’ (February, ) (unpublished), and ‘Language, Identity and Politics in Northern Ireland’ ( January, ) (unpublished). See also ‘e Charter and the Belfast Agreement: Implications for Irish in Northern Ireland’, and ‘Ulster Scots – e European Charter/Belfast Agreement’, () Contact Bulletin (Nov. ) (e European Bureau for Lesser-Used Languages), at -. 120 Mac Poilin, ‘e Charter and the Belfast Agreement…’, at .
Robert Dunbar keeping with the spirit of Part II of the Charter, such as the placing of a statutory duty on the Department of Education to encourage and facilitate Irish-medium education, the encouragement of financial support for Irish language film and television production in Northern Ireland, and a commitment to exploring the possibility of expanding the availability of the Irish State-sponsored Irish-medium broadcast service, Teilifis na Gaeilge, now TG, in Northern Ireland. Some steps have been taken to implement these commitments. In particular, a North/ South Language Body came into effect on December , which has responsibilities with respect to Irish and Ulster Scots. Its functions include the promotion of the Irish language, and the facilitation and encouragement of its use in speech and writing in public and private in the Republic of Ireland and, in the context of Part III of the EChRML, in Northern Ireland where there is appropriate demand.121 Two agencies were set up by the North/South body, one, Foras na Gaeilge, with responsibility for the promotion of the Irish language on an all-island basis, and the other, a Boord O Ulstèr-Scotch (e Ulster-Scots Agency), with responsibility for the promotion of greater awareness in the use of Ullans (i.e. Ulster-Scots) and of Ulster-Scots cultural issues, both within Northern Ireland and throughout the island.122 Foras na Gaeilge has a -member board of directors, all of whom will, with the eight members of a Boord O Ulstèr-Scotch, sit on the North/South Language Body, and it has subsumed the functions of Bord na Gaeilge, the official Irish development agency in the Republic of Ireland. Its initial budget of EUR . million (about GBP . million) will be spent on Irish language initiatives throughout the island of Ireland, although it has recently been announced that the budget of Foras na Gaeilge is to be cut by EUR million.123 With regard to education, the Department of Education for Northern Ireland is under a statutory duty ‘to encourage and facilitate the development of Irish-medium education’ and the department ‘may, subject to such conditions as it thinks fit, pay grants to any body appearing to the Department to have as an objective the encouragement or promotion of Irish-medium education’.124 A development council for the Irish-medium sector, Comhairle na Gaelscolaíochta, was established on June , and it will act as an advisory body. Together with the Department of Education for Northern Ireland, it has established Iontaobhas na Gaelscolaíochta (the Irish Medium Trust Fund), which is meant to support the development of the Irish-medium sector by awarding grants to independent Irish-medium schools and helping with the capital costs of Irish-medium schools which have received grant aid for recurrent costs but not for capital costs.
121 e North/South Co-operation (Implementation Bodies) (Northern Ireland) Order , S.I. , No. , paras.
-.
122 See the website of the North/South Language Body for additional information: http://www.northsouthmi
nisterialcouncil.org/language.htm.
123 ‘All Ireland Irish language body ‘devastated’ by million euro cut in funding from Ireland’, Eurolang,
February, , http://.../webpub/eurolang/moulerez.asp?ID=.
124 Education (Northern Ireland) Order , Articles () and (), S.I. , No. .
Language Legislation and Language Rights in the United Kingdom With respect to Ulster-Scots, a Boord O Ulstèr-Scotch is, as noted, responsible for the promotion of greater awareness and use of the Ulster Scots language and its attendant culture, both within Northern Ireland and throughout the island. In November , it launched a three-year, GBP . million development programme, and it has established, with the University of Ulster, a School of Ulster Scots Studies, and is funding an Ulster Scots/English dictionary and a major tape-recorded survey of native Ulster Scots speakers. Given that Scots is likely spoken by significantly larger numbers than Ulster Scots, and that Ulster-Scots originated in Scotland, it is somewhat ironic that Ulster Scots is arguably now in a better institutional position that Scots. is is almost solely due to the political dynamics of Northern Ireland, where Ulster Unionism has championed Ulster Scots as a counterweight to Nationalist support for Irish. is illustrates perfectly the unprincipled and essentially reactive nature of minority language policy in the UK. In summary, the legal and institutional position of Irish in Northern Ireland is weak, even compared to Scottish Gaelic, although there have been some notable advances within the education sector. e position of Ulster-Scots is even weaker still, although, as noted, arguably it now has a stronger institutional and legislative basis than Scots. e instability of devolution in Northern Ireland, and with it, of devolved institutions such as the North/South Language Body, is a potential barrier to significant new developments for both languages. III. C A C e historical legacy of British monolingualism lies heavily on the UK’s autochthonous languages, and that, together with the precarious state of even the strongest of these languages, Welsh, argues in favour of further legislative intervention. Significant legislative intervention has occurred only in Wales, and even there, the regime relies more heavily on a process of administrative planning for language promotion than on the creation of enforceable language rights. e preliminary results of the UK census seem to indicate that this approach may be bearing some fruit. However, the long-term prospects are still relatively uncertain. In Scotland, there has been little legislative intervention and little sustained planning for Gaelic, and, not surprisingly, the language has continued to contract. In Northern Ireland, there has been even less legislative intervention than in Scotland in respect of its autochthonous languages. e form of Scottish and Northern Irish devolution potentially allows for much more significant legislative measures to be taken by devolved institutions than is the case under the Welsh ‘administrative’ devolution settlement, but the institutional and societal obstacles are also greater in those two jurisdictions. In all three jurisdictions, the approach to minority languages, particularly autochthonous ones, has generally been reactive and guided by no clear principles or policies. A legislative model has only developed in Wales, and even there, the model creates surprisingly few language ‘rights’ exercisable by individuals or communities, and does little to regulate language use outside of the public sector. e lack of any clear minority language policy has meant that measures of support have been based on political expedience. In
Robert Dunbar Wales, where there is still a significant number of Welsh-speakers and a history of political activism with respect to language issues, legislation and policy are most developed. In Northern Ireland, language issues have also been highly political ones, and language issues have played a role in the peace process. One result of this is that Ulster Scots has now managed to obtain considerably more institutional recognition and support – albeit, without any clear legislative framework for such provision – while the Scots tongue, to which Ulster-Scots is closely related and which, arguably, is spoken by a larger number of people, continues to be neglected in Scotland. For autochthonous languages other than Welsh, the ratification by the UK of the EChRML may be the most significant development of recent years, as it may force both the UK and the devolved institutions to develop for the first time a coherent language policy which is principled and proactive.
Dietrich Jung *
Minorities as a reat: A Historical Reconstruction of State-Minority Relations in Turkey
I. I: T I E e Turkish State, with its territory and nation, is an indivisible entity. Its language is Turkish.1 With the adoption of amendments to articles of its Constitution in October , the Turkish General Assembly took many observers by surprise. In particular the abolishment of Article () of the Turkish Constitution – ‘No language prohibited by law shall be used in the expression and dissemination of thought’ – almost amounted to a ‘revolution’ in Turkish politics.2 In principle, the abolishment of this prohibition is opening the way for public expression in regional languages for ethnic and linguistic minorities. is move of the then Prime Minister Bülent Ecevit entailed a clear break with the strict language policy of Turkey’s republican past and it marked a reversal of Ankara’s previous standpoint that any concessions with regard to cultural minority rights would eventually compromise the ‘indivisible’ unity of the Turkish state. e reform process was further strengthened by another round of substantial legal adjustments in accordance with EU standards that the parliament approved on August . For the first time in republican history, these constitutional reforms have paved the way for broadcasting in Kurdish and other regional languages. However, this right is still limited to the state-run Turkish Radio and Televi*
1. 2.
Dietrich Jung is a Senior Research Fellow at the Danish Institute for International Studies in Copenhagen. He has been teaching at Aarhus University, Bilkent University (Ankara), Hamburg University and University of Copenhagen. His publications are on the political sociology of war, the modernization of Turkey, as well as on conflicts in the Middle East. Article of the Turkish Constitution. All quotations from the Turkish Constitution are taken from the English translation: Constitution of the Republic of Turkey, at http://www.mfa.gov.tr/grupc/ca/cag. Kemal Kirisci, ‘Evaluating the Question of Minorities in Turkey in the Light of Turkish-EU Relations’, in Bertil Dunér (ed.), Turkey: the Road Ahead? (Stockholm, ), -.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Dietrich Jung sion Corporation and restricted to a total of four hours per week for radio broadcasts and two hours per week in television.3 Viewed from an EU perspective, talking about a ‘revolution’ in Turkish politics might be slightly exaggerated. So far, the reform steps are encouraging, but still not sufficient to meet the Copenhagen criteria regarding the rights of ethnic and cultural minorities. Yet in comparison to official Turkish parlance during the s, the recent constitutional amendments indicate a remarkable turn in Turkish politics indeed. In the mid-s, former President Suleyman Demirel, for example, countered EU instructions to settle the Kurdish insurgency peacefully with the response that there was no other political solution than ‘to render these people ineffective by force’. To European suggestions that Kurdish cultural and linguistic rights should be officially recognized, Demirel responded with the accusation that such suggestions would only hide the agenda of Western states to ‘involve the Sèvres treaty’, dividing Turkey and setting up a Kurdish state.4 In the aftermath of the capture of PKK (Kurdistan Workers’ Party) leader Abdullah Öcalan in February , former Prime Minister Ecevit again confirmed this point of view. In an interview with the German weekly Die Zeit, Ecevit pointed out that there exists no Kurdish problem in Turkey, only PKK terrorism supported by outsiders seeking to divide the country.5 Ecevit’s u-turn on this question reflected a change in discourse among the Turkish public on the one hand, and between Turkey and the European Union on the other. Already during the s and parallel to the spread of civil society organizations in that decade, an increasingly lively debate about the Kurdish question and Turkish democracy emerged. is public discussion in Turkey was supported by a shift in rhetoric that Brussels adopted after the capture of Öcalan and the Helsinki Summit in December at which the EU granted Turkey candidacy status for full membership. Instead of emphasizing Kurdish minority rights, the EU began advocating more general reform aspects such as pluralism and democracy in Turkey. In this way, Brussels has shown consideration visà-vis Turkish sensitivities and could thus support internal reform dynamics.6 e series of constitutional amendments under Prime Minister Ecevit and the reform spirit of the new Justice and Development Party (AK Partisi, AKP) government that took power after a landslide victory in the national elections of November are good proof of the success of this new approach of the EU. Nevertheless, deep-rooted sensitivities concerning minority rights still prevail among Turkey’s political elite. Why has the issue of minority rights been such a nightmare for Ankara’s political establishment, which considers them a threat to the sovereignty and territorial integrity of the Turkish state? What is behind this almost ‘mystical’ conception of the Kemalist state 3 4
5
6
‘Regulations Legalizing Kurdish Broadcasts on State TV Adopted’, Turkish Daily News, December . Quotes from Ramazan Gözen, ‘Two Processes in Turkish Foreign Policy: Integration and Isolation’, - Foreign Policy (Ankara, ), -, at . e Sèvres Treaty of suggested a total partition of Anatolia but was never ratified and later abrogated by the Treaty of Lausanne in . Die Zeit, March . Cf. Kirisci, ‘Evaluating …’, -.
A Historical Reconstruction of State-Minority Relations in Turkey that sets it ‘outside and above society’?7 is article claims that the answers can be found in the social and historical particularities of Turkish modernization and of the Kemalist ideology that has shaped the political worldview of Turkey’s state elite. e legalist tone of Article of the Turkish Constitution hides historical experiences of both the Ottoman and the Turkish military-bureaucratic elite. It is the mental legacy of their struggle for the survival of the Turkish state – an atmosphere of conspiracy and betrayal with regard to both European states and indigenous minorities – that again became virulent in the disputes about minority rights mentioned above. In order to understand these exaggerated and often awkward sensitivities of Ankara’s political establishment, this article will put the minority issue in Turkey into historical perspective. More precisely, it will reconstruct the relationship among political elite, state, nation and minorities during the process of building the Turkish nation-state. In the following section, I will first introduce some conceptual tools that are necessary for such an historical reconstruction. is framework is grounded in interpretative historical sociology and serves both as a theoretical language for observation and as a guideline for my explicative interpretation of Ottoman-Turkish history. e third section will take up our historical path with the Ottoman reform process in the nineteenth century. It will analyze the impact of the Ottoman heritage, in particular of the so-called ‘millet-system’, on Turkish state building and the role that minorities played in it. en we move to the formative phase of Turkish nationalism, analyzing the ideological shift from Ottomanism via Islamism to Turcism. e fifth section will look at the foundation of the Turkish republic. It analyzes the republican transformation of the Ottoman legacy and the topdown construction of Turkish national culture – the imposition of national unity – during the early republican period of single-party rule. e article concludes with an assessment of the current situation in the light of this historical reconstruction. II. T I F: M, C C H e parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of education, culture and the media.8 From an historical point of view, this call for diversity in the Framework Convention for the Protection of Minorities (FCNM) of the Council of Europe, which has not yet been signed by Turkey, is a very recent development in the global political landscape. Based on the rule of law, it reflects societal negotiations between the institutions of consolidated 7 8
Feroz Ahmad, ‘e State and Intervention in Turkey’, Turcica – Revue D’Etudes Turques (), -, at . Art. () FCNM.
Dietrich Jung democratic states and pluralistic civil societies. Over centuries, however, monopolization, centralization and homogenization rather than social diversification and intercultural dialogue have been the key terms of modern politics. In their conceptual meaning, these terms are still essential analytical tools for understanding and explaining modern state formation. Moreover, in the phrasing of Article of the Turkish Constitution we encounter a central idea of the historical experience of European state formation, the convergence of state and nation, as a legal postulate. In this sense, social history develops into normative and analytical categories, conceptual ideal types that guide our understanding of both the past and the present. It is therefore instrumental for the following reconstruction of the Turkish experience to first clarify some core conceptual terms. In all debates about minority rights, the modern nation-state provides us with a core reference point in both analytical and legal terms. us, a brief definition of the conceptual understanding of the modern state, as well as its key features – the monopolies of physical force and taxation, sovereignty and legal authority – seems necessary. ere are basically two perspectives from which this definition can be made: from an external or from an internal point of view. From outside, the state is defined as the principal actor and the core institution of the international system. In international relations, states are perceived as autonomous entities. ey are conceptualized as utility maximizers pursuing interests such as security, economic gains or ideological goals on the basis of rational cost/benefit calculations. State interaction created an anarchical international system in which political authority rests on both the political autonomy and the territorial integrity of its units. In this sense, sovereignty, the external and internal claim to political authority, became a key feature of modern statehood. According to the distribution of power among these independent states, the international system has historically been classified into imperial/hegemonic, bipolar, or multipolar power systems.9 In sociological theory, however, the modern state has been conceptualized from within as a particular political and social order. In contrast to the theoretical models of international relations, sovereignty does not play the role of an essential precondition for sociological frameworks. On the contrary, the evolution of the normative and institutional aspects of modern sovereign statehood are rather the central problem of historical sociology. Political sociology concentrates therefore on internal mechanisms behind the monopolization of legitimate use of physical force by the state as a political-territorial association. In his classical definition, Max Weber consequently defined the modern state as a political community ‘that (successfully) claims the monopoly of the legitimate use of physical force within a given territory’.10 Parallel to the monopolization of the legitimate use of physical force, the modern state has acquired the monopoly on taxation and established a political order that rests on legal authority. In Weber’s terms, ‘legal [rational] authority is resting on a belief in the legality of enacted rules and the right of those elevated to authority under such rules to issue 9
10
Robert Gilpin, War and Change in World Politics (Cambridge, ), -. Max Weber, From Max Weber: Essays in Sociology (London, ), .
A Historical Reconstruction of State-Minority Relations in Turkey commands’.11 Unlike traditional rule, which is based on personal authority and obedience to unchangeable age-old rules, legal systems of authority rely on an impersonal purpose and obedience to abstract norms. Modern political power is thus based on a formal order that is subject to change by legislation. Accordingly, state formation can be interpreted as both the expropriation by the state of all autonomous actors who formerly controlled the means of physical force and the transformation from traditional political orders to legal rule, i.e. from the personal authority of rulers to legal political authority based on formal regulations. Historically, however, these transitions from traditional to legal forms of authority were far from being linear. In the evolution of nation-states, the establishment of legal authority relied on traditional sources of legitimacy and incorporated religious symbols. Parallel to the monopolization of physical force and taxation, the state apparatus also attempted to acquire a monopoly of control over the means of cultural expression and thereby over the symbolic resources of society. In this way, the formalization, textualization and centralization of knowledge, as well as the standardization and administrative implementation of a written language, became essential features of modern state-building processes. In the nationalization and homogenization of culture, history and religion, we can detect this attempt of the state to control the cultural reproduction of society. e state bureaucracy and its system of formal education developed into the main agents for the dissemination of a national culture. Via public administration and formalized education, states have been anchored in the minds of their citizens, shaping and imagining particular ‘state mentalities’ that have been further fostered from outside by the state-centered rituals of international politics.12 In constructing national identity by both utilizing and inventing symbols, communities and principles of tradition, the nation-state was able to bridge the gap between traditional and increasingly rationalized legal systems of authority. Given the primary role of nationalist movements in forming the contemporary political landscape, nationalism has been one of the most successful ‘export products’ of European political history. From its inception in the nineteenth century, the idea of the identity of nation and state, i.e. that political legitimacy must be based on the will of the nation,13 has spread over the entire globe. Nationalism, as the ideology to bring about this political identity, ‘feeds on cultural differences’, turning them ‘into a principle of political loyalty and social identity’. In this way, nationalist programs picked up localized, life-transmitted folk cultures and transformed them into a standardized, education-transmitted culture.14 us, nation-building is both the construction of homogenous cultural entities and the Max Weber, Economy and Society. An Outline of Interpretive Sociology, Volume I (New York, ), and . 12 Cf. Klaus Schlichte, ‘State Formation and the Economy of Intra-State Wars’, in Dietrich Jung (ed.), Shadow Globalization, Ethnic Conflicts and New Wars: A Political Economy of Intra-State War (London and New York, ), -, at -. 13 eodor Schieder, Nationalismus und Nationalstaat. Studien zum nationalen Problem im modernen Europa (Göttingen, ), -. 14 Ernest Gellner, ‘Introduction’, in Sukumar Periwal (ed.) Notions of Nationalism (Budapest, ), -, at . 11
Dietrich Jung politicization of these entities, elevating the national political duty to an obligation that ‘overrides all other public obligations’.15 From a functionalist perspective, this cultural coding through nationalist constructions and ‘invented traditions’ basically serves three purposes. In the first place, it establishes a symbolic representation of social cohesion and membership of a particular community. Second, it legitimizes the political institutions and authority structures of modern states. Finally, nationalist coding is instrumental in changing the social fabric of individuals via public institutions of education. ese institutions spread and inculcate beliefs, value systems and conventions of behavior.16 In transforming folk into national cultures, the invention of national print-languages was ‘of central ideological and political importance’. In processes of state formation, the formalization, scriptualization and centralization of knowledge are conditions for the establishment and monopolization of an abstract knowledge that the state uses to administer and therefore to rule. Against this background it is no coincidence that the scientific development of comparative language studies occurred at the same time as the formation of European nation-states.17 In structural terms, the crucial point concerning the construction of nations certainly lies in this congruence of the political and cultural unit. e specific core of nationalist ideologies is their general political character and their relation to the formation of modern states. Yet the formation of nation-states is not a structural development alone. Social structures exist through actors who establish, reinforce and change the structural patterns of their social environment. Moreover, the formation of modern nation-states gave rise to a number of new social actors that are associated with a variety of state-related power resources. To a large extent, these modern actors mirror the functional division of the state apparatus with its organs of physical force (police and army), its bureaucratic administration, its education system and its division of executive, legal and juridical powers. As a heterogeneous middle class, these clerks, functionaries, lawyers, military officers, teachers and members of the intelligentsia play an essential role in both the consolidation of legal authority and the construction of a national consciousness. In historical state-building processes, it is the factual mixture of competition and alliances among traditional and modern social actors, as well as the particular norms and values they adhere to, that shape specific national trajectories of state formation. In these processes, we can observe the constitution of so-called ‘hegemonic blocs’, the ‘configuration of social forces upon which state power ultimately rests’.18 Hegemonic blocs can involve cooperation among traditional and modern actors who shape not only the institutional setting of the emerging nation-state, but also the political world view of its state elite. In examining the link between the formation of hegemonic blocs and so-called Eric J. Hobsbawm, Nations and Nationalism since : Programme, Myth, Reality (Cambridge ), at . Id., ‘Introduction: Inventing Traditions’, in Eric Hobsbawm and Terence Ranger (eds.), e Invention of Tradition (Cambridge, ), -, at . 17 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalims (London, ), -. 18 Robert W. Cox, Production, Power, and World Order (New York, ), . 15 16
A Historical Reconstruction of State-Minority Relations in Turkey national characters, Norbert Elias defined the particular national attitudes of a people as a derivate of the specific social habitus of the related hegemonic bloc.19 Connecting individual and society, the social habitus comprises a system of historically and socially constructed generative principles in which individuality unfolds. e world view, which is rooted in the social habitus, is then a generative reservoir of cognitive and normative patterns to which individual strategies of action correspond.20 e social habitus can explain how social structures find their way into the mind set of specific social groups. Yet structural change and the transformation of social habiti do not necessarily occur in parallel. As a result of historical and social construction, on the one hand, the social habitus is subject to change. On the other hand, it also remains a relatively stable disposition that groups and individuals have acquired by socialization. us, in times of accelerated change, the social habitus of a certain group might become anachronistic to the structures of a changing social and political environment.21 is theoretically postulated asymmetry concerning the social habitus of a particular group brings us back to the Turkish example. e often distorted and hostile reaction of Turkish officials on EU policy advice could be interpreted as being a result of an anachronistic world view of Turkey’s Kemalist elite. e following historical reconstruction will show how this world view developed in close relationship to several formative stages of Turkish state and nation-building. In doing so, it will tell the story of state–minority relations against the background of two essential sociopolitical processes: the monopolization and centralization of state power, and the nationalization and homogenization of Turkish culture. III. T O L: F R C N M e guarantees promised on our part by the Hatti-Humayoun of Gulhané, and in conformity with the Tanzimat, to all the subjects of my empire, without distinction of classes or of religion, for the security of their persons and property, and the preservation of their honor, are to-day confirmed and consolidated, and efficacious measures shall be taken in order that they may have their full entire effect.22 On February , the Ottoman Sultan Abdülmecid promulgated a new reform edict only days after Russia had accepted preliminary terms to end the Crimean War. is reform edict confirmed general features of Ottoman modernization; however, it had a Norbert Elias, e Germans: Power Struggles and the Development of Habitus in the Nineteenth and Twentieth Centuries (Oxford, ). 20 Cf. Id., e Society of Individuals (Oxford, ) and Pierre Bourdieu, Die verborgenen Mechanismen der Macht (Hamburg, ). 21 Hans-Peter Müller, ‘Kultur, Geschmack und Distinktion. Grundzüge der Kultursoziologie Pierre Bourdieus’, in Kultur und Gesellschaft, Sonderband der Kölner Zeitschrift für Soziologie und Sozialpsychologie (Opladen, ), -, at . 22 Hatti Hümayun, February . For the whole text of this decree, see J.C. Hurewitz, Diplomacy in the Near and Middle East, a Documentary Record: -, Vol. I (Princeton, ), -, at .
19
Dietrich Jung strong emphasis on religious liberty and equality for non-Muslim subjects. Religious freedom, equal rights for admission to public employment and public schools, generally applicable tax regulations and property laws, as well as laws against corruption, extortion and torture, were major features of the edict. Additionally, the decree dealt with the individual rights of non-Muslim communities and their leadership, with necessary provisions to improve the infrastructure of the empire, and with regulations to guarantee unimpeded commerce and trade. e reform edict was designed to facilitate the admittance of the Ottoman Empire to the ‘Concert of Europe’ at the Paris Peace Conference where the great powers reconfirmed that they would respect the sovereignty and territorial integrity of the empire. Less than seven decades later, the Ottoman state had ceased to exist. It became common practice to closely associate the demise of the Ottoman Empire with the spread of nationalist ideas among its peoples. Since the Greek War of Independence (-), the empire had experienced a series of regional revolts in both its European and Arab provinces. In retrospect, the reaffirmation of privileges and immunities for non-Muslim minorities in the Hatti Hümayun turned out to have had a counterproductive effect. e empire was a part of a multilateral power struggle in which the distinction between international, regional and local forces became blurred. In this struggle, regional upheavals against the Ottoman state took an increasingly nationalist tone. In particular, the grievances of the Christian population in the Balkans resonated among the European public which itself turned into a strong supporter of nationalist movements, pushing European governments to intervene. In an often contradictory way, European powers applied a policy of settling minority problems in the Balkans at Ottoman expense, while simultaneously forging alliances with the empire against Russian expansionist ambitions in the Eastern Mediterranean.23 In the light of this complex international and domestic power game, it would certainly be an oversimplification to explain the fall of the empire only in terms of the ‘virus of nationalism’. As a result of military defeats, loss of territories and the appearance of irregular armies in the provinces, both the security situation and the economic conditions of the empire deteriorated. e Ottoman state was exposed to a multiplicity of economic, political and cultural changes that undermined the social foundations on which the empire had rested for centuries. From an international perspective, the Ottoman involvement in a competitive state system, the economic integration of Ottoman territories into a rising world market and the dissemination of the political and scientific ideas of an emerging global culture were most crucial. Internally, the state was primarily challenged by the aspirations of regional power holders and local magnates such as notable families, religious functionaries, or leaders of provincial garrisons and of the Janissaries – the traditional military backbone of the empire.24 In order to counterbalance these external and internal challenges to its sovereignty, the Ottoman state embarked on a modernization program to strengthen state institutions For a detailed account of this complex ‘Eastern question system’, see Carl Brown, International Politics and the Middle East. Old Rules, Dangerous Games (Princeton, ). 24 Albert Hourani, e Emergence of the Modern Middle East (Berkely and Los Angeles, ), -. 23
A Historical Reconstruction of State-Minority Relations in Turkey and safeguard the power of its political elite. e Ottoman reforms (Tanzimat, -), inspired by the model of European nation-states, aimed at the establishment of efficient monopolies of physical force and taxation. e major political-administrative trends of the reform process can be summarized as the attempt to effectively monopolize the means of physical force, the monetization and rationalization of the tax system, the secularization and formalization of education, the functional differentiation of the branches of government, the introduction of a new system of provincial administration, and the differentiation of physical force according to the separate realms of internal and external security. In addition, and due to foreign pressure, reforms regarding the status of Ottoman citizens and religious minorities were introduced.25 When considered in terms of the conceptual framework introduced in Section II. above, the Ottoman reforms show characteristic patterns of the transition from a patrimonial system of traditional authority, legitimized by dynastic succession and religious norms, to a formally rationalized order based on legal authority structures. However, being caught up in a complex web of internal and external constraints, the Ottoman reform process eventually contributed to the undermining of its own purpose: to safeguard the state by imposing reforms from above. Nevertheless, the modern transition of the nineteenth century laid the social and political foundations for state-building in the Balkans and the Middle East and it had a major impact on the institutional structures of the Turkish state and the social habitus of its political elite. With regard to minority issues, a brief examination of changes concerning the so-called ‘millet system’ is necessary. To a certain extent, it is difficult to apply the categories of ‘majority’ and ‘minority’ in their present meaning to the traditional Ottoman order. Until the Ottoman conquests of Syria and Egypt in , the Christian population of the empire exceeded Muslims in number. With political power based on an Islamic order, however, it was the Muslim millet that ruled and the three non-Muslim millets, the Greek Orthodox, the Armenian and the Jewish, were the millet-i mahkume, i.e. the ones being ruled.26 In its traditional sense, the millet was a semi-autonomous, corporate body, a form of social organization that was based on religion. Following the traditions of Islamic law, individuals were under the spiritual, financial, administrative and legal authority of their millets which only nonMuslims could leave by converting to Islam.27 After the conquest of Istanbul in , the Ottoman capital became also the patriarchal seat of the three recognized non-Muslim millets.28 For a more comprehensive analysis of the Ottoman reforms, see the chapter Reform and Decline in Dietrich Jung with Wolfango Piccoli, Turkey at the Crossroads. Ottoman Legacies and a Greater Middle East (London, ), -. 26 Roderic H. Davison, ‘e Millets as Agents of Change in the Nineteenth-Century Ottoman Empire’, in Benjamin Braude and Bernard Lewis (eds.), Christians and Jews in the Ottoman Empire. e Functioning of a Plural Society, Volume I, e Central Lands (New York and London, ), -, at -. 27 Cf. Ilber Ortayli, ‘e Ottoman millet System and its Social Dimensions’, in Rikard Larsson (ed.), e Boundaries of Europe? (Stockholm, ), -. 28 Halil Inalcik, ‘e Status of the Greek Orthodox Patriarch under the Ottomans’, in - Turcica – Revue D’Etudes Turques (), -, at . 25
Dietrich Jung While the millets were religiously homogeneous as social administrative units, they cut across ethnic, linguistic and social borders. A member of the Greek Orthodox millet could be Greek, Albanian or Arab in ethnicity, members of the Jewish millet spoke Ladino, Yiddish, Hebrew, Arabic, Aramaic or Turkish. In terms of social stratification, the population of the empire was basically divided into two groups. e first group, called askeri, represented the Ottoman state elite, the holders of military, administrative or religious appointments. is privileged askeri class was exempted from taxation. e second group, the raya, comprised the bulk of Muslim and non-Muslim subjects who were taxed.29 In principle, the particular ethnic or religious affiliations of individuals did not exclude them per se from becoming a part of the Ottoman elite. Hence, religion was an important, but not a defining, element of the traditional identity of the Ottoman state elite. Yet the military bureaucracy of the empire, although ethnically diverse, was predominantly Muslim. is predominance was also guaranteed by a ‘slave elite’ system. According to this system, young Christian boys were taken from their families and educated and raised as Muslims. Deprived of their elementary social ties and converted to Islam, the loyalty of this slave elite, particularly the military elite of the Janissaries, was exclusively directed toward sultan and state.30 By the end of the eighteenth century, however, the Janissaries had degenerated into an idle military caste carefully protecting their traditions and privileges. Together with religious dignitaries and local notables, they provoked social upheavals against unpopular sultans in order to stop attempts at reform by the political leadership. With the massacre and abolishment of the Janissaries in , this coalition of traditional forces had lost their means of physical force and the subsequent military, legal and administrative reforms essentially transformed the traditional structures of the Ottoman millet system. First of all, the reforms changed the internal structure of the millets and their relationship to the state. Depriving the traditional religious leadership of its political, administrative and juridical power, they strengthened the position of individuals and turned the millets into simple confessional groups.31 In this way, the centralization and individualization of state administration supported the modern stratum of Christian millets in their internal fight against traditional forces. At the same time, the decline of traditional leadership paved the way for the nationalization of religion by the rising modern middle class. Contrary to the expectations of the modernizing state elite, the liberalization and formalization of state–society relations did not lead to an ideological commitment of the various ethnic and religious communities to the Ottoman state, but it reinforced and politicized the predominantly religious distinctions of the traditional order. In this way, the Tanzimat weakened the role of religion as a means of social and administrative control. At the same Halil Inalcik, ‘Turkey. e Nature of the Traditional Society’, in Robert E. Ward and Dankwart A. Rustow (eds.), Political Modernization in Japan and Turkey (Princeton, ), -, at -. 30 Cf. Hough Poulton, Top Hat, Grey Wolf and Crescent. Turkish Nationalism and the Turkish Republic (New York, ), at . 31 Kemal H. Karpat, ‘Millets and Nationality: e Roots of the Incongruity of Nation and State in the PostOttoman Era’, in Braude and Lewis, Christians and Jews …, -, at .
29
A Historical Reconstruction of State-Minority Relations in Turkey time, the reforms turned religious differences into an ideological resource in domestic and international political conflicts. Ironically, two classical Islamic provisions to protect religious minorities contributed to this weakening of the position of the Ottoman state. e first of which was the dhimmi status of the recognized non-Muslim minorities of an Islamic state. In the millet system this status protected loyal non-Muslim communities and, although they remained less privileged than the Muslim community, granted them several religious and legal autonomy rights. e second provision was that of aman, which protects the life and property of foreign non-Muslims who stay temporarily on Islamic territory. is provision granted European diplomats and merchants an extraterritorial status, the so-called ‘Capitulations’, that originally was intended ‘to safeguard the small European diplomatic and merchant community against perceived and actual abuses of the Ottoman legal system’.32 Based on the autonomy rights of the millet system and the extraterritorial status of Christian foreigners, the Christian communities of the empire had long-standing relationships to European states, in such fields as commercial exchange and diplomatic services, as well as school, university and religious education. It was these provisions and relations that the non-Muslim communities of the empire and the great powers could instrumentalize in their confrontations with the Ottoman state. During the international power struggle of the nineteenth century, the difference in status between dhimmi and aman became blurred and the logic of the system of protection was reversed. At this time, it was no longer the Ottoman state, but rather European powers, granting legal protection to the Christian communities in the Ottoman Empire and the legal privileges of non-Muslim foreigners were extended to Ottoman citizens. Many non-Muslims took advantage of this situation and refused to pay taxes to the Ottoman authorities.33 In economic terms, the extension of the Capitulations to Ottoman citizens contributed to the disappearance of Muslim Ottoman traders in the first half of the nineteenth century. e increasing integration of the Ottoman economy into the world market and the opening of the empire for foreign products and capital, favoured nonMuslim traders who enjoyed the fiscal and legal protection of Western powers.34 Moreover, the exemption of minorities from tax payments had a severe impact on the fiscal basis of the Ottoman state and its attempts to establish a modern monopoly of taxation. In political terms, this new interpretation of protection and autonomy rights provided the Christian population an alternative source of security and political loyalty. Consequently, the Capitulations did not only undermine the legitimacy of the Ottoman state, but also contradicted the essential political-administrative efforts of the reforms.35 In summation, the Ottoman reforms were a conscious reaction against internal disintegration and external threats resulting from the empire’s involvement in a competitive Steven Rosenthal, ‘Minorities and Municipal Reform in Istanbul, -’, in Braude and Lewis, Christians and Jews …, -, at . 33 Ibid., . 34 Cf. Poulton, Top Hat …, at . 35 Rosenthal, Minorities and Municipal Reform …, at . 32
Dietrich Jung multipolar power system.36 In this context, the Ottoman government was trying hard to centralize state power, whereas European interference enhanced the disintegrative tendencies of the empire’s traditional social order, the millet system. Deliberately transforming its traditional structures of authority, the Ottoman state could not achieve legitimacy within a modern framework of legal authority. On the contrary, foreign powers and the modern stratum of non-Muslim minorities politicized and instrumentalized the cultural features of the empire’s traditional order, preventing a convergence of state and society in modern terms. Instead, the traditional incongruence of state and community was transformed into particularistic forms of religious nationalism. In this setting, state–minority relations in the late Ottoman Empire were conditioned by the political conflicts of the international system and gradually assumed violent forms. e modern Muslim military–bureaucratic elite that became the dominant social force in the hegemonic bloc behind Turkish state formation began to perceive minority communities as enemies of the state, charging them with external conspiracy and internal betrayal. IV. I S U: T G T N ere is only one way to escape these dangers, which is to emulate the progress of the Europeans in science, industry and military and legal organization, in other words to equal them in civilization. And the only way to do this is to enter European civilization completely.37 ese words of Ziya Gökalp, a leading nationalist intellectual of the late Ottoman Empire, point to the historical paradox behind the development of Turkish nationalism, the attempt ‘to synthesize the materialism of the West and certain indigenous cultural traits’.38 Against the political and cultural dangers with which European imperialism confronted the Muslim world, the Turkish national movement adopted a strategy of defending the integrity of the country by emulating its foes. is strategy became an expression of both Turkey’s desire to be acknowledged as a European state and the deeply rooted Turkish mistrust vis-à-vis the intentions of Europe. Ziya Gökalp, whom Mustafa Kemal Atatürk himself called the ‘intellectual father of the new Republic’,39 was a typical representative of the ‘educated bourgeoisie’ that grew in number and kind as a result of the Ottoman reforms. Moreover, his personal change from an Ottomanist liberal writer into an idealist
is structural argument does not mean that the Ottoman reforms were driven, irrespective of the motives and interests of the reformers, only by outer and inner constraints (cf. Jung with Piccoli, Turkey at the Crossroads …, at ). 37 Ziya Gökalp, e Principles of Turkism, translated by Robert Devereux (Leiden, ), -. 38 Ayse Kadioglu, ‘e Paradox of Turkish Nationalism and the Construction of Official Identity’, () Middle East Studies (), -, at . 39 M.T. Özelli, ‘e Evolution of the Formal Educational System and Its Relation to Economic Growth Policies in the First Turkish Republic’, International Journal of Middle East Studies (), -, at . 36
A Historical Reconstruction of State-Minority Relations in Turkey Turkish nationalist symbolizes the trajectory that the identity construction among the different social elements of the Ottoman elite had taken.40 e preceding section demonstrated how domestic and international forces contradicted the centralization efforts of the Ottoman state elite. In ideological terms, the modernization of the Ottoman state according to the European nation-state model was not accompanied by the development of an overarching national consciousness, integrating the ethnic and religious mosaic of Ottoman society. e supra-religious spirit of the Ottoman elite did not translate into an Ottoman ideology of unity that was shared by the rising modern class irrespective of different religious affiliations. With regard to the Christian population of the empire, Ottoman modernization resulted in a transformation of officially recognized religious communities into national minorities. For the modern Christian elite this minority status became a strategic power resource in the social, political and economic conflicts of the empire, leading to a sharp increase of autonomous millets and eventually to the establishment of independent states.41 While the ideologies of Christian nationalists fed on the religious differences of the traditional order, the millet system did not know any official differentiation of the Muslim population by religion, language or ethnicity that could have been easily exploited by nationalist movements. In reality, however, the orthodox Sunni state Islam of the Ottoman Empire only represented an imposed unity of the Muslim millet. is did not only comprise schools of law other than the official Hanafi Doctrine, but was also characterized by heterodox and syncretistic communities. Prime amongst them was the Turkmen variant of Shiism, the Alevi, in which the Ottoman state saw a permanent potential for disloyalty.42 In the Ottoman Empire, the Alevis were associated with the supporters of Safavid Iran and called Kizilbas (redheads), a pejorative term that implies the meaning of heretic rebels. Stigmatized as a syncretistic, socially marginalized and potentially disloyal community, the Alevi experienced various forms of state suppression under Ottoman rule.43 is religious cleavage deepened further during the Tanzimat because the extension of central state administration into the remote islands of Alevi tribalism was perceived as a conflict between orthodoxy and heresy.44 Despite this factual fragmentation of the Muslim millet, it was nevertheless among the Muslim population of the empire that the idea of Ottomanism, i.e. the equality of all subjects under a modernized Ottoman state, gained most currency. Given the growing gap between the Christian millets and the Ottoman state, Ottomanist ideology almost 40 41 42 43 44
Cf. Niyazi Berkes, ‘Ziya Gökalp: His Contribution to Turkish Nationalism’, () Middle East Journal, (), -. While the traditional order only knew three recognized millets, their number increased under foreign pressure to nine by and to by . See Poulton, Top Hat …, at . Serif Mardin, ‘A Note on the Transformation of Religious Symbols in Turkey’, Turcica – Revue D’Etudes Turques (), -, at . Irène Mélikoff L’Islam Hétérodoxe en Anatolie, Turcica – Revue D’Etudes Turques (), -, at . Peter J. Bumke, ‘Kizilbas-Kurden in Dersim (Tunceli, Türkei)’, Anthropos (), -, at .
Dietrich Jung naturally acquired an Islamic connotation. is was visible in the opposition movement of the so-called ‘Young Ottomans’. Having their socioeconomic roots in the new educational and administrative institutions of the Tanzimat, the Young Ottomans were a modern political force, nationally minded and liberal in their institutional concepts. Aiming at a synthesis of Islam with ideals of Western Enlightenment, they promoted a form of Ottoman nationalism in which the traditional loyalty to the millet was to be replaced by the fatherland (vatan), which is above religious, ethnic or regional divisions.45 e Young Ottomans, together with younger bureaucrats, officers and the emerging intelligentsia of the empire, formed a constitutional movement that in December achieved the promulgation of an Ottoman constitution and the establishment of a representative assembly. In a context of continuous military defeats, financial crises and separatist insurgencies, the predominantly Muslim constitutional movement tried to curb the authoritarian powers of the sultan and the higher bureaucrats. In this way, the call for constitutional rule marked a turning point. e genuinely modern forces of the Muslim millet, i.e. the rising middle class, were gradually breaking away from the traditional claim to power of the Ottoman dynasty. A deep rift had developed within the hegemonic bloc that had dominated the Ottoman reforms since the destruction of the Janissaries. Yet this first constitutional period was only a short interlude in the authoritarian state tradition of Ottoman-Turkish modernization. In December , Sultan Abdülhamid II dissolved parliament and suspended the Ottoman Constitution. Until the so-called ‘Young Turk’ revolution in July , Abdülhamid II ruled the country for more than years in a repressive and absolutist way. As an ideology of unity, Ottoman constitutionalism had failed and Sultan Abdülhamid embarked on an Islamization of state and society in order to face the legitimacy crisis the policies of centralization had brought about.46 e severe legitimacy crisis resulted partly from a paradox of the Ottoman reforms: ey led to a strong state in a weak empire. Abdülhamid II even intensified the state-centered policies of the Tanzimat and tried to further centralize the state apparatus. However, in cracking down on any kind of opposition, muzzling the relatively small group of critical journalists and novelists and implementing a repressive network of information services, he deprived the reform process of its remaining liberal features. Instead, he surrounded himself with religious dignitaries, reintegrated them into the political elite and adopted a pan-Islamic rhetoric, appealing to Muslim solidarity in both internal and external matters. In this way, Abdülhamid attempted to control the means of symbolic reproduction, i.e. to establish state control over religion, and further alienated the rising educated bourgeoisie and the non-Muslim minorities of the empire. In the light of ongoing political and economic emasculation of the Ottoman state from outside, the politicization of Islam and the hyper-centralization of state power were acts of last resort in the struggle to safeguard the integrity and sovereignty of the state. Kemal Karpat, ‘e Transformation of the Ottoman State, -’, International Journal of Middle East Studies (), -, at -. 46 Cf. the outstanding study on the Hamidian period of Selim Deringil, e Well-Protected Domains. Ideology and the Legitimation of Power in the Ottoman Empire, - (London, ). 45
A Historical Reconstruction of State-Minority Relations in Turkey e period of Hamidian absolutism became the most formative phase of Turkish nationalism with regard to both its ideological concepts and its social forces. Turkish nationalism evolved as an ideology and as a social movement in close interplay with domestic opposition groups and exiled communities in Europe. Furthermore, it reflected the historical reality of the territorially shrinking empire. In ideological terms, the concept of territorial political loyalty to the fatherland (vatan), first adopted by the Young Ottomans, acquired a more pronounced Muslim and Turkish connotation, revolving around Anatolia as its territorial core. Against the background of Armenian and Greek nationalist separatism, intellectual circles developed an idealized history of the Turks, promoted the idea of their civilizing mission and attempted a purification and standardization of the Turkish language.47 In social terms, the modern educational institutions of the empire, in particular the training centres for the military and the central administration, developed into the main breeding grounds for Turkish nationalists whose most influential organization, the Committee of Union and Progress (CUP), eventually instigated the Young Turk revolution against Abdülhamid II. e CUP, basically the predecessor of the Turkish national movement that later founded the Turkish republic, began as a secret circle of students in . Initially advocating the Ottomanist ideology of unity by promoting the ideas of constitutionalism and parliamentary representation, the CUP soon adopted a more nationalist stance, integrating ideological elements of Islam and Turkishness. In their ethnic composition, however, the CUP still reflected the ethnic mosaic of the Muslim millet. e Young Turks were Turks, Kurds, Arabs, Albanians and Circassians, who shared the social patterns of an urban, educated middle class with close ties to both the military and the state administration.48 In this sense they epitomized the fact that Turkishness was not the awakening but the creation of a particular ethnonational identity within certain historical conditions.49 In light of the current minority debate in Turkey, it appears to be an irony of history that this construction of Turkish nationalism was to a large extent the work of Muslim minorities. On the one hand, many leading members of the Turkish national movement were descendents of Muslim families that had been expelled from the Balkans. Mustafa Kemal Atatürk himself was a Macedonian Muslim from Salonica. On the other hand, Muslim émigrés from Russia were instrumental in adding an ethnic flavor to Turkish nationalism and in promoting a pan-Turkist agenda, emphasizing the unity of the Turcic people instead of the Ottoman state.50 In conclusion, it was at the end of the Tanzimat period that with the Young Ottomans a modern Muslim elite appeared on the political stage for the first time. eoretically, this David Kushner, e Rise of Turkish Nationalism (London, ), -. Jan E. Zürcher, e Young Turks – Children of Borderlands?, Working paper, Department of Turkish Studies, University of Leiden (Leiden, ). 49 While in Europe the terms Turk, Turkish and Turkey were already used in relation to the Ottoman Empire, until the end of the nineteenth century the term Turk was alien to the Ottoman elite, implying the notion of an ‘uneducated peasant’. See Poulton, Top Hat …, at . 50 Masami Arai, ‘Between State and Nation. A New Light on the Journal Türk Yurdu’, Turcica – Revue D’Etudes Turques (), -. 47
48
Dietrich Jung political movement, based on the ideas of constitutionalism and representative government, could have brought about a transition of power from the palace to a self-conscious, liberal Ottoman middle class. Yet under the given historical circumstances, the ongoing struggle against internal repression, ‘religious separatism’ and foreign military intervention, this new Ottoman middle class became decisively militarized. Moreover, in their fight against Hamidian despotism, the new military–bureaucratic elite of the empire adapted themselves to both a pronounced kind of state-centered elitism and methods of political suppression. In the early s, after decades of autocratic rule and continuous warfare, the national movement of the Ottoman Empire had shifted from a liberal civic opposition to a militarized nationalist movement. With regard to state–minority relations, the new ethnonational identity construction dramatically reduced the societal complexity of the Ottoman Empire.51 On the one hand, it not only confirmed the political minority status of the Christian population, but actually excluded Christian communities from the national unity of the emerging Turkish state. In the last decades of the empire, the Young Turk movement ‘developed a fierce OttomanMuslim nationalism, which defined the ‘other’ very much in religious terms’.52 In this respect, the Balkan Wars (-) in which the empire lost its richest and most developed provinces – Albania, Macedonia and race – played a crucial role. e experience of progressive isolation that the Turkish Muslims faced in their attempts to safeguard the empire almost naturally added an Islamic component to Turkish nationalism. On the other hand, this growing emphasis on Islam did not soften the suppressive attitudes of the Ottoman Sunni orthodoxy. On the contrary, similarly to Ottoman sultans, the CUP considered religion as a means of social control and societal cohesion, giving heterodox communities no right for public expression. In making Islam an essential element of national unity, any recognition of religious pluralism within Islam was excluded. While non-Muslim minorities became foes, the existence of Muslim minorities was simply denied. V. C U: T E T R is change is due to the creation of a national spirit in Turkey, and this in turn has resulted in the recent successes of the Turkish Army, with the result that we can no longer treat the Turks as a conquered nation to whom it is possible to dictate any terms we wish.53 On the eve of the Conference of Lausanne, this General Staff Memorandum reflects the essential change of position vis-à-vis Turkey that the victorious war allies had taken. Less than three years earlier, at Sèvres in August , the entente demanded from the 51 52
53
Cf. Hans-Lukas Kieser, ‘From Muslim to Turkish Nationalism. Elite Socialization in the Turkish Foyers in Switzerland (-)’, at http://www.hist.net/kieser/pu/wocmes.html. Zürcher, e Young Turks …, at . British General Staff Memorandum, October , quoted in L.A. Macfie, ‘e Straits Question: e Conference of Lausanne (November – July )’, () Middle Eastern Studies (), -, at .
A Historical Reconstruction of State-Minority Relations in Turkey Ottoman government in Istanbul that they surrender the territorial integrity and political sovereignty of the Ottoman state. Stripping the empire of its Arab provinces, the Treaty of Sèvres also included a full partition of Anatolia. It proclaimed an independent Armenia in the northeast, put western Anatolia under Greek administration and envisioned a local autonomy scheme for the predominantly Kurdish areas in the southeast. e Ottoman Empire had shrunk to a rump state that only comprised some central parts of Anatolia, Istanbul, the Dardanelles and the Sea of Marmara, putting the latter under the international supervision of the so-called ‘Commission of the Straits’.54 With the clauses of Sèvres the worst suspicions of the Ottoman state elite came true, giving ‘evidence’ of the great European conspiracy behind the dismemberment of the empire. e fact that the Ottoman government in Istanbul collaborated with the occupational powers, that the sultan and his bureaucrats virtually lived at the mercy of the entente, greatly enhanced the legitimacy of the national movement in Ankara where the newly elected national assembly met for the first time in April . From Sèvres onwards, the rival government in Ankara determined the political fate of Turkey. In particular, the Turkish War of Independence, the military strife against Greek occupation forces between -, gave the national movement a historic chance to acquire both the state monopoly of physical force and legitimacy for political leadership. In this sense, the British Staff Memorandum acknowledged the power transfer from the traditional Ottoman elite to the secondary military–bureaucratic elite under the leadership of Mustafa Kemal Atatürk. Moreover, for the first time, the European powers applied the principle of self-determination in favor of Turkey. At Lausanne, the entente accepted the resurrection of the Ottoman state in the only legitimate form that an independent political entity could take at this juncture: as a nation-state. e successful military campaign against Greece and Mustafa Kemal’s open rejection of any pan-Islamist or pan-Turcist aspirations facilitated the integration of a territorially based Turkish nation-state into the postwar order. Most crucial in this, the leadership of the national movement adopted the modern nation-state discourse. Atatürk and his associates promoted the national rights of the Turks and abandoned the imperial rhetoric of their Ottoman predecessors. In emulating the political concepts of its European foes – the convergence of state, nation and territory – the national movement finally succeeded in establishing a modern Turkish nation-state that took its place as a recognized member of the international society of states. e Treaty of Lausanne, signed on July , granted Turkey full sovereignty in exchange for the renouncement of all rights over the Ottoman Arab provinces and Cyprus, as well as the guarantee of full rights and freedom of emigration to non-Muslim minorities.55 From the outside, Lausanne provided the long-desired international recognition of the ‘indivisible entity’ of the Turkish state. Looked at from inside, however, this entity did not exist. On the contrary, state and nation had yet to be built. Although now J.C. Hurewitz, Diplomacy in the Near and Middle East, a Documentary Record: -, Vol.II (Princeton, ), -. 55 Ibid., at -. 54
Dietrich Jung predominantly Muslim, Anatolia remained an ethnic mosaic with a huge sociocultural gap separating its overwhelmingly rural population (periphery) and its modern urban elite (centre). In Lausanne, Turkey had achieved ‘negative sovereignty’, the international recognition as a territorial state that was still missing essential features of empirical statehood.56 In this context, Mustafa Kemal Atatürk founded the Turkish republic against competing forces both inside and outside the national movement. In a complex interplay of coercion and concessions, he established the power monopoly of the republican wing of the national movement and its core institutions, the Republican Peoples Party (RPP) and the military. In his ‘cultural revolution’, Atatürk basically followed the Ottoman example of imposing reforms from the top. Like the Tanzimat, the Kemalist reforms were designed to defend the centralized state apparatus against external and internal threats and to secure the ruling position of the military–bureaucratic elite. In stark contrast to the official denigration of the Hamidian period, the Kemalist’s ‘enlightened absolutism’ actually resembled the authoritarian rule of Sultan Abdülhamid II in many aspects. His centralist policies, as well as the enhancement of the surveillance capacities of the Ottoman state, are precursors of the CUP’s, and later of Kemalist, authoritarianism. e parallels between Atatürk’s cultural revolution, and Abdülhamid’s attempt to monopolize the resources of symbolic reproduction and to use them as a major source of political legitimacy, are revealing. However, while Abdülhamid drew on indigenous religious symbols, Atatürk and his associates used their cultural capital of western knowledge. ey not only successfully applied the nation-state discourse to the outer world, but in the internal process of the building of the Turkish state they were able to monopolize the production of a national culture. In this way, the Kemalist reforms provided the new state elite with the necessary symbolic means to legitimize their republican system of domination. With the proclamation of the Turkish republic in October began the conscious production and dissemination of this national culture under state control. Some of the most striking reform measures during the s were the abolishment of both the Ottoman sultanate and the caliphate, the closure of religious brotherhoods, convents, sacred tombs and other places of worship, as well as the introduction of the Gregorian calendar, the Latin alphabet, western numerals and coeducation for girls and boys. In the s, Ankara granted active and passive female suffrage, enforced a new law requiring Turks to adopt surnames, prohibited temporarily the pilgrimage to Mecca and made Sunday the official day of rest instead of the Muslim Friday.57 In addition to these iconoclast reform measures, the Kemalist state set up two institutions for national identity building: the Turkish Historical Society and the Turkish Linguistic Society. Under the personal leadership of President Atatürk, these institutions were central to the creation of a standardized, education-transmitted national culture which could produce social cohesion among the ethnically fragmented population and provide politiRobert H. Jackson, Quasi-States: Sovereignty, International Relations, and the ird World (Cambridge, ). 57 For a detailed account of these reform steps, see Nilüfer Göle, e Forbidden Modern. Civilization and Veiling (Ann Arbor, ). 56
A Historical Reconstruction of State-Minority Relations in Turkey cal legitimacy for the newly established institutions of the Kemalist state. e task of the Turkish Historical Society was to write a national history that anchored Turkish nationalism in an imagined past before Islam. According to the Turkish Historical esis, all civilizations are based on the ancient Turkic civilization. e Turks left their homelands in Central Asia because of natural disasters and migrated to different parts of the world. e thesis claims that Sumerians and Hittites were predecessors of the Anatolian Turks, thus linking the history of these ancient empires to the national history of the Turkish republic. is civilizing mission of the Turks was also the basic theme of the so-called ‘Sun Language eory’. is invention proposed that ‘pure Turkish’, as an ancient language uninfluenced by Middle Eastern culture, had been the foundation stone for the development of many, if not all, other languages.58 With regard to the cultural markers of Turkish nationalism, the founders of the Turkish republic followed a twofold strategy. In the first place, they instrumentalized Islam, put religion under state control and invented a national culture of their own design. Islam played a major role in defending the nascent Turkish state against foreign threats and in defining the Turkish nation. During the War of Independence, Islam served as the central means of cohesion and mobilization. To a large extent, the Muslims of Anatolia saw the national struggle as a means of restoring the power of the sultan and the Ottoman dynasty.59 At Lausanne, it was the classical and internationally accepted distinction between the Muslim and the Christian millets that dominated the negotiations. Invoking the right of self-determination for Anatolia’s Muslim population, this religious distinction justified the foundation of a Turkish nation-state. At this stage, to be a Muslim was the only overarching marker of identity for the definition of Turkish citizenship and the nationalization of non-Muslims in the early republic was largely based on their conversion to Sunni Islam.60 Second, and only after the Turkish republic had received its international recognition, secularism, elements of Turcism and a corporatist conception of society developed into the ideological cornerstones of Kemalism. In the internal consolidation of the early republic, the legal establishment of the secular principle was of utmost importance. Given the basically Islamic legitimacy of Ottoman rule, it was a means to suppress any form of religiously motivated resistance against the legal system of authority that was founded by the new military–bureaucratic elite. e iconoclast reforms, Atatürk’s cultural revolution, aimed at the complete destruction of the political symbols and institutions of the Ottoman Empire, as well as at the de-Islamification of public political discourses. On the other hand, secularism had turned into the essential ideological glue connecting the state elite with the modern middle class. In the self-consciousness of this republican hegemonic bloc of officers, lawyers, teachers and bureaucrats, religion became synonymous with obscuranD. M. Alici, ‘e Role of Culture, History and Language in Turkish National Identity Building: An Overemphasis on Central Asian Roots’, () Central Asian Survey (), -. 59 Metin Heper, ‘Islam, Polity and Society in Turkey: A Middle Eastern Perspective’, () Middle East Journal (), -, at . 60 Söner Cagaptay, ‘State and Turkishness in Interwar Turkey’, talk at the MESA conference in Washington DC, November . 58
Dietrich Jung tism and Islam was turned into an antithesis to the principles of the new, secular national Turkish culture. In this way, the Ottoman distinction between orthodoxy and heterodoxy had been replaced by the republican distinction between Islam and secularism.61 Moreover, as servants of the state, this new middle class was also dependent on republican institutions in a material sense.62 Contrary to the official writing of Turkish history, the foundation of the Turkish republic did not start from scratch. It was a contradictory process that involved both a sharp break with the Ottoman past and a continuation of many features of Ottoman modernization. Most crucial regarding these Ottoman-Turkish continuities was that the Kemalists perpetuated the Ottoman ‘state mentality’ and the elitist habitus of the palace and the Sublime Porte. Like their imperial predecessors, the republican elite conceived the state as a centralized power apparatus outside and above society. ey pursued their policies of modernization in the form of an educational dictatorship. is kind of ‘enlightened republican absolutism’ did not allow for social dissent. In basing the nation on a combination of state-controlled Islam with ethnonationalist elements of Turcism that had been stripped of its irredentist aspirations, Kemalism did provide a cohesive national ideology for two sections of the population: for the Muslim urban middle class and for large parts of the socially uprooted Muslim immigrants who had left their homelands because of persecution and war or in the course of the population exchange on which Turkey and the entente had agreed at Lausanne.63 In this way, the new nationalist ideology indeed provided an opportunity for the integration of Muslim minorities irrespective of their factual ethnic or religious differences. However, this integration via assimilation was following the path of a state-controlled homogenization of society. It was at the expense of the factual cultural diversity that has characterized Ottoman and Turkish society. e Kemalists turned the Young Ottoman’s plural concept of the fatherland, the vatan, as being above all cultural divisions, into an organic concept of an homogeneous nation. While the Ottoman state presided above a segmented society that to a certain extent accommodated ethnic and religious differences, the Kemalist state combined Ottoman authoritarianism with the fierce corporatist nationalism of the s. e Kemalists, therefore, looked upon society as an organic whole in e new ideology of secularism was for the Alevi minority a certain kind of relief. Although they were also not allowed to express their distinct religious identity in public, the state-controlled Islam of the secular republic did not interfere in their private religious affairs. erefore, the Alevi population has been one of the strongest supporters of the RPP and its secularist ideology throughout decades. 62 Cf. Serif Mardin, ‘Religion and Politics in Modern Turkey’, in James Piscatory (ed.), Islam in the Political Process (Cambridge, ), -, and Binaz Toprak, ‘e Religious Right’, in Irvin C. Schick and Ertugrul A. Tonak (eds.), Turkey in Transition: New Perspectives (Oxford, ), -. 63 It was estimated that until the Young Turk Revolution in , about five million Muslim immigrants from the Crimea, Caucasus and the Balkans had settled in Anatolia and in some parts of the Arab provinces. See Kemal H. Karpat, Ottoman Population -: Demographic and Social Characteristics (Madison, ), . In addition, hundreds of thousands of Muslims fled to Anatolia during the Balkan Wars and the First World War. Almost half a million Muslims arrived in Anatolia between and as a result of the population exchange. See Justin McCarthy, ‘Foundations of the Turkish Republic: Social and Economic Change’, () Middle Eastern Studies (), -, at . 61
A Historical Reconstruction of State-Minority Relations in Turkey which the advocacy of social, ethnic, linguistic or religious minority rights became synonymous with political disloyalty. In the early republic, non-Muslim minorities were perceived with suspicion and exposed to various forms of ethnoreligious discriminations. In particular the Capital Tax of provides a good example. is discriminative legislation was directed against Jewish and Christian businesses in Istanbul that had survived previous campaigns of economic nationalism.64 In consequence, the overwhelming majority of non-Muslims left the country, putting an end to centuries of multireligious coexistence in Anatolia. However, non-Turkish Muslim groups such as Albanians, Circassians, Georgians, Kurds, Laz or Slavs must have also felt the Kemalist zeal in the shaping of an homogeneous Turkish nation. In overemphasizing the indivisible unity of territory, state and nation, the Kemalist state elite actively discouraged these linguistic minorities ‘from using their mother tongue in public or in written form’.65 VI. C: R H D Exalted Turkish Nation: As you have experienced in recent years, the State of the Republic of Turkey which was entrusted to us by the Great Atatürk, and which is an indivisible entity with its state and territory, is the target of traitorous assaults – both physical and intellectual – on its very existence, régime and independence, prompted by enemies within and without.66 In the early morning hours of September , the general chief of staff of the Turkish armed forces, Kenan Evren, announced the third military coup in Turkey’s republican history. In a tense political atmosphere that had brought the country to the brink of anarchy, and under the pressure of a rapidly deteriorating economic situation,67 the Turkish generals had reluctantly decided to oust the civilian administration in order to protect the integrity of state and nation. Parliament was dissolved, political leaders taken into custody, political parties and trade unions directed to disband and martial law declared countrywide.68 e so-called ird Turkish Republic began with months of military rule, aiming once again at a major process of societal reconstruction and at safeguarding the Kemalist heritage of Atatürk’s reforms. Directed against ethnonationalist movements, militant right and left wing groups, as well as the rising powers of political Islam, the military-guided social engineering intended to reshape Turkish society according to the Kemalist ideal of an organic and homogeneous whole. Poulton, Top Hat …, at -. Ibid., at . 66 Kenan Evren, September , quoted in Memet A. Birand, e Generals’ Coup in Turkey. An Inside Story of September (London et al., ), . 67 According to the figures given by the junta leader, General Evren, the political crisis in Turkey claimed , lives during the two years before the military intervention alone. Ibid., at . 68 J.H. McFadden, ‘Civil-Military Relations in the ird Turkish Republic’, () Middle East Journal, (), -, at . 64 65
Dietrich Jung Since the introduction of multi-party politics in , the Turkish military has taken over step by step the role of social and political control that the RPP played for more than years under single-party rule.69 e army has developed into an autonomous political force that, as self-appointed guardian of the Atatürk revolution, holds the position of a supreme arbiter over the democratic political system.70 Similar to the Janissaries, the Turkish officer corps represent a military cast that considers itself to be above and apart from society, only accountable to Atatürk and the Kemalist state.71 In this sense, the Turkish military epitomizes the ‘mystical’ conception of the state that has been handed down from the Ottoman state elite to the present. Evidently, this state mentality substantially molded state–society relations in Turkey and became an inherent part of the social habitus of its political elite. is applies in a similar way to the deep-rooted suspicions and the sense of conspiracy and betrayal that shaped the political worldview of the Ottoman-Turkish state elite. Despite decades of Western integration, there is still a sense of mistrust concerning the intentions of European powers and of politically active minority groups. e Ottoman experience, i.e. the collaboration among indigenous minorities and foreign states in dismantling the empire, became a relatively stable feature in the social habitus of the republican elite. At various stages of Turkish–European history – at Sèvres and Lausanne, during the Cyprus crises, in the Kurdish insurgency or with regard to Turkey’s application for EU membership – these suspicions have been confirmed. In this respect, European voices such as the recent negative comments on Turkey’s EU candidacy by Valerie Giscard d’Estaing have an utterly detrimental effect on the ongoing reform process in the country.72 As shown by this historic reconstruction of Turkish state–minority relations, the exaggerated sensitivity of Ankara vis-à-vis the issue of minority rights is deeply rooted in the formation of both the Turkish state and the Turkish nation. In a unique way, the Ottoman-Turkish experience combines structural processes such as the centralization of power, the legalization of authority and the construction of a national identity with the complex interplay of a triangle of actors: the Ottoman-Turkish state elite, the European great powers and the empire’s relatively autonomous religious minorities. On the one hand, EU leaders have to take these historically constructed sensitivities seriously. erefore, Brussels must avoid rhetoric that might revive imperial legacies. Whoever wishes to facilitate the reform process in Turkey has to take into account the historical experiences of the country. On the other hand, this analysis also makes clear that the course of his69 70
71
72
For a closer analysis of the international and domestic conditions in which this process took place, see Jung with Piccoli, Turkey at the Crossroads …, -. In relation to this political autonomy of the Turkish army, see Cengiz Candar, ‘Redefining Turkey’s Political Center’, () Journal of Democracy (), -; Ümit Cizre-Sakallioglu, ‘e Anatomy of the Turkish Military’s Autonomy’, () Comparative Politics (), -. Cf. Mehmet A. Birand, Shirts of Steel. An Anatomy of the Turkish Armed Forces (London, ). In an interview with Le Monde, Giscard D’Estaing heavily criticized the acceptance of Turkey’s candidacy and equated Turkey’s possible accession with the end of the EU. See: ‘Pour ou contre l’adhesion Turquie à l’Union européenne’, Le Monde, November .
A Historical Reconstruction of State-Minority Relations in Turkey tory has rendered the Kemalist world view a mere anachronism. Against the accelerated modernization of Turkish society and its enhanced international integration, the unitary notion of statehood that the Kemalists adopted in the early twentieth century is meanwhile obsolete. e political developments in the s, the revival of pan-Turcism, the politicization of Islam, the rising ethnonational consciousness among the Kurdish and Alevi minorities, as well as the call of Turkey’s growing civil society for more pluralism and democracy, show that Kemalism has been confronted with the long-supressed heritage of Turkey’s societal diversity.73 e political crises during the s showed that Kemalist reengineering after the coup in has again failed. Since the days of Atatürk’s revolution, the form and content of modern statehood has undergone dramatic changes. While the British Staff Memorandum accepted Turkey as a member of the society of states on the basis of the national movement’s successful military striving for national self-determination, the Copenhagen criteria for EU full membership demand the establishment of a liberal pluralistic society in terms of law and practice that is able to live up to the stipulations in the FCNM. In order to become a member of the EU, Turkey must rid itself of two major tenets of Kemalism: the classical conception of the nation-state and the organic notion of society. In order to follow Ziya Gökalp’s call to enter European civilization completely, in the twenty-first century, it is diversity that has to replace homogeneity.
73
For a comprehensive account of this diversity, see Stefanos Yerasimos et al. (eds.), Civil Society in the Grip of Nationalism. Studies on Political Culture in Contemporary Turkey (Würzburg, ).
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Christopher Brewin*
Changing Concepts of Interest and the Annan Plan for Cyprus†
Turkish membership in the European Union is, like its Islamic alternative, as much about permanent friendships as permanent interests. Defining European interests might now be seen as an historical development from national to milieu interests. Turkish interests in a Cyprus settlement are discussed in terms of their impact on the integrity of the Turkish state and Turkey’s economic interests. It is suggested that European interests lie in creating a future peace in the Eastern Mediterranean by taking seriously the EU’s new self-definition as a multicultural security actor protecting minorities and human rights. If there is to be peace between Turkey and Greece in the framework of the EU, the Annan Plan for a settlement between the Cypriot communities is likely to remain the best available option. I. I On the principle that countries do not have permanent friends, but only permanent interests, Turkish diplomacy had done a remarkably effective job.1 e maxim that states have permanent interests means different things in different contexts. William Hale invokes it here in the context of defending the Turkish Republic’s policy of neutrality in the Second World War. However, the book on Turkish foreign policy from to from which the quotation is taken can itself be read as an account of how the Ottoman Empire came to accept the need for westernization. Hence, the construction of a modern secular republic carried with the change of unit a very different concept of Turkish interests. Second, as the international context changes, so do interests. *
†
1
Senior Lecturer in International Relations, Keele University (Leverhulme Fellowship). is article is an updated version of the article, ‘Turkish and European Union Interests in a Cyprus Settlement’, Journal on Ethnopolitics and Minority Issues in Europe (), at http://www.ecmi.de/jemie/special_ _.html. William Hale, Turkish Foreign Policy, - (London, ), .
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Christopher Brewin e Cyprus story illustrates the well-understood change from the imperial concept to that of the nation-state, and the less secure change in Europe from a framework of national interests to what might tentatively be called a European milieu interest. At a general level, it is indisputable that the Cyprus question had a different meaning when the interests at stake were those of empires – Ottoman, Russian, Austrian, British, French and German. e Sultan’s lease of Cyprus to the British Empire had nothing to do with Cypriot self-determination. As late as , the British decisions to deploy , troops in Cyprus and to employ disproportionate numbers of Turkish Cypriots as policemen were intended to crush a nationalist liberation movement in a colony. After , British actions, in common with other European countries, were based on a narrowly defined concept of national interest. is transition was blurred by the continued presence of British soldiers in the sovereign base areas, an imperial anachronism, and in the UN peacekeeping force. However, the major determinants are no longer British imperial interests, but rather the protection of British citizens, British commercial interests and Britain’s relationship with the United States. In the event of a Greek-Turkish war over Cyprus, the British have plans to evacuate their nationals – tourists, residents and soldiers. In , they did not risk British lives in protecting the Cyprus constitution from either Greek or Turkish attack; and in the previous decade they had allowed the Greek Cypriot majority and Turkish Cypriot minority to accelerate the trend away from mixed villages. Britain chose to interpret its guarantor status as a source of rights rather than duties.2 e , non-Cypriot troops in Cyprus today are there for reasons of Greek, Turkish and British national interests. e claim that, since the end of the Cold War, the framework of relations among European nation-states has been transformed from one solely based on national interests to one that is also based on a common milieu interest is more contentious. It makes more sense to the countries of Western Europe, where no country expects war with its neighbours, than in the Eastern Mediterranean, where every country still prepares for war with its neighbours. e ‘milieu concept’ is that the fifteen nation-states constituting the EU have become an effective guarantor of the borders, democratic regimes and minority rights of European states. e applicants for EU membership in Eastern Europe have adapted to Western European norms in trade, pluralist political parties and individual human rights, expecting to receive in return benefits similar to those that the ex-fascist states of Greece, Spain and Portugal have already received from membership. e reunified Germany has subsumed the Deutschmark in the Euro. Instead of dominating an anarchic Eastern Europe, Germany has been the strongest advocate of an enlarged and institutionalized Europe, deliberately prioritizing milieu goals. Greece similarly, in the Kosovo and Macedonia conflicts, subordinated its national identification with Serbia and Russia to a common European policy. Since the disasters in Srebrenica and Rwanda, European statesmen have recognized that, if there is to be a multicultural Europe worthy 2
Alan James, ‘e Making of the Cyprus Settlement -’, () e Cyprus Review (Fall ), -, at .
Changing Concepts of Interest and the Annan Plan for Cyprus of the name, they have a duty to risk their soldiers in conflicts where their national interests are not involved. Turkey has offered , troops for an EU Rapid Reaction Force for humanitarian operations where Washington is unwilling to commit its troops. e EU, for these various reasons, has thus become a more important regional security actor than NATO.3 is is not to deny that nationalism since has been both powerful and unpredictable, and that it is possible to interpret what I have called a ‘duty’ as no more than enlightened national interest. Two further introductory points are relevant. is article is written from the perspective that Turkish membership in the EU would benefit both the EU and Turkey. e EU is precisely about having permanent friends, each bound by the principle of solidarity to help other member states in difficulties, whether or not those difficulties are of their own making. European solidarity is much more far-reaching than membership in the NATO alliance, to which Turkey has been committed since . It is also relevant that two of Turkey’s alternatives to the EU also envisage permanent friends. Mr. Erbakan was interested in promoting the solidarity of the Organization of the Islamic Conference, and Mr. Korkmaz Haktanır’s speech in Northern Cyprus about a possible Union of Turkic republics envisages future solidarity among Turkic-speaking peoples.4 Secondly, national interests are defined by the government of the day. Hitler’s understanding of German national interest differed markedly both from that of Konrad Adenauer in postwar West Germany and that of Walther Ulbricht in East Germany. e election of Chancellor Gerhard Schröder in Germany put Turkey’s candidature on the EU agenda in place of the preference for a stable framework short of membership preferred by the Christian Democrat and Social Democrat chancellors who preceded him in Bonn. In Turkey, the election victory of Recep Tayyip Erdoğan’s AK ( Justice and Development) party on November is likely to lead to changes in the self-definition of Turkish interests as profound as those which followed the election of Adnan Menderes’ Democratic party years ago. e following section looks more closely at the separate and common interests of Turkey and the EU in a settlement of the conflict in Cyprus between two mutually suspicious communities/societies who have been physically separated for two generations. II. T C When we consider e importancy of Cyprus to the Turk, And let ourselves again but understand, at as it more concerns the Turk than Rhodes So may he with more facile question bear it; Shakespeare, Othello 3 4
Ole Wæver, ‘e EU as a Security Actor’, in M. Kelstrup and M. Williams (eds.), International Relations eory and the Politics of European Integration (London, ), -, at . Christopher Brewin, Turkey and Europe after the Nice Summit (Istanbul, ), .
Christopher Brewin On March , Mesut Yilmaz, Turkey’s deputy prime minister in charge of relations with the EU, told the Turkish Daily News that ‘[Turkish] membership of the EU cannot be linked to the settlement of the Cyprus problem, a position which has been put on record in the relevant EU documents’. Heinz Kramer has documented Turkey’s longstanding refusal officially to discuss a Cyprus settlement with the EU.5 For example, in April , Foreign Minister Mesut Yilmaz refused to attend the meeting of the Turkey–European Economic Community Association Council immediately following the Turkish application for membership. His problem was that, at Greek instigation, the introductory remarks of the German European Community Presidency referred to the Cyprus problem as affecting European relations with Turkey. Having made the point that Cyprus should not be a topic on the formal agenda, Mr. Yilmaz then discussed the problem at dinner. In March , the EU foreign ministers at a General Affairs Council overcame the Greek veto on the final stages of the customs union with Turkey. At the dinner following the simultaneous but separate meeting of the EU–Turkey Association Council, the Turkish Foreign Minister, Murat Karayalçin, refused publicly to accept that a package deal had been made. Instead he sought to counter Turkish Cypriot and Turkish charges that he had betrayed the Turkish national interest. He threatened that steps integrating Northern Cyprus with Turkey would match the EU accession process with the Greek Cypriot Republic of Cyprus.6 In December , Mr. Bülent Ecevit did not accept the Helsinki Summit offer of candidacy status until a letter from the EU Presidency had been received in Ankara. is letter is not in the public domain, but it can be inferred that the Presidency promised that Cyprus would only be discussed behind closed doors in the first stage of the Accession Partnership. Prime Minister Ecevit told the Anatolian Agency on July that the EU representatives ‘saw how sensitive we were about some foreign issues and national matters… they flew to Ankara by a private plane at midnight and said words which meant they would not make us uneasy about these issues’. e Commission did not include progress in Cyprus among the short-term aims for the Accession Partnership with Turkey. When the Council inserted this demand, Ankara announced that it might have to reassess its relations, a coded threat of withdrawal from the accession process.7 Given that Ankara has every reason to think that Greece would not be alone in refusing to contemplate Turkish EU membership unless there were a settlement of the Cyprus dispute, it is plain that Turkish diplomats and public opinion hold that Turkey’s national interests are at stake. In November , the Turkish Grand National Assembly held its tenth secret session devoted to the Cyprus issue. All the political parties agreed on a national pact regarding Cyprus categorizing it as a national issue involving ‘Turkey’s vital national and strategic interests’. e claim that EU membership generally, and the Cyprus issue particularly, puts at risk the integrity of the Turkish state is discussed in the next section, followed by a short review of economic interests at stake. 5
6
7
Heinz Kramer, Turkey’s European Orientation and Cyprus (Cyprus, ), . Christopher Brewin, Cyprus and the European Union (Huntingdon, ), chapter . Brewin, Turkey and Europe… , .
Changing Concepts of Interest and the Annan Plan for Cyprus A. Integrity of the State Unlike the applications from Scandinavian or Central European states, Turkey’s membership in the EU is understood in Turkey as the culmination of a process of westernization. Its purpose is to strengthen the creation of the modern, territorial, secular and Jacobin republic envisaged by Ataturk. Turkish leaders describe EU membership as a further stage in securing Western recognition of their equal standing as a founding member of the UN, full member of NATO and of the Council of Europe (CoE), as well as an Associate of the Western European Union. Unlike their French counterparts, Turkish leaders do not distinguish sharply between Americanization and Europeanization. In contrast to the Greek emphasis on their cultural identification as the fount of democracy and European civilization, Turks do not stress their European heritage as stemming from the location on their territory of so many Roman, early Christian and Byzantine artefacts. ey prefer to recall that, where Britain and France categorized Turkey as a Middle Eastern country, the American government pressed the case for Turkish membership of NATO, linked to the American Supreme Allied Commander Europe (SACEUR). American pressure similarly helped reverse the Luxembourg Council’s rejection of Turkey’s EU candidature, and overcome the Greek and Swedish opposition expressed at the Cologne Summit of , the summit before Helsinki. As the purpose of membership is to strengthen the state, it follows that a great deal of the hesitation about EU membership within Turkey focuses on those aspects of Europeanization that might undermine the ability of the state to enforce its authority against what Charles de Gaulle in the French context called les éléments de dispersion. Military leaders are not alone in fearing that European demands for civilian control will undermine the capacity of the National Security Council to act decisively against Islamic and Kurdish threats to the secular and indivisible state. e EU demand that political parties be allowed greater freedom of expression carries with it the real possibility that a Kurdish party will promote the secession of southeast Turkey, and that an Islamic party will promote distancing from European secular norms. Recent decisions of the Strasbourg European Court of Human Rights (ECtHR) have been particularly concerned with Turkey. e long-running civil war, and the longstanding identification of both the judiciary and the police with state repression of dissent, have provided plenty of cases. A second reason is that the acceptance of extraterritorial judicial oversight took place over a long period in Western Europe but has been more sudden in Turkey. e Loizidou verdict, finding that Turkey was the occupying power in Northern Cyprus and therefore responsible for compensating Greek Cypriots for loss of rights and psychological harm, was widely interpreted in Turkey as a political case making a settlement with the Greek Cypriots more difficult.8 On the other side are those who think that it is in Turkey’s interest to reform its political and judicial system for its own sake, to make Turkey the kind of republic to which Kurdish and Islamist parties could choose to be loyal. 8
See Aslan Gündüz, ‘Creeping Jurisdiction of the European Court of Human Rights’, VII () Perceptions (), -.
Christopher Brewin Cyprus has become over several decades a national issue for Turkey. At one end of the spectrum are those who consider that Turkey would be stronger if the Cyprus dispute ceased to be a thorn poisoning relations with Greece, complicating all its international relations, and burdening the Turkish budget with the costs of troop deployment and corrupting subsidies in Northern Cyprus. At the other end of the spectrum are the more public expressions of a stance that denies the legitimacy of the Greek Cypriot government, and regards the costs of supporting the Turkish Republic of Northern Cyprus (TRNC) as cheap in protecting Turkey’s existing borders and in protecting the , Turks and Turkish Cypriots in Cyprus. Prime Minister Ecevit frequently claimed that he brought peace to Cyprus in ; his Foreign Minister İsmail Cem’s rapprochement with Greek Foreign Minister George Papandreou did not extend to the Cyprus and Aegean issues.9 e Turkish Ministry of Foreign Affairs maintains that Cyprus is a bilateral matter to be settled by the two communities, with continued rights for the guarantor powers. What they have in mind is a return of some of the territory taken in in return for recognition of Turkish self-rule in the North. To link Turkish membership of the EU with a return to a government over the whole island would be to undermine the legitimacy of Turkish intervention in . In terms of kith and kin, President Denkta of Northern Cyprus has been able to make claims quite unlike those of the Bulgarian or racian Turkish minorities. In , he defended his claim that the TRNC constitutes a state: Turkish Cypriots on Cyprus have established a state. It cannot be a nation-state, because there is no Turkish Cypriot nation. A Turkish Cypriot is the extension of Turkey in Cyprus. So we are Turks, of Cyprus... We are Turks, as Turks of Anatolia are; but because our geography is Cyprus, we are Turkish Cypriots. If you were to organize Turkey on a geographical basis you would call a Turk from Erzerum an ‘Erzerum Turk’.10 e logic of equating Cyprus Turks with Erzerum Turks is that, as happened with Hatay in -, the TRNC could decide in a referendum to become a province of motherland Turkey. Proud of being Anatolian, the electorally popular President of the TRNC is unconcerned that national officials from Turkey have authority in every ministry of the independent Turkish Cypriot state. e Turkish forces and the Turkish Cypriot troops, the fire brigade and the police, are all commanded by Turkish nationals; just as in the internationally recognized Republic of Cyprus, the National Guard and the Greek troops have commanders from the Greek mainland. Mr. Denkta does not insist that on his frequent visits to the only country that recognizes the TRNC he be treated with the protocol due to a foreign head of state. 9
10
Turkish Daily News, December . F. Güven-Lisaniler and L. Rodriguez, ‘e Social and Economic Impact of EU Membership on Northern Cyprus’ in omas Diez (ed.), e European Union and the Cyprus Conflict (Manchester, ).
Changing Concepts of Interest and the Annan Plan for Cyprus On the other hand, his Turkish patriotism may have been decisive in his keeping a public silence when Prime Minister Tansu Çiller decided that it was in Turkey’s national interest in March to complete the customs union with the EU, knowing the price exacted by Greece on Cyprus. Moreover, many Turkish Cypriots do not share this sense of total identification with Anatolia. While the programme of the political party which regularly receives the most votes in Northern Cyprus, the UBP (National Unity Party), agrees that the ‘Turkish Cypriot people are an indivisible part of the Turkish nation’,11 the opposition CTP (Republican Turkish Party) wants to preserve the Turkish Cypriot community against immigrants from places like Erzerum. e CTP’s political programme states that ‘the inflow of foreigners prevents the shaping of a Turkish Cypriot will and threatens their existence’.12 Whatever their birthplace, most Turkish Cypriots want to retain their dominance in the North, with a Turkish presence. Hence the widespread objection to being categorized as a ‘minority’, and now officially to being categorized as a ‘community’. Forty years have passed since Turkish Cypriots dealt with their Greek Cypriot compatriots as neighbours. ey fear rule by a Greek Cypriot majority; they fear that free movement for individuals and groups would lead to confrontations fuelled by property claims and hatred. A final point on Turkish identification with Northern Cypriots as a national issue is more ideological. In , Kemalists of all political parties supported the ‘Peace Operation’ in Cyprus. ey did not object to the partition of Cyprus on the grounds that Ataturk had denied any Turkish responsibility for the welfare of Turks outside the frontiers claimed in . ere was more unease in when Mr. Denkta formally seceded from the Republic of Cyprus by establishing the TRNC at a time when the new civilian administration of Mr. Özal was still weak. But some Kemalists might well oppose nationalist opinion if the issue was the integration of Northern Cyprus into Turkey as a riposte to the accession of the Republic of Cyprus to the EU. Faced with the end of the EU membership process and of the customs union, some Kemalists might suggest that it was inconsistent to oppose Kurdish secession, ‘peace at home’, while promoting secession in Cyprus, endangering ‘peace abroad’. is links to the second aspect of Cyprus as a national issue, the threat to the existing frontiers of Turkey posed by a united Cyprus under Greek majority rule. B. Military Interests Turkey and Greece are the only European countries in NATO to have increased their arms expenditure since the end of the Cold War. In the Turkish case, this is partly to compensate for the phasing out of American military assistance, and partly to meet the costs of suppressing the Kurdish PKK (Kurdistan Workers’ Party). e main justification for the huge reequipment programme envisaged to is the increased volatility of Turkey’s many neighbours since . Turkey is the leading actor in a regional security complex, 11
12
Ibid., . Ibid.
Christopher Brewin defined as ‘a set of states whose major security perceptions and concerns are so interlinked that their national security problems cannot reasonably be analysed or resolved apart from one another’.13 Moreover, most Turks respect the Turkish army as the guarantor both of the secular state and of its borders because, despite the armed forces’ huge commercial interests, they regard officers as incorruptible. e General Staff ’s assessment of military requirements is rarely questioned, inside or outside the Grand National Assembly. Since , the Turkish army has maintained the : superiority that in pre-helicopter days was judged necessary to defend an island. As the Greek Cypriot National Guard and Greek contingent on Cyprus amount to , men, Turkey has deployed numbers fluctuating between -, men.14 Given Turkey’s large runways in the North of Cyprus, its command of the air in conjunction with Israel, its helicopters and landing craft, and its parity with the Greek navy, the Turkish General Staff might accept that it could reinforce a smaller contingent on Cyprus, and that it no longer needs an additional base against Syria. e Greek mainland is miles distant. What it could not accept is that a Greek Cypriot state could use those same runways to threaten Turkey’s air or sea communications, or enable Greece to blockade the Turkish ports of Mersin, miles distant, and Iskenderun, the oil route to Ceyhan from which it exports Iraqi oil and hopes to export Caspian oil. To Turkey, this perceived threat is aggravated by the two-front aspect of preparing for a conflict in the Aegean. is aspect would be less serious if the Greek Aegean islands, militarized by Greece after their experience, were demilitarized, perhaps in response to the reduction of the Turkish Aegean army. e gap between Turkish and Greek military strength has increased. Greek doctrines of ‘extended deterrence’ and the coupling of its defence with that of Cyprus through the Joint Defence Doctrine are not enough to maintain the credibility required for Greece to deter Turkey by military power. It is most interesting that the Turkish army agreed that it could postpone some of its projected expenditure as a contribution to showing the International Monetary Fund that the government’s budgetary deficit could be reduced, an unusually frank acknowledgement of the connection between government expenditure and inflation. C. Economic issues Like Turkey, the TRNC has experienced a banking crisis, requiring controls on expenditure and additional subsidies from the mainland. A settlement of the Cyprus dispute would enable tourists to be flown directly to the unspoiled North, bringing with it foreign investment in infrastructure. e concomitant risks seen from the Turkish perspective are that Turkish Cypriots will be bought out by the richer Greek Cypriots, or even that those who want to sell will be physically attacked by those who fear Southern domination. ese risks could be reduced if the local administration could control sales through licensing, 13 14
Barry Buzan, Ole Wæver and J. de Wilde (eds.), Security: A New Framework for Analysis (Boulder, ), . Dan Lindley, ‘e Military Factor in the Eastern Mediterranean’, in Clement Dodd (ed.), Cyprus: e Need for New Perspectives (Huntingdon, ), .
Changing Concepts of Interest and the Annan Plan for Cyprus as the Swedish-speaking Åland islanders are entitled to do under the terms of Finland’s accession treaty with the EU. For Turkey itself, one of the main attractions of EU membership would also be an inflow of foreign investment. Capital flows into Turkey ‘have rarely reached $billion in any year, a quarter of the figure for Poland’,15 a less populous country. Turkey’s geographic location, potential home demand, and membership in the customs union are favourable to foreign investment. e quality of Turkey’s young, educated labour force ranks above all competing countries in the study. Turkey’s failure to attract anything like the investment in Poland is only partly explicable by its governmental and monetary instability, and an administrative tradition hostile to foreign ownership. ese drawbacks apply also to a lesser extent to Poland. e single most important difference is that Poland is assured of early membership in the EU, offering more assurance to mobile capital of a stable political and economic future. Turkish access to the European market is at risk from the European sanctions that would be applied if Turkey fulfils its threat to integrate Northern Cyprus, which would be depicted by Greece and the Republic of Cyprus as a change of frontiers without the consent of all interested parties. On the other side of the argument, it can be said that membership in the customs union has so far meant a trade deficit and a loss of government revenue from higher tariffs. Continued participation is not justified unless it leads to full EU membership with access for agricultural production and an equal say in the making of future European rules. Turkey, like Japan, is big enough to remain an independent sovereign state and, as in , its nationalists are willing to pay the political and economic costs of going it alone. III. EU T M S Lacking an elected government, the European interest is whatever the member states can agree on – ideally on the basis of a proposal from the Commission, perhaps now also with input from the Chairman of the Political and Security Committee – and the subsequent assent of the European Parliament. e institutions, most member states, and public opinion have been unenthusiastic, both about the accession of Cyprus without a settlement, and the accession of Turkey. e official line of the European Commission is that a settlement in Cyprus is a matter for the communities under the aegis of the UN Secretary-General, and that it is up to Turkey to reform itself to the point where the member states can authorize the Commission to open accession negotiations. From the EU perspective, there is linkage between a Cyprus settlement and Turkish membership in that Greece would not be alone in denying membership to Turkey until there is a settlement of the Cyprus problem. What is missing from the Commission’s Regular Reports on Cyprus and Turkey is any strong sense that it is in Europe’s interest to create peace in the Eastern Mediterranean. 15
H. Loewendahl and E. Loewendahl, Turkey’s Performance in Attracting Foreign Direct Investment: Implications of EU Enlargement (Brussels, CEPS Working Documents, no. ).
Christopher Brewin Peace between France and Germany had to be created on the basis of equality. e island of Cyprus would be more prosperous, and an example of peace instead of conflict, if the two hostile communities on this small island could be united in observing EU directives. Greece and Turkey could similarly be equals in the EU. ey could emphasize their common interests in underpinning peace in the Balkans, the Aegean and the Eastern Mediterranean. Just as France took the risk of substituting a ‘good neighbour’ policy for ‘no appeasement’ of Germany, so Greece has reason to prefer Turkey as a good neighbour instead of refusing all appeasement of a country in illegal occupation of part of an Hellenic island. e second European interest in having Turkish Cyprus and Turkey included in the EU has to do with changes in Europe’s composition and self-image since . It is no longer possible to teach the European idea as being built on the heritage of Rome, Jerusalem and Athens, or as the secular successor of Christendom. ere are probably more than million Muslim residents and citizens within the territories of the EU-. Yet if their present lack of proportionate representation in the political and administrative institutions of the nation-states is bad, their representation at the European level is even worse. No Muslims attend any meetings of the European Council or the Councils of Ministers. ere are no Muslim Commissioners, and few Muslims are employed by the European Commission. ere is one Muslim member of the European Parliament. Turkish membership might not be welcome to Pakistani, Moroccan or Kurdish communities in the EU-, but the presence of a secular Islamic state, and of a self-ruling Islamic community in the EU would go some way to making a multicultural Europe more visibly a reality. is is not to say that Turkey would represent Muslims from Morocco or Bangladesh resident in EU countries, nor that Turkey should be admitted because its own citizens are predominantly Muslim. ird, the EU is not just a community of merchants but also now a community of human rights. e European Court of Justice is closely, if still incoherently, linked to the CoE’s ECtHR. e decisions to include Spain, Portugal and Greece were not based on European economic interests or military advantage. e leaders of France and Germany went against the most articulate interest groups in their respective countries to finance and promote what might be called milieu interests in having democratic and peaceful neighbours. A sense of cultural identity seems to have been less important, although the fact that Giscard d’Estaing and Hans-Dietrich Genscher were Hellenophiles probably influenced the Council’s decision to override the Commission’s negative opinion on Greece, and to ignore the anti-European views of the majority of Greeks in . Today, the quickest and most effective way to secure human rights and civilian democracy in Turkey would be, as it was in Greece and Spain, through early EU membership, not through first requiring a period of good behaviour. e Copenhagen Summit’s decision to review the factors affecting Turkey’s candidature in late must help those in Turkey campaigning for reforms. If the preliminary report from the Commission, perhaps undertaken on a broader canvas than the Regular Reports, is favourable, then the European Council has promised to open accession negotiations ‘without delay’.16 Mr. Recep Tayyip Erdoğan, the 16
Presidency Conclusions, Copenhagen European Council - December, , paragraph .
Changing Concepts of Interest and the Annan Plan for Cyprus leader of the AK Party which won a decisive victory in November , told party members that Copenhagen had been a success for Turkey and that ‘[t]he Cyprus issue should be solved before February and the entire island should become part of the EU’.17 We can only guess how near the two Cypriot communities came to signing up for the Annan Plan at the Copenhagen Summit. Michalis Papapetrou, government spokesman and a negotiator for the Republic of Cyprus, confirmed to the Cyprus Mail on February that he advised President Clerides: If the Turkish side was going to accept it, he should sign it as it stood because the possibility of a worse version for us in the near future was there …. Denkta will have to make his decision whether to go with the new Turkey or quit.18 Another Greek Cypriot negotiator, Attorney-General Alecos Markides, later recalled that Tassos Papadopoulos had advised Mr. Clerides to stay in his bedroom to avoid having to sign the second version of the Annan Plan. ere is a persistent rumour that the Turkish Cypriot negotiator, Ergun Olgun, advised his leader to accept the Annan Plan. In the event, the decision was for the UN negotiator, Alvaro de Soto, to propose further amendments. IV. T A P At the time of writing, March , the third version of the Annan Plan seems to have been prematurely consigned to the dustbin of history. With the support of Turkey, Mr. Denkta at the Hague refused the Secretary-General’s request that the Plan be put to referendums on each side of the divide on March. e election of Mr. Tassos Papadopoulos, with the support of the Progressive Party of the Working People (AKEL), as the President of the Greek Cypriots had been on a platform that the Annan Plan was a basis for negotiations with the Turkish General Staff rather than a basis for settlement with the Turkish Cypriot leadership. In accordance with the EU Summit Conclusions of December in Copenhagen, the Republic of Cyprus will now be accepted in April as a member state, even though the criterion of political stability is only satisfied in that part of its claimed jurisdiction where its writ runs. e signatures at the Acropolis in April will then have to be ratified by May according to the separate procedures of all fifteen member states. Although the Turkish language, by virtue of its status in the Constitution of the Republic of Cyprus, will become an official language of the EU, and although Turkey, by virtue of its adhesion to the customs union, implicitly recognizes the Republic of Cyprus, Turkey adamantly rejects the legitimacy of the accession to the EU of the Greek Cypriot Republic of Cyprus. Since December , the website of its Ministry of Foreign Affairs declares in bold lettering the National Security Council contention that 17
18
AA News ( December ). Jean Christou, ‘Only a Few Days Left for Final Say’, Cyprus Mail, February .
Christopher Brewin the ‘EU decision to admit Cyprus in May is unacceptable … legally or politically’.19 ere is at least the danger of an ‘ice age’ of uncertain length between the EU and Turkey. e ministers of the CoE meet on March to consider Turkey’s failure to implement the ECtHR’s Loizidou judgment. is judgment holds Turkey responsible for the TRNC as ‘a subordinate local administration’, a judgment that is presumably now part of the EU acquis. Unless the war in Iraq is deemed an excuse for postponement, upholding the rule of law through seizure of Turkish assets will encourage those in Turkey who would prefer to see Turkish withdrawal from the CoE and the unraveling of the Accession Partnership and customs union with the EU. While admitting that Turkish isolation is a serious possibility, and would not be regarded as a tragedy by either of the two Cypriot leaders or their supporters, it is still worth reconsidering whether enough progress has been made by the parties for a revival of the Annan Plan to be contemplated as the key to peace between Turkey and Greece, and the joint promotion of their common interests in the Balkans, the Aegean and the Eastern Mediterranean. One important change has been the willingness of the Turkish government to contemplate a unified government in Cyprus. In a speech at Rize, Mr. Erdoğan said bluntly: ‘I am not in favour of a continuation of the last - years’ policy in Cyprus…is issue is not the personal case of President Rauf Denkta of the TRNC…if we consider it negotiable, we will negotiate it…’.20 is is a far bigger change than Mrs. Çiller’s assertion of the Turkish national interest in finalizing the customs union over the objections of the TRNC in March . e election victory of November was as momentous as the victory of Mr. Menderes’ Democrats in . It meant that a single party could dominate parliament, even though several of its factions probably would prefer to support Mr. Denkta’ view of the Turkish national cause in Cyprus. In reviving the flat Turkish economy and in repaying the USD bn debt due this year, the revaluation of Turkish assets that would follow a Cyprus settlement and improved prospects of EU membership would be ‘hugely positive’.21 Although the National Security Council took a different view in March ,22 the possibility remains that Turkey might now take a positive view of the safeguards provided for Turkish self-rule under the Annan Plan if this would clearly result in the opening of negotiations for membership. Second, the democratic credentials of the Turkish Cypriot leader have been damaged. Quite apart from the popular demonstrations, Mr. Denkta plainly did not trust his electorate to reject the plan in a referendum, and ruthlessly prevented the TRNC parliament from voting by withdrawing his own supporters so that there were insufficient members present for a vote. On the Greek side, the Simitis government seems to have responded favourably to a letter from Mr. Erdoğan promising to ‘deliver a Cyprus settlement’, if the outgoing Turkish Minister for Cyprus, Mr. Sina ükrü Gürel is correct.23 While many Greek Cypriots At mfa.gov.tr/grupa/ad/adc/latest.htm. AA News ( January ). 21 Lehman Bros, Cyprus: Defying History (London, ). 22 It may well be that the Pentagon was less concerned with the Annan plan than in securing Turkey’s help in the Iraq crisis.
19
20
Changing Concepts of Interest and the Annan Plan for Cyprus appear to think that EU membership will both protect them and ultimately deliver a pre- unitary state with minority rights for Turkish Cypriots, the lack of enthusiasm of the newly elected Papadopoulos government for a referendum suggests the fear that the South also might have voted to accept the Annan Plan. Finally, the British government belatedly offered to return half of its sovereign base areas to Cypriot sovereignty, square miles. is is a significant advance on the British position that there is no imperial anachronism in claiming sovereignty over square miles which cannot be included as EU territory even after the accession of the Republic of Cyprus to the EU. If there is a settlement, the best that the British can expect is that the bases, like their designated areas in the Troodos mountains, will be leased from the United Republic of Cyprus. ere is not space here for a detailed analysis of the Annan Plan, or of the issues remaining as blank areas in the full version. But there are three features of the plan which are of interest in situations where hostile communities have nevertheless to live in proximity to each other. e first is that the proposed settlement is long, detailed and drawn up by outside experts. As such, it resembles the settlement of Upper Silesia, longer than the Treaty of Versailles, by which Jean Monnet’s experts enabled Poles and Germans to live together for years. is success was the origin of what later became the ‘Community Method’ whereby an expert Commission has proposed solutions which have enabled Western Europe to transcend its bloody history. ose in Cyprus who regard such solutions as ‘imposed’ either think themselves that the majority is entitled to democratically impose its superior views on the minority, or on the other side that the presence of , Turkish troops is justified as protecting the minority from the majority. Where the local leaders are unable to compromise, the suggestions of experts on meeting the concerns of both communities is a proper contribution. In the case of the Annan Plan, it was not to be imposed, but intended for submission to the separate agreement of both communities. Both communities in Upper Silesia lost out when first the German army forced the Poles to flee, and then the Russian army expelled the Silesian Germans. e second feature of interest is the prominence accorded the elected Executive of six persons constituting the federal government. As with elected American mayors, the executive functions in the European Union are likely to become increasingly more salient than legislative functions at the national level. European law will prevail in most matters. For communal affairs, the territorial autonomy of the elected parliaments of the constituent states has been carefully safeguarded. Although the minority Turkish Cypriots understandably might be concerned at constituting only a third of the federal executive, such a small body could be expected to be conducive to practical compromise. e compromise worked out by Abu Mazen and Yossi Beilin for joint rule in Jerusalem, the West Bank and Israel also has this characteristic.24 23
24
AA News ( November, ). is approach is applied to Cyprus in the short appendix to the article on which this contribution is based, see Brewin, ‘Turkish and European Interests…’.
Christopher Brewin ird, EU support is integral to the Annan Plan. e provisions for enabling the Turkish Cypriot constituent state to control the numbers of Greek Cypriots progressively allowed into villages and municipalities up to a limit of one fifth of the population make good on previous hints that derogations from EU fundamental principles of free movement could be accepted in the interests of an orderly peace. Moreover, EU willingness to contribute to the property settlement as well as a generous interpretation of the rules on structural funds in the North was essential to the Plan. is marks considerable progress from the claim that a settlement was desirable but a matter for the two communities themselves.
Annelies Verstichel *
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities: Review of the Opinions of the Advisory Committee Regarding Article 15 of the Council of Europe Framework Convention for the Protection of National Minorities
I. I e Council of Europe Framework Convention for the Protection of National Minorities (hereinafter ‘FCNM’) is, as the name indicates, a framework convention which contains mostly programme-type provisions setting out objectives which states parties undertake to pursue through national legislation and appropriate governmental policies. is means, as set out in paragraph of the Explanatory Memorandum to the FCNM, that these provisions, which are not directly applicable, leave the states concerned a measure of discretion in the implementation of the objectives.1 As so many authors have criticized the FCNM2 and made the success of it depend on the monitoring of the implementation by the Advisory Committee on the Framework Convention for the Protection of National Minorities (hereinafter ‘ACFC’),3 it is interesting to see the extent to which *
1
2
3
Ph.D Researcher, Law Department, European University Institute, Florence, Italy. See also Heinrich Klebes, ‘e Council of Europe Framework Convention for the Protection of National Minorities’, (-) HRLJ (), -, at and Giorgio Malinverni, ‘La Convention-Cadre du Conseil de l’Europe pour la protection des minorités nationals’, Schweizerische Zeitschrift für internationals und europäisches Recht (), -, at . See for example, in a rather harsh way, Gudmundur Alfredsson, ‘A Frame with an Incomplete Painting: Comparison of the Framework Convention for the Protection of National Minorities with International Standards and Monitoring Procedures’, () IJMGR (), -. See Giorgio Malinverni, ‘La Convention-Cadre ...’, -; Gerd Oberleitner, ‘Monitoring Minority Rights under the Council of Europe’s Framework Convention’, in P. Cumper and S. Wheatley (eds.), Minority Rights in the ‘New’ Europe (e Hague, Boston, ), -, at ; Gaetano Pentassuglia, ‘Monitoring Minority Rights in Europe: e Implementation Machinery of the Framework Convention for the Protec-
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Annelies Verstichel the ACFC has proven its worth as an objective and independent expert body that is able to strike a fair balance between leaving states a margin of appreciation in this sensitive matter and setting the boundaries of the standards of interpretation of the FCNM. is article focuses on how the ACFC approaches its monitoring role regarding the implementation of Article FCNM pertaining to the right to effective participation of persons belonging to national minorities. It does not purport to give an exhaustive overview of the mechanisms implemented in each state to create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs.4 Rather, the article looks at, through an analysis of the ACFC’s approach to Article , how the ACFC assumes its monitoring role and gives content to the rather vaguely formulated right to effective participation. As the country-specific resolutions of the Committee of Ministers adopt the main conclusions of the ACFC’s opinions and refer completely to the ACFC for recommendations and follow-up, this article leaves the analysis of these resolutions aside. e fear expressed by many authors that assigning a political body the final say in the monitoring process will obstruct the effectiveness of the FCNM has, in my opinion, thus far not been substantiated.5 Before commenting on the ACFC opinions regarding Article FCNM,6 attention is briefly paid to the background of the article. Furthermore, as the ACFC frequently inserts cross-references in its opinions, other articles of the FCNM relevant for the effective participation of persons belonging to national minorities in cultural, social and economic life
4
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tion of National Minorities – With Special Reference to the Role of the Advisory Committee’, IJMGR (), -, at . See also María Amor Martín Estébanez and Kinga Gál, ‘Implementing the Framework Convention for the Protection of National Minorities’, European Centre for Minority Issues, ECMI Report #, August , at http://www.ecmi.de/doc/download/report_.pdf, at and Minority Rights Group International, ‘e Council of Europe’s Framework Convention for the Protection of National Minorities. Analysis and Observations on the Monitoring Mechanism’, March , at http://www.riga.lv/ minelres/coe/FC_MRG.htm, at . See for this: Synthesis of the replies to the questionnaire on participation of minorities in decision-making processes, CoE, Doc. DH-MIN () , April . For an analysis and typology, see Jochen Abr. Frowein and Roland Bank, ‘e Participation of Minorities in Decision-Making Processes’, () ZaöRV (), -. See also the State Reports submitted to the ACFC on the Implementation of the FCNM, to be consulted online at http://www.coe.int/T/E/human_rights/minorities/. See, for example, Gudmundur Alfredsson, ‘A Frame with an Incomplete Painting …’, and ; Giorgio Malinverni, ‘La Convention-Cadre ...’, and Heinrich Klebes, ‘e Council of Europe Framework Convention …’, . is article deals with the ACFC opinions made public as of March , i.e. the opinions on Denmark (adopted on September ), Finland (adopted on September ), Hungary (adopted on September ), Slovakia (adopted on September ), Liechtenstein (adopted on November ), Malta (adopted on November ), San Marino (adopted on November ), Croatia (adopted on April ), Cyprus (adopted on April ), the Czech Republic (adopted on April ), Romania (adopted on April ), Estonia (adopted on September ), Italy (adopted on September ), the United Kingdom (adopted on November ), Ukraine (adopted on March ), Moldova (adopted on March ), Germany (adopted on March ), Austria (adopted on May ), Armenia (adopted on May ), Albania (adopted on September ) and Norway (adopted on September ), at http://www.coe.int/T/e/human%Frights/Minorities/.
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities and in public affairs are briefly commented on. e analysis of the ACFC comments on the implementation of Article FCNM is categorized according to a typology which is not explicit in the ACFC opinions, but which is to a certain extent drawn from an article by Jochen Frowein and Roland Bank.7 II. P R Article FCNM refers to the right of effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs. It reads as follows: e Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them. is formulation of the right is not entirely new but inspired by paragraph of the CSCE Copenhagen Document and Article () and () of the United Nations Declaration of the Rights of Persons Belonging to National or Ethnic, Religious and Ethnic Minorities (UNDeclMin) – two of the international conventions and declarations referred to in the preamble of the FCNM.8 In turn, Article FCNM has inspired provisions in the bilateral treaties between Hungary and Slovakia of (Article , para. f ),9 and between Hungary and Romania
7
8
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Jochen Abr. Frowein and Roland Bank, ‘e Participation of Minorities ...’. Paragraph CSCE Copenhagen Document states: e participating States will respect the right of persons belonging to national minorities to effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identity of such minorities. e participating states note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned. Articles . and . UNDeclMin read: . Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life. . Persons belonging to minorities have the right to participate effectively in decisions on the national, and where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation. ‘[P]ersons belonging to national minorities shall have the right to take part effectively at the national, and where appropriate, at the regional level, in the decisions affecting the minorities or the regions inhabited by the minorities, in the manner which is not incompatible with domestic legislation,’ (Treaty on Good Neighbourly Relations and Friendly Co-operation between the Republic of Hungary and the Slovak Republic, , Article , f, at http://www.htmh.hu/dokumentumok/asz-sk-e.htm)
Annelies Verstichel of (Article , para. ).10 Participatory rights for minorities are also included in several other bilateral treaties of the early s concerning good neighbourliness and friendly cooperation.11 All in all, participatory rights for minorities are a quite new phenomenon in public international law.12 e possible content of these rights has been elaborated in expert papers and studies commissioned by the Organization for Security and Co-operation in Europe (OSCE), the Council of Europe (CoE) and the United Nations (UN). In the OSCE context, the Lund Recommendations on the Effective Participation of Minorities in Public Life13 entail recommendations on general principles, the participation of minorities in decision-making processes (arrangements at the level of the central government, elections, arrangements at the regional and local levels and advisory and consultative bodies), self-governance arrangements (non-territorial and territorial arrangements) and guarantees (constitutional and legal safeguards and remedies). e four recommendations concerning elections are further elaborated by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) in conjunction with the International Institute for Democracy and Electoral Assistance and the Office of the High Commissioner for National Minorities in Guidelines to Assist National Minority Participation in the Electoral Process.14 e Committee of Experts on Issues Relating to the Protection of National Minorities of the CoE has set out a questionnaire on how states assure partici-
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‘e Contracting Parties shall ensure the right of persons belonging to the minorities to effectively participate, individually or through their parties or organizations, in the political, economic, social and cultural life and, through their representatives elected to central and local public authorities and administrations, in the settlement of issues representing national or local interests. Both Contracting Parties shall, in the process of decision-making concerning questions related to the protection and enforcement of the national identity of these persons, consult the organization, political parties or associations of these persons according to democratic decision-making procedures as provided by the law.’ (Treaty between the Republic of Hungary and Romania on Understanding, Cooperation and Good Neighbourhood, , Article , para. , at http: //www.htmh.hu/dokumentumok/asz-ro-e.htm) In the treaties between Germany and Poland (), between Russia and Kazakhstan (), between Poland and Belarus () and between Poland and Lithuania (). See Appendix to Kinga Gál, ‘Bilateral Agreements in Central and Eastern Europe: A New Interstate Framework for Minority Protection?’, ECMI Working Paper #, May , at http://www.ecmi.de/doc/download/working_paper_.pdf. Also in the Hungarian-Slovenian and Hungarian-Croatian Conventions of . See Emma Lantschner and Roberta Medda, ‘Protection of National Minorities through Bilateral Agreements in South-Eastern Europe’, European Academy of Bozen/Bolzano, Draft Report (Bozen, ), at . A revised version of the report was published in European Yearbook of Minority Issues ( /), -. See Emma Lantschner and Roberta Medda, ‘Protection of National Minorities ...’, . For the few historical examples, see Florence Benoît-Rohmer and Hilde Hardeman, ‘e Representation of Minorities in the Parliaments of Central and Eastern Europe’, International Journal of Group Rights (), -, at . See at http://www.osce.org/hcnm/documents/recommendations/lund/index.php. See also John Packer, ‘e origin and nature of the Lund Recommendations on the Effective Participation of National Minorities in Public Life’, Helsinki Monitor (), -. Guidelines to Assist National Minority Participation in the Electoral Process, ODIHR, Warsaw, January , at http://www.osce.org/odihr/documents/guidelines/gl_nmpa_eng.pdf.
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities pation of minorities in public life.15 e European Commission for Democracy through Law (Venice Commission) drafted documents on the basis of the replies, amongst others on electoral laws.16 Upon recommendation of the United Nations Working Group on Minorities (UNWG) to hold regional seminars, the European Centre for Minority Issues (ECMI) organized in an international expert seminar ‘Towards Effective Participation of Minorities’ which resulted in concrete proposals.17 What is remarkable in these studies on the concretization of minority participatory rights, is that they all focus on the participation of persons belonging to minorities in public affairs, and neglect participation in cultural, social and economic life, which is set out as well in Article () UNDeclMin (however not in paragraph of the CSCE Copenhagen Document). Only the CoE’s questionnaire inquires about the participation of minorities in bodies such as chambers of commerce and industry, social insurance bodies, trade unions and employers unions under ‘Miscellaneous Questions’.18 is uneasiness with the broader concept of effective participation is reflected in the opinions of the ACFC. Comments on the effective participation of persons belonging to national minorities in cultural, social and economic life constitute only a minor part of the ACFC’s considerations under Article FCNM and are framed in very general terms. Only in its latest opinion has the ACFC commenced elaborating on the necessary conditions states should create for the effective participation of minorities in social and economic life and commented, for example, on the measures which states should adopt to promote full and effective equality in economic and social life (see further Section II.B.. Equality Principle and IV. Effective Participation in Cultural, Social and Economic Life). A. Definition of National Minorities ere is no definition of national minorities in the FCNM. erefore it is up to the states themselves to decide upon the personal scope of application of the Convention. Article
Questionnaire of Participation of Members of Minorities in Public Life, CDL-MIN()e-restr and CDL-MIN()e-rev-restr, at http://www.venice.coe.int/site/interface/english.htm. 16 ‘Electoral Law and National Minorities’, January , CDL-INF () and ‘Summary Report of Participation of Members of Minorities in Public Life’, February , CDL-MIN()e-rev-restr, at http://www.venice.coe.int/site/interface/english.htm. Also based on the replies to the questionnaire: Jochen Abr. Frowein and Roland Bank, ‘e Participation of Minorities ...’, -. 17 Proposals of the ECMI Seminar ‘Towards Effective Participation of Minorities’, Flensburg, Germany, April to May , at http://www.ecmi.de/doc/projects_recomm.html#. e overall objective of the seminar was to arrive at ‘concrete proposals on ways in which Governments could give effect to Articles . and . of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Article of the Council of Europe Framework Convention for the Protection of National Minorities and Article of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE.’ e proposals are subdivided in representation into legislative, administrative and advisory bodies, citizenship issues and electoral rights, participation at decision-making level, further conditions for participation and participation of Roma. 18 Question II. in Questionnaire of Participation of Members …. 15
Annelies Verstichel FCNM provides guiding principles for doing so.19 Paragraph of Article FCNM provides the very important principle of free affiliation with a national minority. In its opinions, it is under this article that the ACFC makes its observations on the delimitation of the personal scope of application of the FCNM by the states parties. 1. Inclusive Approach Without doubt, the effectiveness of FCNM protection stands or falls with the holders of the rights enshrined in the Convention. As a result, the observations of the ACFC on the personal scope of application of the FCNM are of crucial importance. More specifically, the way a state defines its national minorities can influence, for example, the design of its electoral system regarding guaranteed representation of national minorities.20 A detailed analysis of this issue, however, lies beyond the scope of this article. erefore only some brief remarks are made. ere is no definition of national minorities in the FCNM. Many countries, on signing and ratifying the FCNM, issued a declaration clarifying their definition.21 If they did not do so, the FCNM scope of application can be derived, for example, from their domestic legislation, a census or the state report itself. In a standard paragraph, the ACFC notes that, on the one hand, states parties have a margin of appreciation, and that, on the other hand, this must be exercised in accordance with general principles of international law and the fundamental principles set out in Article . For this reason, the ACFC considers it part of its duty to examine the personal scope of application in order to verify that no arbitrary or unjustified distinctions have been made and that the fundamental principles set out in Article have been applied properly. e lack of a definition and the further vagueness in the FCNM’s wording regarding its scope leaves room for interpretation in a more positive direction.22 As stated by the Article FCNM reads: . Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice. . Persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present framework Convention individually as well as in community with others. 20 See opinion on Croatia (), para. (which refers to Article ). e preamble to the Croatian Constitution, as amended on December , contained a more limited listing than the Constitutional Law of Human Rights and Freedoms and the Rights of National and Ethnic Communities or Minorities, as amended in May . is more limited listing is reflected in the Law on Elections of Representatives to the Croatian National Parliament, adopted on October , as the guarantees for representation in the House of Representatives do not extend, for example, to the Roma or Slovenian minorities, which are not explicitly mentioned in the preamble of the constitution. 21 See for an overview of the different types of declarations, Jochen Abr. Frowein and Roland Bank, ‘e Effect of Member States’ Declarations Defining ‘National Minorities’ upon Signature or Ratification of the Council of Europe Framework Convention for the Protection of National Minorities’, ZaöRV (), -, at -. See further on the issue of reservations, also María Amor Martín Estébanez and Kinga Gál, ‘Implementing the Framework Convention ...’, -. 22 María Amor Martín Estébanez and Kinga Gál, ‘Implementing the Framework Convention ...’, .
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Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities President of the ACFC, Prof. Dr. Dr. Rainer Hofmann, the ACFC decided, after considerable internal deliberations, to make use of the flexibility inherent in the wording of the FCNM.23 It took an inclusive and rather expansive approach. Common to all opinions, regardless of the scope of the definition of national minorities adopted by the country concerned, the ACFC asserts that the state in question should consider, as appropriate,24 the inclusion of other groups which the government does not consider, at this stage, to be covered by the FCNM, on an article-by-article basis in consultation with those concerned. In the opinions on Croatia, Estonia, Romania, the Czech Republic, Ukraine, Germany, Austria, Armenia and Norway, it explicitly pointed to non-citizens.25 e inclusion of non-citizens and the so-called ‘new minorities’ is taken for granted by some countries,26 but quite problematic for others. Some countries, like Germany and Denmark, state in their comments on the ACFC opinion, that not all differences are tantamount to the existence of a national minority.27 erefore, the ACFC should be clearer as to whether it favours the inclusion of non-citizens and ‘new minorities’. Indeed, it should justify such a choice and demarcate the boundaries of these categories by elaborating requirements for falling under the scope of application of the FCNM. e general inclusion of ‘other groups’ on an article-by-article basis is too vague and the ad hoc reference to non-citizens and immigrants is insufficiently systematic. It undermines the credibility of the ACFC as an objective expert body. Other groups which the ACFC seems to prefer to include are indigenous people and ‘minority-in-minorities’. Regarding the former, the ACFC is of the view that the recognition of a group of persons as constituting an indigenous people does not exclude persons belonging to that group from benefiting from protection afforded by the FCNM. e reasoning being that because a group may be entitled to a different form of protection cannot in and of itself justify their exclusion from other forms of protection.28 Moreover, in its 23 24
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Rainer Hofmann, ‘Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities’, EYMI (/), -, at . e ACFC has added the specifier ‘as appropriate’ to its demands for inclusion of other groups in all its opinions adopted as of May (Ukraine, Moldova, Germany, Austria, Armenia, Albania and Norway), whereas prior to that date only the opinions on Croatia and the Czech Republic contained it. is could mean that the ACFC has become more cautious in its approach to this issue, after criticism from several countries in their comments on the opinions. Opinion on Croatia (), para. , opinion on the Czech Republic (), para. , opinion on Romania (), para. , opinion on Estonia (), para. , opinion on Ukraine (), para. , opinion on Germany (), para. , opinion on Austria (), para. , opinion on Armenia (), para. and opinion on Norway (), para. . See for example, Slovakia, which considers Russians to constitute a ‘newly developing national minority’ in its first country report. Opinion on Slovakia (), para. . Comments of the Government of Denmark on the opinion of the ACFC on the Report on the Implementation of the FCNM in Denmark, published October , p. and Comments of the Government of Germany on the opinion of the ACFC on the Report on the Implementation of the FCNM in Germany, published September , p.. See opinion on Denmark (), para. (the ACFC criticized Denmark for a priori excluding citizens of Greenland and the Faeroe Islands, because they are indigenous people), opinion on Ukraine (), para. and opinion on Norway (), paras. and .
Annelies Verstichel opinion on Norway, the ACFC stressed that ‘the applicability of the Framework Convention does not necessarily mean that the authorities should in their domestic legislation and practice use the term ‘national minority’ to describe the group concerned.’29 e Sami in Norway, like the Crimean Tatars in Ukraine, preferred the term ‘indigenous people’ over the designation ‘national minority’. is exemplifies how far the ACFC is willing to go in its compromise to render the scope of application of the FCNM as inclusive as possible. is approach could also be the solution for the Sinti and Roma, who often do not want to define themselves as a national minority.30 Furthermore, the ACFC is in favour of including the concept of a minority-in-a-minority in the scope of application of the FCNM.31 However, each time the ACFC qualifies, rightly so in my opinion, the situation by referring to the level of autonomy enjoyed and/or the nature of the powers exercised by the authorities of the sub-state unit. Depending on the competences and the powers devolved, a person belonging to the majority at the national level, but constituting a minority at the regional level, can indeed be in need of protection under the FCNM.32 A final issue relevant to the scope of application is the fact that the ACFC seems to favour a personal rather than a territorial application of the scope of the FCNM. e ACFC criticizes, for example, Denmark, because of the territorial aspect of its reasoning as regards the application of the FCNM.33 Denmark a priori excludes from the implementation of the FCNM Greenlanders and Faeroese persons living outside their home rule areas, Danes living in the home rules areas and persons belonging to the German-
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Opinion on Norway (), para. . And the ACFC further encouraged the Norwegian authorities to continue their dialogue with the Sami Parliament and others concerned on this issue, ‘with a view to ensuring that the Framework Convention and the treaties designed for indigenous people are not construed as mutually exclusive regimes and that the Sami can continue to rely on a wide range of international norms.’ See for example, Comments of the Government of Germany on the opinion of the ACFC on the Report on the Implementation of the FCNM in Germany, published September , at , comment by the Sinti Allianz Deutschland. Incidentally, these comments on the opinion of the ACFC are the only ones which, apart from the comments by the government, included comments by national minority organizations. See opinion on Finland (), para. (regarding the Finnish-speaking population on the Åland Islands) and opinion on Denmark (), para. (the ACFC criticized Denmark for a priori excluding persons of ethnic Danish origin living in the home rule areas ). Regarding a minority-in-a-minority which does not belong to the majority population of the entire country, see the opinion on Italy (), para. . e ACFC refers to the state report in which is indicated that the Ladins and the Walsers are a minority-in-a-minority. No further comments are made. See also opinion on Germany (), para. (e ACFC welcomes the fact that members of a national minority who live outside the minority’s traditional settlement area are also entitled in principal to protection under the FCNM), opinion on Austria (), para. (e ACFC encourages the Austrian authorities to keep following their more inclusive approach in practice, rather than what is suggested by the declaration upon ratifying the FCNM, as far as the criterion of autochthonous settlement area is concerned) and opinion on Albania (), para. (the ACFC is concerned that, although officially national minorities are recognized and protected throughout the territory of the Republic of Albania without reference to any geographical criteria, the application of ‘minority zones’. which existed both during and before the former communist regime, covering areas where minorities traditionally lived, continues to have a certain currency).
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities speaking minority living outside the area of Southern Jutland.34 In its opinion on Denmark, the ACFC comments as follows: Although the Framework Convention attaches importance in a number of its provisions to the criterion of traditional inhabitation of certain areas for protection, the majority of its provisions are designed to apply throughout the territory of the state concerned, of course taking into account all relevant circumstances.35 Of course, personal and territorial autonomy and self-government arrangements create geographic differences in the level of protection of minorities. In the Italian federal system where five regions enjoy special autonomy for historical reasons, minorities living in those regions enjoy a more favourable regime than the same minorities living in other regions with a lower level of autonomy (for commentary on this asymmetric federal system, see Section II.B.. Equality Principle.)36 2. Data Collection and Reliable Statistics at Odds with the Freedom of Choice to Declare Oneself a Member of a National Minority Data collection through, for example, population censuses regarding affiliation with a certain national minority has its relevance for the effective participation of minorities in social, economic and cultural life and in public affairs. It is used, for instance, as a basis for the distribution of political mandates and public sector posts. Article () FCNM sets out the principle that every person belonging to a national minority has the right freely to choose either to be treated or not to be treated as such. For this reason the ACFC attaches a great deal of importance to the voluntary nature of the declaration of affiliation with this or that national minority in the collection of ethnicity data,37 such as on crime38 or in population censuses. e question on a census form regarding ethnic origin should not be mandatory.39 Moreover, the compulsory choice to belong to two or three fixed communities for the distribution of political mandates or public sector posts, as in Cyprus40 and Italy,41 also conflicts with the principle of free affiliation and the protection of ethnolinguistic data. 34 35
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On the geographical limitation in the Danish declaration, see also Jochen Abr. Frowein and Roland Bank, ‘e Effect of Member States’ Declarations ...’, -. Opinion on Denmark (), para. . Opinion on Italy (), paras. and -. See also Isil Gachet, ‘e Issue of Ethnic Data Collection from the Perspective of Some Council of Europe Activities’, in Andrea Krizsán (ed.), Ethnic Monitoring and Data. e Council of Europe (Budapest, ), , at . Opinion on the Slovak Republic (), paras. -, opinion on Croatia (), para. , opinion on Germany (), paras. - and opinion on Ukraine (), para. . Opinion on Estonia (), para. . Opinion on Cyprus (), para. . Opinion on Italy (), paras. -. e statistical census of the Ladin, German-speaking and Italian communities in Bolzano province is used in particular to ensure equitable distribution of political mandates
Annelies Verstichel However, in two respects the ACFC appears to make incompatible and inconsistent comments. First of all, it criticizes any discrepancies between official statistics (whether based on census results or not) and estimates by national minorities.42 Discrepancies in figures can hamper the ability of the state to target, implement and monitor measures to ensure the full and effective equality of persons belonging to national minorities.43 Furthermore, without reliable statistical data it is difficult for the international monitoring bodies to ascertain whether a state meets its obligations flowing from the FCNM. States are therefore encouraged to identify ways and means of obtaining reliable statistical data to assess the size of the national minorities.44 In their comments, states rightly point out that these discrepancies are a consequence of natural factors influencing personal data collection, which is determined by the individual and declaratory nature of identifying one’s belonging to a national minority.45 e ACFC’s recommendation that persons belonging to a national minority should be encouraged to make use of the possibility to identify themselves in a census, ‘on condition that the principles identified in the Committee of Minister’s Recommendation () to Member States concerning the protection of personal data collected and processed for statistical purposes are respected’46 is not a watertight countermeasure. However, one could argue that there are as many people belonging to national minorities as identify themselves as members of minorities and want to be treated accordingly. e ACFC should refrain from making comments on discrepancies, except for those that pertain to the technical quality of the census.47 e incompatibility of these comments (on the one hand freedom of choice of affiliation and on the other the importance of ‘reliable’ statistics) is illustrated by the following example. e measure introduced by the Czech Republic to correct census results by experts48 is not compatible with the principle of free affiliation with a national minority as
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and public sector posts between these three communities. When completing the general census form, residents of Bolzano province must also fill in an individual declaration of linguistic affiliation. e declaration has a category labelled ‘other’ in addition to the Ladin, German- and Italian-speaking groups. However, anyone choosing ‘other’, e.g. multilingual citizens, must also be affiliated to one of the three aforementioned groups in order to be eligible for a public service post or to stand as a candidate in an election. See opinion on Hungary (), para. , opinion on the Slovak Republic (), para. , opinion on Croatia (), para. and the opinion on Italy (), para. . e ACFC increasingly points to the need of reliable statistics, also regarding the effective participation in public life. See for example, opinion on Albania (), para. and opinion on Norway (), para. . Opinion on Hungary (), para. ; opinion on Cyprus (), para. ; opinion on the Czech Republic (), para. ; opinion on Romania (), para. , the opinion on Italy (), para. and the opinion on Germany (), paras. -. Comments of the Government of the Slovak Republic on the opinion of the ACFC on the Report on the Implementation of the FCNM in the Slovak Republic, published July , para. . Opinion on the Slovak Republic (), para. . Opinion on Romania (), paras. - and opinion on the UK (), para. . As the preliminary results of the February-March census showed a significant drop in declaration of affiliation with a national minority, experts were asked to correct the census results and make them correspond to real numbers of persons belonging to a national minority in order to attain reliable statistics.
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities enshrined in Article . However, it fits the ACFC comments regarding reliable statistical data. Second, the ACFC welcomes the fact that, as regards members of national minorities working as public civil servants, in the province of Bolzano ‘the system of allocating posts strictly according to the size of the Italian-speaking, German-speaking and Ladin communities, has helped to make the participation of these minorities more effective, since each group’s representation in the civil service now approximates to its demographic profile.’49 e ACFC seems to have forgotten that this allocation was only possible because of the compulsory declaration of affiliation with one of the three linguistic groups, which it criticized under Article of its opinion on Italy as being incompatible with the principle of free affiliation.50 B. Cross References to Other Articles / Other Relevant Articles e ACFC makes comments relevant to the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs throughout its opinions and frequently refers to these articles in its comments under Article . An obvious remark regards whether representatives of national minorities have participated in preparing the country report or not.51 Besides this, the implementation of nearly every article of the FCNM can raise questions regarding the involvement of minorities. Minorities should participate in the organization of a census,52 the allocation of financial support of, for example, cultural organizations,53 the revision of the country’s administrative-territorial system,54 etc. In this respect one can speak of the participation of minorities in decision-making processes as a precondition for a sound minority protection: For, to the extent to which citizens – and thus also those citizens that are members of a national minority – are conferred powers of political co-determination or even self-determination, their influence in shaping the basic legal conditions of their own existence and of their special environment grows. is defuses, to the same degree, the imperilled situation to which minorities and their members are
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However, the drop in declaration of affiliation could signify that many persons belonging to a national minority do not want to identify with their group anymore. Correcting the results violates the principle of free affiliation with a national minority. See Comments of the Government of the Czech Republic on the opinion of the ACFC on the Report on the Implementation of the FCNM in the Czech Republic, published January , at . Opinion on Italy (), para. . Opinion on Italy (), paras. -. See also Frank Steketee, ‘e Framework Convention: A Piece of Art or a Tool for Action?’, IJMGR (), -, at . See for example, opinion on Romania (), paras. - (Article ). See for example, opinion on Norway (), para. (Article ). See opinion on Moldova (), para. (Article ).
Annelies Verstichel typically exposed, and the need for the supralegislative security of reserved rights protective of minorities recedes.55 e ACFC’s comments under Article often refer to other articles. Regarding effective participation in social and economic life, the ACFC often refers to Article . Regarding the effective participation in cultural life, the ACFC mainly refers to Article . Regarding the effective participation in public affairs, the ACFC mainly refers to Article , and . e following sections deal with the equality principle under Article , citizenship legislation under Articles , and and political parties under Article . Other relevant aspects are dealt with throughout the article.56 1. Equality Principle (Article 4) Article entails a principle which is one of the cornerstones of a minority protection regime: the equality/non-discrimination principle. e article consists of three paragraphs: Paragraph refers to the legal protection of the principle and entails the obligation for the states parties to draft and implement an appropriate legal framework. Paragraph makes clear that in order to obtain full and effective equality, positive measures are needed. e drafters of the article clearly had a substantive and not merely a formal conception of equality in mind. e third paragraph of Article provides that the positive measures adopted under Article () shall not be considered an act of discrimination. e enumerated areas in paragraph in which full and effective equality should be promoted are those of economic, social, cultural and political life. ese correspond to the areas in which Article obliges the parties to create the conditions necessary for the effective participation of persons belonging to national minorities. As a result, many comments under Article refer to Article and vice versa. Indeed, in many cases the same comments are repeated under both articles especially as they relate to the economic and social conditions in which minorities live. us far, the ACFC appears not to have elaborated a distinct approach when commenting on the measures which states should adopt to promote full and effective equality in economic and social life under Article FCNM as opposed to when it is commenting on the necessary conditions states should create for the effective participation of minorities in social and economic life under Article FCNM (see below, Section IV. Effective Participation in Cultural, Social and Economic Life).
C. Hillgruber and M. Jestaedt, e European Convention on Human Rights and the Protection of National Minorities (Köln, ), . 56 For cultural autonomies (Article ) in Estonia, see Section III.A. For the asymmetric federalism in Italy (amongst others under Article ), see II.B.. For cross-references to Article and regarding civil servants, see III.C.. 55
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities In most of the opinions, the ACFC notes the existence of socioeconomic differences57 between a certain minority group, in most of the cases the minority group being Roma,58 and the rest of the population as regards housing, employment, health and education. An example of such a comment was provided in the opinion on Ukraine: e Advisory Committee considers that Ukraine has not been able to secure full and effective equality between the majority population and Roma and that the situation of Roma remains difficult in such fields as employment and housing (see also related points under Article ).59 e ACFC dealt with two other topics relevant to minority participatory rights under Article . First, in its opinion on Cyprus, the ACFC draws attention, notwithstanding the complex constitutional origin which it admits, to the impossibility for Turkish Cypriots resident in government-controlled areas to cast a vote in parliamentary and presidential elections.60 is is illustrative of how the ACFC is willing to take into account the existing political situation whilst at the same time not restraining itself from adopting a critical stance. Second, the ACFC addresses the asymmetric federalism of Italy. e Lund Recommendations mention under Recommendation No. that regarding autonomy arrangements, functions may be allocated asymmetrically to respond to different minority situations within the same state. In its opinion on Italy, the ACFC notes that as a result, persons belonging to a particular minority group enjoy a higher level of protection in regions with a higher level of autonomy than persons belonging to that same minority group in a region with a lower level of autonomy. e ACFC does not voice any criticism in relation to this aspect of asymmetric federalism. Whilst several times it refers to the differences in levels of protection, it refrains from calling this discrimination. But for the presence of Law No. , which is the overarching national legislation on minority protection and applies to all minorities including the lesser protected minorities at the regional level, the ACFC would have no doubt adopted a much more critical attitude towards asymmetric federalism61 (see also Section II.A.. Definition of National Minorities – Inclusive Approach).
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Sometimes also with regard to cultural and political life. See opinion on Armenia (), para. and opinion on Ukraine (), para. . Other minority groups mentioned are the Irish Travellers, the African and African-Caribbean, Pakistani and Bangladeshi communities (opinion on the United Kingdom (), paras. and -) and Crimean Tatars (opinion on Ukraine (), para. ). Opinion on Ukraine (), para. . See also opinion on the Czech Republic (), para. ; opinion on Romania (), paras. -; opinion on Italy (), para. ; opinion on the United Kingdom (), paras. and -; opinion on Moldova (), paras. -; opinion on Germany (), para. ; opinion on Austria (), para. ; opinion on Albania (), para. and opinion on Norway (), para. . Opinion on Cyprus (), para. (under Article ) and (under Article ), which refers to Article . Opinion on Italy (), paras. (under Article ) and - (under Article ).
Annelies Verstichel e third paragraph of Article provides that the positive measures adopted under Article (), shall not be considered an act of discrimination. is is in line with the substantive conception of equality entailed in the article. In its opinion on Ukraine, the ACFC had to remind the Ukrainian government of this principle which it subscribed to by ratifying the FCNM.62 Moreover, in its comments on the opinion of the ACFC on Armenia, the Armenian government displays a formal conception of equality, instead of a substantive one. In its opinion on Armenia regarding Article , the ACFC had noted that substantial efforts were still needed to promote participation by persons belonging to national minorities in public life. National minorities are not represented in either parliament or in any government body. Even though there is no law forbidding it, there are no provisions facilitating the access by such persons to parliament, or more generally, bringing them into the various branches of power.63 e government of Armenia replied that the under-representation is not the result of discriminative policy but of objective reality. With regard to the granting of the quota, it is supposed, that the definition of special electoral rights and special mechanisms will infringe the rights of the majority. For executive and other governmental bodies the quota are not provided, because the prime criteria for selection is merit and nothing could hinder the representative of the national minority with professional qualifications to hold any office.64 2. Citizenship Legislation (Articles 3, 4 and 6) e legislation regulating who belongs to a political community and who does not is central to the question of the participation of minorities. ‘e lack of citizenship may constitute a real obstacle to fuller integration, including participation in political life.’65 Many states exclude non-citizens from their definition of national minorities. Once one is excluded from the definition, one cannot invoke the rights enshrined in the FCNM. It often proves to be an indirect way for states to deny rights to certain minorities. An example that is frequently invoked in the literature is that of Estonia. Estonia included in its definition of national minorities, laid down in its declaration upon ratification of the FCNM, the requirement of citizenship. Crucially, a large amount of its Russian-speaking population is stateless and because of language requirements have difficulties gaining Estonian citizenship.66 at is why the ACFC not only advocates the inclusion of non-citizens into the definition of national minorities, but also comments critically both on the citizenship/ Opinion on Ukraine (), para. . Opinion on Armenia (), para. . 64 Comments of the Government of the Republic of Armenia on the opinion of the ACFC on the Implementation of the FCNM in the Republic of Armenia, May , . 65 Opinion on Germany (), para. . 66 Opinion on Estonia (), para. (under Article ). 62
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Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities naturalization legislation of states such as Croatia, the Czech Republic, Italy and Germany, and also its application.67 3. Political Parties (Article 7) Article secures the rights of freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion. Only in two opinions so far has the ACFC commented on this article and only insofar as it relates to political parties. From its comments, one can deduce that the ACFC is sensitive to requirements for registering political parties which could especially affect persons belonging to national minorities in a limiting way.68 Furthermore, the ACFC is against a prohibition of the establishment by national minorities of their own political parties.69 III. E P P A Effective participation in public affairs receives the ACFC’s main attention in its opinion on Article FCNM. e ACFC has a broad understanding of measures relating to the participation of minorities in public affairs. It comprises autonomy and self-government arrangements, representation of minorities in the national assemblies, influence on decisions through consultative bodies as well as posts in the civil service. e ACFC again leaves it to the margin of appreciation of each state to organize the participation of national minorities in public affairs.70 It confines itself to making only qualitative remarks and remarks on the effectiveness of the particular approach chosen. For example, in the case of Hungary, which has a constitutional provision on guaranteed representation of minorities in parliament, the ACFC has criticized the lack of implementing legislation, despite the margin of appreciation countries have regarding electoral systems – the implication being that Hungary should live up to its own domestic standards.71 However, the approach of the ACFC can still be called inclusive and expansive through its broad scope of attention to all aspects of public affairs and its sometimes excessively enthusiastic suggestions to create new bodies. A. Territorial and Personal Autonomy and Self-Government Arrangements ere is no express right to autonomy in international law.72 e reference to appropriate local or autonomous administrations as a possible means in paragraph of the CSCE 67
68 69
70
71
72
Opinion on Croatia (), para. (under Article ), opinion on the Czech Republic (), para. (under Article ), opinion on Italy (), para. and opinion on Germany (), para. (under Article , with reference to related comments under Article , para. ). Opinion on Moldova (), para. . Opinion on Albania (), para. Compare to the definition of national minorities, see Section II.A. Opinion on Hungary (), paras. -. See Hans-Joachim Heintze, ‘On the Legal Understanding of Autonomy’, in Markku Suksi (ed.), Autonomy: Applications and Implications (e Hague, London, Boston, ), -.
Annelies Verstichel Copenhagen Document or as a right in Article of the Parliamentary Assembly of the Council of Europe Recommendation , was not retained in the FCNM. is sensitivity with regard to autonomy is directly related to the fear of the spiral ‘cultural autonomy, administrative autonomy, secession’.73 However, the experts who drafted the Lund Recommendations are of the opinion that especially the non-territorial forms of autonomy are still unexplored and may pose less of a risk to the maintenance of the territorial integrity of the state. erefore, they intentionally treated these arrangements of self-governance prior to territorial arrangements in an effort to bring such arrangements to the attention of policy and lawmakers.74 e ACFC welcomes and encourages these territorial and personal autonomy and self-government arrangements in their comments as ‘best practices’. Without being able to request them from states, the ACFC can still comment on the proper functioning of such arrangements, once they are put in place. For examples of territorial autonomy,75 the ACFC commented on the importance of the autonomy of the Åland province in Finland76 and the home rule arrangements for Greenland and the Faeroe Islands in Denmark.77 However, Denmark does not consider the populations of these territories to fall within the scope of the FCNM because of the territorial home rule arrangements and their status as indigenous people.78 In its opinion on Moldova, the ACFC refers to the special legal status, with a wide measure of administrative and cultural autonomy, granted to Gaugazia in , to bring an end to the tensions created in the early s. It notes the requests made, in October , by the representatives of the Gaugazian People’s Assembly who are dissatisfied with the scope and functioning of the autonomy they have been granted, for a revision of the constitutional arrangements affecting them. e ACFC encourages the authorities to examine the situation, in cooperation with those concerned, to identify the most appropriate solutions.79 Two countries, Italy and the United Kingdom, have received comments of approval from the ACFC regarding their regionalism and devolution processes as creating the conditions necessary for the persons concerned to participate effectively in all areas, and in public affairs especially.80 73 74
75
76
77 78
79
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Heinrich Klebes, ‘e Council of Europe Framework Convention ...’, . See also Giorgio Malinverni, ‘La Convention-Cadre ...’, -. John Packer, ‘e Origin and Nature of the Lund Recommendations ...’, and . e various forms of territorial autonomy have in common that they establish regional executive institutions and elected representations of the people(s) for the purpose of linking the political activities within the regional unit with the will of its inhabitants. Powers transferred to an autonomous region may range from a decentralization in administrative matters to far-reaching self-government with certain legislative powers, or to a virtually independent administrative, legislative and judicial system. (see Jochen Abr. Frowein and Roland Bank, ‘e Participation of Minorities ...’, ). Opinion on Finland (), para. . Opinion on Denmark (), para. . See Section II.A.. Definition of National Minorities, for the ACFC’s inclusive approach, regarding indigenous people and the territorial application of the FCNM. Opinion on Moldova (), para. . Opinion on Italy (), para. and opinion on the UK (), para. .
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities Personal autonomy arrangements81 can be found in Finland, Norway, Hungary and, in a not yet functioning way, in Estonia.82 In Finland, the Sami are granted cultural autonomy in respect to their language and culture and the authorities have to negotiate with the Sami parliament in all far-reaching and important measures which may directly affect the status of the Sami (see also Norway). In Hungary, a system of local and national minority self-government was introduced by the Law LXXVII of on the Rights of National and Ethnic Minorities. e ACFC, on the basis of contacts it has had with the national self-governments, considers this system to be functioning satisfactorily.83 e ACFC moreover notes with approval that complaints from national self-governments are duly reported in the State Report. Furthermore, the Hungarian authorities drew up a list with aspects of the system of self-governments which could be improved. Amongst others, the spheres of duties and jurisdictions of minority self-governments and the regulations pertaining to financial contributions by the state and by local governments need to be refined.84 Regarding minority self-governments at regional and county level, a missing link the Hungarian government admits, the form in which to establish them should be given some serious consideration.85 A last example of personal autonomy mentioned in the opinions of the ACFC, but under Article FCNM, is the Estonian system of setting up cultural autonomies under its National Minorities Cultural Autonomy Act of . However, the law has had no substantial impact on the actual situation in Estonia and no cultural autonomies have been established on the basis of this law. e ACFC is of the opinion that this state of affairs reflects the fact that the law is not suited to the present situation of minorities in Estonia. e law excludes, for example, non-citizens from the leading bodies of the cultural autonomies.86
81
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83
84 85
86
Personal autonomy is granted collectively to all members of a minority irrespective of their belonging to a certain territorial or administrative unit. is may include providing them with their own representative legislative body and an executive competent to act with regard to areas such as culture, language and education. See Jochen Abr. Frowein and Roland Bank, ‘e Participation of Minorities ...’, . ere is a third type of autonomy, distinguished by Frowein and Bank, which is functional autonomy. is type of autonomy pertains to the devolution of certain powers concerning culture, education, religious issues or media to minority organizations constituted as legal persons under private law. In contrast to personal autonomy, not all members of the minority are subjected to the jurisdiction of the empowered body but only those who are members of the respective minority organization. e example they give is the Danish Schooling Association in Germany, which is running a number of schools at all levels which may be visited by children of members of that association, see ibid., . See opinion on Finland (), para. (Sami Parliament), opinion on Norway (), para. (Sami Parliament), opinion on Hungary (), paras. - (minority self-governments) and opinion on Estonia (), para. (cultural autonomy). Opinion on Hungary (), para. . Ibid., para. . Ibid., para. . Opinion on Estonia (), para. .
Annelies Verstichel B. Participation in Legislative Decision-Making Processes at the National, Regional and Local level 1. A Broad Margin of Appreciation e participation of national minorities in legislative processes, amongst others in parliament, is an important issue for the ACFC. It can lead to important achievements for the protection of national minorities, as the case of Romania shows.87 In this respect one can speak of the participation of minorities in decision-making processes as a precondition for a sound minority protection. However, the ACFC, referring to international standards, considers it within the scope of the margin of appreciation of states how to organize this participation through, inter alia, electoral processes: e Advisory Committee recognizes that the question of establishing electoral arrangements for parliamentary representation is a domain where from the point of view of international standards (Article , Protocol I of European Convention on Human Rights and Article of the Framework Convention) states enjoy a broad margin of appreciation.88 2. Best Practices e broad margin of appreciation states enjoy to implement the principles and objectives contained in the FCNM does not impede the ACFC from commenting on the measures taken by states and to show its preferences. In this way, it elaborates a catalogue of best practices.89 Measures the ACFC welcomes are, for example, reserved seats, lower electoral thresholds, special parliamentary committees, adapted constituency boundaries and voting rights for non-citizens.90 e ACFC strongly welcomes constitutionally guaranteed representation of minorities in parliament.91 A guarantee entrenched in the constitution is, of course, less easy to reconsider or to abrogate than an ordinary legislative norm.92 Moreover, it would be easier to justify an infringement on, for instance, the formal
87
88 89 90
91
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Opinion on Romania (), para. . Opinion on Hungary (), para. . See María Amor Martín Estébanez and Kinga Gál, ‘Implementing the Framework Convention ...’, -. e UNWG was referred to as an example. See, for example, opinion on Croatia (), paras. - (parliamentary committee and reserved seats), opinion on Ukraine (), paras. - (adapted constituency boundaries and reserved seats), opinion on Germany (), para. (lower threshold and consultative committee for Danes to offset the lack of direct parliamentary representation), opinion on Italy (), para. (technical committee including minorities set up in framing the implementing provisions for Law No. of December ) and opinion on Estonia (), para. (possibility for non-citizens to vote in local government elections). Opinion on Romania (), para. and opinion on Croatia (), para. . Florence Benoît-Rohmer and Hilde Hardeman, ‘e representation of minorities ...’, .
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities equality of votes if the minority representation guarantee were elevated to constitutional level (see also Section II.B.. e Equality Principle).93 However, the ACFC criticizes states such as Hungary, the Czech Republic and Ukraine,94 once they have established guaranteed representation for minorities, whether in the form of a constitutional norm or otherwise, for not drafting the appropriate implementing legislation. To reiterate the point made earlier, the ACFC expects states to live up to their own domestic standards. is approach is particularly appropriate. Given the broad margin of appreciation, the ACFC is not in a position to impose special guarantees and measures on states. However, once they have adopted them, the ACFC can legitimately request that states be consistent with their own choices and proceed to implement them faithfully. In the case of Hungary, the ACFC moreover referred for inspiration to the in-depth review carried out by the Venice Commission, as there are technically speaking different ways of implementing the domestic provisions.95 e ACFC is concerned about legislation which impedes minorities in the effective participation in elections, for example legal language requirements.96 But even if there is no law impeding or prohibiting minorities to be represented in parliament, if there is a de facto under-representation of minorities in parliament, the ACFC expresses its disapproval as well97 and encourages states to adopt provisions facilitating access.98 e ACFC is clearly in favour of legal and institutional guarantees.99 Sometimes it admits that there is parliamentary representation of minorities in practice, even though there are, for example, no seats reserved for national minorities.100 Nevertheless, it is of the opinion in other cases 93
94 95
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97 98
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See criticism on a judgment of the German Federal Constitutional Court of January , upholding a lowered threshold for minority parties by referring to international law. e criticism entailed that exceptions to the equality of votes privileging national minorities are only admissible in as far as the protection of national minorities is guaranteed in the constitution, since only such constitutional reference would provide a sufficient justification for differentiation. Abr. Frowein and Roland Bank, ‘e Participation of Minorities ...’, , footnote . Opinion on Hungary (), paras. -, opinion on the Czech Republic (), para. and opinion on Ukraine (), para. . Opinion on Hungary (), para. . Opinion on Estonia (), para. (language proficiency requirements that the Law on Parliament Elections of and the Law on Local Government Council Elections of stipulate for candidates in the respective elections) and para. (Article of the Estonian Language Act, concerning the requirement to provide information in Estonian, which has been interpreted in practice as prohibiting electoral advertisement posted in a language of a national minority). Opinion on the Czech Republic (), para. and opinion on the UK (), para. . Opinion on Armenia (), para. . ‘e Advisory Committee appreciates the various institutional arrangements in aid of effective participation in all areas, public affairs especially, for persons belonging to the German-speaking and Ladin minorities resident in the Trentino-Alto Adige autonomous region. It especially welcomes the recent changes made by Constitutional Law No. of January which improves representation of Ladins in the legislative and executive bodies of both the region and the province.’ Opinion on Italy, adopted on September , para. . Opinion on Ukraine (), para. and opinion on Moldova, adopted on March , para. .
Annelies Verstichel that this does not imply that these persons benefit from all opportunities to participate effectively in the political life of their country and in the decision-making process and encourages the authorities to give further consideration to ensuring that the necessary structural guarantees – electoral and consultative – exist. At the same time, the ACFC acknowledges that ‘there are limits to what any electoral system can guarantee’.101 3. Implicit Stand-Still Clause e ACFC criticizes states, like Croatia102 and Ukraine,103 which at some point had introduced a certain level of guaranteed representation but subsequently reduced that level of protection again. States thus have a broad margin of appreciation, but once they adopt a certain level of protection, an implicit stand-still clause seems to be applied by the ACFC. is is a technique applied as well in the monitoring of compliance with social, economic and cultural rights by, for example, the UN Committee on Economic, Social and Cultural Rights. It fits with the concept of progressive realization of these rights: ‘It thus imposes an obligation to move as expeditiously and effectively as possible towards [the full realization of the rights in question]. Moreover, any deliberative retrogressive measures
101 Opinion on Albania (), para. .
102 Opinion on Croatia (), paras. -. Following the suspension by the Parliament of Croatia of the rele-
vant provisions of the Constitutional Law of Human Rights and Freedoms and the Rights of National and Ethnic Communities or Minorities, the issue of guaranteed representation of national minorities in the House of Representatives is currently regulated in detail only through the Law on Elections of Representatives to the Croatian National Parliament, adopted on October . Pursuant to Article of this law, the seats guaranteed for representatives of the Serb minority were reduced from three to one. Furthermore, in May , the parliament decided to delete most of the provisions affected by the aforementioned suspension. e deleted provisions largely pertained to decision-making processes at the local level. Croatia is in the process of adopting a new constitutional law on national minorities in consultation with the European Commission for Democracy through Law (Venice Commission). e new law has, inter alia, the aim of improving guarantees for the representation of persons belonging to national minorities in the decision-making processes at the local and regional level. In the context of the drafting of this new constitutional law and the subsequent changes to its electoral laws, the ACFC ‘finds it important that Croatia … seeks to improve further its legislation and practice concerning the parliamentary representation of national minorities and to eliminate any imbalance and undue limitations that persist in this respect’. us, in respect to representation in decision-making processes both at parliamentary, regional and local level, the ACFC adopts a position critical of any reduction of level of protection. 103 Opinion on Ukraine (), paras. -. e ACFC finds it regrettable that the rules aimed at protecting national minorities in the context of the drawing of constituency boundaries, provided for in the Law on Elections of People’s Deputies of , were not retained in the new Law on Elections, adopted in . ‘is constitutes a setback in the normative protection of national minorities in Ukraine. e Advisory Committee expects that the idea reflected in these previously applicable provisions is kept in mind in the administrative practice and that its re-introduction in the legislation is considered by the authorities.’ Moreover, whereas in the Crimean Tatars had reserved seats in the legislature of the Autonomous Republic of Crimea, at present the legislation provides no such guarantees and as a consequence their presence has been drastically reduced. e ACFC finds the resulting situation regrettable and is pleased to note that the question of improving the representation of Crimean Tatars is currently being examined.
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities in that regard would require the most careful consideration and would need to be fully justified.’104 However, the ACFC does not (yet) apply this stand-still criterion to the evaluation of the participation of persons belonging to national minorities in cultural, social and economic life. is has probably to do with the relatively undeveloped approach of the ACFC regarding this matter (see Section IV. Effective Participation in Cultural, Social and Economic Life). Another similarity with the technique used by the UN Committee on Economic, Social and Cultural Rights, is the fact that the ACFC takes into account economic difficulties a state is facing when evaluating the implementation of the FCNM, as policies and measures generally require sufficient financial resources.105 It moreover has shown itself sensitive to the past or present political situation in certain countries,106 which may also have an influence on the implementation of the FCNM. However, while acknowledging political reality, the ACFC remains critical and encourages states to seek ways to address political conditions adverse to implementing the FCNM. 4. Expansive Approach e two previous sections show that the ACFC, despite the margin of appreciation the countries have, takes up an active and rather expansive approach to the issue of participation of minorities in decision-making processes on all levels. e higher the level of protection of (guaranteed) representation, the better. Another example for this approach is, inter alia, the position of the ACFC regarding the representatives of the three recognized religious groups in the Cypriot House of Representatives. ese representatives, elected by the Armenians, Maronites and Latins, attend parliamentary sessions as observers and have an advisory role in religious and educational matters affecting their group, but are without any legislative powers. e ACFC was ‘drawn to the concern that this advisory role might not be sufficient to ensure an effective participation.’107 e ACFC encourages the government to discuss this issue with the three religious groups with a view to improving their participation. In and of itself, this seems fair enough. However, the ACFC failed to consider the broader picture. e members of the three religious groups have the right to vote in the presidential, parliamentary, municipal and other elections. In its comments the government claims that for this reason there does not exist any kind of discrimination against the members of these religious groups.108 Whether this is an appropriate comment, is another question, but the ACFC should have included this aspect in its observations. It seems unbalanced to request additional legislative powers for these 104 Committee on Economic, Social and Cultural Rights, General Comment No. (), UN Doc. E//,
Annex III, para. .
105 Opinion on Armenia (), para. and opinion on Albania (), para. .
106 See opinion on Cyprus (), opinion on Estonia () and opinion on Croatia (). 107 Opinion on Cyprus (), para. .
108 Comments of the Government of Cyprus on the opinion of the ACFC on the Report on the Implementa-
tion of the FCNM in Cyprus, published February , .
Annelies Verstichel special religious representatives without at the same time adapting the broader electoral and legislative framework. 5. Mirror Representation e ACFC seems to adopt an approach normatively in favour of mirror representation. e idea of mirror representation entails that the legislature is said to be representative of the general public if it mirrors the ethnic, gender or class characteristics of the public. is contrasts with the more familiar idea in democratic theory which defines representation in terms of the procedure by which the office-holders are elected, rather than by their personal attributes.109 In its opinion on Hungary, for example, the ACFC ‘shares the concern expressed in the Report and confirmed by other sources about the so-called ‘cuckoo-problem’, the situation where persons not belonging to a given minority, through the openness of the electoral system, nevertheless manage to get themselves elected as representatives of that minority. It notes that a number of creative solutions have been proposed, which, whilst not going as far as to introduce a form of ethnic registration, would allow for this risk to be reduced. e Advisory Committee considers that the Hungarian authorities should actively pursue such remedies in order to avoid the credibility of the system as a whole being undermined.’110 ere is no reason why a person not belonging to a given minority would not be able to represent the interests of that minority, as long as that representative is democratically accountable to that group of persons. Representatives do not serve their constituents by being like them but by acting in their interests. To varying degrees, this is the opinion of many authors writing on the effective representation of minorities from a theoretical – rather than a liberal – angle.111 In its comments on the ACFC opinion, the German government seems to adopt a critical approach to mirror representation when commenting on the Foundation for Sorbian People. e Foundation is a specific body which helps the Sorbian minority to enhance its participation in cultural, social and economic life. In its opinion on Germany, the ACFC notes that only of the members of the Foundation’s governing board are representatives of the Sorbian minority – the others belong to the majority: 109 Will Kymlicka, Multicultural Citizenship: A Liberal eory of Minority Rights (Oxford, ), at . 110 Opinion on Hungary (), para. .
111 See for example, Will Kymlicka, Multicultural Citizenship…, -; Anne Phillips, ‘Democracy and Dif-
ference: Some Problems for Feminist eory’, () Political Quarterly (), -, at and Melissa Williams, Voice, Trust and Memory: Marginalized Groups and the Failings of Liberal Representation (Princeton, ), at (describing the point of view from the theory of liberal representation). Jane Mansbridge is aware of the costs of mirror representation but argues that it might be useful in two contexts, namely, first, in a situation in which the vertical communication between constituent and representative is impaired by distrust and, second, when interests are relatively uncrystallized in the horizontally organized deliberative process at the legislative level. Jane Mansbridge, ‘What does a Representative Do? Descriptive Representation in Communicative Settings of Distrust, Uncrystallized Interests, and Historically Denigrated Status’, in Will Kymlicka and Wayne Norman (eds.), Citizenship in Diverse Societies (Oxford, ), -. See also Melissa Williams, Voice, Trust and Memory…, , summarizing her alternative to liberal representation as ‘descriptive representation with a difference’.
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities e Sorbian members therefore represent less than half of the board and have no right of veto, even on fundamental issues. e Advisory Committee considers that the authorities could examine ways of strengthening the representation of the Sorbian minority in the functioning of the Foundation and in other fora.112 In its reaction to this recommendation, the German government states as one of its many arguments that the representatives of the Sorbian people on the Foundation’s governing board are not obliged to acknowledge that they belong to this ethnic group. ey represent the Sorbian people. Moreover, it is not ruled out that the other representatives may also represent the interests of the Sorbian people.113 6. e Presence/Influence Distinction Regarding the presence/influence distinction generally made in the theoretical literature on fair and effective political participation and representation of minorities,114 one can see that the second level is completely disregarded in the opinions of the ACFC, except for one comment on an advisory board, even at the level of the legislature. is disregard is strange, particularly as Frowein and Bank include it in their typology as well.115 e distinction is important, since having a voice in the legislature, being present at the parliamentary debate through for example reserved seats for national minorities, does not mean that one has an influence on the decisions on matters which affect a specific minority. With merely a few reserved seats, one can always be outvoted. A veto right would be an example of a measure for having effective influence on the decisions. Only once in all its opinions has the ACFC gone as far as suggesting a veto right. In its opinion on Germany, it proposed such a measure for the members representing the Sorbian minority on the governing board of the Foundation for Sorbian People.116 C. Participation in the Executive 1. Specialized Governmental Bodies ere are several types of specialized governmental bodies, set up to deal with minority issues: a Minister for National Minorities,117 a Government Office for National Minori112 Opinion on Germany (), para. .
113 Comments of the Government of Germany (), p.. However, the Domowina – Federation of Lusa-
114
115 116 117
tian Sorbs – does not seem to follow the position of the German government. It states on p. of the comments that policy matters should not be settled by the Foundation’s governing board itself, but outside the board by means of political activities of the Sorbs. Ten years of activity within the foundation’s governing board seem not to have reached satisfactory results for the Sorbian people. See for example Melissa Williams, Voice, Trust and Memory…, . Jochen Abr. Frowein and Roland Bank, ‘e Participation of Minorities ...’, -. See Section III.B., Mirror Representation. Opinion on Germany (), para. . See opinion on Albania (), para. . e post was created and then abolished again.
Annelies Verstichel ties,118 a Department for Inter-Ethnic Relations,119 a Presidential Commissioner,120 an Inter-Ministerial Commission for National Minorities,121 and a joint-institutional committee.122 ey are created not only at the national or federal level, but also at the substate123 and local124 level. e ACFC approves of all such bodies and expresses its concern with their proper functioning. It encourages states to ensure proper funding125 and to extend the scope of their mandate.126 e ACFC is especially critical when there seems to be a lack of coordination between different bodies dealing with issues affecting minorities, when there is no coherent policy backing up all these bodies or when there seems to be a lack of commitment to dialogue with representatives of minorities, as is illustrated by a comment in its opinion on Croatia: . e Advisory Committee welcomes the fact that Croatia has established bodies dealing specifically with issues concerning national minorities, in particular the Government Office for National Minorities and the Council of National Minorities. While recognizing the contribution that these bodies have made to the protection of national minorities, the Advisory Committee finds that there is a certain lack of coordination and complementarity between them and that this has a negative impact on their effectiveness. us, the Advisory Committee supports the initiatives to review the appointment procedures, structures and working methods of these bodies with a view to improving their effectiveness and ensuring that persons belonging to national minorities have a central standing in the resulting organizational structure. . e Advisory Committee finds it important that, in addition to the bodies mentioned in the preceding paragraph, the Government maintains a dialogue with organizations representing individual minorities. Bearing in mind the importance of this matter to the implementation of Article of the Framework Convention, the Advisory Committee regrets that the degree of commitment to such dialogue appears to vary greatly between different Ministries concerned.127 118 See opinion on Albania (), para. and opinion on Croatia (), para. . 119 See opinion on Moldova (), para. . 120 See opinion on Cyprus (), para. .
121 See opinion on Romania (), para. . 122 See opinion on Italy (), para. .
123 See opinion on Germany (), para. . A Commissioner has been appointed for the border region of the
124 125
126 127
Land of Schleswig-Holstein, who gives advice to the Minister-President of the Land on all matters relating to the Danish minority, the Frisians and the Roma/Sinti. See opinion on Moldova (), para. and opinion on Germany (), para. . See opinion on Albania (), para. . See opinion on Cyprus (), para. . e scope of the mandate of the Presidential Commissioner is limited to some minorities only: the Maronite, Armenian and Latin communities. Opinion on Croatia (), paras. -. For similar comments, see opinion on Ukraine (), para. , opinion on Armenia (), para. and opinion on Albania (), para. .
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities e ACFC thus attaches great importance to a proper institutional framework, but even greater importance to effective involvement and dialogue with minorities. Linked to, or the counterpart of, all these governmental bodies are advisory and consultative bodies in which representatives of minorities meet with government representatives or in which representatives of various minority organizations set out their priorities in recommendations to policy makers (see also Section III.D. Advisory and Consultative Bodies). e implicit stand-still clause, i.e. being critical of retrogressive measures (see also III.B Participation in Legislative Decision-Making Processes on National, Regional and Local Level), is applied here as well by the ACFC. In its opinion on Moldova, the ACFC regrets that the presidential committee, that had been created in with the aim of allowing persons belonging to national minorities to make known their interests to the highest institution of the state, ceased to function in .128 Furthermore, in its opinion on Albania, the ACFC shows itself disappointed to note that the recent creation of the post of Minister for National Minorities was short-lived and no longer exists. According to the ACFC, thought should be given to restoring this post.129 2. Civil Servant Jobs Civil service jobs and public administration are also seen by the ACFC as an important part of public affairs in which persons belonging to minorities should be effectively represented. It welcomes the fact that persons belonging to national minorities are well represented in the civil service130 and it criticizes states when there is a de facto underrepresentation of minorities in public office, for example, in the police service, prison service, the army, the judiciary, education, etc. It then encourages the state to carry out a review of the situation and, should the result prove to be unsatisfactory, adopt the necessary measures to promote a fair representation of minorities in the civil service.131 In the case of Croatia, the ACFC even proposes to provide effective remedies to victims and to introduce positive measures aimed at eradicating the persisting negative consequences of past practices.132 Furthermore it welcomes measures taken by states to facilitate the recruitment of minority members to public office through positive measures,133 e.g. lower128 Opinion on Moldova (), para. . 129 Opinion on Albania (), para. . 130 Opinion on Austria (), para. .
131 See opinion on the UK (), paras. -, opinion on Romania (), para. and opinion on Albania
(), paras. -.
132 Opinion on Croatia (), paras. -.
133 e ACFC notes that in the province of Bolzano, the system of allocating the posts strictly according
to the size of the Italian-speaking, German-speaking and Ladin communities has helped to make the participation of these minorities more effective, since each group’s representation in the civil service now approximates to its demographic profile (opinion on Italy (), para. ). is contrasts with the ACFC’s criticism of the system of compulsory declaration of one’s belonging to one of the three communities in the province of Bolzano, the means through which the quota are calculated. (See also Section II.A. Data Collection and Reliable Statistics ad Odds with the Freedom of Choice to Declare Oneself a Member of a National Minority.) In the same paragraph of its opinion on Italy, the ACFC is concerned about the fact
Annelies Verstichel ing recruitment requirements.134 e ACFC also queries whether the requirements, like a certain command of the state language, are particularly hampering persons belonging to national minorities in their access to civil service.135 If a public administration reform is underway, the ACFC recommends that the design enhance the effective participation of persons belonging to minorities in public affairs.136 Both Article 137 and Article 138 FCNM come into play, with or without cross references from and/or to Article . D.—Advisory and Consultative Bodies Advisory and consultative bodies, like councils, roundtables, commissions and advisory boards, seem to be the most frequently used means to enhance effective participation of minorities in public affairs, in particular those affecting them. e ACFC also attributes an important role to them. Some are independent, others are part of the executive or the legislative branch. Persons belonging to minorities are part of these bodies to a greater or lesser extent. Apart from pointing towards a lack of staff and resources in many cases,139 the ACFC generally seeks to push for more representatives who actually belong to minorities so that it is not only experts or government officials belonging to the majority population that advise on minority issues.140 e ACFC also advocates an ever more inclusive competence for these bodies regarding their personal scope141 – to advise on
134 135
136 137
138 139 140 141
that other minorities, not residing in the province of Bolzano or the Aosta Valley, especially the Slovene minorities, do not benefit from special arrangements for access to public sector posts. e ACFC is of the opinion that the Italian authorities should carry out a review of the situation, and, should the result prove to be unsatisfactory, adopt the necessary measures to promote a fair representation of minorities in the civil service (opinion on Italy (), para. ). See opinion on Cyprus (), para. (differentiation in language requirements for access to civil service introduced for applicants belonging to religious groups). Opinion on Moldova (), para. . Opinion on the Slovak Republic (), para. . See opinion on Romania (), para. (the ACFC refers to its comments under Article regarding the situation of the Roma), opinion on Cyprus (), para. (with reference to its comments under Article , para. ) and opinion on Croatia (), para. (with reference to comments under Article ). Opinion on Finland (), para. (regarding recruitment of persons belonging to minorities to serve as police officers). See opinion on the Czech Republic (), para. . e Slovak Republic has been acknowledged in this respect. See opinion on the Slovak Republic (), para. . See opinion on the UK (), para. (Race Relations Forum established by the Home Secretary does not include some groups, like the Roma/Gypsy, the Irish Traveller groups, ethnic minority groups in Northern Ireland and certain religious groups. e ACFC sees merit in wider representation on the forum, and suggests a rotation system of persons from different communities on this forum) and opinion on Austria (), para. (the Advisory Councils are nor representative enough of the persons belonging to national minorities, the government has not yet implemented its agreement in principle of February to increase the number of members of the Advisory Council for the Slovene minority in order to allow the Slovenes of Styria to be represented and the ACFC recommends to extend the composition of the advisory councils beyond the persons belonging to autochthonous national minorities).
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities issues affecting groups which are not yet recognized as a minority but are deserving of this status in the eyes of the ACFC – as well as its material scope.142 Or it simply proposes the creation of new advisory bodies to which it often receives the reply from governments that existing structures are sufficient.143 e paramount concern of the ACFC is evidently that the dialogue between government and minorities is institutionalized. It welcomes ad hoc contacts,144 but asks for a consolidation of such contacts into an official body of representatives from the different national minority organizations.145 e ACFC seems to have a particular preference for the model of (Coordinating) Councils of National Minorities, established in a number of countries in Europe.146 Alongside such a body, the ACFC also considers it important that the government maintain contact with organizations representing each of the national minorities, in order to avoid the possibility that such councils merely promote the interests reflecting the needs of the more active minority groups.147 Likewise, the ACFC welcomes the legal obligation to consult these advisory and consultative bodies, and recommends that states take seriously complaints that these bodies are either not informed, or informed at too late a stage.148 In any event, if there is no obligation to consult, the ACFC recommends that states consult these bodies in a more consistent manner149 and give reasons when they decide not to follow the given advice.150 Personal autonomy arrangements151 can be mentioned here as well. e institutions embodying these arrangements also function as advisory bodies to the national government in issues which affect the particular minority. IV. E P C, S E L ere is not much space dedicated in the ACFC opinions under Article to participation in cultural, social and economic life. e overwhelming attention is given to participation in public affairs, as commented on in Section III. e ACFC seems to exhibit uneasiness 142 Opinion on Moldova (), para. (not only culture and education) and opinion on Austria (), para.
.
143 See opinion on Finland (), para. and Comments of the Government of Finland (), ; opinion
144 145
146 147
148 149 150 151
on Cyprus (), para. and Comments of the Government of Cyprus (), and opinion on Albania (), para. and Comments of the Government of Albania (), . Opinion on Norway (), para. . Opinion on Cyprus (), para. ; opinion on Estonia (), para. ; opinion on Italy (), para. and opinion on Norway (), para. . Opinion on Albania (), para. . Opinion on Moldova (), para. . Opinion on Finland (), para. , opinion on Hungary (), para. and opinion on Armenia (), para. . e Slovak Republic is commended in this respect, see opinion on the Slovak Republic (), para. . See otherwise, opinion on Romania (), para. and opinion on Estonia (), para. . Opinion on Romania (), para. . See opinion on Finland (), para. and opinion on Hungary (), para. .
Annelies Verstichel with this broader conception of effective participation, not only including participation in public life, but also cultural, economic and social life. In fact, this broader conception does not appear in the Copenhagen Document (paragraph only dealing with participation in public life). Aside from Article FCNM, its only other textual base is provided by Article () UNDeclMin. Hitherto the ACFC has, for instance, yet to elaborate a difference in approach when it comments on the necessary conditions states should create for the effective participation of minorities in social and economic life under Article , from its approach employed when commenting on the measures which states should adopt to promote full and effective equality in economic and social life under Article (see also Section II.B.. Equality Principle). One of the main difficulties in commenting on the effective participation of persons belonging to national minorities in cultural, social and economic life is the lack of sufficient data and reliable statistics.152 erefore, the ACFC encourages the states to identify means to collect these data. It often adds that when the analysis of these data reveal a lack of effective participation, appropriate steps should be taken to remedy this situation.153 Usually one paragraph is dedicated to serious concerns the ACFC has regarding the participation of Roma, and especially Roma women, in social and economic life154 and occasionally in cultural life as well.155 ese concerns are also voiced under Article ,156 Article 157 and Article ,158 FCNM with or without cross references from and/or to Article . e Central and Eastern European governments, in particular, take these concerns seriously and are always at pains to expose their efforts in their comments on the opinion of the ACFC on their country reports. Hungary, for example, devotes more than half of its comments, i.e. pages, and Romania a whole appendix of pages, to describing measures introduced to improve the living conditions for their Roma population.159 Often, when the ACFC voices its concerns regarding the high rate of unemployment or other socioeconomic difficulties of persons belonging to national minorities, it has to
152 See, for example, opinion on Norway (), para. .
153 See, for example, opinion on Albania (), paras. -.
154 See ACFC opinions on Finland (), para. ; Hungary (), para. ; the Slovak Republic (),
para. ; Croatia (), para. and Italy (), para. .
155 See ACFC opinion on the Czech Republic (), para. ; Romania (), paras. - and Germany
(), para. .
156 See opinion on the Czech Republic (), para. ; opinion on Romania (), paras. -; opinion on
Italy (), para. ; opinion on the United Kingdom (), paras. and -; opinion on Ukraine (), para. ; opinion on Moldova (), paras. -; opinion on Germany (), para. ; opinion on Austria (), para. ; opinion on Albania (), para. and opinion on Norway (), para. . 157 See opinion on the Czech Republic (), paras. -. 158 See opinion on Romania (), para. . 159 Comments of the Government of Hungary on the opinion of the ACFC on the Report on the Implementation of the FCNM in Hungary, published September , - and Comments of the Government of Romania on the opinion of the ACFC on the Report on the Implementation of the FCNM in Romania, published January , Appendix I, -.
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities admit that these problems affect the society at large.160 However, persons belonging to national minorities are often affected disproportionately.161 is can be because they are concentrated in areas with particularly severe economic difficulties,162 or because they still face the results of past discrimination, like the Serb minority in Croatia (often related to the conflict of -).163 Another reason can be language sufficiency requirements for access to the labour market, which inevitably affect linguistic minorities disproportionately.164 Problems related to the issue of access to land, as in the case of the formerly deported people in Ukraine,165 may also be one of the causes why persons belonging to national minorities are affected disproportionally by socioeconomic difficulties. Another issue commented on by the ACFC, relating to the effective participation in economic life, is the requirement of local residence permits or permanent business premises for the purposes of obtaining trade certificates or the exercising of other employment-related rights. e ACFC encouraged the Norwegian authorities to accommodate the itinerant culture of the Roma. In this context, they should draw on the principles contained in the Committee of Minister’s Recommendation No. () () on improving the economic and employment situation of Roma/Gypsies and Travellers in Europe.166 It also welcomed the decision of the Constitutional Court of Ukraine, adopted in November , requesting the abolition of the system of local residency permits as unconstitutional. is system obliged individuals to obtain from local authorities a residency permit in order to exercise fully their rights in various fields such as employment. Especially the Roma and the Crimean Tatars were vulnerable to the problems inherent in this system.167 Access to employment was also a relevant issue in the ACFC’s comment on the Norwegian Worker Protection and Worker Environment Act. is act provides the possibility to request from a job applicant information regarding his or her political, religious or cultural views but only where the purpose of the employer’s activities is aimed at promoting these matters and the position at issue is essential for the fulfilment of that objective. e ACFC considers it essential that the implementation of this provision is carefully monitored so as to ensure that it is not interpreted too broadly and/or in a manner that 160 See for example opinion on Ukraine (), para. .
161 See for example opinion on Ukraine (), para. and opinion on the UK (), para. . e ACFC
recalls its comments made under Article (para. -).
162 For example, opinion on Estonia (), paras. - and opinion on Ukraine (), para. (region of
Transcarpathia).
163 Opinion on Croatia (), paras. -.
164 See opinion on Estonia (), paras. -. e Government decree on the mandatory Estonian language
proficiency levels for employees in the private sphere adopted on May , contains a provision requiring an intermediate level of Estonian language proficiency for service and sales employees whose duties include providing information on the qualities, prices, origin or conditions for the use of goods or services offered. 165 Opinion on Ukraine (), para. . 166 Opinion on Norway (), para. . 167 Opinion on Ukraine (), para. .
Annelies Verstichel constitutes undue obstacles for persons belonging to national minorities in their access to employment.168 ere is only one specific reference to the effective participation in cultural life, namely in the ACFC opinion on Hungary. And even here, the ACFC limits itself to noticing the low visibility of minorities in Hungarian mainstream media and cultural life, which can be considered to reflect a low degree of participation in these fields. e ACFC refers to its comments under Article () and FCNM.169 e ACFC as always does not only criticize, but appreciates positive developments. Germany received compliments on the Foundation for Sorbian People. Funding for this institution is provided jointly by the Federal State, the Land of Brandenburg and the Free State of Saxony. e ACFC considers this to be a fine example of good cooperation between the federal authorities and the Länder for the benefit of national minorities. Seen in this light, according to the ACFC, it could provide a worthwhile model for other minorities who do not as yet have such a body.170 V. C R is analysis of the opinions of the ACFC regarding Article FCNM has shown that the ACFC submits thoroughly researched, non-political and integrated opinions on the adequacy of the measures taken by the states parties regarding effective participation of minorities, offering an objective and critical assessment of the country reports and the minority situation in the field. As the FCNM in general and Article FCNM in particular contain programmetype provisions which leave the states concerned a (rather broad) margin of appreciation in the implementation of the objectives, the ACFC has only little room to manœuvre. However, it does this in a creative way, trying to stretch its impact and seeking to establish a constructive dialogue with the governments concerned. e ACFC cannot request certain measures from the states, but clearly shows its preferences in welcoming certain practices and encouraging states to continue them. In that way, the ACFC is developing a catalogue of ‘best practices’ of effective participation of minorities which can serve as an example for other states parties. is positive approach through expression of appreciation of certain policies is used by the ACFC on a par with the use of criticism to express its opinion. Furthermore, once certain measures are in place, the ACFC dedicates itself to assessing their proper functioning. It shows that the ACFC is not only concerned with the legislative framework but also with its implementation. It asks states to live up to their own domestic standards and to be consistent in their policies. e ACFC is clearly in favour of constitutional and other structural guarantees of effective participation of 168 Opinion on Norway (), para. .
169 Opinion on Hungary (), para. .
170 Opinion on Germany (), para. . Reference is made to the comments under Article , paras. -
. Regarding the Sorbian representation on the Foundation’s governing board, see Section III.B.. e Presence/Influence Distinction.
Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities minorities and of an institutional framework consolidating ad hoc contacts of governments with national minorities. Moreover, the programme-type provisions of the FCNM lend themselves to a monitoring by the ACFC similar to the one of the International Covenant on Social, Economic and Cultural Rights. rough criticism on retrogressive measures, an implicit stand-still clause is applied aiming at the progressive realization of the rights and principles of the FCNM. e ACFC also takes into account economic difficulties faced by a state and shows itself sensitive to the past or present political situation when evaluating implementation of the FCNM. Nevertheless, the FCNM remains critical and encourages states to seek ways to address the situation. e integrated approach by the ACFC involves frequent cross-references in its opinions. It shows the interrelatedness and interdependency of the FCNM provisions. Moreover, it explains why many elements of the effective participation of national minorities in social, economic and cultural life in particular are already elaborated on under Articles , , and FCNM in the opinions. However, in its latest opinions, the ACFC seems to have made a start of dedicating more space under Article to commenting on effective participation in these areas. All in all, the ACFC adopts an inclusive and rather expansive approach – related to its substantive conception of equality – which sometimes could endanger its well-deserved credibility as an objective expert body. However, the ACFC does not go as far in its expansive approach as to comment on the influence of minorities on the outcome of decisionmaking processes but limits itself to commenting on measures ensuring the presence of minorities in these processes.
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Valery Perry *
Reversing Ethnic and Cultural Cleansing: e Role of Annex 8 in Reclaiming History, Promoting Post-War Reconciliation and Preserving the Unique Cultural Heritage of Bosnia and Herzegovina†
Each community, by means of its collective memory and consciousness of its past, is responsible for the identification as well as the management of its heritage. Individual elements of this heritage are bearers of many values, which may change in time. e various specific values in the elements characterize the specificity of each heritage. From this process of change, each community develops an awareness and consciousness of a need to look after their own common heritage values. is heritage cannot be defined in a fixed way. One can only define the way in which the heritage may be identified. Plurality in society entails a great diversity in heritage concepts as conceived by the entire community; therefore the tools and methods developed for appropriate preservation should be adapted to the *
†
e author is a doctoral candidate at George Mason University’s Institute for Conflict Analysis and Resolution (ICAR), studying the role of the international community in post-Dayton Bosnia and Herzegovina. She has lived in Sarajevo since , working for organizations including ECMI, the NATO Stabilization Force (SFOR), the Women Waging Peace Policy Commission and several local and international NGOs. She may be contacted by email at
[email protected]. Earlier versions of this article were presented at the ‘Nationalism, Identity and Regional Co-operation: Compatibilities and Incompatibilities’ conference of the Association for the Study of Nationalities/ University of Bologna, Forli, Italy, - June , and at the ‘Democracy and Human Rights in Multiethnic Societies’ conference of the Institute for Strengthening Democracy in Bosnia and Herzegovina, Konjic, Bosnia and Herzegovina, July . Much of this research was conducted through ECMI’s programme in Bosnia and Herzegovina from November through January . Several workshop reports detailing ECMI’s Annex project are available on the ECMI website, at http://www.ecmi.de. Some of the information presented derives from these ECMI workshops, and readers interested in learning more about the specific comments and positions of the participating experts should refer to these reports for more detail.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Valery Perry evolving situations, which are subject to a process of continual change. e particular context of selecting these values requires the preparation of a conservation plan and a series of decisions. ese should be codified in a restoration project according to appropriate technical and structural criteria. (e Charter of Krakow 2000)1 I. I Multiethnicity was built into many of the tenets of the Dayton Peace Agreement (DPA)2 that ended the three-and-a-half year war in Bosnia and Herzegovina (BiH), making it not simply a peace agreement but a loosely defined recipe for the post-war reconstruction of a diverse, multicultural society. e Agreement outlines general norms and declarations concerning the state of BiH, and includes a substantial set of annexes that commit the parties, inter alia, to a wide range of nation-building activities, including military stabilization, refugee return, adherence to numerous European and international treaties and conventions, the holding of elections, and human rights protection. Regardless of the realistic potential for full implementation of these peacebuilding activities, the authors of Dayton sought compromise among the three previously warring parties – the Bosniaks (Bosnian Muslims), Bosnian Croats (Bosnian Catholics), and Bosnian Serbs (Bosnian Orthodox Christians)3 – by building power-sharing mechanisms into the Agreement.4 In addition to laying out the parameters for nation-building, some of the annexes also demand certain reconciliatory provisions meant to reverse the impact of the wartime ethnic cleansing campaign. Two of the Agreement’s annexes stand out in this respect. Annex (Agreement on Refugees and Displaced Persons) of the DPA guarantees the right of people to return to their pre-war homes, and has been a primary focus of the international community since the beginning of its involvement in BiH, its implementation picking up speed in the years since . Annex (Agreement on Commission to Preserve National Monuments) guarantees that citizens have the right to reconstruct, rehabilitate and protect national monuments. is annex began to attract serious attention from late . Together, these annexes provide for a right of return not only of people who had been displaced during the war, but also of their culture, history and identity.
1
2
3 4
To review the entire text of the Charter, see http://www.ruraleurope.org/pdf/KRAKOW.pdf. e Dayton Peace Agreement, formally known as the General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP), entered into force on December . See http://www.ohr.int/dpa for full text. It should be noted that while the term ‘ethnic group’ is often used in BiH, the Bosniaks, Bosnian Croats and Bosnian Serbs are all descendants of Slavic tribes, distinguished primarily by religion. Additional power-sharing structures were imposed by the Office of the High Representative in early through constitutional reforms.
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina In the months and years immediately following the signing of the DPA, attention was focused on issues of dire importance to basic individual and state survival. Military stabilization, reconstruction of homes and infrastructure, return, and development of democratic institutions were the priorities of both the local authorities and the international community. e fact that since serious attention has been given to Annex ’s goals of preserving national monuments is in many ways a sign of the slow but gradual normalization of life in BiH. Agreements to preserve ‘national monuments’ or to generally address the issue of cultural heritage are not a standard element in peace treaties or the standardized ‘nationbuilding and democratization kit’ that has become part and parcel of post-conflict and development approaches.5 e rationale for the inclusion of such terms in the Dayton Agreement is rooted in the desire to somehow reverse the demographic and territorial shifts and upheavals that were a result of the ethnic cleansing campaigns of the war in BiH between and . Both international and domestic parties had an interest in the development of Annex . It could be argued that the international community that brokered and would later work to implement the Agreement was also trying to come to terms with their inaction during the war that allowed ethnic cleansing to occur by insisting upon the right of return. Among the warring parties, while all sides suffered attacks on their cultural symbols, the Bosniaks in particular had an interest in this issue, as ethnic cleansing in many ways affected them the most, both through population displacements and wholesale destruction of BiH’s Islamic heritage. Supporters of the return and Annex implementation process argue that a failure to address the return of people and culture would be a tacit acceptance and legitimization of the geographic, demographic and cultural gains of genocidal wartime campaigns. By actively supporting return, the spoils of war can be denied, and this can serve as a potential warning to others that ethnic cleansing does not pay. Critics of the international community’s support for a return to pre-war conditions may acknowledge the idealism of the right of return. However, in terms of practical implementation they argue that the costs of ensuring a safe and secure environment in which post-war return can occur is too heavy a burden for a system that would not survive without substantial outside intervention and support. During the recent war in BiH, some of the warring factions (or sub-groups within the warring factions, particularly paramilitary groups) attempted to erase the heritage of other religious groups through brutal programmes of ethnic cleansing. Not only were people purged from communities, resulting in the displacement of approximately million people, but the architectural heritage that had represented the multiethnicity of the region over centuries was heavily damaged. Approximately , mosques and Muslim buildings were destroyed or damaged, as well as over Catholic churches and 5
In his article ‘e End of the Transition Paradigm’, omas Carothers notes many of the standard items on this checklist: judicial reform, parliamentary strengthening, civil society assistance, media work, political party development, civic education and electoral programmes. () Journal of Democracy (), -, at .
Valery Perry monasteries and Serbian Orthodox religious sites.6 Non-sacred structures suffered damage as well, most famously the Ottoman-era bridge in Mostar. Hundreds of other bridges, Roman ruins and medieval sites have likewise suffered from a combination of the damage of war and a decade of neglect. is process has been referred to by many names, including ethnic or cultural cleansing, cultural genocide, identicide, ‘warchitecture’ and ‘urbicide’.7 While some observers might argue that an issue such as the protection of national monuments is trivial in a country still beset with unemployment, corruption, human rights abuses and the challenges of refugee return, the role that protection of national monuments and cultural heritage can play in societies, and particularly in multiethnic societies, should not be underestimated. In a report detailing the destruction of heritage in BiH and Croatia, the Council of Europe (CoE) affirms the role of culture in any community: ere is no reason to be ashamed of being concerned for the cultural heritage when men, women and children are suffering in war. When historic villages and residential districts – and we are talking about regions where most people are living in historic buildings – are destroyed or damaged, these people become refugees, reduced to the degrading experience of refugees, nourishing hatred and preparing the wars of tomorrow.8 erefore, as national monuments are both the symbols of the past as well as the homes and sites of worship of the present, protection of culture can have symbolic as well as practical importance in post-conflict development. us, Annex is a relatively complex part of the DPA, and successful implementation necessitates the integration of a broad spectrum of issues including human rights protection, minority rights and protections, education, rule of law, and reconciliation. It is also a fascinating case study of how one aspect of implementation of the Dayton Agreement in BiH has evolved and matured. is article reviews the evolution of the Annex legislation and implementation process. First, in Section II, a review of the role 6
7
8
Richard Carlton and Helen Walasek, ‘Destruction of the Cultural Heritage in Bosnia-Herzegovina’, unpublished paper transmitted online (). See also Robert Bevan, ‘Bricks and Mortars’ e Independent (London, September ), as noted on www.bosnia.org.uk, and Andras Riedlmayer, ‘From the Ashes: e Past and Future of Bosnia’s Cultural Heritage’, in Maya Shatzmiller (ed.), Islam and Bosnia (McGill-Queens University Press, ), -. e term ‘warchitecture’ stems from an exhibition developed by a group of Sarajevo architects early in the war. e term ‘urbicide’ was also used and popularized during the recent war in an exhibition and catalogue entitled ‘Mostar ‘ – Urbicide’, produced by the Croatian Defence Council and the Association of Architects of Mostar, and published by Mostar opcine. e author would like to thank Helen Walasek at the Bosnian Institute in London for her insight into these terms. ‘e Destruction by War of the Cultural Heritage in Croatia and Bosnia-Herzegovina presented by the Committee on Culture and Education’, Council of Europe Information Report ( February ), . See http:// stars.coe.fr/doc/doc/edoc.htm. One of the experts who prepared the report was Colin Kaiser, who has served as the Director of UNESCO in BiH.
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina of monuments and symbols in conflicts provides a conceptual framework for the specific case study of BiH. Next, a brief summary of the cultural destruction in BiH provides an historical context (Section III). Sections IV and V examine the process of Annex implementation since , including legislation, the development of a Commission to Preserve National Monuments (hereafter, ‘the Commission’, or ‘the Annex Commission’), and concrete implementation progress. Section VI reviews the continuing challenges to successful implementation, but also other ongoing efforts that complement and support the work of the Annex Commission. e final section offers concluding thoughts on the future of Annex , cultural heritage in BiH and lessons to be learned from the BiH experience when approaching cultural heritage in other post-conflict or transitional regions. To be truly sustainable and effective, minority rights protection must apply not only to people, but to all aspects of culture, community and identity. Finding ways to protect the heritage of all groups can help to make communities socially, culturally and economically richer. Annex is a step in the right direction for BiH and might therefore serve as a model for other societies struggling with similar challenges. II. S M S C: F Symbols are often an element, or even a catalyst, of conflicts – particularly ethnic, religious or identity-based conflicts. e conflict that continues to claim victims in the Indian state of Gujarat (ironically Gandhi’s home state) has its roots in a conflict over a contested symbolic site. On December , radical Hindu nationalists tore down the Babri mosque in the city of Ayodhya, claiming that it had been built on the site of a twelfth century Hindu temple dedicated to the God Ram until that temple was itself demolished in the sixteenth century. Over , people were killed in the resultant clashes, and the attempt to rebuild the Hindu temple led to a series of further clashes throughout .9 Israel is full of contested sites which provide texture to the broader backdrop of conflict in the region. One cultural site conflict concerns the construction of a mosque near the large, modern Catholic Basilica of the Annunciation in Nazareth consecrated in , though several other churches had previously existed on the site of the modern-day structure. Regions that have experienced ongoing conflicts, large-scale population movements or frequent border changes, such as Greece and Turkey, the Caucasus, Sri Lanka, Cambodia, and other regions beset by turmoil and coming to terms with both the distant and recent past, all struggle with the role of managing symbols and monuments within the borders of contemporary nation states. Closer to BiH, Kosovo has had similar experiences as cultural heritage preservation has taken a backseat to nationalist politics. In April , evidence was presented at the Hague in the war crimes trial against Slobodan Milosevic attesting to the damage or destruction of approximately of Kosovo’s mosques from to , in a 9
Some parties claim that there are , Muslim monuments on sacred Hindu sites. Sunanda K. DattaRay, ‘Coming Apart at the Seams’, International Herald Tribune ( March ).
Valery Perry wave of cultural cleansing that accompanied massive population expulsions.10 Since the end of the Serbian offensive in the province and the establishment of a United Nations protectorate, there has been a reversal of fortune, as Orthodox monasteries and churches have come under attack by Kosovar Albanian nationalist paramilitary groups seeking to rid the province of its remaining Serbs.11 In neighbouring Macedonia, in advance of the September elections and amid an ongoing ‘cold peace’ among Macedonians and Albanians in the country, Prime Minister Ljubco Georgievski and other political leaders dedicated a -meter high cross on a hill near the capital of Skopje, where Georgievski said that ‘this cross represents a cornerstone of the future for thousands of years of Macedonia and Macedonians.’12 is event may not have been a good way to improve relations between Macedonians and Albanians, yet was viewed as an opportunity to gain political capital among Orthodox Macedonian voters. Such symbols carry great political value, and as such, are seen as serious threats to those not directly affiliated with the issue or event being commemorated. ese examples, and many others, are illustrative of tensions that arise as symbols emerge in territorial and identity-based conflicts. Symbols bind together territory and memory, and therefore territory and identity. For this reason, if territorial claims are indeed the root of many of the world’s conflicts,13 territorial claims with deep symbolic significance are that much more salient.14 Symbols play a self-perpetuating, often cyclical role in these conflicts, if not in actuality then at least in equally important perceptions among the parties. Conflicts over symbols are rooted in other interlocking nested conflicts, drawing energy from core issues such as territorial claims, economic difficulties or political power struggles. Symbols can be a central force of gravitation that pulls these other elements of a conflict together, giving them shape, cohesion and longevity. Symbols can also obscure the issues at the heart of a conflict. Symbols would be empty structures if not for their impact on and role in identity formation and identity maintenance through the power of memory. ‘Every country has its myths, shared narratives that weave together the conflict threads of its past and point the
10
11
12 13
14
e evidence was presented by Harvard University professor Andras Riedlmayer, who has done considerable work to document and lobby for protection of cultural heritage in BiH. See ‘Milosevic Trial Told of Serb Onslaught on Mosques’, Reuters ( April ), and Andrew Herscher and Andras Riedlmayer, ‘Architectural Heritage in Kosovo: A Post-War Report’, at http://www.haverford.edu/relg/sells/Kosovo/ herscheriedlmayer.htm. Andrew Herscher and Andras Riedlmayer, ‘Architectural Heritage in Kosovo …’, ibid. ‘Massive Cross Dedicated in Skopje’, RFERL Newsline ( August ). e role of territory in conflict is the central thesis in John A. Vasquez’s e War Puzzle: ‘It is argued here that concerns over territory, not power, have been the underlying and fundamental source of conflict that ends in war’, Cambridge: Cambridge University Press (), at . Consider the statement made during the wars in the former Yugoslavia: ‘Serbia is wherever Serbs are buried.’ Territory and symbols associated with ancestor worship played a key role in the rise of violent nationalism in Serbia. See Katherine Verdery, e Political Lives of Dead Bodies. New York: Columbia University Press, .
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina way forward.’15 Symbols and monuments serve as tangible manifestations of these narratives, which in turn ensure lasting memory. Symbolic sites and the shared narratives they reflect could conceivably stand simply and peacefully as concrete representations of a community’s identity and heritage. Unfortunately, throughout history, for reasons both intentional and unintentional, symbolic sites, monuments and sacred spaces of different groups have often overlapped, thereby threatening the identities of all groups by whom the symbols are revered. When a symbol becomes perceived as the physical representation or embodiment of a latent or violent conflict, often through the manipulation of its significance by nationalist leaders, its value in terms of identity and memory increases for all parties – as both a rallying point or as a threat. Ted Robert Gurr emphasizes the potential for politicization of symbols, writing that, ‘[m]any of the appeals used by ethnopolitical leaders aim at increasing the salience of group identity by invoking historical memory and cultural symbols.’16 Symbols can be either positive or negative and still retain their value among a community. A symbol can represent a sense of a shared ancient heritage of which a community can be proud, or an historic loss which should be avenged, and in some cases can have positive or negative connotations depending on the community interpreting its meaning. Symbols of this nature can exist across a wide swath of land or territory; for instance the general importance of Kosovo as a cultural and religious heartland to Serbs, or much of the Holy Land. ey can also exist on highly specific and defined plots of land. is is particularly the case when specific pieces of territory are contested by various religious or ethnic groups, making multilayered symbolic site conflicts all the more difficult to resolve peacefully and effectively. In these cases, the site in question quickly becomes the core element in a zero-sum game: ‘If the site is not ours, then it will be theirs. If the site is ours, then it cannot be theirs.’ Sites that may have been home to alternating groups throughout history, likely due to a desirable physical location (on the top of a hill, in the centre of a settlement, at a location memorialized in ancient literature, etc.), become the prize for a people who feel a contemporary entitlement to restore past treasures and right past wrongs. Unfortunately, many parties seek restitution based on ‘their’ historical ‘Golden Age’, their moment in history that is held most dearly through their shared narrative. When a symbolic site has changed ownership throughout the ages, the question arising is who should be ‘awarded’ the site today and how a compromise could be reached. Several social and political characteristics that provide and promote an environment in which a symbol may become an element of a conflict can be identified: – Simultaneous claims to a single piece of land or territory or to a specific symbol, site or monument, for historic, religious or cultural reasons; 15 16
Shankar Vedantam, ‘India is… A Culture Struggles with all that Defines it.’ e Washington Post ( March ), at B. Ted Robert Gurr, ‘Minorities, Nationalists and Conflict’, in Chester Crocker and Fen Osler Hampson (eds.), Managing Global Chaos: Sources of and Responses to International Conflict (Washington DC: USIP Press, ), -, at .
Valery Perry – A climate in which parties are seeking to assert, define or redefine their heritage; – A politicized atmosphere in which nationalist leaders are willing to manipulate real or potential intercommunal tensions, stoke fears and grievances and are willing to put narrow national interests over shared intercommunal interests; – A vacuum in the rule of law and institutions that allows the rise of violent conflict; – e lack of systems and processes through which people or organizations might negotiate a peaceful and mutually acceptable compromise. It is clear that conflicts over symbols do not exist in a vacuum and that political, social and economic tensions are the kindling of violent conflict. However, symbols can be the ‘ceremonial log’ that causes the fire to burn more brightly. ‘e conjunction of shared grievances with a strong sense of group identity and common interest … provides highly combustible material that fuels spontaneous action whenever external control weakens.’17 Consideration of these distinct but interrelated elements is important in seeking to understand the timing of conflicts in which symbols become a target. For instance, in reference to the cultural destruction in BiH, it is interesting to consider why such wholesale destruction did not happen during World War II and the simultaneous civil war. Mosques and other sites that had stood firm throughout the bloodshed and turmoil in the s survived only to face demolition years later. What was different? How were the motivations different? What was the combination of the above-noted factors, then and now, that led to such different outcomes at these sites?18 Understanding these issues and motivations is central to both seeking to preserve and protect heritage in conflict zones, and to better understanding the dynamics of a conflict itself. Annex of the DPA provides a system and process, as well as a structure and mandate, to negotiate consistent, apolitical solutions. In addition to providing a necessary technical system, implementation of Annex and long-term protection of national monuments will likely serve to reveal many aspects of the war that have been ignored, whether consciously or unconsciously. erefore, as local communities implement the measures designed to rebuild and preserve the heritage of BiH, the act of not only acknowledging but protecting BiH’s heritage may help to reverse the attempted erasure of memory and history through ethnic cleansing. III. B H C D BH e destruction of cultural heritage in the former Yugoslavia, and in BiH in particular, is well documented. e shelling of the historic walled city of Dubrovnik in November and December (and again later in May and June ) captured the attention of television news viewers across the world. e destruction to follow in BiH would be worse, though not as intensely publicized. Organized efforts to assess the damage began 17
18
Ibid., at . Archaeologist Richard Carlton of the University of Newcastle is working on a study comparing cultural heritage destruction in BiH in World War II and during the war in the s.
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina as early as the attempts at peace negotiations, as the war was still gaining momentum and borders were being violently redrawn. e CoE began investigating the damage to heritage in Croatia and BiH in , issuing a report with a focus on Vukovar, Mostar and Dubrovnik in February .19 e crimes did not go unnoticed, though in the climate of war, through the breakdown of civil order and rule of law, and in the absence of ‘cultural heritage peacekeepers’, it was impossible to stop them. Cultural cleansing was particularly evident in the early stages of the war, as territories fell under the control of competing factions, ethnic cleansing programmes were initiated and fear tactics were employed to ensure that refugees driven out of their homes would not seek to return. e year was particularly destructive for Islamic architecture, as mosques in Bijeljina, Banja Luka, Stolac, Foca and Zvornik were systematically destroyed, in some cases in a single day or night and in other cases over a period of time. Roman Catholic sites were damaged or destroyed early in the war, but many that had survived the early years of the war were ultimately targeted in mid-to-late , as changes in battle positions and waves of ethnic cleansing in the Croatian Krajina and northern BiH led to final cleansing operations before the end of the war.20 Revenge attacks against Orthodox Serb sites occurred throughout the war, though not with the same high frequency. is cultural cleansing cannot be dismissed as emblematic of ‘age-old ethnic hatreds’, the convenient excuse used both by foreign observers seeking to remain neutral and uninvolved, and domestic nationalists seeking to stoke intercommunal fears. While BiH has occupied a position between great power empires that has made it an often reluctant player in political power struggles and empire building, the mere fact that so many different religious structures existed into the late twentieth century illustrates the relative tolerance that even attracted Spain’s expelled Jewish population in the fifteenth and sixteenth centuries. In a presentation given during the war, Andras Riedlmayer, bibliographer at the Aga Khan Program for Islamic Architecture at Harvard University, eloquently addressed this issue: Buildings are intentional structures. ey do not appear at random. When you have a city that does not have separate religious quarters, as neither Sarajevo nor Mostar did, and when you have houses of worship located next to each other, it is an indication that people are willing to live with each other. [ese structures] being next to each other, are not acts of challenge, but rather statements of coexistence. If they couldn’t stand the sight of each other, they would have built out of sight of each other.21
19
20 21
‘e Destruction by War of the Cultural Heritage in Croatia and Bosnia Herzegovina …’. See http://www.haverford.edu/relg/sells for information regarding days and names of the sites damaged. Andras Riedlmayer, ‘Bosnia’s Multicultural Heritage and its Destruction’, http://www.kakarigi.net/ manu/ceip.htm.
Valery Perry An interesting and early kind of ‘human rights document’ even formally protected the diverse community. e Ahdnama Declaration was proclaimed on May by Sultan Mehmet, the Muslim conqueror of Bosnia, and protected the rights of people to worship as they wish: I, e Sultan Mehmet Khan inform all the world that the ones who possess this imperial edict, the Bosnian Franciscans, have got into my good graces, so I command: Let nobody bother or disturb those who are mentioned, not their churches. Let them dwell in peace in my empire. And let those who have become refugees be and safe [sic]. Let them return and let them settle down in their monasteries without fear in all the countries of my empire. Neither my royal highness, nor my viziers or employees, nor my servants, nor any of the citizens of my empire shall insult or disturb them. Let nobody attack, insult or endanger neither their life or their property or the property of their church. Even if they bring somebody from abroad into my country, they are allowed to do so.22 As well as being a statement of religious tolerance, this declaration served as an early form of cultural heritage protection. While it must be noted that there were churches that were converted into mosques during the Ottoman era, and the spirit of the Ahdnama Declaration was not always respected in practice, there was not a concerted effort to destroy the culture and heritage of ‘the other’. roughout the Ottoman Empire and into the Austro-Hungarian period of rule, new structures were erected and old structures rebuilt, creating a unique skyline of minarets, bell towers, church steeples and public buildings that complemented each other by their reflections of various eras in BiH. During the recent war these expressions of tolerance were again evident, though not always heeded. At a interdenominational gathering, Belgrade’s Archbishop Franc Perko stated: One of the most impressive characteristics of this war is the unscrupulous destruction of houses of prayer. Nothing of the kind was ever seen in any war … . e Turks ruled the Balkans for five-hundred years, but Christian places of worship have remained, and in this war, everybody destroyed everything they could. is is a reflection of a lack of culture. Only a morally ruined man can destroy other people’s places of worship.23 22 23
See text online at http://www.guidetoturkey.com/aboutturkey/history/ahdnama.asp. Ejub Stitkovac, ‘Building Places of Worship Together’, AIM Press ( April ), at http:// www.aimpress.ch.
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina In his book e Bridge Betrayed: Religion and Genocide in Bosnia, Michael Sells explains the role of religious mythology and nationalist fervour in the political and cultural dissolution of Yugoslavia. rough a review of the manipulation of scripture and religious symbols, he argues that Bosnia was historically caught in the middle of an ongoing struggle between Catholicism and Orthodoxy, in which nationalists and purists viewed the ultimate outcome as a zero-sum, either-or game, failing to see the possibility of an ethnic or religious ‘third way’. He suggests that ‘Bosnian culture has always resisted being reduced to a single religion or ethnicity’, but that ‘the armies of Serb and Croat religious nationalists targeted Bosnian culture, monuments, cultural leaders, teachers and students, so that someday advocates of religious apartheid in Bosnia could declare: ‘ere is no Bosnian culture.’’24 e inclusion of Annex in the Dayton Agreement held out the possibility that the elimination of this Bosnian culture would not be tolerated, and that it could, in fact, be rehabilitated. IV. A 8 D P A. Dayton’s Mandate Annex of the Dayton Peace Agreement is formally entitled ‘Agreement on Commission to Preserve National Monuments’, and consists of short articles. It provides a very basic framework, including the following tasks and mandates: – Establishment of an independent Commission according to specific composition criteria (Articles and ); – Funding of the Commission and its staff, to be determined and shared jointly by the entities (Article ); – A mandate to receive and decide on petitions for the designation of property as a national monument (Article ); – Cooperation among the parties, cantons, and municipalities with the work of the Commission (Article ); – Transfer of the Commission from the parties to the Government of BiH five years after the signing of the DPA (Article ). Article concerns ‘Eligibility’ and is the basis for consideration of a site as a national monument. e full text of this article is as follows: e following shall be eligible for designation as National Monuments: movable or immovable property of great importance to a group of people with common cultural, historic, religious or ethnic heritage, such as monuments of architecture, art or history; archaeological sites; groups of buildings; as well as cemeteries.25 Michael Sells, e Bridge Betrayed: Religion and Genocide in Bosnia (Berkeley, University of California Press, ), , . 25 GFAP, Annex , Article (emphasis added). 24
Valery Perry is definition with its reference to ‘a group of people’ makes it clear that monuments are defined by a community that holds them in value, while heritage professionals typically use the word ‘national monument’ to refer to a monument of importance to the state.26 However, in BiH the word ‘nation’ and its derivatives connote ethnicity, and the three official ‘nations’ of BiH are its constituent peoples – the Bosniaks, Bosnian Croats and Bosnian Serbs. e Annex Commission has nonetheless also taken steps to preserve monuments that are more ‘general’ in their significance, and reflect a community broader than a single ethnic group. Like many of the DPA’s annexes (the highly detailed Annex A on Military Aspects of the Peace Settlement being the exception), Annex lays out broad parameters that can be implemented according to various interpretations, and which leave room for local development of the process. More detailed legislation and Commission rules and procedures were left for designated experts to develop and parliamentary bodies to adopt. B. Relevant Agreements and Conventions ere are many international and European conventions and agreements that can contribute to the preservation and protection of cultural heritage. e first international treaty for the protection of cultural heritage was developed in at the Hague Conference, and numerous others later built on this first step, including the following: – European Cultural Convention (Paris, )27 – Convention for the Protection of Cultural Property in the Event of Armed Conflict (e Hague, )28 – European Convention on the Protection of the Archaeological Heritage (London, )29 – Convention for the Protection of World Cultural and Natural Heritage (Paris, )30 – Convention for the Protection of the Architectural Heritage of Europe (Granada, )31
26 27
28 29
30
31
e author would again like to thank Helen Walasek for her insight on this issue. Adopted on December in Paris, entered into force on May , ETS No. . See at http: //conventions.coe.int/Treaty/EN/WhatYouWant.asp?NT=. Adopted on May in e Hague, entered into force on August , registration no. / UNTS . See at http://www.unesco.org/culture/laws/hague/html_eng/page.shtml. Adopted on May in London, entered into force on November , ETS No. ; revised on January in Valletta, entered into force on May , ETS No. . See at http:// conventions.coe.int/Treaty/EN/cadreprincipal.htm Adopted on November in Paris, entered into force December , registration no. / UNTS . See at http://www.treaty.un.org/LibertyIMS::/Cmd=Request;Request=TREATYBYLO C;Form=none;VF_Volume=UNVOL;VF_File=;Page=;Type=page. Adopted on October in Granada, entered into force on December , ETS No. . See at http://conventions.coe.int/Treaty/EN/cadreprincipal.htm.
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina BiH is a signatory to these conventions as a successor state to Yugoslavia. While the conventions were clearly not respected by all parties in wartime, together with the more specific Annex , they provide a foundation for progress in peacetime. C. e First Five Years: December - December Article of Annex states that the initial Annex Commission (until transfer of the Commission to the BiH authorities) was to include two members appointed by the Federation of BiH (FBiH), one member appointed by the Republika Srpska (RS), and two additional members appointed by the Director of the United Nations Education, Scientific and Cultural Organization (UNESCO), each serving for a five-year term. e UNESCO Director was also to designate one member to serve as chairman. After the first five years, the members of the Commission would be appointed by the Presidency of BiH, when responsibility would have shifted to local authorities. UNESCO is the only international organization noted in the Annex, and its mandate and responsibilities are limited to the selection of two Commission representatives and designation of the chairman. While not highly visible, Annex implementation began with the establishment of a Commission in . UNESCO funded the work of the Commission for this initial five-year period. e Commission met approximately every three to four months, and in contrast to the heavy-handed role of the international community in other matters of Dayton implementation, the Annex process was driven by the Bosnian representatives, rather than by representatives of the international community. Several individuals who participated in this process noted confidentially that a key difficulty during this time was that the representatives were not permanently appointed and did not attend the meetings consistently, making it difficult to move forward, assign responsibility and accountability, and take concrete actions. is was noted to be a particular problem among the often-changing RS representatives, and it was suggested that this might have been a subtle way to obstruct progress. e key accomplishment of the Commission during this period was the development of a provisional list of national monuments. However, while an achievement in itself, Annex does not specifically require that such a comprehensive list be developed. Instead, it mandates that the Commission should proceed by accepting petitions for potential designated monuments. Based on these petitions and subsequent selection decisions by the Commission, a list would in time be compiled. Some observers and participants indicated that the Commission members decided not to initiate a petition process out of concern that the Commission lacked the financial and human resources to effectively process the large number of petitions it expected to be submitted. Making allowances for these circumstances and limitations, international observers at the time agreed with this decision. While accepting and reviewing petitions would have been the ideal, it was not viewed as appropriate or logistically possible under the given constraints.32 32
For a basic point of reference, claims or petition processes have been used by the Centre for Real Property
Valery Perry erefore, rather than working through a petition process, the Commission members developed a provisional list of potential national monuments, building on existing pre-war documentation and consulting with experts. e process of developing the list continued through , including a series of joint meetings of the representatives of the various preservation institutes in BiH. e most recent version of the provisional list (circulated in ) contained designated monuments. 33 Development of the provisional list has been a controversial and delicate exercise. At one stage the Commission was ‘unwilling to publicize the contents of the list, due to the well-founded fear that ultra-nationalist groups or individuals might attempt to destroy monuments and sites that reflect a different group’s heritage.’34 However, in the absence of a petition process, the list development constituted a small first step in simply defining cultural heritage sites throughout BiH, as all sites included on the list would receive provisional status and protection as national monuments. e provisional list included three general categories of monuments: – Damaged or destroyed – Existing or intact – Movable property (art, icons, etc.) ere is often a misperception – propagated and fuelled by nationalist politicians and supporters – that Annex refers only to religious buildings or monuments, when in fact, a review of the provisional list reveals much greater diversity in the initial identification of important sites. Of the total number of potential monuments, approximately % are religious in nature, and can be assigned to the different faiths as detailed in Table : Table . Distribution of Religious Monuments35
Religious36 Muslim
RS 22
FBiH 103
Total 125
Catholic
100
92
192
Orthodox
Jewish Total
33 34
36
88
0 210
27
3 225
115
3 435
Claims, which, as of , has received over ,, and by the Human Rights Chamber, which has received over ,. e breakdowns that follow are based on a total of , reflecting this count and coding and some instances of overlapping categories. ‘Is Dayton Failing?’, International Crisis Group Report ( October ). Source: Author’s Assessment. In this survey of the provisional list (developed by the author for this project), there was occasionally some difficulty in determining whether a church was Catholic or Orthodox. Decisions were made based on regional knowledge. e author would like to thank Ermina Porca for her assistance.
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina A review of the non-religious potential monuments reflects a similar range of diversity, illustrating that Annex is relevant to the entire cultural heritage of BiH. Table provides a breakdown of the cultural monuments and buildings listed: Table . Distribution of Non-Religious Monuments37
Cultural Castle/tower Important buildings (Parliament, post, banks, apartment buildings etc.)
Streets Schools Squares and fountains Hotels Bridges Natural-parks Museums and libraries Structures erected during the Tito/Socialist era Academies and theatres Stecak/necropolis of stecak (medieval tombstones) Famous houses Other historical and archaeological sites Total
RS 26 11
FBiH 29 9
Brcko38 1 13
Total 56 33
3 4 7 2 5 6 2 5
0 4 9 2 13 3 4 2
0 0 2 0 0 0 0 0
3 8 18 4 18 9 6 7
3 34
1 23
1 0
5 57
9 40
17 49
2 1
28 90
157
165
20
342
D. Human Rights Chamber Decision An important event that would affect progress in the implementation of Annex occurred outside the specific mandate of the Annex Commission. In , a legal case was filed by the Islamic Community with BiH’s Human Rights Chamber39 to appeal the ongoing difficulties and obstructions the Islamic Community had experienced in receiving the necessary permits to begin construction of mosques in Banja Luka. In its decision, issued on June , the Chamber noted that actions taken by the Commission to Preserve National Monuments established by Annex ‘did not preclude the Chamber from examining the applicant’s grievances’. is was fortunate, as at that time there was no Annex legislation that could assist in the resolution of grievances and little systematic activity by the Annex Commission. ‘e Chamber found that the failure of the authorities in Banja
Source: Author’s Assessment. Brcko is a special administrative district within BiH that is not a part of either Entity. 39 e Islamic Community in Bosnia and Herzegovina vs. the Republika Srpska, Case NO. CH//. 38
Valery Perry Luka to respond to the applicant’s request in March for permission to rebuild seven of the destroyed mosques was an interference with, or a limitation of, the right of the Muslim believers in Banja Luka to freely manifest their religion as guaranteed by Article [of the European Convention on Human Rights].’40 Authorities in the RS were therefore ordered to cease any obstructions and to issue the permits needed so that reconstruction could begin. is was an important moral victory, and an assertion of basic human rights in BiH. However, in the absence of a consistent and statewide legislative approach to the issue of reconstruction, there were still no systematic procedures for potential claimants, and no consistent process for parties interested in rebuilding. While the decision began to address the specific judicial issues under consideration, it did not offer a statewide solution or model for progress. E. Legislation Development ere were also initial steps towards the development of Annex legislation in the period -. Legislation was needed to supplement the terms of the Annex text and to lay the groundwork for subsequent activities once the Commission’s work transferred to local authorities. After initial work in , in the spring of UNESCO submitted a draft framework law to begin formally addressing the issues left unresolved yet earmarked for attention by Annex . is draft law addressed the matter of national monument protection at the state-level. It included issues of both movable and immovable heritage, suggested the creation of a -member ‘Heritage Commission’ and included procedures for the classification and registration of protected property. Rather than addressing only the issues included in Annex (primarily the designation of national monuments), this draft provided a broader structure for cultural heritage protection in BiH. e proposed law was rejected by the RS, in part in response to the placement of the law at the BiH state level and the proposed establishment of a -member state-level Commission, as the RS has been consistently reluctant to cede any authority from the entity to the state. e CoE has worked closely with UNESCO on general issues of heritage protection throughout Europe, and in , in cooperation with related diplomatic initiatives of the BiH CoE Special Representative, developed its own draft law.41 It proposed placing responsibility for implementation at the cantonal level in the Federation, through Cantonal Institutes for the Protection of Monuments in FBiH, and through an RS Institute in the RS. is draft also proposed an approach that expanded on the specific goals of Annex , placing a strong emphasis on conservation and protection of heritage, using a broad definition of national culture, and including detailed references concerning excavations and both movable and immovable monuments. However, this law was neither further developed nor adopted and failed to be a true catalyst for relevant legislative development. 40 41
Human Rights Chamber for Bosnia and Herzegovina Annual Report , available at http://www.hrc.ba/ english/annual_report//annex/a.htm. Law on the Protection and Preservation of Cultural Monuments in BiH.
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina F. - : A New Approach e nominal transfer of authority from the internationally supervised Commission to a BiH-owned institution took place automatically on December , as set out in Annex . e mandate of the Commission itself ended in March , leaving no subsequent structure and creating a legal void. Early saw little activity on the issue of Annex , despite the clear need for a more comprehensive and consistent approach to site rehabilitation and monument preservation. Since the end of the war and the beginning of refugee return and related attempts to rebuild, obstructionist local authorities throughout BiH had used a mix of procedural and bureaucratic tactics to stall or deter efforts to rebuild or rehabilitate monuments (particularly religious facilities) that had been damaged or destroyed in the war. Issuance of construction permits, slow and non-transparent decision-making processes, and the application of subjective, locally developed procedures contributed to slow progress on the community level, and growing frustrations and tensions among community groups seeking to rebuild. A series of controversial, news-making incidents occurred in the spring and summer of putting Annex back in the spotlight. Cornerstone-laying ceremonies were scheduled in May to inaugurate the rebuilding of mosques (both of which had been completely destroyed) in Trebinje and Banja Luka. In both cases, organized opposition to the ceremonies, augmented by bussed-in hooligans and fuelled by nationalist chants and alcohol, led to riots and violence. In Banja Luka more than ten people were injured, with one person dying later, and a large group of international observers and dignitaries were held hostage for hours during the ordeal.42 In August , controversy concerning the reconstruction of the Emperor’s mosque (Careva mosque) in Stolac also demonstrated the growing need for effective and standardized legal means of both addressing reconstruction as well as preventing or minimizing related civil unrest.43 Although not as highly visible, controversies also continued to surround such sites as the Radimlja Stecak in Stolac, the Zitomislici monastery in Mostar and other important sites. ese incidents together drew the attention of the international community to the issue of cultural heritage reconstruction and the apparent failure of existing procedural mechanisms to effectively implement Annex . While UNESCO and the international community in general had spent time and money addressing individual projects and issues on a caseby-case basis, the need for a broader solution became clear. In light of these events and ongoing concerns, the Office of the High Representative (OHR), the lead civilian peace implementation agency in BiH, became involved in order In April , a court in Banja Luka sentenced seven people in connection with the ceremony attacks. Sentences included four months imprisonment or fines of up to $. See ‘Bosnian Serbs Sentenced over Mosque Incident’, RFERL Newsline ( April ). 43 Unrest continued around the site of the mosque in Stolac, as on December a small group of extremists tore down a fence surrounding and protecting the building site. Radio Free Europe Daily Newsline ( December ). 42
Valery Perry to deal with the issue more systematically.44 e High Representative (then Ambassador Wolfgang Petritsch), unlike the other international organizations that had been working on the issue, has the power to impose legislation and remove obstructionists from their offices, and the involvement of the OHR re-invigorated attention on Annex . e OHR adopted a two-track approach to address Annex matter comprehensively. One track involved the development of harmonized, entity-level legislation on the issue (to avoid the resistance of politicians – particularly in the RS – to state-level legislation not specifically mandated in the DPA; the other track focused on re-constituting the Commission. On October , the High Representative requested the BiH state Presidency and the prime ministers of both entities to appoint representatives to serve on a working group to draft harmonized legislation. e harmonized draft laws served as the basis for new entity-level laws in the Federation, the RS and in the Brcko district. Working group members included representatives from the FBiH Ministry of Urban Planning, the FBiH Institute for the Protection of Historical Monuments, the RS Ministry of Science and Culture, the RS Ministry of Urban Planning and the Brcko District government. e first meeting of the working group was held on October in Sarajevo, and additional meetings followed in Banja Luka ( October ) and Brcko ( November ). Legislation was drafted and the draft laws were presented to the entity governments for consideration and adoption. In December the Federation parliament adopted a law that differed slightly from the draft, including a very broad definition of the monuments to be protected. e RS government continued the draft law review process into , but did not adopt it. On February , the High Representative issued two decisions concerning the Annex legislation. One decision amended the law passed in the Federation, changing the definition of a national monument to reflect those monuments specifically protected under the terms of the DPA and ensuring that permits be issued within days of a request. e second decision imposed the law in the RS (where the RS National Assembly had failed to adopt it). e goal of the amendments to the Federation law and the imposition of the law in the RS was the adoption of harmonized legislation and a countrywide, uniform procedure for the implementation of Annex .45 ere was no significant reaction among politicians or the citizenry to the imposition of these laws. e harmonized laws include a definition of the monuments protected by the legislation, specification of the ministries responsible for implementation46 and guidelines for e OHR had not been previously involved in Annex issues, though some of its decisions were relevant to it. For instance, the May decision of the High Representative on Socially Owned Land specified that land being used for religious or cultural purposes before April could not be reallocated. See http://www.ohr.int/ohr-dept/hr-rol/thedept/hr-reports/hrcc-hr-rep/--monthly/ default.asp?content_id=. 45 On February , the Presidency of BiH issued conclusions to initiate the drafting of documents related to the implementation of the Annex law and the reconstituted commission. 46 In the Federation, the ministry mandated to address implementation of the law is the Ministry of Urban Planning and Environment. In the RS the appropriate ministry is the Ministry of Urban Planning, 44
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina the timely issuance of permits for rehabilitation of national monuments. A key feature of the harmonized laws is the fact that, while the Annex Commission that proclaims national monuments exists at the state level, responsibility for implementation of these laws rests at the entity level. Previously, during the five years of the original Commission, the laws on administrative procedure placed the issue at the level of municipality and canton. is led to widely varying practices, as various regions subjectively employed a panoply of old laws and statutes to address the issue. On August , to ensure continued harmonization of relevant entity-level laws, the High Representative imposed changes to the RS Law on Urban Planning, eliminating the requirement for architectural and construction companies working on the rehabilitation of national monuments to obtain special licences for work in the RS, as this was seen as a potential avenue for unnecessary bureaucracy and potential obstruction. e harmonized laws continue to use the definition of national monument as originally proposed in Article of Annex . e laws make a clear point of defining ‘rehabilitation’ in order to eliminate the ‘construction vs. reconstruction’ debate, and therefore refer to bringing damaged or destroyed property back to its pre-war condition (Article ). Article stipulates that requests for permits for rehabilitation of national monuments are decided by the appropriate entity ministry and must be issued within days if appropriate documentation is submitted. e laws also reiterate the high levels of protection of national monuments by the governing bodies, the obligation to cooperate across all levels of governance and basic reference to monitoring, enforcement and inspection.47 Adoption of these laws ensured the needed legislation, and the reconstitution of the Commission would ensure eventual implementation. V. T A 8 C On December , the BiH Presidency reestablished the Annex Commission, and five Commission members were selected.48 It was decided that the post of the chairperson of the Commission rotates among the three BiH Commission members every six months; a common arrangement in BiH politics to ensure equal representation among the three constituent peoples. e Commission’s work is supported by an eleven-person secretariat, funded through the state of BiH. e first meeting of the reconstituted Commission was held on March . e Commission decides on the proclamation of national monuments in two ways: through the acceptance of new petitions and the review of the provisional list in order Housing Affairs and Utilities, Construction and Ecology, though there has been some discussion in the RS concerning the role of the Ministry for Science and Culture. In the Brcko District, the Department of Urbanism, Real Estate Affairs and Economic Development is charged with the implementation of the law. 47 e issue of movable property is not specifically addressed. 48 e Commission members are Amra Hadzimuhamedovic, Dubravko Lovrenovic, Liljana Sevo, Tina Wik and Zeynep Ahunbay. Tina Wik and Zeynep Ahunbay serve as international expert Commission members.
Valery Perry to reach a final decision regarding final monument status. Since autumn , the Commission has met monthly, typically for a four-day session at its office in Sarajevo. Between sessions, expert staff members research potential monuments under consideration, gathering the documentation necessary to allow Commission members to determine whether a site should be declared a national monument. Since the beginning of the Annex process and the initial development of the provisional list there have been valid concerns that designations were being made on the basis of political motivations rather than expert heritage considerations. One member of the original Commission noted that at times it seemed like everyone simply wanted to put as many of ‘their’ monuments on the provisional list as possible, without critical consideration of their true value. A non-political set of evaluation criteria was needed to ensure objective and consistent evaluation. At its meeting in September , the Commission agreed upon nine criteria that would be considered in evaluating potential national monuments (including both movable and immovable objects): time/era, historic value, artistic and aesthetic value, documentary clarity and evidence, symbolic value, townscape/landscape value, authenticity, uniqueness and integrity. Scientific and technical criteria would provide the basis for all decisions, rather than political motivations. Upon review of the information and documentation, and determination as to whether a site meets the established criteria, a decision by at least four members is necessary to proclaim a site a national monument. Outside experts may be invited to Commission meetings to provide additional information and the Commission may go into the field to visit sites under consideration. If the Commission fails to reach agreement based on the available evidence, the issue must be further studied so that a decision can be made. Once a designation is made, the decision is forwarded by the Annex secretariat to the appropriate municipal and entity authorities.49 Between May and May , ten sites have been declared national monuments.50 No monuments have been rejected or denied status as a national monument. Two sites under consideration at the sixth Commission meeting in January illustrate the challenges the Commissioners face in implementing this legislation. One highlights the complexities of time and ‘natural’ historical degradation, while the other represents the results of intentional destruction. Each can serve as a model or precedent for future similar cases. St. Mary’s church, with the adjacent St. Luke’s belfry in Jajce, was a Romanesque church dating from the twelfth to thirteenth century. In the first half of the fifteenth century it was renovated in the Gothic style. In the church was turned into a mosque. In a fire seriously damaged the building, and in the early nineteenth century only the walls of the church remained. Archaeological and architectural research was conducted on the site throughout the s, s and s. 49
50
Rules of Procedure for the Work of the Commission to Preserve National Monuments. Commission to Preserve National Monuments of Bosnia and Herzegovina Report of Activities, May – May . See the Annex Commission website, www.anekskomisija.com.ba for a full listing of declared sites.
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina e Jajce site was protected through its inclusion on the provisional list (no. ), and was granted permanent status as a national monument by the Commission. In addition to evaluating the criteria used to determine whether the site should be a permanent national monument, the Commission also considered the potential for renovations, to ensure that, once protected, any work on the site maintains the site’s historic integrity and represents all of the historical phases of development. To ensure potential future preservation efforts, the Commission sought to lay down what cannot be done to the site, rather than what can be done. is decision would preserve the historical importance of the site, while allowing for future rehabilitation work required for preservation and educational purposes. e consideration of the Cuprijska (Hadzi Alije Hadzisalihovica) mosque in Stolac presented a different set of problems and is a perfect example of the role of the Annex Commission in addressing sites intentionally destroyed during the war. e Cuprijska mosque was built in the late sixteenth/early seventeenth century, and as time progressed a ‘quarter’ or community evolved around it. Additional features were added over time, such as a fountain installed in front of the mosque in . In early , the former Bureau for the Protection of Cultural-Historic and Natural Heritage of Bosnia and Herzegovina conducted an architectural survey of the site including detailed technical sketches. e mosque was mined and demolished in August and the ruins taken to the nearby Radimlja riverbed. e Commission had to consider how to protect a site that was no longer there, and therefore address the results of intentional destruction.51 In the case of the Zitomislici Orthodox monastery, which was itself destroyed, the Commission decided to declare the site, any salvaged movable heritage and the ruins of the destroyed building, national monuments, to ensure that no further damage could be inflicted. To guarantee consistency, the site of the mosque and its ruins were declared a monument, with the understanding that in the case of future rehabilitation efforts, plans would be presented to and considered by the Commission in a ‘phase two’ deliberation on national monument designation of the rehabilitated site. While the Commission agreed that it could not mandate rehabilitation, it could demand that potential future rehabilitation meet stated conditions and rehabilitation standards.
51
e Krakow Charter, developed by the International Conference on Conservation in , actually recommends against the complete reconstruction of destroyed buildings: ‘e reconstruction of entire parts ‘in the style of the building’ should be avoided. Reconstruction of very small parts having architectural significance can be acceptable as an exception on condition that it is based on precise and indisputable documentation. If necessary, for a proper use of the building, completion of more extensive spatial and functional parts should reflect contemporary architecture. Reconstruction of an entire building, destroyed by armed conflict or natural disaster, is only acceptable if there are exceptional social or cultural motives that are related to the identity of the entire community.’ (emphasis added). is approach has been criticized, as every situation could have social or cultural motives related to a community’s identity.
Valery Perry VI. A 8 I: C O is review demonstrates that was a year of significant progress for the Annex Commission. However, there continue to be minor and more serious nationalist-motivated attacks on religious sites, including sites of importance to cultural heritage. While such attacks have not been exclusively against Islamic buildings, these have been the most severe. In March , a bomb was thrown at the Islamic assembly building in Janja, a town near Zvornik in northeast BiH, and a grenade was launched at a mosque in the RS village of Kozarska Dubica near Banja Luka. In September , shortly before the November elections, a newly reconstructed mosque in Kljuc near Gacko in the eastern RS was seriously damaged (the mosque, originally built in the sixteenth century, had just been rededicated on June ). ese incidents, happening at a time of international community downsizing, threaten to slow or reverse refugee return, particularly if viewed as part of an organized campaign of ethnic terrorism, rather than the work of individual vandals. Additionally, in spite of progress in legislation and implementation to protect cultural heritage, obstructionists have been very creative in seeking to delay implementation of Annex through other means. Urban renewal plans in Banja Luka and other towns are viewed by many as an attempt to trump orders to permit the reconstruction of mosques destroyed in the war. Also in Banja Luka reasons offered for why the Ferhadija mosque should not be rebuilt include claims that the noise from the mosque will disrupt students at the electrical engineering faculty nearby. Contradicting these claims of noisy disruption, a proposed regulatory plan for urban development in the city centre included a proposal for the construction of multi-storey buildings around all sides of the mosque site. Such a plan would block the view from and of the mosque, and effectively bury the heritage in contemporary structures, yet no concerns of noise were voiced. Another creative obstructionist tactic is based on the politicization of the science of archaeology.52 ere have been repeated instances in which the reconstruction of a mosque destroyed in the war has been delayed to allow for archaeological excavations. Some of the calls for excavations have been based on claims that a church had previously stood on the same site. Monsignor Luka Pavlovic of Mostar reportedly stated that mosques that had been built on the foundations of Catholic churches during the period of Ottoman rule were themselves evidence of criminal behaviour and that to allow religious facilities to be rebuilt now would be another criminal act. Rather then reconstruct sites damaged or destroyed in the s (as Annex stipulates), this Catholic Church leader suggested turning sites into archaeological sites or museums.53 In this case, rather For people wishing to prove their ‘right’ to a piece of land, archaeology provides historic shards of evidence. In Lebanon scholars are seeking to revive and rediscover their country’s archaeological and architectural history. See Ramsay Short, International Herald Tribune ( October ), . ‘In Israel the mania for archaeology, for excavating ancient Jewish ruins, is a way of legitimizing the presence of Jews in what was once Palestine.’ Chris Hedges, War is a Force that Gives Us Meaning. (New York: Public Affairs, ), . 53 ‘[at] crime was committed in the sixteenth century and should not be repeated in the st century. at’s why we suggested that the site be preserved and turned into an archaeological section or a museum that will not motivate hatred.’ Dnevni List ( February ), as translated in OHR Media Round Up. 52
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina than acknowledging recent crimes against culture and identity, historical grievances are being superimposed on the debate. As a result, not only is archaeology being used as a preventive against rehabilitation, but half-hearted promises of multi-religious reconciliatory symbols are also being suggested to prevent rehabilitation. is purported support for reconciliation by parties who have otherwise not sought improved intercommunal relations is seen as a disingenuous means of obstruction. Critics of this approach point out that such arguing against reconstruction of destroyed sites rewards the act of destruction, as the eliminated site is allowed to become the new status quo. Another controversy that brings together obstructionist tactics including both disingenuous archaeological claims and false shows of reconciliation is ongoing in Bijeljina, in northeast BiH. In March , five mosques in Bijeljina were destroyed and all remnants removed. e Islamic Community was repeatedly denied the permits needed to reconstruct the mosques until the international community intervened and mandated that the RS authorities grant the permits. When excavation of the site of the seventeenth century Atik mosque began on December , archaeological remains of mediaeval tombstones (stecci) were found on the site, giving determined opponents of the reconstruction another opportunity to stop the reconstruction process while an expert team investigated the site. Several clearly monoethnic Bijeljina non-governmental organizations (NGOs) (including the Serb Sisters, the Regional Association of Refugees and Displaced Persons and the Committee for Cherishing the Freedom-Loving Tradition of the Serbian People’s History), have voiced their demand for expert research of the site, and for the installation of a ‘multi-ethnic marking’ on the site to serve as a sign of reconciliation.54 As Bijelejina has not been the most politically moderate, pro-return community, these half-hearted suggestions of ‘reconciliation’ are rightly suspect. It is also important to point out that hard-line Bosniak nationalists are not always supportive of the reconstruction process themselves, as a destroyed mosque can be more of a political symbol than a rehabilitated mosque. In the case of the rehabilitation of the Ferhadija mosque in Banja Luka, the Islamic Community (closely tied to the nationalist Bosniak Party for Democratic Action (SDA)) has failed to submit proper documentation on time, has proposed changes to reconstruction plans that are outside the plans of the original mosque complex, and has challenged area regulatory development plans. All of these moves delay construction and allow the destroyed mosque to continue to serve as a focal point for grievances.55 ere are also concerns held by cultural heritage experts that while rapid progress may be viewed favourably by politicians (domestic and international), it is imperative that reconstruction be faithful to original materials, methods and design. is is particularly problematic with the high visibility mosque reconstruction projects in places such as Banja Luka, Stolac and Bijeljina, where without dedicated and objective expert ‘Bosnian Serb Groups Warn Against Rebuilding Mosque Destroyed During War’, BBC World-wide Monitoring ( January ). See also RTRS Banja Luka Radio News ( January ). 55 However, the RS Ministry for Urban Planning issued a rehabilitation permit for the Ferhadija mosque on August . 54
Valery Perry involvement it would be possible for political imperatives to trump historical accuracy. Gilles Pequeux, the French engineer who has reconstructed several bridges in BiH and is working on the effort to rebuild the old bridge in Mostar, has pointed out that historical accuracy demands time.56 Speed in reconstruction may be useful for politicians or be reassuring for a community wishing to return. However, historical accuracy is also important to ensure that BiH’s monuments are not cheap imitations of a formerly rich culture. Yet another concern is the influence of Saudi donors and elements of Wahhabism that may lead to the construction of new buildings rather than to the rehabilitation of traditional structures. Saudi donors seeking to broaden their influence through charitable work and mosque reconstruction are not faithful to the Ottoman and uniquely Bosnian style of mosques in BiH.57 ey have built or rebuilt mosques according to their own architectural and artistic standards. A prominent example of this is the Gazi Husrevbeg Mosque in Sarajevo, which, while able to survive the three-and-a-half year siege, was unable to retain its centuries-old charm at the hands of Saudi renovation, as painted tiles and frescoes were covered in a display of Wahhabi aesthetics.58 However, in the absence of other funding sources it may prove to be difficult for BiH religious leaders to decline such funding and support. e Annex Commission and the responsible entity authorities have been entrusted with ensuring that rehabilitative work is true to traditional style and design. While these ongoing challenges can seem insurmountable, there have also been signs of progress and promise outside the formal work of the Annex Commission. It is worth noting that successful rehabilitation projects do not receive nearly as much media coverage as acts of destruction or vandalism, but there are many quiet successes. e White Mosque in Srebrenica is being rebuilt and the cornerstone was laid in April . e reconstruction of the White Mosque in Brcko is also currently being undertaken without problems. Preparations have begun for the rehabilitation of the Orthodox Zitomislici monastery in Herzegovina. And in another important symbolic development, the Sarajevo Haggadah is on public display at the National Museum in Sarajevo for the first time in its history and has been declared a national monument by the Annex Commission. While symbols are often viewed as divisive, they can be mobilized for peace and tolerance. It is important to note that news coverage of the mosque controversy in Bijeljina reports that Serb families were among those who donated funds for the reconstruction, ‘You have to study what Hajrudin had in mind. You have to find the old plans, in the Ottoman libraries in Istanbul. You can’t just work from photographs. You have to establish where the original stone came from. You have to figure out how it was cut and how they used molten lead to bond the ironwork that held the stones in place.’ Michael Ignatieff, ‘When a Bridge is not a Bridge’, e New York Times ( October ). 57 is has occurred in Kosovo as well. See Jolyon Naegele, ‘Yugoslavia: Saudi Wahhabi Aid Workers Bulldoze Balkan Monument’, Radio Free Europe ( August ). 58 Michael Sells, ‘Erasing Culture: Wahhabism, Buddhism, Balkan Mosques’, April , , at http: //www.haverford.edu/relg/sells/reports/wahhabismbuddhasbegova.htm. 56
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina illustrating that not all signs of multiethnicity and cultural respect have disappeared.59 In another effort aimed at emphasizing that BiH’s strength lies in its multiculturalism, in March the members of the BiH Inter-Religious Council and the Head of the UN Mission in Bosnia and Herzegovina, Ambassador Jacques Paul Klein, signed a memorandum on the reconstruction of four religious sites. e four selected sites represent each of the four main faith in BiH: the Aladza mosque in Foca, the Orthodox cathedral in Sarajevo, a Catholic church in Derventa and the Jewish Cemetery in Sarajevo.60 An organization called e Soul of Europe has been working on an effort not only to rebuild the Ferhadija mosque in Banja Luka but to use the project as a symbol of reconciliation among peoples in BiH, as well as among all Europeans, both Christian and Muslim. e organization envisions a Banja Luka Partnership Forum that will help to foster civil society and public life, reconciliation and a peaceful atmosphere for the rehabilitated mosque. In addition to technical and financial imperatives, plans for community and individual healing through peace-building, cultural and educational activities are being planned. All religious communities are being invited and encouraged to participate in this effort, and fundraising and technical work is underway. Organizers hope that the papal visit in June will provide another impetus for reconciliation among Banja Luka’s religious communities. Another organization that is active in rehabilitating BiH’s heritage is the Swedish NGO Cultural Heritage Without Borders (CHWB). is NGO was founded in in the wake of the war of BiH, when ‘the systematic destruction of cultural heritage became apparent’.61 CHWB sends architectural and cultural protection experts into the field to identify projects that need support and to oversee the rehabilitation of these sites in cooperation with local partners. In addition to their direct hands-on work, CHWB also works to educate people in the region (both technical experts and community members) about their work and the process of cultural preservation. ey operate under a set of principles, including the belief that in terms of cultural heritage ‘whatever is done can always be undone’.62 Finally, and perhaps most importantly, BiH’s cultural heritage experts and citizen supporters are beginning to develop into a functional component of civil society. A group of interested people have met to discuss the need for, and the goals of, a statewide cultural heritage association, operating under the name Bosna i Herzegovina Nostra. e group has also begun to seek membership in the pan-European cultural heritage network, Europa Nostra, to both gain from the opportunities the network offers, as well as to be the first organization in BiH to contribute its expertise and experience to the European organization. In another example of local initiative the Travnik-based ‘Reconstruction of Demolished th Century Mosque Starts in Bosnian Serb Town’, BBC Monitoring International Reports ( December ). 60 e BiH Inter-Religious Council consists of the heads of BiH’s Catholic, Islamic, Jewish and Orthodox communities. 61 Cultural Heritage Without Borders web site, at http://www.chwb.org. 62 Ibid.
59
Valery Perry NGO, Strength in Diversity, has organized a series of programmes and activities aimed at teaching children about the cultural heritage of their country.63 ese independent efforts are needed, as the BiH Institutes for the Protection of Cultural and Natural Heritage that exist at the cantonal and entity levels throughout BiH have experts on staff but are poorly funded and have limited resources. Public and private initiatives can each play a role, and can also complement each other. ese examples all illustrate that while there are many challenges, there is an interest in cultural heritage in BiH and memory can be preserved in positive and productive ways. ey are also an important example of how an independent government body such as the Annex Commission can be complemented by other independent, non-governmental efforts. e development of a robust and independent third sector interested in the protection of BiH’s heritage will greatly contribute to the sustainability of these initiatives, as well as contribute to BiH’s still growing civil society. VII. C R A society cannot easily recapture what is lost or forget the tragedies that caused the loss; however, it can seek to rebuild, rehabilitate, reflect and remember. Much of Western Europe has suffered such cultural losses due to floods, neglect or war, yet efforts to preserve and rebuild throughout the twentieth century have ensured the central role and importance of cultural heritage. e numerous international and European conventions and agreements noted above illustrate the importance of cultural heritage in theory; the challenge is in fulfilling this commitment in practice. ere are some indications that there is a greater understanding of the damage that violent conflict causes to cultural heritage. From to June , a NATO Partnership for Peace Conference was organized on the initiative of the Republic of Poland, entitled ‘Cultural Heritage Protection in Wartime and in State of Emergency’. Participants reaffirmed the existing conventions, further formalized terms and definitions, extended the term ‘armed conflict’ to include internal civil conflicts, reviewed technologies that could help in preservation and protection of cultural heritage, and called for training for civilian and military personnel.64 It is difficult to conceive of NATO holding a conference on such a theme a generation ago, when the topic would have been considered too ‘soft’ for attention. e work of the International Committee of the Blue Shield (ICBS), ‘the cultural equivalent of the Red Cross’,65 was recognized in the Second Protocol to the Hague See Valery Perry, ‘ECMI Civil Society Project in Bosnia and Herzegovina: Supporting Annex of the Dayton Peace Agreement – Development of a Cultural Heritage Association and an Education Programme’, Workshop December , Sarajevo, February , available at http://www.ecmi.de/ doc/public_reports.html. Additional workshop reports that provide background on the Annex projects are also available on the ECMI website, at the same place. 64 See Final Communiqué, at http://www.icomos.org/blue_shield/krakowna.html. 65 See http://www.bl.uk/services/preservation/blueshield/history.html. 63
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina Convention, concluded in April by countries. It has the goal of long-term heritage protection and awareness through increased understanding of the impact of war on heritage.66 e UN Mission in Kosovo, the international administration in Kosovo, includes a Culture Department, and while its value in protecting heritage has been questioned due to bureaucracy and other issues that impact effectiveness, it shows that the will exists, if not the means. In post-Taliban Afghanistan there is broad recognition that the region’s rich culture was intentionally targeted for destruction and that in many ways history must be rebuilt through the rescue of surviving artefacts and the rehabilitation of monuments. Unfortunately, the recent looting of the National Museum in Baghdad and other cultural sites throughout Iraq offer a reminder that in times of war and upheaval, cultural heritage is often a low priority. In a world that increasingly appreciates the value of cultural heritage can BiH’s Annex experience inform other efforts, offer best practices or demonstrate any lessons learned? While it is easy to extract lessons learned from the post-war BiH experience, because the international presence and attention in the Balkans vastly overshadows rebuilding efforts in other parts of the world it is often difficult to practically apply best practices to other, more ‘neglected’ conflict zones. However, Annex implementation progress and success could offer at least six direct or indirect benefits to BiH and in turn could contribute to other cultural heritage rehabilitation and post-conflict efforts. First, at its most basic, Annex ensured that cultural heritage was on the radar screen of local and international actors in BiH. If a peace agreement or nation-building road map offers a ‘check list’ for priorities and necessary tasks, the inclusion of cultural heritage gives the issue legitimacy and increases the chances that it will be addressed. In the case of BiH, once empowered authorities imposed legislation and demanded implementation, the local experts and authorities successfully began the implementation process. e cultural heritage experts interested in these issues are professionals who need adequate resources and supportive legislation to do their job. Given those conditions, they can begin to do the work they were trained to do. In the absence of such a mandate, it is likely that cultural heritage protection would have been ignored as attention was devoted to other post-war issues. Second, mechanisms designed to ensure that buildings destroyed by war will be rehabilitated can help to preserve memory and prevent cultural extinction. A clear and poignant example of what happens when destroyed buildings are not rebuilt exists in Travnik. e Jewish synagogue of Travnik was destroyed during World War II, and as it was not rebuilt, and because there is not even a commemorative plaque at the site, many of Travnik’s young residents (and virtually all tourists) do not even know where it once stood. e history of the Jewish community in Travnik is therefore diminishing, as there is no cultural material existing to confirm its past. Rehabilitation of monuments inten66
e ICBS is made up of the International Council on Archives (ICA), the International Council on Museums (ICOM), the International Council of Monuments and Sites (ICOMOS) and the International Federation of Library Associations and Institutions (IFLA). For more information see http: //www.ifla.org/VI/admin/protect.htm.
Valery Perry tionally destroyed can help to counter the attempt at forced forgetfulness, and therefore preserve both identity and memory. ird, it is reasonable to assume that the reconstruction of destroyed sites promotes and encourages the return of refugees and displaced persons to their pre-war homes. A community in which a mosque or church is rebuilt is likely to be more appealing to a potential returnee than one in which the site of a pre-war symbol has been turned into a parking lot, market or alternate newly constructed religious facility. If return is a goal in a post-war settlement, then a sense of community must be returned to a place as well. Annex ensures that sites, ruins and structures are protected and lays the groundwork for rehabilitation. Further research on the importance of rebuilt religious or cultural sites to potential returnees would be interesting, in order to more systematically determine how much this factors into the complex and emotional decision to return home. A fourth potential benefit of cultural heritage protection and the rehabilitation of monuments is the impact such a move can have on reconciliation and peacebuilding. Coming to terms with the past and with the events of war is necessary for lasting peace and stability. Truth-telling and development of shared histories, acknowledgement of wrongs committed, praise for brave and virtuous actions in the face of danger, and the development of a welcoming and tolerant society all contribute to long-term conflict resolution and transformation and development of a community that has come to terms with its past, present and future. Rehabilitation and protection of symbols can be a tangible sign of this process. Fifth, protection and rehabilitation of cultural heritage can have a significant impact on the economic well-being and tourism potential of a community. A city with a rich history of unique and historic buildings will attract more tourists and adventurers than one with a hard-line reputation and nothing but contemporary structures. is is a particularly important aspect of reality for many regions that have had long and diverse histories with many different influences – those same symbols that can be manipulated for negative purposes are the sites most likely to be on a tourist’s ‘to see’ list. A stronger economy will benefit all communities. e Annex Commission recognizes this and is making recommendations for standardized commemorative plaques that can inform and educate tourists and BiH citizens alike. Finally, the Annex Commission, in addition to its role in implementing Annex legislation, will through the course of its duties become a wealthy source of information for scholars and researchers of the cultural heritage of BiH. Many archives, libraries and private collections of information were destroyed in the recent war and it is important to begin to compile as much information as possible once again. Every site reviewed for declaration as a national monument is researched by Annex secretariat staff to bring together historical and architectural information. All documentation is prepared in the local language as well as in English. Historians, architects, archaeologists, anthropologists and others are certain to find information through this documentation, as well as through the individuals and experts working on implementation. As is the case with many of the Dayton Agreement’s annexes, Annex will never really be ‘done.’ It is an evolving process that adapts to changing times and a changing
Reversing Ethnic and Cultural Cleansing in Bosnia and Herzegovina environment. Once the Commission has reviewed all submitted petitions and all of the sites on the provisional list, it may accept further petitions in the future. At that point, the Commission could evolve into a structure such as the National Register of Historic Places in the United States or similar counterparts throughout the world. It will be important for all actors involved in the Annex process – politicians, curators, architects, cultural society members, religious figures, community leaders and international donors and sponsors – to be realistic concerning the potential pace of change and what can be achieved in the short- and long-term. A combination of commitment and continued patience is necessary to ensure that progress made is lasting. A multiethnic society depends on effective rule of law, access to public services, human rights protection and power-sharing practices that protect all citizens, particularly minority populations and the marginalized. Cultural heritage rehabilitation, protection and conservation touches on these various themes and is therefore an interesting case study of the development and implementation of effective policy, the responsiveness of government authorities and the commitment of a state’s citizens to the past, present and future. Annex can be considered one of post-Dayton BiH’s ‘quiet successes.
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Eben Friedman *
Party System, Electoral Systems and Minority Representation in the Republic of Macedonia from 1990 to 2002†
I. I e southernmost republic of Yugoslavia from the constitution of the Federal People’s Republic of Yugoslavia in until the establishment of the Republic of Macedonia as an independent state in , Macedonia has consistently presented itself as a territory inhabited by the members of multiple ethnic groups.1 According to the census conducted in Macedonia in , ethnic Macedonians constitute .% of the country’s population.2 e same census indicates that ethnic Albanians account for .% of the population, ethnic Turks for another .%, Roms for .%, ethnic Serbs for .%, and Vlachs for .%.
* †
1
2
Ph.D. in Political Science (University of California, San Diego); Research Associate, European Centre for Minority Issues, Flensburg, Germany. is study draws heavily on the author’s doctoral thesis, ‘Explaining the Political Integration of Minorities: Roms as a Hard Case’ (Department of Political Science, University of California, San Diego, ), the completion of which was made possible by support from the American Councils for International Education (through the US Department of State, Program for Research and Training on Eastern Europe and the Independent States of the Former Soviet Union); the American Council of Learned Societies (Fellowship for East European Studies); the Center for German and European Studies; the J. William Fulbright Foreign Scholarship Board; the Institute on Global Conflict and Cooperation; the University of California, Berkeley; the University of California, San Diego; and the University of Pittsburgh. I also extend my thanks to Victor Friedman for his comments on an earlier draft of this chapter. e preamble of the Constitution of the Republic of Macedonia, for example, which presents the country as a ‘national state of the Macedonian nation’, nonetheless promises to secure the ‘complete civil equality and enduring coexistence’ of the Albanians, Turks, Vlachs, Roms, and ‘the other nationalities which live in the Republic of Macedonia’. ‘Ustav na Republika Makedonija’, Služben vesnik na Republika Makedonija /. Zavod za statistika na Republika Makedonija, e Census of Population, Households, Dwellings and Agricultural Holdings in the Republic of Macedonia, Vol. XIII (Skopje, ), . While another census was conducted in late , its results have not been released as of May .
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Eben Friedman While these figures have been the subject of much controversy, this very controversy is evidence of Macedonia’s multiethnicity.3 More than a decade after Macedonia’s secession from Yugoslavia, the status of the country as such remains highly tenuous, with several of the characteristics which define Macedonia as a state challenged from both without and within the Republic’s borders.4 Bulgarian scholars and political figures have denied repeatedly that the literary Macedonian language is in fact a language, with the Bulgarian Academy of Sciences in publishing an atlas of Bulgarian dialects covering all of the Republic of Macedonia as well as southeastern Serbia.5 e Serbian Orthodox Church, on the other hand, refuses to recognize the autocephalous Macedonian Orthodox Church, while Greece disputes the Republic of Macedonia’s right to call itself by that name.6 Finally, and perhaps most importantly, nearly two years after the signing of the Framework Agreement designed to bring an end to an intermittent armed conflict between Macedonian government forces and the ethnic Albanian National Liberation Army,7 not all of the territory included in the Republic of Macedonia is under the control of state authorities. While the issues outlined in the preceding paragraphs are certainly among the most pressing faced by the Republic of Macedonia and its inhabitants, the focus of this article is more mundane. Covering the period from the first multiparty elections of through the parliamentary elections of , the article provides a sketch of the ethnopolitical landscape in the Republic of Macedonia as manifested in party politics. Accordingly, the first part is devoted to a profile of Macedonia’s party system. Beginning with the two ethnic Macedonian political parties which have set the dynamic of party politics in the country as a whole, I then present Macedonia’s main ethnic Albanian parties as they have developed through the period under examination. Also included in the overview are 3
4
5 6 7
Referring to the controversy surrounding the results of the previous Macedonian census, conducted in , Victor Friedman points out that the rival claims of Macedonia’s ethnic Albanians (who had been encouraged with considerable success by ethnic Albanian political leaders to boycott the census), Serbs, Turks, Roms, Greeks, Egyptians, Bulgarians and Vlachs surpassed the total population of Macedonia while leaving ethnic Macedonians uncounted. Victor Friedman, ‘Observing the Observers: Language, Ethnicity, and Power in the Macedonian Census and Beyond’, in Barnett R. Rubin (ed.), Toward Comprehensive Peace in Southeast Europe: Conflict Prevention in the South Balkans (New York, ), -, at . is discussion owes much to Victor Friedman’s ‘e Symbolic Geography of Political Instability’, Plenary Roundtable Presentation at the First Conference of the Southeast European Studies Association,, e Southwestern Balkans: Current Situation and Prospects for the Future, University of North Carolina, Chapel Hill, - April . I am grateful to Friedman for allowing me to cite his presentation. Bâlgarska akademija na naukite, Bâlgarski dialekten atlas, Obobštavašt tom, I-III: Fonetika, akcentologija, leksika (Sofia, ). Kyril Drezov, ‘Macedonian Identity: An Overview of the Major Claims’, in James Pettifer (ed.), e New Macedonian Question (New York, ), -, at -. e National Liberation Army was widely perceived as an outgrowth of the Kosovo Liberation Army, with a document circulated in October by former spokesperson for the Macedonian government Antonio Milošoski calling Macedonia ‘the first State to have been attacked by a UN protectorate’. Antonio Milošoski, ‘Albanians without Rights or European Talebeans [sic]?’, electronic mail, received by author October .
Party System, Electoral Systems and Minority Representation in Macedonia Romani political parties, which, unlike Romani political parties in other countries, have maintained a parliamentary presence throughout the post-communist period.8 Whereas the first part outlines the development of the party system in the Republic of Macedonia since , the second part focuses on the three different electoral systems operating in the country’s four multi-party parliamentary elections. Presenting the defining characteristics of the individual electoral systems, I also take a brief look at the political environment affecting institutional design in each instance. I then show how the minority political parties presented in the first part of the article have fared under the various electoral systems. In so doing, I demonstrate that the record of the electoral systems’ effects on minority representation in the Assembly of the Republic of Macedonia has been mixed. II. T P S R M A. e Centrality of Ethnicity For the population of the Republic of Macedonia as a whole, the main factor in party choice is ethnicity, with sociodemographic characteristics playing a role only within the boundaries of ethnicity.9 A poll of , persons conducted before the first post-communist elections of , for example, revealed that the only party without a constituency clearly defined on the basis of ethnicity was the Party of Yugoslavs.10 Also noteworthy is that this party had ceased to exist by the next parliamentary elections. Not surprisingly, ethnicization in Macedonia is dominated by the country’s two largest ethnic groups, Macedonians and Albanians.11 Macedonia’s Romani political parties, on the other hand, have tended to stress their loyalty to the state over explicitly ethnic issues. Although political parties representing ethnic groups other than Macedonians, Albanians, and Roms have sometimes been present in parliament, I exclude them from the current analysis on the grounds that their presence has been less constant than that of the groups treated here. 9 Panajotis Cakirpaloglu and Dušan M. Verigikj, Izbori vo Makedonija (Skopje, ), ; Lidija Hristova, ‘Izbornoto odnesuvanje na gragjanite’, in Parlamentarni izbori ’ vo Makedonija (Skopje, ), -; Aleksandar Šoljakovski, ‘Levicata desno, desnicata levo: Mnogu politički partii – mali rezultati’, Nova Makedonija September , . 10 Cakirpaloglu and Verigikj, Izbori…, -. 11 Insofar as political parties in Macedonia derive their support ‘overwhelmingly from an identifiable ethnic group,’ Macedonia’s party system fits Donald Horowitz’s definition of an ‘ethnic party system’. Donald Horowitz, Ethnic Groups in Conflict (Berkeley, ), . ‘To be an ethnic party, a party does not have to command an exclusive hold on the allegiance of group members. It is how the party’s support is distributed, and not how the ethnic group’s support is distributed, that is decisive.’ Ibid., (emphasis in the original). In light of Horowitz’s definition of ethnic parties and ethnic party systems, the fact that Macedonia’s Albanians consistently vote for parties associated explicitly with their own ethnic group suffices to make the Macedonian party system ‘ethnic’, even though not all political parties in Macedonia campaign on the basis of ethnicity. As Hristova (‘Izbornoto odnesuvanje…’, -) points out, the polarization of the Macedonian party system on the basis of ethnicity means that while ethnic Macedonians vote almost exclusively for Macedonian parties and ethnic Albanians for Albanian parties, ethnic Turks, Serbs, and Roms qua members of smaller ethnic groups often vote for ethnic Macedonian political parties. 8
Eben Friedman e table below lists the political parties discussed in the remainder of the chapter by their original language abbreviations and their full names in translation, along with the parties’ respective ethnic affiliations. e original-language names of the parties are given in footnotes. Table . Selected Political Parties of the Republic of Macedonia
Ethnic affiliation
Party abbreviation VMRO-DPMNE
Macedonian
Albanian
Romani
SDSM PPD PDP PPD-Sh PDSH BDI PDK PSERM PPRM SRM
Party name Internal Macedonian Revolutionary Organization – Democratic Party for Macedonian National Unity12 Social Democratic Union of Macedonia13 Party for Democratic Prosperity14 People’s Democratic Party15 Party for Democratic Prosperity of the Albanians16 Democratic Party of Albanians17 Democratic Union for Integration18 National Democratic Party19 Party for Complete Emancipation of the Roms of Macedonia20 United Party of the Roms of Macedonia21 Union of the Roms in Macedonia22
Macedonian name: Vnatrešna makedonska revolucionerna organizacija – Demokratska partija za makedonsko nacionalno edinstvo. 13 Macedonian name: Socijaldemokratski sojuz na Makedonija. 14 Albanian name: Partia për Prosperitet Demokratik. 15 Albanian name: Partia Demokratike Popullore. 16 Albanian name: Partia për Prosperitet Demokratik të Shqiptarëve. 17 Albanian name: Partia Demokratike Shqiptare. 18 Albanian name: Bashkimi Demokratik për Integrim. 19 Albanian name: Partia Demokratike Kombëtare. 20 Romani name: Partija Saste Emancipacijake e Romengiri ki Makedonija. 21 Romani name: Pašakerdi Partia e Romengiri tari Makedonia. 22 Macedonian name: Sojuz na Romite vo Makedonija. Although SRM is a Romani political party, it is called by its Macedonian name. 12
Party System, Electoral Systems and Minority Representation in Macedonia B. Ethnic Macedonian Political Parties 1. e Internal Macedonian Revolutionary Organization – Democratic Party for Macedonian National Unity (VMRO-DPMNE) e main split among parties of the ethnic Macedonian majority is between the Social Democratic Union of Macedonia and the Internal Macedonian Revolutionary Organization – Democratic Party for Macedonian National Unity (VMRO-DPMNE). Whereas the former presents itself and is perceived as the heir to the League of Communists of Macedonia, the latter identifies itself and is identified as the descendant of the original Internal Macedonian Revolutionary Organization founded to fight the Ottomans.23 us, Article of VMRO-DPMNE’s Statute explains that the first part of the party’s name ‘expresses the tradition of the Macedonian people on whose ideo-political struggle … the programmatic goals and tasks of the party are built’.24 In its electoral programme, VMRO-DPMNE refers to ‘[t]he sovereignty and independence of the Republic of Macedonia and the Macedonian nation as the bearer of her statehood [državnost]’, while explicitly advocating a civic society.25 In similar fashion, the programme declares the Republic of Macedonia to be a secular state while promising support to the Macedonian Orthodox Church in integrating itself into the eological Faculty of the University of Sts. Cyril and Methodius in Skopje.26 In the area of interethnic relations, VMRODPMNE lists ‘special responsibilities’ of the members of ‘national minorities’ and ‘ethnic groups’, including ‘respect of the Constitution and the laws of the state’, ‘respect of the rights of the majority, especially in surroundings where it is in the minority’, and ‘abstention from activities which are directed against the territorial integrity, sovereignty, and political independence of the state’.27 If the reference to Macedonia’s ethnic Albanian population is not completely clear in the discussion of interethnic relations, the section of VMRO-DPMNE’s electoral programme entitled ‘Population and Demographic Policy’ leaves little room for doubt. Characterizing uncontrolled natality as a characteristic of the ‘ird World’, the programme states the need for an ‘appropriate population policy, which will restore and will maintain a balance between biology and culture’ in order to ensure ‘our demographic, economic and political stability’.28 With an eye to eliminating ‘unfavourable characteristics’ of demographic development in Macedonia since the Second World War, VMRODPMNE advocates reducing high birth rates, as well as preventing significant migrations into the country, particularly from Albania, Kosovo and Sandžak, ‘due to a danger of a
23
24 25
26 27
28
e current VMRO-DPMNE was founded on June in Skopje. Vnatrešna makedonska revolucionerna organizacija-Demokratska partija za makedonsko nacionalno edinstvo, Statut na VMRO-DPMNE (Skopje, ). Id., Promeni za dostoinstven život: Izborna programa na parlamentarnite izbori ’ (Skopje, ), , . Ibid., -. Ibid., . Ibid., .
Eben Friedman change in the ethnic composition of the population of the Republic of Macedonia’.29 For the Albanians and the members of other nationalities already in Macedonia, on the other hand, VMRO-DPMNE advocates increasing the amount of instruction in the Macedonian language at all levels of education, as well as abolishing ethnic quotas in secondary and post-secondary education.30 2. e Social Democratic Union of Macedonia (SDSM) Like VMRO-DPMNE, SDSM identifies its predecessors, listing them in Article of its Statute in reverse chronological order as the League of Communists of Macedonia – Party for Democratic Transformation, the League of Communists of Macedonia and the Communist Party of Macedonia.31 Defining the Republic of Macedonia as ‘a state of equal citizens in which the Macedonian nation realizes its statehood’, SDSM’s Programmatic Declaration presents interethnic, confessional, and cultural tolerance as necessary conditions for the stability of the country.32 In its Platform, SDSM provides a clearer statement of its attachment to the independence and sovereignty of a Macedonia within which the Macedonian nation can preserve its identity and the nationalities can develop their own identities in an atmosphere of good interethnic relations.33 While SDSM differentiates itself from VMRO-DPMNE by not including anti-Albanian statements in its programmatic documents, however, in a speech party leader Branko Crvenkovski accused the VMRO-DPMNE government elected the previous year of participating in an Albanian-Bulgarian conspiracy to dismantle the Republic of Macedonia: Today, [Macedonian Prime Minister Ljubčo] Georgievski and [Kosovo Liberation Army spokesman Adem] Demaçi are meeting in Skopje, and in Sofia [chairman of the Democratic Party of Albanians in Macedonia Arben] Xhaferi and [Bulgarian Prime Minister Ivan] Kostov are debating about the future of Macedonia, the future of all of us. is is the same Demaçi who declared that the goal of the KLA is the creation of Greater Albania, in the borders of which are also included parts of Macedonia. is is the same Xhaferi who asserted that a Macedonian people does not exist, that it is the invention of [Macedonian former president Kiro] Gligorov and the company around him, and that we are a population which steals others’ history, the history of neighbouring states.34
Ibid., -. Ibid., -. 31 Socijaldemokratski sojuz na Makedonija, ‘Statut na Socijaldemokratskiot sojuz na Makedonija’, in Vtor kongres na Socijaldemokratskiot sojuz na Makedonija: Dokumenti (Skopje, ), -. 32 Id., ‘Programska deklaracija na Socijaldemokratskiot sojuz na Makedonija’, in Vtor kongres na Socijaldemokratskiot sojuz na Makedonija: Dokumenti (Skopje, ), -, at , . 33 Id., ‘Platforma na dejstvuvanjeto na Socijaldemokratskiot sojuz na Makedonija vo naredniot period’, in Tret kongres: Dokumenti (Skopje, ), -, at . 34 Branko Crvenkovski, ‘Referat’, in Tret kongres: Dokumenti (Skopje, ), -, at .
29
30
Party System, Electoral Systems and Minority Representation in Macedonia 3. Similarities and Differences between VMRO-DPMNE and SDSM Although SDSM is a successor to the League of Communists and the objectives enumerated in the programme of VMRO-DPMNE are typical of right-wing parties,35 ethnicity takes precedence over ideology in Macedonian politics; as the Macedonian political scientist Lidija Hristova puts it, ‘the real conflict concerns the national question’.36 is being the case, in concrete instances VMRO-DPMNE has sometimes pursued a traditionally leftist agenda in espousing egalitarianism in the distribution of goods and services and has gradually reduced its emphasis on national issues in successive party programmes since independence.37 SDSM, on the other hand, has sometimes presented itself as a nationalist party, as illustrated by the party’s objection to the use of the languages (and Latin alphabet) of Macedonia’s ethnic minorities in printing the names of members of these minorities on their state-issued identification cards.38 A similar reversal of roles between VMRO-DPMNE and SDSM was evident in my interviews with representatives of these parties at both state and local levels in late and early ; whereas members of VMRO-DPMNE tended to characterize Macedonia’s survival of the Kosovo crisis in as a benchmark in the improvement of relations between Macedonians and Albanians in the Republic of Macedonia, members of SDSM emphasized persistent tensions between Macedonian and Albanian populations and spoke pessimistically about future prospects.39 Further, whereas the fact that the membership of SDSM includes some of Macedonia’s richest citizens suggests inconsistency between ideology and practice, the anticommunism of VMRO-DPMNE can be understood as a product of early political socialization, as most of VMRO-DPMNE’s adherents grew up in families supportive of Macedonian autonomy in a communist Yugoslavia for which an independent Macedonia was unacceptable.40 Notwithstanding their declared differences, Macedonia’s largest political parties have in common their pragmatism in designing policy to bring maximal political and financial support from international institutions, their reactive approach to
35 36
37
38 39
40
See Slavejko Sasajkovski, ‘Ideološkata profilacija na izbornite programi na relevantnite politički partii’, in Parlamentarni izbori ’ vo Makedonija (Skopje, ), -, at . Lidija Hristova, ‘La démocratie post-communiste: Identité politique’, manuscript (typewritten) obtained from author (Skopje, ), . Heinz Willemsen and Stefan Troebst characterize as ‘slight’ not only the ideological differences dividing the Macedonian parties from each other, but also those separating the Macedonian parties from the parties of the Albanian minority. Heinz Willemsen and Stefan Troebst, ‘Transformationskurs gehalten: Zehn Jahre Republik Makedonien’, () Osteuropa (), -, at . Sasajkovski, ‘Ideološkata profilacija ...’, . Sasajkovski further suggests that the attenuation of national issues in VMRO-DPMNE’s programme may stem from the realization of the party’s primary goal of an independent Republic of Macedonia. Šoljakovski, ‘Levicata desno…’, . Since the armed conflict of , however, the pendulum seems to have swung back, with SDSM more supportive of the Framework Agreement than VMRO-DPMNE. See, e.g., Patrick Moore, ‘Macedonia: A Time for Truth’, () RFE/RL Balkan Report (). Hristova, ‘Izbornoto odnesuvanje…’, -; cf. Ivo Banac, e National Question in Yugoslavia: Origins, History, Politics (Ithaca, ), .
Eben Friedman societal developments, their treatment of minority rights as an object of political manipulation and their intensive use of the spoils system.41 In an article which appeared in the Macedonian weekly Forum in October of , the Macedonian statesman Stojan Andov lamented the division of the ethnic Macedonian population into ‘serbomaniacs’, ‘bulgarophiles’, and ‘true Macedonians’.42 Andov’s lamentation was a reference to a difference in ethnic orientation between Macedonia’s two largest political parties, VMRO-DPMNE and SDSM. While the present extent of serbophilia among SDSM supporters and bulgarophilia among members of VMRODPMNE is not clear, these orientations constitute genuine currents within each party. As a result, VMRO-DPMNE and SDSM frequently accuse one another of treachery and selling out to foreign interests, with members of SDSM often accused of being communists nostalgic for the old Yugoslavia while supporters of VMRO-DPMNE are called terrorists seeking union with Bulgaria.43 4. VMRO-DPMNE and Bulgaria If the historical link between Serbia and SDSM as successor to the League of Communists is clear, VMRO-DPMNE’s relationship to Bulgaria is more ambivalent. Held in in Salonika (now part of Greece), the first meeting of what eventually became the Internal Macedonian Revolutionary Organization was called in order to develop means for combating the increasing influx of the Serbian propaganda present in Macedonia since the s.44 Whereas serbophilia was common among Slavs in northern and western Macedonia, the founders of the Internal Macedonian Revolutionary Organization’s predecessor judged Serbian propaganda (according to which the Slavic population of Macedonia consisted of ‘Southern Serbs’ or ‘Mountain Serbs’) damaging precisely because it impeded Macedonia’s Bulgarianization.45 With its leaders initially referring to themselves collectively as the ‘Macedonian Central Revolutionary Committee’, the organization modelled itself on Bulgarian revolutionaries.46 In addition to providing organiza41
42 43
44 45
46
Hristova, ‘La démocratie post-communiste…’, -. Stojan Andov, ‘Do koga makedonskoto minato kje go preslikuvame vo idninata?’, . Forum (), -, at . Hristova, ‘Izbornoto odnesuvanje…’, ; Mirjana Maleska, ‘Rizikot na demokratijata: Slučajot na Makedonija’, in Jorde Jakimovski (ed.), Godišnik na Institutot za sociološki i političko-pravni istražuvanja (Skopje, ), -, at ; cf. Donald Horowitz, ‘Making Moderation Pay: e Comparative Politics of Ethnic Conflict Management’, in Joseph Montville (ed.), Conflict and Peacemaking in Multiethnic Societies (New York, ), -. Duncan M. Perry, e Politics of Terror: e Macedonian Liberation Movements, - (Durham, ), , ; cf. Stoyan Pribichevich, Macedonia: Its People and History (University Park, ), . Perry, e Politics of Terror…, , ; James Pettifer, ‘Die neue Mazedonienfrage’, . Europäische Rundschau (), -, at ; Jens Reuter, ‘Politik und Wirtschaft in Makedonien’, () Südosteuropa (), -, at ; cf. Banac, e National Question…, -; Stefan Troebst, ‘Makedonische Antworten auf die ‘Makedonische Frage’ -: Nationalismus, Republiksgründung, Nation-building’, (-) Südosteuropa (), -, at . Perry, e Politics of Terror…, .
Party System, Electoral Systems and Minority Representation in Macedonia tional blueprints for VMRO, Bulgaria was also the organization’s chief source of weapons, with Bulgarian authorities doing little to pursue the Macedonian revolutionaries.47 In this manner, the Internal Macedonian Revolutionary Organization began as ‘a prototypical liberation-terrorist movement found in agrarian, preindustrial societies wherein a small collection of educated people seek reform in the face of a stronger and more powerful state apparatus’.48 Following the Ottomans’ defeat of the short-lived ‘Kruševo Republic’ created by VMRO’s Ilinden (St. Elijah’s Day) revolt in the Bitola vilayet (province), the Internal Macedonian Revolutionary Organization split in two, with one faction favouring the establishment of an autonomous Macedonia within a Balkan federation and the other annexation of Macedonia by Bulgaria.49 Following a brief reconciliation between factions in Yugoslavia, VMRO split again in , this time along ideological lines.50 Advocating the incorporation of an autonomous Macedonia in a Federation of Balkan Socialist Republics in line with the Comintern policy of the time, the United Internal Macedonian Revolutionary Organization formed of the split was outlawed in .51 In spite of being illegal, however, VMRO organized reception committees to welcome Bulgarian forces into Macedonia during World War Two.52 In the post-communist period, VMRO-DPMNE’s victory in the parliamentary elections of evoked a welcome from the Bulgarian government on the grounds that the Macedonian government would be friendlier to Bulgaria than had the SDSM-led governments of the previous years.53 Within Macedonia, VMRO-DPMNE’s electoral victory resulted in the appointment of a reputed bulgarophile (Dimitar Dimitrov) as Minister of Culture, who in turn appointed self-identifying ethnic Bulgarians (from the Republic of Macedonia) as directors of the National and University Library in Skopje as well as the
47 48 49
50 51
52 53
Ibid., , ; also see Elisabeth Barker, ‘e Origin of the Macedonian Dispute’, in James Pettifer (ed.), e New Macedonian Question (New York, ), -, at . Perry, e Politics of Terror…, . Barker, ‘e Origin…’, ; Barbara Jelavich, History of the Balkans: Twentieth Century (Cambridge, ), , -; Pribichevich, Macedonia …, ; also see Hugh Poulton, Who are the Macedonians? (Bloomington, ), chapter ; Reuter, ‘Politik und Wirtschaft …’, . An illustration of the position of the latter faction is the book authored by its leader, Ivan Mihailov, in . In this work, Mihailov applies Stalin’s definition of a nation to the Slavic population of Macedonia and concludes that ‘Macedonian Bulgarians’ constitute ‘an inseparable part of the Bulgarian nation’, such that the term ‘Macedonian’ is ‘only a geographical expression’. Ivan Mihailov (Macedonicus), Stalin and the Macedonian Question (St. Louis, ), , . Banac, e National Question…, ; Barker, ‘e Origin…’, . Pribichevich, Macedonia…, . Stephan E. Palmer, Jr. and Robert R. King, Yugoslav Communism and the Macedonian Question (Hamden, ), . e Bulgarian government’s expectations were confirmed in February of , when Ljubčo Georgievski and Ivan Kostov signed seven bilateral agreements as well as a bilateral declaration on comprehensive relations and mutual respect between the (distinct) Bulgarian and Macedonian peoples. See, for example, Stefan Krause, ‘Defying the Odds by Remaining Stable’, Transitions, Annual Report , , at http:// www.tol.cz; Id., ‘Surviving a Year of Crises’, Transitions, Annual Report , , at http://www.tol.cz.
Eben Friedman Ohrid summer festival.54 An additional manifestation of VMRO-DPMNE’s friendliness to Bulgaria is the increase in the availability of Bulgarian newspapers in Macedonia which followed the elections. us, while the legacy of the Internal Macedonian Revolutionary Organization with respect to Bulgaria is not unambiguous,55 the activities of VMRO-DPMNE have provided ample fodder for the suspicions of the party’s enemies, with former president Kiro Gligorov expressing concern for the survival of Macedonia as an independent state because of VMRO-DPMNE’s increasingly pro-Bulgarian stance.56 C. Ethnic Albanian Political Parties 1. e Party for Democratic Prosperity (PPD) and the Democratic Party of Albanians (PDSH) If the two largest parties of the Macedonian majority differ in terms of little other than ethnic orientation, there are even greater similarities among the larger ethnic Albanian parties represented to date in the Assembly of the Republic of Macedonia. In fact, the greatest divergence among Macedonia’s Albanian political parties has been in their degree of radicalism. us, several years before the armed conflict between Macedonian government forces and the National Liberation Army, both the Party for Democratic Prosperity (PPD) and the Democratic Party of Albanians (PDSH)57 had called for the reconstitution of the Republic of Macedonia, with the former specifying only ‘constitutive status’ for the ethnic Albanian population while the latter is more explicit in promising to work for
Iso Rusi, ‘After Years, Old Dilemmas All Over Again?’, AIM Skopje, October , at http:// www.aimpress.org. 55 An additional manifestation of this ambiguity is the existence in present-day Bulgaria of an Internal Macedonian Revolutionary Organization, the website of which contains statements recognizing the right to selfdetermination of the inhabitants of the Republic of Macedonia while also featuring maps of the Republic of Macedonia on which ethnic Macedonians are labeled ‘Macedonian Bulgarians’. e party also maintains links to VMRO-DPMNE. See http://www.vmro.bg. 56 Rusi, ‘After Years…’; also see Kim Mehmeti, ‘Macedonia: New Round of Fighting Feared’, Balkan Crisis Report, February . 57 e PDSH was formed following the parliamentary elections of by the merger of the Party for Democratic Prosperity of the Albanians (PPD-Sh) and the People’s Democratic Party (PDP). e Ministry of the Interior twice denied PDSH’s request to register as a political party on the grounds that its use of symbols of a foreign state (i.e., Albania) was unconstitutional. As for the parties from which PDSH was created, PPD-Sh was born when part of PPD’s youth wing broke off to form its own party out of dissatisfaction with PPD’s relative complacency. PDP, on the other hand, was founded in early by Iljaz Halimi, calling in for the federalization of Macedonia with an autonomous Albanian region and the reconstitution of the Republic of Macedonia as a binational state. Janusz Bugajski, Ethnic Politics in Eastern Europe: A Guide to Nationality Policies, Organizations, and Parties (Armonk, ), -. More recently, another relatively marginal ethnic Albanian party, the National Democratic Party (PDK – formed in March and holding one seat in the Assembly following the parliamentary elections of September ), has taken up the call for a federal solution in Macedonia. International Crisis Group, e Macedonian Question: Reform or Rebellion (Skopje, Brussels, ), Appendix A. 54
Party System, Electoral Systems and Minority Representation in Macedonia the transformation of Macedonia into a binational state.58 Additionally, PPD advocates a ‘state and institutional structure which reflects the multiethnic reality of Macedonia’, while PDSH calls for Albanian institutions including the creation of a vice presidency to be filled by an ethnic Albanian.59 e final difference between PPD and PDSH to be mentioned here is PDSH’s advocacy (in Article of its programme) of free movement of persons, ideas, and capital without regard to state borders, an issue not addressed at all by PPD. Commonalities between PPD and PDSH include their positions on administrative decentralization, the official status of the Albanian language, and education. With respect to the first issue, both PPD and PDSH advocate the devolution of power from the centre to redesigned local institutions.60 Second, both Albanian parties demand administrative status for the Albanian language equal to that of the Macedonian language in official and public capacities at the level of the state as well as in the municipalities.61 ird and finally, PPD and PDSH call for education in one’s mother tongue at all levels, including the establishment (or legalization) of an Albanian-language university.62 2. From National Liberation Army (UÇK) to Democratic Union for Integration (BDI) While the emergence of the Democratic Union for Integration (BDI) as the dominant political party among Macedonia’s ethnic Albanian population in the parliamentary elections of constitutes a significant change in the party system of the Republic of Macedonia, BDI’s demands are substantively similar to the demands of the National Liberation Army to which BDI traces its lineage.63 ese demands include constitutional recognition of ethnic Albanians as a constituent people equal in status to the ethnic Macedonian majority, making Albanian an official language, and equal job opportunities 58
59 60 61 62
63
Partija za demokratski prosperitet, Statut (Tetovo, ), Article ; Kongresi i Partisë Demokratike Shqiptare, Programi i Partisë Demokratike Shqiptare (Tetovo, ), Article . I am grateful to Samet Skenderi for providing an oral translation of PDSH’s programme from Albanian to Macedonian. Sobranie na Partijata za demokratski prosperitet, Programski opredelbi (Tetovo, ), ; Kongresi i Partisë Demokratike Shqiptare, Programi…, Article . Sobranie na Partijata za demokratski prosperitet, Programski opredelbi…, -; Kongresi i Partisë Demokratike Shqiptare, Programi…, Articles and . Sobranie na Partijata za demokratski prosperitet, Programski opredelbi…, ; Kongresi i Partisë Demokratike Shqiptare, Programi…, Articles and . Sobranie na Partijata za demokratski prosperitet, Programski opredelbi…, ; Kongresi i Partisë Demokratike Shqiptare, Programi…, Article . While PPD’s programme refers to the unofficial university in Tetovo by name, PDSH calls simply for a university teaching in the Albanian language. PDSH’s participation after its entry into government in the establishment of a different university with instruction in Albanian (i.e., the South East European University at Tetovo) suggests that the reference in PDSH’s programme may have been to something other than the unofficial university. e Macedonian-language version of the introduction to BDI’s website (http://www.bdi-press.org) makes the link between armed group and political party clear in the first sentence: ‘We who knew how to wage war also know how to wage peace.’ e same text refers to ‘[t]he glorious struggle of our people organized in the UÇK’, making use of the Albanian abbreviation for the National Liberation Army (Ushtria Çlirimtare Kombëtare), an abbreviation more familiar to the Macedonian reading public (the usual Macedonian abbreviation is ‘ONA’) as that of the Kosovo Liberation Army (Ushtria Çlirimtare e Kosovës).
Eben Friedman for ethnic Albanians in state institutions and administration. In this sense, the National Liberation Army ‘effectively hijacked the political programme of the Albanian parties in Macedonia’.64 Noting the ‘radical change of the position of Albanians in Macedonia’ resulting from the armed conflict of , BDI’s programmatic declaration pledges full implementation of the Framework Agreement and the creation of a stable, democratic, multiethnic Macedonia.65 To these ends, BDI promises to work toward decentralization of government, ‘full equality at all levels of society’ and a resolution of the problem of higher education in the Albanian language.66 D. Romani Political Parties Whereas ethnic Macedonian and ethnic Albanian parties have tended to focus on their respective ethnic communities, often in opposition to one another, Macedonia’s Romani political parties have emphasized instead their attachment to the Republic of Macedonia qua state. eir explicitly civic stance notwithstanding, Romani political activists in Macedonia gained representation in parliament primarily by running on the tickets of Romani political parties under the fundamentally majoritarian electoral systems in place from to .67 With the introduction of a pure proportional electoral system for the parliamentary elections of September , however, the only successful Romani candidate was elected to his position on the ballot of an electoral coalition headed by an ethnic Macedonian party.
Jenny Engström, ‘Multi-ethnicity or Bi-nationalism? e Framework Agreement and the Future of the Macedonian State’, . Journal on Ethnopolitics and Minority Issues in Europe (): http://www.ecmi.de/ jemie/special__.html, p.. Also see Ulrich Buechsenschuetz, ‘Macedonia’s Arben Xhaferi Reappears’, () RFE/RL Balkan Report (). 65 http://www.bdi-press.org. For the text of the Framework Agreement, see http://www.president.gov.mk/ eng/info/dogovor.htm. 66 For the BDI’s programmatic declaration, see http://www.bdi-press.org. 67 ere are two exceptions to this generalization. e first, Amdi Bajram, was elected to parliament as an independent candidate in , two years before he registered the Romani political party which he subsequently represented in the Assembly until . e other exception is Džulistana Markovska, who served as a member of parliament for VMRO-DPMNE from to . Whereas the sole reason for Bajram’s initial election to parliament as an independent candidate was the inability of his party (i.e., SRM) to gather a number of signatures sufficient for registration with the Ministry of the Interior, Markovska’s lack of interest in specifically Romani issues is such that she is not generally viewed as a representative of Macedonia’s Romani population (although she declares herself a Rom). Significant in any case is that political parties of the ethnic Macedonian majority have accepted Roms as candidates. A survey conducted by Gallup International in indicates that % of ethnic Macedonians would be willing to vote for a Rom representing their preferred political party in regional elections. While this may seem like a low number, it is lower only than the percentage of ethnic Macedonian respondents willing to vote for a Vlach (%) or a Serb (%) representing their preferred political party, with Jews (%), Turks (%), Albanians (%), and Bulgarians (%) inspiring less confidence. Krasimir Kanev, ‘Dynamics of Inter-Ethnic Tensions in Bulgaria and the Balkans’, () Balkan Forum (), -, at . 64
Party System, Electoral Systems and Minority Representation in Macedonia 1. e Party for Complete Emancipation of the Roms of Macedonia (PSERM) Established in August of , the Party for Complete Emancipation of the Roms of Macedonia (PSERM)68 was represented in parliament from until by its founder, Faik Abdi. Presenting the Republic of Macedonia as ‘our only common community’,69 PSERM’s programme presents the party as ‘committed to complete sovereignty of the Macedonian state, fatherland of the Macedonian people, that is the Macedonians, Albanians, Turks, Roms, Vlachs, Muslims, Serbs and other nationalities which live on the territory of the Republic of Macedonia.70 Additionally, PSERM’s programme contains a promise to act on the international level to ensure not only ‘the unreserved acceptance and recognition of Macedonian national identity, integrity, and subjectivity as well as the fundamental and original rights of the Roms’, but also recognition of the autocephalous Macedonian Orthodox Church.71 More concrete measures mentioned in PSERM’s programme include improving infrastructure, employment programmes and family planning, as well as use of the Romani language in the media.72 2. e United Party of the Roms of Macedonia (PPRM) e second Romani political party to form in Macedonia was the Democratic Progressive Party of the Roms in Macedonia (DPPRM). From the time of its formation by Bekir Arif in , DPPRM has enjoyed cordial relations with PSERM.73 Renamed the United Party of the Roms of Macedonia (PPRM), the party has been led since by the first mayor of Šuto Orizari, Neždet Mustafa, one of its founding members. Like PSERM, PPRM presents itself as a party committed to Macedonian sovereignty and views favourable interethnic and interconfessional relations as a condition for the stability of the Republic of Macedonia.74 In the interview which I conducted with a representative of PPRM in late , my informant made clear his attachment to the Republic of Macedonia as 68
69 70
71
72 73 74
In fact, PSERM was founded as the Party for Complete Emancipation of the Roms (i.e., PSER), adding the ‘M’ to its acronym in the first years of the party’s existence as an indication of its loyalty to the Republic of Macedonia. I am grateful to Victor Friedman for bringing this to my attention. is presentation of the Republic of Macedonia seems to have been taken from Kiro Gligorov, who uses a similar phrase in the title of his autobiography. Predsedatelstvo na PCERM, Programa na Partijata za celosna emancipacija na Romite od Makedonija (Skopje, ), -. Here, it is worth pointing out that the wording used in PSERM’s programme and statute is often similar to that used in the programmes and statutes of SDSM (discussed above), as well as in the Constitution of the Republic of Macedonia (‘Ustav na Republika Makedonija…’). Predsedatelstvo na PCERM , Programa…, -; also see Partija za celosna emancipacija na Romite od Makedonija, Statut na Partijata za celosna emancipacija na Romite od Makedonija (Skopje, ). PSERM’s position with respect to the Macedonian Orthodox Church is particularly noteworthy insofar as .% of Roms in Macedonia declared themselves Muslims in the census. Zavod za statistika na Republika Makedonija, e Census of Population, Households, Dwellings and Agricultural Holdings in the Republic of Macedonia, Vol. I (Skopje, ), . Predsedatelstvo na PCERM , Programa…, -. Zoltan Barany, ‘e Roma in Macedonia: Ethnic Politics and the Marginal Condition in a Balkan State’, Ethnic and Racial Studies (), -, at . Partija na Romite od Makedonija, Programa na Partija na Romite od Makedonija (Skopje, ), , .
Eben Friedman then constituted, stating that while all nationalities have the right to lobby on their own behalf, ‘the fundamental principles of a state must be respected’, for ‘[s]overeignty is an indivisible thing’; reconstitution of the Republic of Macedonia as a bi-national state, on the other hand, would neglect the fact that the country’s population is not composed only of Macedonians and Albanians.75 Programmatic goals of PPRM include improvement of the social status of the Romani population, as well as healthcare, hygienic conditions, primary-school instruction in Romani and further work on standardizing the Romani language within the institutional framework of the Institute for Macedonian Language in Skopje.76 In connection with the negotiations over Macedonia’s future legal and administrative structure which took place during the summer of , Neždet Mustafa and PPRM led an initiative to form a common platform with Macedonia’s smaller minorities, including Serbs, Turks, and Vlachs in addition to Roms.77 As I discuss in greater detail in this article’s last section, Mustafa was elected to parliament on the ticket headed by SDSM in the elections. 3. e Union of the Roms in Macedonia (SRM) e Union of the Roms in Macedonia (SRM) was represented in parliament from to by Amdi Bajram, who had been elected to his seat as an independent candidate in . Although the party was founded in , SRM was able to gather the number of signatures required for official registration with the Ministry of the Interior only in . In relating to other political parties, SRM has alternately presented itself as an ally and an opponent of PPRM, also signing a cooperation agreement with the traditionally Macedonian nationalist VMRO-DPMNE in October of .78 e lack of clarity in SRM’s position relative to other parties seems to stem on the one hand from the unfriendly relations between Neždet Mustafa and Amdi Bajram, and on the other hand from Gjuneš Mustafa’s oscillation between the two rivals.79 Programmatic ambiguity notwithstanding, however, Amdi Bajram made it known on numerous occasions that he would vote with the majority, stating that SRM (of which Bajram was the only parliamentary representative) ‘does not want to be against any government’.80
75 76
77 78
79 80
Interview by author, Šuto Orizari, December . Partija na Romite od Makedonija, Programa…, -. Martin Demirovski, ‘Nezdet Mustafa: Portrait of a Romani Politician’, () Roma Rights (), at http: //www.errc.org. Protokol za dolgoročna sorabotka na VMRO-DPMNE so Sojuzot na Romite od Makedonija, signed in Skopje by Gjuneš Mustafa (President of SRM) and Dosta Dimovska (then Minister of the Interior as well as a vice president of VMRO-DPMNE) on October . Document courtesy of Gjuneš Mustafa. In winter of , for example, Gjuneš Mustafa was a member of both SRM and PPRM, literally commuting between the city hall in Šuto Orizari and Amdi Bajram’s office in the parliament building. Zoltan Barany, e East European Gypsies: Regime Change, Marginality, and Ethnopolitics (Cambridge, ), .
Party System, Electoral Systems and Minority Representation in Macedonia III. E S R M A. Institutions and eir Origins Despite the introduction of proportional representation (PR) for some mandates in the parliamentary elections of , the Macedonian electoral system operated as a majoritarian system until the elections of September . By the electoral law drafted in preparation for the parliamentary elections of , the Assembly’s deputies were elected in a two-round majority-runoff system of single-member districts (SMDs), with a second round of voting held between the top two finishers only if no candidate won an absolute majority of votes in the first round.81 Supporting Herbert Kitschelt’s thesis that the institutions of democratic governance are endogenous to party competition in the early stages of democratic stabilization,82 the popularity of the League of Communists of Macedonia relative to its opposition allowed the communists to implement a majoritarian system in their own electoral interest. 83 e Law on Election of Deputies to the Assembly of the Republic of Macedonia preserves the majority-runoff system in (redrawn) SMDs while introducing fixed-list PR for the remaining mandates.84 Introduced to ‘reconcile the contradiction between the powerful party structure and the popular individuals who would have more chance of getting a mandate in the uninominal electoral districts’,85 the dual system allowed voters to split their majority-runoff and PR ballots between different parties. In much the same way as the design of the electoral law of , the provisions of the electoral law of reflect the strength of the successors to the League of Communists (i.e., SDSM) relative to their main opposition, VMRO-DPMNE; with both sides predicting a victory for VMRO-DPMNE in the upcoming parliamentary elections, VMRO-DPMNE favoured a pure majoritarian electoral system, but SDSM was able to bring about a change to the dual system in place for a single electoral cycle.86 81
82 83
84 85 86
‘Zakon za izbor i otpovikuvanje na pratenici i odbornici’, Služben vesnik na Republika Makedonija /. Herbert Kitschelt, ‘e Formation of Party Systems in East Central Europe’, Politics and Society (), -, at . An additional consideration was to avoid provoking the government in Belgrade into making use of the Yugoslav People’s Army – still stationed in Macedonia at the time – to put down an attempt at secession, the option favoured by VMRO-DPMNE. Maleska, Rizikot…, -, -; cf. Ljubomir D. Frckovski, ‘Election Model and Political Dynamism in Macedonia’, () Macedonian Affairs (), -; Nataša Gaber and Aneta Jovevska, Dizajniranje izboren system na Republika Makedonija (Skopje, ); Arend Lijphart, ‘Democratization and Constitutional Choices in Czechoslovakia, Hungary and Poland’, Journal of eoretical Politics (), -; Tatu Vanhanen, e Process of Democratization: A Comparative Study of States (New York, ), . ‘Zakon za izbor na pratenici vo Sobranieto na Republika Makedonija’, Služben vesnik na Republika Makedonija /. Aneta Jovevska, ‘Izborniot sistem na Republika Makedonija niz prizmata na parlamentarnite izbori’, in Parlamentarni izbori ’ vo Makedonija (Skopje, ), -, at . Maleska, Rizikot…, .
Eben Friedman Departing significantly from the legislation preceding it, the Law on Election of Deputies to the Assembly of the Republic of Macedonia does away with SMDs entirely, replacing the dual system of with a pure PR system.87 By the new law, the Assembly’s deputies are elected from six districts of approximately equal population on rigid party lists using the d’Hondt formula in the distribution of mandates.88 e electoral law of was adopted as part of a package of electoral laws passed in June of toward implementation of the Framework Agreement of August .89 us, whereas Macedonia’s two previous electoral systems had been designed by the political party leading the government at the time in the hope of maximizing its strength in parliament after the next elections, the electoral system in place for the parliamentary elections of September followed the provisions of a document resulting from extended international negotiations and presented as a defeat by the strongest parliamentary party at the time (i.e., VMRO-DPMNE).90 B. Minority Representation in Parliament 1. Albanian Political Parties Under the electoral system in place for the parliamentary elections of and , the Albanian bloc as a whole received a smaller proportion of seats than of votes. e one candidate elected to the Assembly on the ballot of the PDP, however, secured .% of seats in parliament with .% of the popular vote.91 With the introduction of the electoral system combining the two-round system with fixed-list PR for the parliamentary elections, the electoral coalition of the PPD and the PPD-Sh secured a slightly larger proportion of seats than of votes.92 Most recently, the parliamentary elections of conducted under the pure PR system generally resulted in ethnic Albanian parties receiving a larger share of seats than of votes, the one exception being the National Democratic Party (PDK), which secured .% of the popular vote and .% of parliamentary mandates.93 87 88
89
90
91
92 93
‘Zakon za izbor na pratenici vo Sobranieto na Republika Makedonija’, Služben vesnik na Republika Makedonija /. According to the d’Hondt formula, the number of votes won by each party in an electoral district is divided by the number of seats held by the party increased by one, with the first seat awarded to the party with the greatest number of votes. Although each seat held by a given party reduces the party’s chances of winning further seats, the d’Hondt formula is generally considered to favour larger parties over smaller ones. Other legislation in the package includes the Law on the Electoral List (‘Zakon za izbiračkiot spisok’) and Law on Electoral Districts (‘Zakon za izbornite edinici za izbor na pratenici vo Sobranieto na Republika Makedonija’), Služben vesnik na Republika Makedonija / and /, respectively. For a map of the new electoral districts, see the website of the State Electoral Commission, at http://www.dik.mk. For example, on September Ljubčo Georgievski declared in parliament that approval of the Framework Agreement would send a message that terrorism pays. ‘Macedonian Prime Minister Grudgingly Endorses Peace Package’, RFE/RL Newsline, September . Gaber and Jovevska, Dizajniranje…, , footnote . Jovevska, ‘Izborniot system…’, . Assembly of the Republic of Macedonia website, at http://www.sobranie.mk/Izbori/izb-rez.htm.
Party System, Electoral Systems and Minority Representation in Macedonia Table . Disproportionality Between Votes and Seats Won by Ethnic Albanian Political Parties in Macedonia, -
Election year
Political party
PPD
Share of popular vote (%)
Share of seats in parliament (%)
Difference between share of seats and share of votes (%) -.
.
.
PPD/PDP
.
.
-.
PDP PPD
. .
. .
+. -.
PDP
.
.
-.
PPD/PPD-Sh
.
.
+.
BDI
.
.
+.
PDSH
.
.
+.
PPD
.
.
+.
PDK
.
.
-.
While advocates of consensual democracy often favour PR over other electoral systems on the grounds that PR systems bring about a more accurate translation of the characteristics of the electorate in the legislature, some scholars have also observed that majority or plurality systems are potentially capable of providing fair representation of geographically concentrated minorities.94 With the exceptions of the candidate elected on the ticket of the People’s Democratic Party in the parliamentary elections of (i.e., under the electoral system consisting exclusively of SMDs) and the National Democratic Party’s smaller share of seats than votes in the parliamentary elections (i.e., under the pure PR system), the evidence presented in the preceding paragraph and in Table supports the contention that PR increases minority representation while majoritarian electoral systems reduce it. In particular, the evidence presented above suggests that the electoral system in place in the Republic of Macedonia until reduced Albanian representation in parliament relative to popular support for Albanian political parties, in spite of the concentration of the Albanian population in Western Macedonia. Counterfactual studies of the results of the and parliamentary elections conducted by the Macedonian political scientists Nataša Gaber and Aneta Jovevska provide more substantial evidence 94
Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration (New Haven, ), Chapter ; Id., ‘e Puzzle of Indian Democracy: A Consociational Interpretation’, American Political Science Review (), -, at ; Douglas Rae, e Political Consequences of Electoral Laws (New Haven, ), ; Andrew Reynolds and Ben Reilly, e International IDEA Handbook of Electoral System Design (Stockholm, ), -, -.
Eben Friedman that this is the case; in both elections, political parties of the Albanian minority would have secured a considerably larger number of seats in the Assembly under commonly used PR electoral formulas (i.e., d’Hondt and Sainte-Laguë) than they won under the majority-runoff system.95 2. Romani Political Parties If the experiences of ethnic Albanian political parties in Macedonia generally support the thesis that PR results in greater parliamentary representation of minorities than do majoritarian electoral systems, the evidence on the effects of electoral system design on the parliamentary strength of Romani parties in Macedonia is more ambiguous. Under the majoritarian systems in place for the parliamentary elections of , and , each round of elections brought about the nomination of one Romani candidate representing a Romani political party in a largely Romani SMD in Skopje, with the winning candidate each time securing a proportion of the popular vote smaller than the share of the Assembly which his seat comprised.96 In this manner, the concentration of Roms in Skopje allowed Romani candidates to campaign successfully under Macedonia’s majorityrunoff electoral system. e change to a pure PR electoral system notwithstanding, the parliamentary elections of September saw the nomination of one Romani candidate representing a Romani political party (PPRM). In a departure from previous elections, however, the successful Romani candidate ran on the ticket of an electoral coalition headed by an ethnic Macedonian political party (SDSM) which also included four smaller ethnic Macedonian parties, as well as political parties representing the Bosniak, Vlach, Serb, and Turkish populations of Macedonia. Because fixed-list PR does not allow voters to express their preferences for individual candidates, PPRM’s participation in an electoral coalition makes it impossible to compare the party’s electoral support with its representation in parliament. It is telling, however, that the non-participation of another Romani party in an electoral coalition seems to have resulted in the political demise of that party: Securing a total of , votes state-wide – , of them in the electoral district of its leader, Amdi Bajram – SRM failed to win a seat in parliament in the election. Previously, Bajram had been elected to parliament twice (once as an independent candidate) from his much smaller Skopje SMD.97
Gaber and Jovevska, Dizajniranje…, -; also see Id., ‘Experiences in Newly Applied Election Model’, () Macedonian Affairs (), -, at -. 96 Id., Dizajniranje…, , footnote ; Stojmen Mihajlovski and Dušan M. Verigikj, Povekjepartiskite izbori vo Republika Makedonija: Analiza na izbornite rezultati vo i godina (Skopje, ), . 97 http://www.dik.mk/kon_rezultati/REZULTATI_files/sheet.htm. 95
Party System, Electoral Systems and Minority Representation in Macedonia Table . Disproportionality Between Votes and Seats Won by Romani Political Parties in Macedonia, - Election year
Political party
PSERM
.
.
+.
PSERM
.
.
+.
SRM
.
.
+.
PPRM
n/a
.
n/a
98
Share of popular vote (%)
Share of seats in parliament (%)
Difference between share of seats and share of votes (%)
IV. C S is chapter has provided a brief overview of electoral ethnopolitics in the Republic of Macedonia from to . After presenting the evolution of Macedonia’s party system in the post-communist period, I have traced the development of the electoral system for elections to the Assembly of the Republic of Macedonia. Linking party and electoral systems, I have offered a brief analysis of the parliamentary representation of ethnic Albanian and Romani political parties. rough this analysis, I have shown that the divergent experiences of ethnic Albanian and Romani political parties in the Republic of Macedonia suggest the absence of a clear line from electoral system design to the parliamentary representation of minorities in general.
98
Part of electoral coalition ‘For Macedonia Together’ headed by SDSM and including the Liberal Democratic Party, Christian Socialist Party of Macedonia, Green Party of Macedonia, Labour Agricultural Party of Macedonia, Democratic League of the Bosniaks in the Republic of Macedonia, Democratic Union of the Vlachs of Macedonia, Democratic Party of the Serbs of Macedonia, United Party of the Roms of Macedonia, and Democratic Party of the Turks of Macedonia.
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Eduardo J. Ruiz Vieytez* and Markko Kallonen†
Territorial Autonomy and European National Minorities: South Tyrol, the Basque Country and the Åland Islands
I. I e aim of this article is to provide an overview of the historical, legal and political elements of the current situation and conflict in the Basque Country, South Tyrol and the Åland Islands through a comparison between these regions. Recent events in the Basque Country have stressed the existence of an unresolved conflict within the Spanish state. is article seeks to compare the legal and political system of the Basque Country with the cases of the Åland Islands and South Tyrol to reflect on the elements which make territorial autonomy either successful or not in managing national identity conflicts within Western European states. To develop our analysis, we will systematically describe the similarities and differences between the three cases, concentrating on the different legal and political aspects. Finally, we will draw some conclusions, including some future prospects. A. e Basque Country e Basque Country1 is located in Southwestern Europe, at the western corner of the Pyrenees Mountains. e concept and delimitation of the Basque Country is not a peaceful one. Traditionally, the term ‘Basque Country’ has referred to the Basque-speaking populations and, subsequently to the lands occupied by them. However, the influence of Latin languages has been reducing the Basque-speaking area for the last ten centuries. Today we consider the Basque Country to be formed by all the political or historical communities in which the Basque language (Euskera) and culture have remained alive in some way. In this *
†
1
Director of the Institute of Human Rights at the University of Deusto (e Basque Country). Researcher at the European Academy of Bozen/Bolzano (South Tyrol). In the Basque language, Euskal Herria (EH); in Spanish, País Vasco; In French, Pays Basque.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Eduardo J. Ruiz Vieytez and Markko Kallonen sense, the Basque Country covers approximately , km², of which , are to the south of the Pyrenees and , to their north, within the French Republic. However it is necessary to clarify from the very beginning that there is a strong political opinion stating that Upper Navarra2 is not a Basque territory. In fact, the current Basque Autonomous Community includes only the three provinces of Biscay (Bizkaia), Gipuzkoa and Alava, with a size of around , km². e Northern Basque Country is located in the th territorial administration division or French département, Atlantic Pyrenees. e population of the Basque area is only % of the total population of this département, the capital of the département (Pau) being located outside the Basque area. is département makes part of the French region of Aquitaine, whose capital is the city of Bordeaux. e regions in France enjoy some administrative competencies but no sort of political autonomy system has been developed in the French Republic. In the last years there has been a significant movement within the Northern Basque Country, with the support of the majority of the municipalities, demanding the creation of a new Basque department. However, these demands have not been taken into consideration by the successive French governments. e current population of the Basque Country is around . million, with . million living inside the Basque Autonomous Community. One third of the actual population moved into the Basque Country from different Spanish regions, especially in the s and s. Only one third of the people have native grandparents. ere are also very important Basque communities in Latin America and in the United States. Foreign immigrants represent today in the Basque Country no more than .% of the population and most of them are citizens of other European countries. Spanish nationalism began to evolve during the nineteenth century following the French model. e attempts to politically unify the kingdom came into conflict with the special political regime of the Basque Provinces. Laws enacted in and would suppress the most important aspects of this semi-independent political system. Nationalism was also developed among the Basque in the late second half of the nineteenth century, creating a political party: Eusko Alderdi Jeltzalea-Partido Nacionalista Vasco (EAJPNV),3 which gained ground rapidly. In , following the proclamation in Spain of the Second Republic, a system was established in the Constitution to enable some regions to gain autonomy. e Basque Country (without Navarra) elected an autonomous government in that was suppressed a year later after the conquest of the whole territory by insurgent military forces in the Spanish Civil War. e Franco regime was characterized by a savage repression of the Basque national and linguistic identity. As a counteraction to this repression, new left-leaning nationalist groups sprang up, including in some cases the use of armed struggle to combat 2
3
‘Upper Navarra’ refers to the actual Community of Navarra while ‘Lower Navarra’ is the ancient part of the Kingdom of Navarra in the Northern part of the Pyrenees or French Basque Country. We will refer to historical Upper Navarra as ‘Navarra’. e name is different in Basque and Spanish versions, meaning respectively ‘Basque Party of God and Old Laws’ and ‘Basque Nationalist Party’.
Territorial Autonomy and European National Minorities the dictatorship. Amongst these groups, Euskadi Ta Askatasuna (ETA)4 was founded in and still carries out violent action, although popular support for the use of violence is becoming marginal. e current Basque conflict, however, has not to do directly with armed struggle, but with the political controversy about sovereignty and the right to self-determination. e present system of autonomy in force for the Southern Basque Country is based on the Spanish Constitution of and the historical rights of the four historical territories (provinces). Today, Navarra is an Autonomous Community of its own, while the three provinces of Biscay, Gipuzkoa, and Alava have constituted the Basque Autonomous Community since based on an Act on Autonomy passed by the Spanish Parliament and approved by referendum by the Basque population. B. e Åland Islands e Åland Islands is a monolingual Swedish-speaking region located in northern Europe, in the Baltic Sea between Finland and Sweden. e population of Åland is approximately , of which nearly % live in Mariehamn, the administrative centre of the islands which is as well the only city on the islands. e total area of Åland Island is , km² of which , km² is land area. e region encompasses thousands of islands, the majority of which are uninhabited. Åland was part of the kingdom of Sweden until the year when as a consequence of war Sweden lost Finland and Åland to imperial Russia. From to Åland belonged to the Grand Duchy of Finland which formed an autonomic entity as a part of the Russian Empire. Russia fortified Åland during the Crimean War in . Afterwards the islands were demilitarized according an international treaty signed by the countries involved in the conflict. Finland declared itself independent in as a consequence of the Russian Revolution and the breakdown of the Russian Empire.5 Ålanders wanted to grasp the moment and join the country they felt they belonged to, namely Sweden. Sweden showed interest in realizing the aspiration of the inhabitants of the Åland Islands. Finland was not willing to accept this and relations between Sweden and Finland become strained. e Finnish Parliament adopted an Autonomy Act for Åland in which the Ålanders did not accept. Moreover, the question on Åland had an international dimension due to the earlier mentioned treaty on demilitarization of the islands. e question was addressed to the League of Nations and Finland and Sweden were prepared to accept its decision on the matter as a basis for the future of Åland.6 In June the League of Nations declared its decision according to which Åland 4
5
6
Euskadi Ta Askatasuna (ETA) literally means: ‘Basque Fatherland and Freedom’. See, for example, James Barros, e Åland Island Question. Its Settlement by the League of Nations, (New Haven, ); Harry Jansson and Johannes Salminen (eds.), e Second Åland Islands Question – Autonomy or Independence? (Mariehamn, ). omas Musgrave, Self Determination and National Minorities (Oxford, ), -.
Eduardo J. Ruiz Vieytez and Markko Kallonen would remain as a part of Finland. e Finnish state was obliged to provide Ålanders with broad self-government, protection and guarantees for the maintenance of their culture and lastly to accept the demilitarization and neutralization of the islands in an international treaty.7 e Autonomy Act on Åland was revised in . is law became outdated and finally in a new law, which is the current law in force, was promulgated.8 C. South Tyrol South Tyrol is located in northeastern Italy and shares border with Switzerland and Austria. Its mountainous area covers , km² of which over % lies at an altitude of over meters above sea level. e territory of South Tyrol belonged for centuries to the larger Tyrolean entity being part of Austrian Empire from the th century until , excluding the years under the Napoleonic occupation -. Italy signed a secret pact in , which lead to its entering the First World War on the side of the entente. One of the territories promised to Italy, as a compensation for joining the war on the side of the entente was South Tyrol. 9 South Tyrol was officially annexed by Italy according the treaty of St. Germain-en-Laye in . According to the last census conducted by Austria in ,10 % of the South Tyrolean population was German, % Ladins11 and % Italians. Italy promised to safeguard the identity of its new linguistic minority after the annexation. However, no measures were taken to hold to this promise. In the Fascists rose to power and ended the hopes of the South Tyroleans for the protection of their language and culture. During the Second World War South Tyrol’s German-speaking inhabitants were forced to opt either to leave the country to be resettled in an area in the ird Reich or stay in South Tyrol and face forced transportation to southern parts of Italy.12 After the Second World War, South Tyrolean representatives together with the provisional government of Austria tried in vain to influence peace negotiations requesting that South Tyrol be returned to Austria.13 Italian Ibid, -. Act on the Autonomy of Åland, , at http://www.finlex.fi/pdf/saadkaan/E.PDF. 9 e Treaty of London was signed by Italy, Great Britain, France and Russia in April . According to the treaty Italy was supposed to receive as a compensation for its joining the war not only South Tyrol but also the coastline of Istria and Dalmatia as well as some smaller areas. 10 Günther Rautz, Die Sprachenrechte der Minderheiten, ein Rechtsvergleich zwischen Österreich und Italien (Baden-Baden, ), . 11 Ladins are the oldest and smallest language group of the province. Reto-Romanic, Ladin culture is concentrated particularly in the five Dolomite valleys of Val Gardena, Livinallongo, Fassa, Ampezzo and Val Badia. Christoph Perathoner, Die Dolomitenladiner -, (Bozen, ), -; Government of the Province of Bolzano-Südtirol (ed.), South Tyrol - an Introduction (Bolzano, ). 12 See, for instance, Rolf Steininger, Südtirol im . Jahrhundert (Innsbruck ), ; Umberto Corsini and Rudolf Lill, Alto Adige - (Bolzano, ), . 13 In South Tyrol , signatures were collected calling for a plebiscite and in Innsbruck a huge demonstration was held on May . 7
8
Territorial Autonomy and European National Minorities borders were officially reconfirmed in in the Peace Treaty of Paris. e agreement on the self-government of South Tyrol was reached by the Italian Prime Minister De Gasperi and Austrian Foreign Minister Gruber in .14 is agreement was formally signed in and annexed to the peace treaty with Italy. e South Tyrol question was thereby given international standing. A first Statute of Autonomy was passed by the Italian Parliament in , but it referred not only to German-speaking South Tyrol but also included the Italianspeaking region of Trentino. As a result, the post-war years were characterized by disputes and clashing interests of the South Tyrolean and Italian governments. South Tyrolean activists organized bomb attacks to which Italian authorities answered with harsh measures in South Tyrol. At the same time, Austria brought the case to the attention of the UN. A new agreement was reached in (known as the ‘Packet’), consisting of a set of concrete measures with an aim to establish effective autonomy in South Tyrol. As a consequence a new Statute of Autonomy was drafted and passed in . is Statute is currently in force and was amended in . e official settlement of the dispute before the UN was not reached until .15 II. E C: T S A. Territorial Aspects All three territories enjoying self-governance rights are geographically very small in comparison with their respective states: Spain (Basque Country .%), Italy (South Tyrol .%) and Finland (Åland Islands .%). Both the Basque Country and South Tyrol areas are characterized by their dramatic landscape. In both cases, very mountainous territory determines the traditional way of life in many aspects. In the case of South Tyrol, the average altitude of the land is quite high. e Basque Country, however, is located on the coastal zone of the Bay of Biscay but, to a great extent, the structure of the territory is also based on narrow valleys surrounded by steep mountains. Åland is obviously a territory in which small islands are scattered, and consequently has a strong maritime dependence. Neither Tyrol nor the Basque Country, even though they are geographically difficult areas, have ever been isolated in any way, since they have seen the transit of numerous peoples and groups through their respective territories. In the case of Tyrol, the Brenner Pass has been for many centuries the easiest way of communication between the Germanic and Latin worlds, while in the Basque Country, the western corner of the Pyrenees has been one of the two main ways linking the Iberian Peninsula with the rest of Europe. e text of the treaty can be found in German at the following web site: http://zis.uibk.ac.at/stirol_ doku/ dokumente/.html. 15 Antony Alcock, e South Tyrol Autonomy – A Short Introduction (Bolzano, ), http://www.provinz.bz.it/ aprov/publ/publ_getreso.asp?PRES_ID=; Melissa Magliana, e Autonomous Province of South Tyrol: A Model of Self-Governance? (Bolzano, ), -; Emma Lantschner, ‘Breve Sintesi della Storia dell’Alto Adige’, in Joseph Marko, Sergio Ortino and Francesco Palermo (eds.), L’ordinamento speciale della Provincia Autonoma di Bolzano (Verona, ), -, at . 14
Eduardo J. Ruiz Vieytez and Markko Kallonen Åland plays a more peripheral role in the continent, although it also enjoys a significant geopolitical position in the Baltic Sea area in regional terms. e three areas are also similar in that they are border regions. South Tyrol is located on the Italian border with the Austrian Republic; the Southern Basque Country has a frontier with France, while Åland is situated halfway between Sweden and Finland. Even more, the historical territories both of Tyrol and the Basque Country are to-date divided between two different states. In the first case, North and East Tyrol remain part of Austria, while Italy annexed South Tyrol in . In the second case, as we have already explained, the border of the Pyrenees has been dividing for many centuries a common Basque language and culture between the French and Castilian-Spanish political entities. In both cases the autonomous area we are referring to here is located in the southern part of the frontier. is element of territorial division is to some extent repeated in the interior of the respective southern territories. In the Basque situation, the perception of administrative division is due to the fact that Navarra has not been incorporated into the Basque Autonomous Community. In the South Tyrolean case, the autonomous province of South Tyrol is one of the two provinces of the Autonomous Region of Trentino-Alto Adige.16 A major aspect in the case of South Tyrol is the strategic importance of the area at hand. e historical special status of South Tyrol was based on its importance as a gateway to the Alps. It was of immense importance for the trade and domination of surrounding areas. A way to guarantee the stability of the regions was by granting it extended self-governing rights. e strategic importance of South Tyrol was underlined again by treaties before the First World War leading the Italian state to take part in the war on the side of the allied powers. e significance of the South Tyrolean mountainous area for the defence of the Italian state became clear again after the Second World War. e majority of South Tyrol’s German-speaking population hoped for reunification with Austria, but it was not granted to them.17 Today strategic reasons do not play such an important role in the case of South Tyrol. As for Åland, its compactness has favoured addressing the administration powers of different entities throughout history. Åland has been administrated in the past by Sweden or Finland or it has formed its own administrative entity. e fact that Åland is an archipelago has sometimes protected it from turbulent times, but on the other hand has made it very vulnerable and dependent on the surrounding states. Finland’s strategic interests concerning the Åland Islands have been obvious. Åland became an object of international law in nineteenth century due to military reasons. Its 16
17
It is important to note that the five traditional Ladin-speaking valleys were divided by the Fascist regime in and they are still divided into three different provinces: Badia and Gardena remain in the province of South Tyrol, but Fassa was incorporated into the autonomous province of Trento, while LivinallongoFodom and Ampezzo are part of the Province of Belluno (Region of Veneto). As a consequence, Ladins living in different provinces are enjoying different level of protection. Manuela Zappe, Das Etnische Zusammenleben in Südtirol, Europäische Hochschulschriften Reihe XXI (Frankfurt am Main, ), -, . Melissa Magliana, e Autonomous Province …, -.
Territorial Autonomy and European National Minorities location holds importance for all the states around the Baltic Sea. It seems that it has not lost its importance in spite of technical progress and changing international politics. In fact, the most potential present crisis or conflict areas close to Finland are located south or east of its borders. In a case of escalating conflict, the maintenance of Finland would mainly rest on sea transportation.18 e history of South Tyrol and Åland contains an analogy; the decisions concerning the fate of the Åland Islands and of South Tyrol were made after World War I as a result of drawing the new borders in Europe, borders which were, according to United States President Wilson’s declaration, supposed to guarantee the self-determination principle for people following the ‘clearly recognizable lines of nationality’.19 In both cases the aspirations of the majority of the population were not fulfilled. e victorious powers could not allow all European minorities to decide for themselves to which country they would belong due to state interests and fear of facing dangerous similar situations in their own countries. Moreover, Åland under Finnish supremacy was seen as a Swedish-speaking stronghold in Finland that would also serve as a guarantee for the permanence of the Swedish-speaking minority on the mainland.20 e last aspect concerning the territory discussed here is that of delimitation. is appears to be an important issue in the current politics of the Basque Country, but not for Åland Islands. In the case of South Tyrol, there is no discussion on the territorial boundaries of the province, apart from the weak claim for the regrouping of the three Ladin valleys outside the autonomous province of South Tyrol. In the Basque Country, however, the separation of Navarra constitutes a major topic, since the majority of the population in the Basque Autonomous Community regards Navarra as a substantial part of the Basque history and culture. Many social, cultural, and political organizations work in the same line along the four territories of the Southern Basque Country. However, there is a very strong political attitude in the opposite sense, represented mainly by the first party in this province (a brother party of the right-wing Spanish Popular Party). In the polls, approximately one fourth of the votes in Navarra go for Basque national parties, and some areas in the northwest of the territory show very high percentages of knowledge and use of the Basque language. is conflict over delimitation begins with the naming of the country. ere is no agreement even on the terminology with which to refer to the Basque Country or to the whole Basque area, which is considered by some sectors as a kind of ‘Greater-Basque-Country’ idea. Paradoxically, there is much less disagreement about considering the Northern Basque Country (including Lower Navarra) as an integral part of the Basque Country. In this sense, a full understanding of the different meanings of the concept ‘Basque Country’ depends on both the interlocutor and the context in which the
Teija Tiilikainen, e Åland Islands, Finland and European Security (Mariehamn, ), -. omas Musgrave, Self Determination …, -. 20 Frank Horn, ‘Minorities in Åland with Special Reference to their Educational Rights’, in Lauri Hannikainen and Frank Horn (eds.), Autonomy and Demilitarisation in International Law: e Åland Islands in a Changing Europe (e Hague, ), .
18 19
Eduardo J. Ruiz Vieytez and Markko Kallonen term is being used. However, the main factor for recognizing the territorial area referred to in any discourse is the ideological one. B. Population and Society ere is a substantial difference between the populations of the studied regions. e population of the Basque Country is approximately five times greater than the population of the Trentino-Alto Adige region, and times greater than of the Åland. As for the per cent of total population, the Basque country comprises approximately .% of the Spanish population, South Tyrol represents only .% of the Italian population and the Åland’s population forms only .% of the total Finnish population. Åland is a practically monolingual Swedish-speaking region.21 e identity of both the South Tyrolese and the Ålanders is rooted strongly in their own regions and has developed during the era of self-governance. Even the term ‘South Tyrol’ did not really exist until its annexation to Italy; only afterwards it formed a political and cultural entity. Åland’s identity has been carved and developed by its geographical nature, monolingual society and autonomy statute. Ålanders do acknowledge their cultural and historical ties with the Finnish Swedes living on the mainland, but primarily identify themselves as members of a distinct group.22 Respectively the historical aspirations towards reunification with Austria in South Tyrol cannot be considered to have strong support among the German-speaking population of the province due to the formation of a South Tyrolean identity over decades of internal self-government arrangements. In the Basque Country approximately % of the population has Basque as its mother tongue.23 In general terms, roughly half-a-million people on both sides of the Pyrenees speak Basque. Both the Basque Country and South Tyrol have in common linguistic plurality. At the same time, both have traditionally been strongly Catholic societies. However, while in South Tyrol we find three different clearly defined linguistic communities, the language does not constitute an element of clear social division in the Basque Country, though there are two main spoken languages. e separation of ethnic and linguistic communities that can be easily identified in South Tyrol cannot be found in the Basque case. In fact, it is obvious that knowledge of the Basque language plays a role in the socialization of people in the Basque-speaking areas and also in social relations, but linguistic differences do not affect fundamental social attitudes in the Basque Country. National identity in the Basque area depends more on ideological aspects than on objective criteria of belonging to one or another social-cultural group. Approximately % of the Ålanders speak Swedish as their mother tongue. ere are just over a thousand Finns, less than % of the local population, living on the islands who have declared Finnish as their mother tongue. 22 Dag Anckar, ‘Åland as a Microstate. e Independence Scenario’, in Harry Jansson and Johannes Salminen (eds.), e Second Åland Islands Question ..., -. 23 Basque is not an Indo-European language although the vocabulary displays a strong influence of Latin, Spanish, and French words. 21
Territorial Autonomy and European National Minorities e German language, a minority language in the Italian state, is the dominant language for the population of the South Tyrol, as is Swedish in Åland, while the Basque language is a minority language even inside the Basque Country. In this regard, it should be kept in mind that the German language is a very strong and official language in the neighbouring countries of Austria, Switzerland, and Germany, as is Swedish for Sweden, while the Basque language has no support from any state-like entity, and is also in a very difficult situation both in Navarra and in the French Basque Country. C. Education Autonomy arrangements also guarantee the conservation of identity through Åland’s educational system, which, unlike on the mainland, is monolingual. e small size and ethnic homogeneity in Åland have helped to preserve its autonomy. e size of the Finnishspeaking population is small and does not pose a considerable threat to the local culture due to reasons we will discuss in the chapter dealing with legal framework (see Section III.D). e status of Swedish-speaking minority in the Finnish framework is particular due to the fact that Swedish is the second official language of the country, not just a language of the minority. erefore, it can be said that Ålanders enjoy a blend of territorial and personal autonomy within the Finnish State. In Finland any person can use her/his Swedish mother tongue in monolingual Swedish and bilingual municipalities. One has also the right to communicate with the authorities by using one’s own mother tongue.24 e Finns are obliged to learn Swedish at school even if the person is living in a purely Finnish-speaking region. By contrast, education in Finnish is not offered in Åland by the public authorities. English is a mandatory subject at schools; Finnish is optional. Åland does not have institutions offering higher university education, which is seen as a negative factor, since the young Ålanders move to Sweden or to Finland in order to receive university education. Many of them do not return afterwards to their region of origin.25 In South Tyrol there are three parallel school systems corresponding to the linguistic communities: German, Italian and Ladin. According to the Autonomy Statute, teaching in primary and secondary schools must be given in the mother tongue of the pupils. Due to functional autonomy the region has increased its influence on education in South Tyrol; this does not however mean that it would hold primary competencies in the area of education.26 As for the Basque Country, the education system is mixed, parents being offered the choice for their children to be taught in Spanish (model A), in Basque (model D) or in A municipality in Finland becomes bilingual if the number of speakers of the other language reaches % of the total population or is at least ,. However, a bilingual municipality only becomes monolingual if the number of speakers of the other language decreases to % or falls below ,. 25 Farimah Daftary, ‘Insular Autonomy: A Framework for Conflict Settlement? A Comparative Study of Corsica and the Åland Islands’, ECMI working paper no., October , . 26 Government of the Province of Bolzano-Südtirol, South Tyrol …, chapter ‘Schools and Further Education’; Jens Woelk, ‘e Case of South Tyrol: Lessons for Conflict Resolution?’, paper presented at the th Annual Convention, Association for the Study of Nationalities, on Identity and the State: Nationalism and Sovereignty in a Changing World, Columbia University, NYC, April . 24
Eduardo J. Ruiz Vieytez and Markko Kallonen both languages at the same time (model B). Although Basque is a minority language inside the region, a vast majority of the parents ask for models B and D for their children’s primary education.27 D. Economy Åland is a prosperous region within Finland, its Gross Domestic Product (GDP) being second only to Finland’s capital area and its unemployment rate is low. Yet, there are seasonal changes due to tourism and the economy’s sensitivity to external fluctuations in the markets. Åland’s economy is traditionally based on agriculture, fishing and shipping the size of industries being small. e tourism on Åland has been playing an increasing role as a (seasonal) income source for the islanders. Tourism is connected to the frequent ferry traffic between Sweden, Finland and Åland.28 South Tyrol’s strong economy is based primarily on tourism. Other important branches are the manufacturing industry and agriculture. As a consequence of the Autonomy Statute the public sector also offers plenty of working opportunities in state and provincial administration.29 Today the average income per capita in autonomous province of South Tyrol is one of the highest in Italy and higher than in the neighbouring Austrian Bundesland of Tyrol. e size of the industry is small and having more than one occupation as an income source is typical for the population of this autonomous province. Another indicator of the powerful economy in South Tyrol is its low unemployment rate.30 Economically, the Southern Basque Country is one of the richest areas in Spain in terms of per capita income. e unemployment rate is rather low outside the metropolitan area of Bilbao. e average income in the Basque Country is very similar to that of the EU.31 South Tyrol, the Basque Country and Åland also share high standards of living, as their respective GDPs are higher than the average in Italy, Spain and Finland. e three places can be considered as some of the richest areas within their respective states enjoying extensive services offered by a developed welfare state. e economic structure of these autonomous areas is mainly based on service sector. Yet during the th century, the Basque Country was a very powerful industrial area while South Tyrol’s and Åland’s economies mainly rest in the primary sector. e three models are known as A, B and D since the letter C is not used in the Basque language. Statistics and Research Åland (ÅSUB), Åland in Figures, at http://www.asub.aland.fi/index.con. 29 Government of the Province of Bolzano-Südtirol, South Tyrol …, chapter ‘Employment’. 30 e average unemployment rate in the region of Trentino-Alto Adige is .% while the general national unemployment rate in Italy is approximately %. Even more striking is the difference between the unemployment rate among young people (people under ) which in Trentino Alto-Adige is .% and % in Italy as a whole, Italian National Statistical Institute, at http://www.istat.it/index.htm and Provincial Statistics Institute, at http://www.provinz.bz.it/service/download/e/siz.pdf. 31 For statistics on the Basque Country, see http://www.eustat.es/document/en_cifras_i.html (Statistics from the Basque Autonomous government) and http://www.map.es/po-autonomica/ca-socioeco/princpv.htm (Statistics from the Spanish government). 27
28
Territorial Autonomy and European National Minorities Due to economical prosperity, all three regions have been appealing destinations to migration flows. e Basque Country was for many years a very attractive area for many inhabitants of rural areas in western and southern Spain. Although this big process of immigration stopped after the crisis in the late s, today only one third of the Basque population has native grandparents. South Tyrol also experienced significant immigration flows from other regions of Italy from the s until the s. Today a considerable number of seasonal workers, coming especially from Eastern European countries, arrive yearly in South Tyrol where they are employed in agriculture and tourism. Åland has not received any relevant population from the Finnish mainland, due in part to its autonomy system, as we will discuss later (see Section III.D). Finally, the number of immigrants arriving to the Basque Country, South Tyrol and the Åland Islands is, generally speaking, lower than in other Spanish, Italian or Finnish regions. III. E C: T L A F A. Territorial Self-Government and Asymmetry e Basque Country, Åland and South Tyrol are autonomous territories within the framework of the respective states of Spain, Finland and Italy. In other words, self-government of the people inhabiting these regions is realized on a substate level. Both the Kingdom of Spain and the Republic of Italy are unitary states that have adopted a decentralized model for the internal distribution of political power. In the two countries, the decentralization is extended to the whole territory of the state without transforming the model into a federal one. Finland is also a unitary state in which political power is not distributed to the administrative regions. In this sense, Åland is the only politically autonomous entity of the Finnish state.32 In the three cases under research, the basic laws for the autonomous system are the constitution and the respective statutes or acts on autonomy. Autonomy based on constitution is seen as a strong guarantee for conserving the self-government since any changes in the status would require strong democratic legitimacy. For South Tyrol, the Italian Constitution and Act on Autonomy date back to and respectively. Furthermore, Article of the Italian Constitution declares the support given to autonomy arrangements: e Republic, one and indivisible, recognises and promotes local autonomy; it shall apply the fullest measure of administrative decentralisation in services dependent on the State and adjust the principles and methods of its legislation to the requirements of autonomy and decentralisation.33
e only other autonomy arrangement in Finland is the limited cultural autonomy granted to the indigenous Sami people in their home area in Lapland. (Law no. /, adopted in July ). 33 Constitution of Italy, Article , the text of the Constitution can be found on the MIRIS data base at http: //www.eurac.edu/miris. 32
Eduardo J. Ruiz Vieytez and Markko Kallonen e current Italian Constitution was amended for the first time in . Respectively, for the Basque Country, the Spanish Constitution was adopted in , whereas the Statute is in force since . e present Finnish Constitution entered into force in while Åland’s current Autonomy Act was adopted in and came into force on January . If we look for an element of asymmetry in the autonomous systems hitherto studied with respect to the rest of the communities or regions within the state, the answer is controversial. Åland’s autonomy is unique within Finland’s state structure. is asymmetry has evidently been beneficial for the region giving space for pragmatic solutions for the organizing of power sharing and dialogue between Finland and Åland’s regional authorities. In the case of South Tyrol, the Italian Constitution foresees five autonomous regions with a special statute34 whereas the other regions are considered ordinary statute regions. is could be considered as a first element of asymmetry (although shared with four other regions). Second, South Tyrol does not make up an autonomous region by itself since the autonomous province of Bolzano is one of the two provinces included in the autonomous region of Trentino-Alto Adige. In this sense, this region is unique, because the level of the strongest political power is the provincial one and not the regional one. Finally, there is an element of asymmetry in the fact that the autonomy for South Tyrol is included in an international legal instrument.35 In the same way, the autonomy status of South Tyrol was negotiated between the authorities of Italy and representatives of South Tyrol, more precisely with the representatives of the South Tyrol’s People’s Party. e outcome was a ‘package’, which contained a detailed operations calendar regarding implementation of the negotiated autonomy status. In the case of the Basque Country, there is in principle no element of asymmetry in the Spanish Constitution. e latter does not even mention the communities that would be set up at a later stage. What constitutes in fact a peculiar reference to the Basque autonomy is the first Additional Provision of the Spanish Constitution. is provision refers to the ‘historical rights’ of the territories with fueros.36 is peculiarity is recognized for the Basque provinces of Biscay, Gipuzkoa, Alava and Navarra which gives them the possibility of keeping or recuperating some political powers even going further than what is established under Title VIII of the Constitution for the rest of the Autonomous Communities.37
Apart from Trentino-Alto Adige, Sicily, Sardinia, Friuli-Venezia Giulia and the Aosta Valley are also special regions according to the Italian Constitution of . 35 e Gruber-De Gasperi Agreement, see section III.E. 36 is word has no clear translation into English. In terms of public law it refers to the special regime enjoyed until the nineteenth century by the provinces or territories of Biscay, Alava, Gipuzkoa and Navarra. 37 Additional disposition: ‘e Constitution protects and respects the historic rights of the territories with fueros. e general updating of the fuero system shall be carried out, when appropriate, within the framework of the Constitution and the Statutes of Autonomy.’ is is, for instance, the legal basis of the political power of the Basque provinces in tax law and tax management, roads and traffic and in police forces. 34
Territorial Autonomy and European National Minorities
e asymmetry in this case can also be appreciated by considering the territorial autonomy for the Basque Country as a kind of agreement between the Basque people and the state. In the case of the Basque Country, the principle of the contract is further emphasized in the Statute of Autonomy. e Additional Provision to the Act on Autonomy of the Basque Country states that ‘the acceptance of the system of autonomy established in this Statute does not imply that the Basque People waive the rights that as such may have accrued to them in virtue of their history and which may be updated in accordance with the stipulations of the legal system’. e Statute of Navarra also includes a very similar Additional Provision, on the basis of the ‘historical rights’ that belong to the territories with fueros. ese are the remaining consequences of the special political regime of the history of the Basque Provinces of Biscay, Alava, Gipuzkoa, and Navarra, which lasted until the nineteenth century. To summarize, in the three cases some peculiar legal elements can be found to defend the special character of these territorial autonomies. B. Political Representation According to their respective Acts on Autonomy, Åland, South Tyrol and the Basque Country have each adopted internal parliamentary systems in which the president of the executive body is elected by an assembly and is accountable to it (in South Tyrol the Südtiroler Landtag, in Åland, the Lagting and the Legebiltzarra in the Basque Country). One difference in the systems is that the Basque president nominates the rest of the members of the government, while in South Tyrol it is the local parliament who elects the members of the executive (Landesregierung) based on proportional representation of the three linguistic groups. Åland has a legislative assembly that contains members and is elected by Ålanders every fourth year.38 e legislative assembly of Åland appoints the Åland government (Landskapsstyrelse). Åland’s government has to be based on coalition and consensus to make it workable. In each of the three cases there is a parliament with a sole chamber. However, in the case of the Basque Statute, the fact that representation of the provinces within the Basque Parliament is equal regardless of their population (Article of the Statute), is a very remarkable characteristic. is has a great political influence on the composition of the parliament, when you consider that Alava has only a fifth of the population of Biscay. e explanation for this strange composition lies in the idea of Basque nationalism as a building up of a highly decentralized country, giving a great deal of power to the territories and their respective local parliaments and governments. In this sense, the central bodies of the autonomous community would have wide functions of coordination, and the parliament would remain like a second chamber of a federal system. However, the political practice in the Basque Country has erased this initial idea and today the most important acts and decisions are taken by the parliament of the community. e representation of the two 38
Only persons possessing regional citizenship in Åland may vote and stand in such elections.
Eduardo J. Ruiz Vieytez and Markko Kallonen provinces in the regional parliament of Trentino-Alto Adige is also the same, although in this case differences in population are not so important. In Åland there is no internal significant division of the archipelago that could be reflected in parliamentary composition. Likewise, the internal distribution of political power is also a common characteristic in the Basque Country and the autonomous region of Trentino-Alto Adige. In both cases, under the autonomous level we find a provincial level of autonomy with its own parliaments and governments exercising political powers. is is in fact the case of South Tyrol where the power-sharing model is based on the proportional representation of the language groups. In this respect, both systems have this common element of a complexity because instead of forming a single institutional level, there are two territorial levels within the autonomous regions. However, the historical reasons for this power sharing are unique. Finally, on the state level, there is one seat preserved for a representative of the Åland Islands in the national Parliament of Finland, which consists of representatives.39 is provides Åland with one source to make its voice heard on a national level but its concrete meaning can been seen merely as symbolic. In the case of South Tyrol there are no legal provisions according to which any seats in the national parliament would be reserved for South Tyrolean representatives.40 In Spain, both chambers of Parliament are elected through the provinces, so the Basque area is represented by a certain number of Members of the Parliament in any case. Åland has also had a permanent representative in the Nordic Council since .41 is autonomous presence has offered Åland a way to exercise regional diplomacy and promote its interests beyond the national level. Åland, like South Tyrol and the Basque Country, also has a representative in the EU’s Committee of Regions, as well as in the Finnish Permanent Mission to the EU. As for a possible representation in the central government, there is no provision in the Basque case, while in the case of South Tyrol Article in the Statute of Autonomy foresees the presence of the president of the province (Landeshauptmann) in the Council of Ministers when the former is dealing with questions affecting the autonomous province. In both cases, the central government maintains a permanent representative in the autonomous regions (Regierungskommissar/Commissario del Governo).42 e governor of Åland is arrangement came into existence due to mutual understanding, not as a part of the negotiation concerning the Act of Autonomy. 40 However, there was an important ruling of the Italian Constitutional Court (n./) according which the % threshold for political representation of political parties in national parliament was lifted in order to guarantee political representation to German- and Ladin-speaking minorities. Giuseppe Avolio, ‘Gli organi statutari. Funzioni, composizione e sistema elettorale’ in Joseph Marko, Sergio Ortino and Francesco Palermo (eds.), L’ordinamento speciale …, -, at -. 41 e Nordic Council, formed in , is a forum for interparliamentary cooperation. Members of this Council are: Norway, Sweden, Finland, Iceland, Denmark, Faeroe Islands, Greenland and Åland Islands. 42 is ‘Government Commissioner’ supervises the province and functions as a link between central administration and province. Melissa Magliana, e Autonomous Province …, ; Antonio Lampis, ‘Il Commissario del Governo per la Provincia di Bolzano’ in Joseph Marko, Sergio Ortino and Francesco Palermo (eds.), L’ordinamento speciale …, -. 39
Territorial Autonomy and European National Minorities is nominated by the President of Finland in accordance with the president of Landsting. If a consensus is not reached, the Finnish President appoints the governor from among five candidates nominated by the legislative assembly.43 A noteworthy feature in the relations between the regional and central levels is the existence of joint committees. e Åland Delegation is a joint committee of the regional government and Finland’s state authorities. It consists of five members, two of which are elected by the council of state and two by the legislative assembly of Åland, with the Governor being the chairman of the delegation. is delegation functions as a mediator and facilitator between the parties in case of possible disputes between regional and state authorities. In South Tyrol there are two functioning joint committees which must be consulted in matters relating to the implementation of the autonomy statute. ese committees play a significant role in the interplay between state and regional administration.44 As for the Basque Country, the only established joint committee works solely on the matter of tax law and financing arrangements. C. Scope and Financing of the Autonomy e self-governance in the Basque Country, South Tyrol and Åland is reflected in a long list of legislative and executive powers contained in their respective Acts on Autonomy to be exercised by the community or provincial bodies. In the three cases, this degree of autonomy is complemented by an adequate provision of financial means or resources, which can be considered itself as an important guarantee for the functioning of self-governance. In the Western European context, it can be stated that these regions enjoy today extensive self-governance rights. If we compare their systems with those of other regions or autonomous entities in the surrounding countries, it is clear that the degree of selfgovernment granted to the Basque Country, South Tyrol and Åland are among the highest levels of decentralization across European states, including those of a federal nature. e level of self-government achieved by the Basque Country and South Tyrol is the most extensive within each of their respective Spanish and Italian systems. Outside these models but within Western European countries, it can only be compared with the autonomy enjoyed by the Faeroe Islands and Greenland in Denmark. e case of Northern Ireland is in this sense a peculiar one. is is because, on the one hand, the level of 43
44
Act on the Autonomy of Åland, Chapter , Governor and the Åland delegation. e joint committee on the regional level has twelve members ‘of which six shall represent the state, two the Regional Parliament, two the Regional Parliament of Trento and two that of Bolzano. ree of them must belong to the Italian speaking group’. e joint committee appointed to autonomous Province of Bolzano has six members of whom three shall represent the state and three the Province. One of the representatives of the sate must belong to German-speaking group, respectively one representative of the Province must be Italian. Special Statute for Trentino-Alto Adige, Article , the text can be found in the MIRIS data base at http://www.eurac.edu/miris; Francesco Palermo, ‘Ruolo e natura delle Commissioni paritetiche e delle norme di attuazione, in Joseph Marko, Sergio Ortino and Francesco Palermo (eds.), L’ordinamento speciale …, -.
Eduardo J. Ruiz Vieytez and Markko Kallonen self-government actually recognized for devolved institutions is clearly lower than the one of the Basque Country, Åland and South Tyrol. But on the other hand, Northern Irish people enjoy the right to self-determination, as recognized in the Good Friday Agreement of , unlike the populations of the Basque Country, South Tyrol or Åland.45 e Basque Country and South Tyrol share the element that their autonomous bodies have no explicit competencies in terms of international relations. In South Tyrol, however, the spirit to operate on an international level has increased. South Tyrol as well as the Province of Trento are engaged in cross-border cooperation with the Austrian Bundesland of Tyrol. is joint venture called Euroregion, aimed at promoting the economics of three regions, has its own representation in Brussels since .46 Åland has the possibility to overrule implementation of an international treaty should it collide with the Act on Autonomy. International issues remain as the sole jurisdiction of the state in all cases. However, in the case of the Åland Islands, the regional bodies play a role in international affairs according to their respective Acts on Autonomy. One result of the negotiations which preceded Finland’s membership in the EU, was the so-called ‘Åland Protocol’. According its provisions, Åland joined the EU as a Finnish region in becoming a member of the customs union but staying out of the tax union. Furthermore Åland’s regional citizenship was about to stay in force despite colliding with the principles of the EU, namely free movement of people, goods and capital. e Åland Islands had an option to stay out of the EU when the rest of the state joined it, as an acknowledgement of its international status. ere are some major differences among the three cases in terms of providing financial autonomy. In South Tyrol, financing is provided by the state according to provisions laid out in the Autonomy Statute.47 Most of the revenues obtained by the state in the province are transformed back to the budget of the autonomous bodies. In fact, the province receives some % of the tax revenues in return.48 Furthermore South Tyrol receives financing from the state for special projects in the region as well as financing from different EU funds. South Tyrol enjoys a broad financial autonomy compared with other Italian regions.49 In the Åland Islands the Finnish state collects the taxes in the same way as it does in other Finnish regions. Åland receives as compensation .% of the state budget to cover the costs of local administration run by local authorities (the so-called ‘amount of equalisation’). e Act on Autonomy also contains several provisions on reasons that would However, the concept of self-determination has been widely used in South Tyrol and, mainly, in the Basque Country. Indeed, the Basque parliament passed a political declaration in by an overwhelming majority stating the right of Basque people to self-determination. 46 Francesco Palermo, Die Außenbeziehungen der italienischen Regionen in rechtsvergleichender Sicht (Frankfurt am Main, ), -; Günther Pallaver, ‘L’Euroregione: un progetto a cavallo tra politica e diritto’, in Joseph Marko, Sergio Ortino and Francesco Palermo (eds.), L’ordinamento speciale …, -, at . 47 Article , Special Statute for Trentino-Alto Adige. 48 Ibid., Article . 49 Melissa Magliana, e Autonomous Province …, -. 45
Territorial Autonomy and European National Minorities increase the sum granted for Åland.50 is rather flexible framework also fosters the interplay between local authorities and central authorities when organizing and agreeing upon powers between local and state administrations in a changing environment. Occasionally regional or state authorities are temporarily vested with more competencies than are foreseen in the Act of Autonomy in order to carry out a particular task.51 In the case of the Basque Country, however, the autonomous system reflects the traditional tax independence of the historical territories. In this sense, each Basque territory has its own treasury and is in charge of collecting taxes from citizens. After tax collection, provinces provide resources for the budget of the Autonomous Community first and then for that of the state for the powers exercised by the state inside the Basque Country. is system allows in practice an independent (although coordinated) functioning of the Basque treasury with respect to the state one. In circumstances where the economic situation evolves better in the Basque Country than in Spain, or the autonomous administrations manage tax revenues better than the central treasury, the Basque Country obtains a benefit that would result in a loss if these factors were evolving the other way round. To summarize, the Basque Country is competent to create and collect its own taxes, while South Tyrol and Åland receive their financial means from their respective central governments. D. Political Rights e underlying principle is the guarantee of equal rights in political participation for all citizens of the state. In order to safeguard these principles for minorities, special protection clauses are implemented by the respective states. All Spanish citizens living in any municipality of the Basque Country are entitled to vote in the Basque autonomous elections.52 Furthermore, all Spanish citizens and their descendents, even those living abroad, whose last residence in the Spanish state was located in any of the municipalities of the Basque Country, are entitled to vote and to be elected. erefore, there is no requirement of a residence period to achieve political rights in the Basque system. In the autonomous province of Bolzano, on the contrary, there is a requirement of four years of uninterrupted residence to be entitled to vote and be elected in provincial polls, as established in Article of the Statute. In Åland, the Act on Autonomy creates regional citizenship and the right to domicile as tools for the preservation of the Swedish identity of the Islands. is regional citizenship is a prerequisite to public posts and participation in an election of the legislative assembly of Åland. e right to own and hold real estate in Åland is reserved for persons with the right of domicile. Regional citizenship is acquired at birth if one of the parents possesses Åland citizenship. Immigrants, holding Finnish citizenship, who have lived in Åland for five years and have satisfactory knowledge of Swedish, can obtain 50 51
52
Act on the Autonomy of Åland, Chapter . Farimah Daftary, ‘Insular Autonomy …’, ; Act on Autonomy of Åland, Section . Article of the Statute.
Eduardo J. Ruiz Vieytez and Markko Kallonen Åland citizenship upon application. On the contrary, persons who have been a resident outside Åland for longer than five years lose their regional citizenship.53 In the field of linguistic rights, according to the Act on Autonomy of the Basque Country Article , Basque and Spanish are both official languages in the whole territory. According to this element of personal autonomy, everybody has the right to use either of these languages in both private and public life. Spanish citizens have the obligation to know Spanish 54 but there is no obligation to know any other language of the state. e official statute of the Basque language follows a territorial model. Basque is also supposed to be official in some areas of Navarra. In theory, any citizen is entitled to use any of the official languages in his or her relations with any public administration, including the judiciary. However, the sociolinguistic reality of the country precludes the full implementation of this provision. It must be said also that some sectors of public administration, especially those depending on the central government, are very reluctant to implement any measures to facilitate the incorporation of the Basque language into the public relations sphere. In the case of South Tyrol, Article of the Autonomy Statute states that within the region the German language enjoys equal status with Italian. is clause could be considered as a proclamation of the official status of German in the whole region. However, this is not the interpretation commonly accepted. In general, German is considered to be an official language in the territorial sense in South Tyrol, while on the regional level, the German-speaking citizens of South Tyrol have the right to use German in their relations with regional bodies.55 In this sense, the status of German can be considered as official in a territorial sense in South Tyrol and in a personal sense at the regional administrative level. e Ladin language cannot be considered an official language according to the Statute. If there were a similar official status for the Ladin language, this would not spread over the valleys of Badia and Gardena. E. Legal Guarantees of the Autonomy Regime We can distinguish some differences between the guarantees given by the three selfgovernmental systems. From the constitutional perspective, the Spanish Constitution recognizes, under Article , the right to autonomy of the nationalities that make up the ‘Spanish nation’; but there is no further provision for granting autonomy to the Basque Country. e map of autonomous communities is not drawn in the Constitution and, in this sense, there is no specific guarantee for providing autonomy for the Basque Country as a whole. is also explains the fact that Navarra constitutes an autonomous community itself. Another difference in terms of guarantees appears with respect to international law. South Tyrol’s autonomy was first granted by the Gruber – De Gasperi Agreement of . To be precise, what was granted was the territorial autonomy of the German-speaking 53
54 55
Act on the Autonomy of Åland, Chapter . Article of the Spanish Constitution. Article of the Statute of Trentino-Alto Adige.
Territorial Autonomy and European National Minorities population. Similarly, one of the bases for the devolution of the position of the Åland Islands was bilateral negotiations between Sweden and Finland. e consequence of these negotiations was the so called ‘Åland Agreement’ in which Finland basically guaranteed to preserve the Swedish language and culture of the islanders.56 In the Basque case no international guarantee for autonomy exists. Possible disputes between autonomous and central institutions are solved in a very similar way in the cases of South Tyrol and the Basque Country. On the one hand, the constitutional court holds judicial power over autonomous and central authorities. Autonomous and state acts can be taken before the constitutional court, and the latter can declare them to be unconstitutional. However, we must remember here that the composition of the constitutional court in the Spanish and Italian systems does not come from a balanced election between state and regions or communities, as is the case in Germany. On the other hand, the Italian and Spanish states hold means to control the activities of the autonomous powers. ese possible measures of control are foreseen in the Constitutions and the respective Statutes of Autonomy. is element stresses the characteristic of a unitary state, in which the political power is delegated into decentralized entities, which are not considered as constituent parts of the state. In the case of Åland different bodies are involved with mediation, both on a regional and on a state level. e rather informal joint committee, Åland’s delegation, functions as a mediator in the case of disputes and consults legislative processes. After hearing the opinion of the supreme court, the President of Finland can veto passing a bill or part of it. is can be done when the president considers that Åland’s legislative assembly has exceeded its powers or if the external or internal safety of the country is jeopardized.57 If an international treaty between Finland and a foreign state is signed it has to be in line with the Autonomy Act. If the negotiations deal with the subjects falling into the competency of the Åland Islands, the government of Åland should be informed and they should be provided with the possibility to take part in the negotiations.58 It is possible that an international treaty, ratified by Finland, will not apply to Åland. e Finnish court holds competency over the matters related to the Åland Islands.59 Finally, some words should be said about amending the Acts on Autonomy. In the Basque Country, the reform process is a quite complex one. In each case, the new text must be passed by the central parliament and submitted to a referendum of the Basque people. ese requirements stress the contract nature of the aforementioned Autonomy is agreement is often quoted as an example of a longstanding bilateral treaty. However, the Åland Agreement was not a legally binding treaty and it developed only later into international customary rule seen to oblige Finland to safeguard the Ålanders’ autonomy. Kristian Myntti,’e Åland Model – its Background and Special Characteristics’, in Harry Jansson and Johannes Salminen (eds.), e Second Åland Islands Question..., . For the text of the agreement see, for instance, Hurst Hannum (ed.), Documents on Autonomy and Minority Rights (Dordrecht ), -. 57 Act on the Autonomy of Åland, Chapter . 58 Ibid., Chapter , Section . 59 Markku Suksi, ‘Autonomy and Self-Government by International Decision’, in Harry Jansson and Johannes Salminen (eds.), e Second Åland Islands Question …, -. 56
Eduardo J. Ruiz Vieytez and Markko Kallonen Act. On the contrary, the Autonomy Statute of South Tyrol and the Act on Autonomy of Åland must be reformed following the process for constitutional laws as foreseen in the respective Constitutions. is means that neither the region nor the provinces have final decision-making power to amend the text. In this sense, the South Tyrol and Åland autonomy systems do not enjoy the same democratic guarantee included in the Act on Autonomy for the Basque autonomy system. However, it must be taken into consideration that in the Basque case there are no constitutional or international guarantees, as we have already mentioned above. IV. E C: P C From a political point of view, South Tyrol and the Basque Country are social realities in which different and even contradictory political aspirations coexist even if the Basque Country is the only one suffering from open violence. Åland, unlike the two other regions, can be described as a peaceful society where no major tension can be sensed. However, it would be misleading to think that there would not be any aspiration on the side of Ålanders or Finns to reform or change the current status of the Åland Islands’ autonomy. us, the politicians in Åland have so far been mediating in spite of some smaller disputes caused mainly by frustration of Ålanders at not having enough competencies to influence decisions making especially at a European level. In the South Tyrolean case, there has always been a political aspiration in favour of reincorporating the land into its kin-state or, at least, the recognition of the right of the South Tyrolean people to self-determination. is aspiration clashes with the state view of the territorial integrity of the Italian Republic. In the case of the Basque Country, the original aspiration for Basque national identity is the independence of the country or, at least, the recognition of self-determination for the Basque people. On the other hand, national unity is one of the basic elements of the construction of the Spanish political identity. erefore, both cases demonstrate a political conflict with contradictory political aspirations having long-established historical roots. e origin of the nationalist ideology60 in South Tyrol and in the Basque Country relates to the idea of ‘nation’, which was consolidated in the nineteenth century. In the Basque area, the Basque national identity in the modern sense appears in the last decade of the nineteenth century, claiming independence of the country from Spain and France. ese two states had also lived a process of nationalization that, in the case of the Basque territories, had brought these provinces to an almost complete unification with the rest of the state. In South Tyrol, nationalism did not appear until the region was annexed by Italy. e Fascist period did not allow this ideology to emerge and develop. Yet, at the end of 60
When we use the term ‘nationalist ideology’, we normally refer to an aspiration to sovereignty that can be appreciated in several nationalities or national minorities that do not enjoy their own political framework nor belong to their respective kin-state. ‘State ideology’ in the sense of the maintenance of territorial integrity without consideration for the wishes for self-determination of these communities can be also considered as nationalistic, but this expression is not normally used in this sense. We will refer to this type of aspiration as ‘unionist’.
Territorial Autonomy and European National Minorities the Second World War, the sense of political organization of the South Tyrolean people around the Südtiroler Volkspartei/South Tyrolean Peoples Party (SVP) in a new form of nationalism appeared very clearly. e difference between the Basque and the Tyrolean nationalism is that the aspirations of this ideology are experienced differently in the practical arena. While in the Basque case, self-determination would be a step forward in the construction of a new political entity, in South Tyrol, the process of self-determination would be addressed in terms of unification with the kin-state and with the rest of Tyrol. In this sense, the former can be considered as a separatist nationalism and the latter as an irredentist nationalism. ere are two different interpretations of history, which to a certain extent still coexist in South Tyrol playing an important role as a matrix for the collective memory of the different language groups. Extreme Italian interpretation sees South Tyrol as an ancient Italian territory, whose original inhabitants were ‘Germanized’ over the centuries; Italians are the rightful owners of the region because they were original inhabitants of the area. Furthermore, South Tyrol formed a natural border between Austria and Italy. e watershed was also used as a geopolitical argument for the Italian condition of the region, just as the nature (climate and flora) were described to be Italian. e German interpretation sees the German-speaking population as victims of imperialistic Italian policy for which the Italian state has never formally apologized. e specialists of the League of Nations addressed in their statement that the Åland Islands are geographically part of the Finnish archipelago and this was used as one of the arguments for leaving Åland under Finnish supremacy. e secession of Åland from Finland would have decreased the number of Swedish-speaking inhabitants within the Finnish state having a negative impact on the status of the Swedish- speaking population as a whole. Åland was seen as a sound stronghold for Swedish culture in Finland. It was feared that otherwise it would be only a matter of time before the Swedish-speaking population on the mainland would lose their identity and be assimilated into the overwhelming Finnish majority. When studying Finland’s history after the independence declaration61 one can find a very sensitive approach towards the Swedish-speaking minority vested with broad protective rights. e long historical evolution can be given as an explanation, with the consequence that Finland’s Swedish-speaking minority identifies itself with the Finnish state and not with Sweden. It is true that Swedish was the language of the elite and that the influence of this elite has been and is stronger in Finnish society than one would think when judging only by the numbers. e winners of the civil war were bourgeois, the so-called ‘whites’ among which the majority of Swedish-speaking Finns obviously fought. 61
Finland declared itself independent on December . Russia’s revolutionary Bolshevik government recognized Finnish independence on December. e political situation in Finland became strained and led to civil war between government troops (so-called ‘whites’) and socialists (‘reds’). e element of a war of independence was present as well since the Finnish government forces had to drive away Russian troops still located on Finnish territory. e civil war ended in May with the victory of the ‘whites’. e main outline of Finnish history as well as other material dealing with Finland’s history can be found on the internet at Virtual Finland, Ministry for Foreign Affairs, http://virtual.finland.fi/finfo/english/hist.html.
Eduardo J. Ruiz Vieytez and Markko Kallonen One could say that the Swedish-speaking Finns fought on the right side in order to be entitled to extensive rights within the new republic. Moreover, it can be asked whether there were other reasons taken into consideration by the political elite of that time. Perhaps the existence and well being of a Swedish minority could be seen as a way to protect the Finnish state from the threat of the revolutionary, unstable eastern neighbour. By guaranteeing and safeguarding its Swedish-speaking minority, Finland tied itself more strongly and more closely to the Scandinavian countries. is served as well to support the identity-building of the state as a western country. In other words, the institutionalized existence of a Swedish-speaking minority in Finland could be seen as a form of defence policy. Åland’s yearning for joining62 its kin-state in (being brought up again in by the Ålandic legislative assembly)63 has rational reasons. An unstable Finnish state neighbouring an unstable and imperialist Russia and later Soviet Union superpower was not a very appealing host. Sweden’s delicate and refraining approach towards Åland has definitely had a major impact on the devolution of the status of the islands. e reasons for Sweden’s policy have been a mixture of diplomacy and domestic and foreign policy. Furthermore, Sweden’s own approach as a centralized state towards its Finnish minorities in the past would have given rather little moral legitimacy to interfere in Finland’s policy on Åland.64 Both South Tyrol and the Basque Country have a common past of suffering during the th century under different totalitarian regimens. In the Tyrolean case, the Fascist period lasted for years from to . After the surrender of the Italian forces, the German Reich annexed de facto South Tyrol and other territories under the new entity of Operationszone Alpenvorland until the end of the war in . In the Basque case, the totalitarian experience begun under the dictatorship of Primo de Rivera (-), but an even more brutal repression was suffered under Franco for nearly years (-). In the same context, it is worth mentioning that nationalist ideology has played in both cases a bigger role than the exclusively political one. Nationalist ideology has functioned as an element of socialization and a tool for the construction and maintenance of the community itself. Nationalism, in this sense, has given to the autochthonous culture, language, and way of life the space and means to manifest and develop itself. In both cases (similar to the Irish nationalism of the nineteenth century), nationalism has developed not e term ‘rejoin’ is commonly used in literature dealing with the Ålands Islands. However, from the historical point of view the term is slightly problematic. Åland formed its own administrative region or was ruled from the Finnish mainland for centuries. It was part of the Finnish Grand Duchy under Russian supremacy -. Sweden, or Finland-Sweden, as an entity to which Åland belonged for centuries, no longer existed after . Åland was a part of the Finnish state which declared its independence from Russia in December . 63 Kristian Myntti, ‘e Åland Model …’, . 64 See, for instance, Sia Spilipoulou Åkermark, ‘Steps Towards a Minority Policy in Sweden’ in Snežana Trifunovska (ed.), Minority Rights in Europe. European Minorities and Languages (e Hague, ), ; Jarmo Lainio, ‘European Linguistic Diversity – for whom? e Cases of Finland and Sweden’, Mercator Working Papers /, -. 62
Territorial Autonomy and European National Minorities only a strong political party (SVP in South Tyrol, PNV and others in the Basque Country), but also a wide web of cultural, sport, leisure, church associations, alternative systems of communications, community activities, gatherings, and many other issues to support the sense of community and identity. Similarly, it is of interest to note that in both communities the Catholic Church has traditionally played an important role in maintaining and developing a different national identity, mainly through the linguistic heritage and the traditionally close link between the nationalist movement and important sectors of the Church itself. Both South Tyrol and the Basque Country have a strong Catholic tradition, with very high indices of active participation in Catholic services, at least, until the s. is characteristic of South Tyrolean and Basque nationalism was in fact shared by the traditional nationalism in Ireland and even Quebec until the s, both also being mainly Catholic rural countries. In all three cases examined the dominant religion of the self-governing region is the same as in the state under whose supremacy it belong. However, it is very hard to indicate clearly its impact on the political conflict at hand. In the case of South Tyrol, for instance, the Catholic Church has been an important element in the identity-building of the German-speaking language group. Furthermore, it has played a significant role in preservation of the local identity and culture. On the other hand it could be seen as well as a mediator towards Catholic Italian society. It is worth mentioning here that both the SVP and PNV share a Christian-Democrat ideology. Both were members of the European Christian-Democrat family from the foundation of this movement, although today the PNV is not part of the European Peoples Party (EPP) due to PNV’s bitter differences with the Spanish Popular Party. However, the respective Members of the European Parliament of the SVP and PNV have participated in the work of the European parliamentary group of the EPP. On the other hand, the unionist ideology is linked in both cases with the immigrant population living in South Tyrol or in the Basque Country. However, in the South Tyrolean case, due to the clear division of linguistic communities, we can fully identify the Italian-speaking population (which today means primarily descendants of immigrants) with unionism, while in the Basque Country the reality is not so easy to establish. In fact, it is easy to show the link in the vote between immigrants (or descendants of immigrants) with unionist parties. And it is also true that one of the three geographical origins of the current Spanish Workers Socialist Party was the area of immigrant population around Bilbao. But the correlation between unionism and immigration is not definitive at all in deciding the vote. ere is also a native sector, mainly linked with the industrial and banking oligarchies of Biscay and Gipuzkoa, which has traditionally been unionist and in general attached to the Spanish right-wing ideologies. Basque nationalism is of course stronger among the native population, becoming almost monopolistic in the rural areas and between the Basque-speaking populations. In any case, both South Tyrol and the Basque Country show an identity also in the fact that nationalism is a majority ideology according to regional polls. In South Tyrol, the votes obtained by the different German and Ladin parties have always been more than %. In the Basque case, according to the autonomous polls celebrated since ,
Eduardo J. Ruiz Vieytez and Markko Kallonen political parties in favour of self-determination for the Basque Country have in all cases obtained around % of the votes. In this respect, in both cases we can appreciate a very fixed behaviour in the electoral sociology. e native/immigrant ascendant, the linguistic ability and the rural/urban environment of living have a very strong influence on the vote of the South Tyrolean and Basque peoples. is influence is greater in the case of South Tyrol, since the social and political division of the linguistic communities is quite clearly defined. In the Basque Country, there is a very consistent pattern in the electoral behaviour, but the flexibility is greater in the sense that all political parties compete in practice for the votes of all social and linguistic sectors of the society. In any case, both societies are characterized by a very strong electoral sociology with very little space for external conditions to have any influence. e vote is probably to be understood as an element of identification with the respective community, although in the Basque case the ideological element plays a role in many cases. Åland, on the contrary, is a remarkably homogeneous region with regard to the language of its inhabitants. In this respect, the difference in political arrangements and voting behaviour as compared to the Swedish-speaking minority in Finland is obvious. In Åland ethnicity is not the guiding principle which controls the voting, as it is on the mainland among the Swedish- speaking Finns. Hence, we can see a difference between Åland and the other two cases, particularly South Tyrol, where so far ethnicity has been a major factor influencing in voting.65 e most visible differences between the political reality in South Tyrol, the Åland Islands and that in the Basque Country are the involvement of international actors, the use or lack of violence, and the perception of the conflict as a settled or an open one. First, the fact that South Tyrol and Åland have their own respective kin-states makes a significant difference with regard to the Basque conflict. In the case of Åland, Sweden could be considered theoretically as the kin-state, although the role played by this kingdom can hardly be considered as such in political terms, at least for the last decades. Austria, however, has traditionally played a role in the South Tyrolean case. In contrast, the Basque Country has no kin-state. Even more, the division of the historical and cultural Basque territory into two different states does not make the conflict international, but rather a two-fold internal conflict. In this sense, the interests of the French and Spanish states are convergent. Unlike in the Tyrol and Åland cases, no international organization or institution has taken part in the solution of the Basque conflict, and both interested states are very reluctant to accept any international intervention to resolve the conflict. In the Basque case, there is not even the possibility of indirect intervention by a third state, as exemplified by the determinant role of the United States (apart from the United Kingdom and Ireland) in the Northern Ireland conflict. erefore, the contradictory political aspirations are in any case unbalanced, one being represented by the Spanish state and the opposing one lacking any state or international support. 65
Alcock mentions the term apartheid in his text when describing the ethnical exclusion taking place in South Tyrolean society. Antony Alcock, e South Tyrol Autonomy …, . See as well critical article by omas Kager, ‘South Tyrol: Mitigated but not Resolved’, () Online Journal of Peace and Conflict Resolution ().
Territorial Autonomy and European National Minorities e issue of open violence constitutes the second main difference between the three cases. While Åland has not suffered from the effects of violence used to meet political aspirations, in both South Tyrol and Basque Country violent actions appeared during the s as manifestations of the dissatisfaction of the respective nationalist sides. However, a great difference in these two cases is also visible: In South Tyrol violence remains as something belonging to the past with no important consequences, being present in political debates but hardly in everyday life. On the contrary, in the Basque Country the use of violence by some sectors has enormously affected not only the political debate but also the everyday life of citizens. It must be clearly said at this point that current support for the armed struggle carried out by ETA in the Basque Country is becoming marginal. If the supposed political branch of ETA (Batasuna66) has fallen to % of the votes in the last polls (May ) after the breakdown of the ceasefire (against % during the ceasefire in ), we know from different surveys that at least half of the voters of Batasuna do not agree with the use of violence by ETA. is would mean that support for use of violence would be at maximum about %. It is also true that after years of armed struggle and violence not only by ETA but also by the state in many cases, there is an important sector of the population suffering directly from the conflict (relatives of prisoners, victims of state violence, …) whose position tends to be favourable to that of ETA. We cannot forget the years of brutal repression under Franco’s dictatorship and the campaigns of dirty war against ETA carried out by the Spanish government during the s and s. Death squads created with the complicity of some members of the socialist government in the s caused some deaths, many of whom were completely innocent. ere are currently repeated and well-founded accusations of the torture and ill-treatment of detainees, exceptional legislation for the fight against terrorism that is questioned by the Council of Europe,67 and a very hard-line policy against the ETA prisoners and their relatives that is also widely contested by Basque society. At the same time, the vast majority of the Basque population has shown its disapproval of ETA’s criminal methods many times, and has asked for the dissolution of this group or, at least, its abandonment of the use of violent methods for political purposes. In any case, the violent element, not being a substantial part of the real political problem of the Basque Country, seriously complicates the search for a lasting resolution and makes the division between the different ideologies wider and bitterer. 66
67
In March , Batasuna was banned by the Spanish Supreme Court, according to a new act on political parties, passed by the Spanish Parliament in with the clear aim of banning this concrete formation. e main unionist parties supported the approval of this act, while Basque national parties and the United Left opposed it in vain. e act was appealed by the Basque government before the Constitutional Court on the grounds of violation of freedom of association and political rights but this appeal was rejected. e decision taken by the Supreme Court is expected to be challenged before the European Court of Human Rights. is can be observed in all the comments made by the UN Human Rights Committee and UN Committee against torture in the Spanish reports. e same can be said with respect to the European Committee for the Prevention of Torture. e last report published on the situation in Spain refers very closely and harshly to the conditions suffered by many Basque citizens; see http://www.cpt.int/ en/reports/inf-en.htm.
Eduardo J. Ruiz Vieytez and Markko Kallonen In this respect, one can identify today three different and very distinct groups in Basque politics: defenders of the right of self-determination, opponents of this right and a third group represented so far mainly by Batasuna,68 which does not condemn ETA’s violence, thus making any kind of political collaboration with the rest of Basque national parties impossible. e third important element of difference in this field is the perception of the conflict as existing or as a settled one. In the case of the Åland Islands and South Tyrol, a solution for an ethnic and political problem has been found through the legal framework in force. Even more, these two autonomous regimes, including their respective complementary measures of minority rights protection, are considered as internationally recognized models of solutions to national minority conflicts. Although there are political forces trying to achieve different degrees of reform in the system of South Tyrol (mainly the UFS on the nationalist side), a large majority of the population supports the current framework through the acceptance by the SVP of autonomy as an adequate model for living within the Italian state. In the Basque case, however, the political conflict is not resolved at all, not because there are still violent expressions, but due to the persistence of a strong disagreement on the self-determination question and the lack of consensus on the whole legal framework. On the one hand, the Spanish Constitution obtained a very narrow support of the Basque population in the referendum held on December (% of the census against % in the rest of the state). On the other, the Act on Autonomy for the Basque Country did secure the support of more than % of the census, but an important sector is still outside this system of autonomy and considers it as an imposition from the state. What is more, among the parties that once supported this statute there is today a deep disagreement on the interpretation of many clauses and, more importantly, on the very role played by this statute. While for the Spanish parties the statute is basically the final point of the Basque self-government and the highest level of autonomy possible within the Spanish Constitution, for the Basque parties the statute is only a step forward in the process of self-governance and it does not imply that the Basque people have renounced their right to self-determination. For the former, the constitution is the limit for any possible reform in the future; for the latter, the only limit would be the will expressed by the citizens of the Basque community. All this brings us to an easy conclusion that the Basque political conflict is far from a lasting solution. Any analysis of the development of Basque politics in the last five years would stress the affirmation that the disagreement between the Spanish and Basque parties is even deeper than ever in the past. It is not easy to foresee the future evolution of the situation in the Basque Country, although there is a strong tendency towards a deadlock 68
Recently a new political structure was created under the name Autodeterminaziorako Bilgunea (AUB, Grouping for Self-determination) to take part in the local and provincial polls of May . However, the lists of candidates presented by this formation have also been banned, since the state bodies think this is a mere continuation of the already illegal Batasuna. Nowadays there is no legal political formation that can be considered as a clear representative of this sector.
Territorial Autonomy and European National Minorities in the system, followed by a deeper division of the Basque society into the three different political blocks we have referred to earlier.69 Finally, another important element in the solution of this type of conflict is the attitude of the population living in the state but outside the conflict region. In the Basque case, the Spanish population experiences the conflict in a very sensitive way and the main Spanish political parties use the confrontation strategy against Basque nationalism in the search for sociopolitical cohesion. e political debate with Basque nationalism and the fight against violent action are very often highlighted, and public opinion is strongly shaped by views of the state mass media on this conflict. In such a situation, any possible solution in terms of recognition of the demands of the nationalists can be seen as a betrayal to one of the essential elements of the state. At the same time, the possible elements of asymmetry that could be integrated in favour of the Basque Country would be understood as privileges, and other Autonomous Communities would claim the same level of self-government. us, asymmetry becomes very difficult for the Spanish constitutional structure. It is rather subjective to claim that this element is also present in the South Tyrolean case, but in general terms, the perception of the South Tyrolean autonomy by the rest of Italy as a privileged system does exist. Some also claim that the evolution from living side-by-side to living together (cohabitation) has been prevented in South Tyrol.70 is has been based mainly on unwillingness of the local political elite to change and develop the situation between the different language groups. Institutionalizing the ethnic division was introduced by a proportional system according to which everyone has to claim his or her linguistic affiliation every tenth year. In this context adjusting politics along ethnic lines cannot be promoted and accepted without reservation. e broad tax autonomy of the autonomous region of Trentino-Alto Adige causes envy within other Italian regions. Other prosperous Northern Italian regions in particular find it hard to accept that their tax revenues are used by the central administration to subsidize poorer and less developed Southern Italian regions when at the same time South Tyrol can retain its revenues practically to be used for its own ends.71 is element is also present in the case of the Åland Islands. For some Finnish citizens Åland’s special status has been hard to legitimate. Critics argue that Åland does not really take part in financing the maintenance and development of expensive public goods and infrastructure. e exemption of Ålanders from compulsory military service sometimes causes bitterness among Finns who see it as an advantage when competing in the fields of education and labour. e fishing contingent, which is very beneficial for the Ålanders and the state subventions for Åland shipping have recently generated criticism towards Åland’s position as a Finnish region.
69 70
71
See an analysis of the Basque conflict in Xabier Etxeberria et al., Derecho de autodeterminación y realidad vasca (Vitoria, ). See, for instance, omas Kager, ‘South Tyrol …’; Melissa Magliana, e Autonomous Province …, -. Ibid., .
Eduardo J. Ruiz Vieytez and Markko Kallonen Yet, as things stand, we cannot compare the sensitiveness of the Italian population with regard to South Tyrol or that of the Finns regarding Åland’s autonomy with that of the Spaniards in relation to the Basque Country. In fact, South Tyrol is not today an important issue on the Italian political agenda, neither is Åland in Finnish politics. e Basque conflict, on the contrary, is probably the most important aspect of domestic politics in the Spanish state. erefore, we consider this to be an important difference between these cases, at least in the current situation. V. C F P e comparative analysis of the realities of South Tyrol, the Åland Islands and the Basque Country has been so far extended to a number of issues, classified into social, political, and legal aspects. A table displaying most of these concrete elements for comparison has been inserted at the end of this paper. Although the role played by these elements is obviously very different in each case, it is arguably useful to make an overview of the general results provided by such a table before coming to more structured conclusions. e table compiles concrete issues or elements of comparison, again grouped according to their sociological, political or legal nature. In out of the issues, we found similarities among the three cases referred to in this paper, noting that most of them refer to the legal or institutional framework provided for the respective autonomies. As for the rest, we found the highest numbers of similarities between the Basque Country and South Tyrol (), and between South Tyrol and Åland (). Finally, only in six issues did we find a similarity which existed in common between the Basque Country and Åland but not in common with the South Tyrol. Furthermore, none of these common issues corresponds to the political aspects considered. In general, we can identify two important present differences, which make the three cases rather distinct from each other. e first refers to national identity. National identification is established in a different way in each of the examined cases. In the case of South Tyrol, identity is linked to the ethnicity inherited by birth. In fact, there is a clear difference of ethnic or national identities, perhaps due to the fact that there is a kin-state for the national minority concerned, although the Autonomy Act does not include any provisions regarding South Tyrol’s bond to Austria.72 In Åland, identity is based mainly on ius sanguinis. In any event, the government of Åland can award regional citizenship on application. It is important to note that in Finland a Swedish surname does not necessarily indicate a person’s lingual affiliation, nor are the two language groups easily distinguishable by appearance. In the Basque country, however, there is no kin-state and the construction of national identities is for some cases alternative, but for some other, complementary. For Basques identity is based in the end on a personal decision and not only on the circumstances where the primary socialization takes place. 72
Jens Woelk, ‘Reconciliation Impossible or (only) Undesirable? South Tyrolean Experiences’, paper presented at the conference ‘Ethnic Diversity’, Graz - March , at http://www.peaceproject.at/ PPdocs /South_Tirol_study_Woelk.pdf.
Territorial Autonomy and European National Minorities e second main difference is the perception of the conflict as settled or on-going. South Tyrol, like the Åland Islands, is considered today as an example of a successful solution to national minority conflicts, while the complex system in force in the Basque Country has not been able to gain the clear support of all the sectors concerned and the conflict remains alive. In fact, the existence of an ongoing conflict shows that the system has not been able to solve the problem in a peaceful and generally accepted way. In this respect, there is a big difference between the Tyrolean and Ålandic cases, on the one hand, and the situation in the Basque Country, on the other. is leads us to different conclusions with regard to the political future of the three territories. To summarize, we foresee a broad perspective of stability and consolidation of the territorial autonomy in both South Tyrol and the Åland Islands. In the Basque Country, on the contrary, we predict ongoing instability at least in the near future, challenging the maintenance and consolidation of the current territorial autonomy. e Basque conflict does not appear so much in a violent way (in spite of the dramatic consequences of the use of violence by small minorities), as it does politically between supporters and opponents of the right to self-determination. is confrontation between political blocks, reflecting different national identities, is also increasing, at least in view of recent political practice. e use of violence by an armed group like ETA, with little but significant support, does not help at all in the search for a solution to the political problem. At the same time, the response of the state in combating the violence sometimes falls outside the rule of law, adding in this way some fuel to the fire. Finally, violence is too-often used as an excuse to deny the existence of a political problem in the Basque Country, and to identify terrorism with any kind of aspiration of sovereignty. Taking into consideration the current political situation in the Basque Country, it is very difficult to formulate a vision for its future. All possible scenarios aimed at solving the problems or defusing the tension are facing considerable obstacles. In this respect, we foresee three possible future evolutions of the political status of this area: ) Maintenance of the current status quo; ) Creation of a higher level of self-government for the Basque Country inside the Spanish state; ) Secession from Spain and creation of a new Basque State. e first of these is the proposal of the two main unionist parties (Partido Popular and Partido Socialista Obrero Español), with some differences in respect to the development of autonomy. However, keeping the actual status quo at the moment means preserving the instability of the region. e majority of people in the Basque Country vote in favour of political parties defending the right to self-determination, which is not recognized in the legal framework, while other groups have been excluded from the democratic arena against the majority of Basque public opinion. Political instability and confrontation affect institutional relations between central and autonomous governments, creating more and more practical problems in social and economic aspects. e process of structuring the system of autonomous communities all over Spain with balanced powers reduces the symbolic value of the Basque autonomy; in addition, armed struggle proves to be very difficult to erase by police means only.
Eduardo J. Ruiz Vieytez and Markko Kallonen A solution based on the creation of a new framework of stronger self-government within the Spanish state, would be the proposal of the Spanish United Left (in favour of a federal solution) and a significant sector of the PNV, beginning with the current president of the Basque government.73 However, there are many problems when it comes to implementing this solution. e question of the right to self-determination would remain in any case as the main obstacle to achieving such a solution. In addition, there is not very much room to maneuvre in creating new powers for the autonomous institutions without taking them from the basic core powers of the state. According to a broad reading of the statute in force, the Basque Autonomous Community has powers in almost all the areas apart from defence, international relations, border control, justice, citizenship, passport issuance and criminal law. At the same time, this solution would have to face the risk of not getting the support from both sides of the political confrontation. In addition, it would not be acceptable for Spain to create such different treatment for one region, without accommodating the others in the same way. e domino effect would play a role, at least in a rhetorical sense. e third possibility for the future is independence, with the creation of a new Basque state. is is the solution preferred by political parties like Batasuna,74 Eusko Alkartasuna (EA),75 and some sectors of PNV,76 always through the democratic exercise of the right to self-determination. e main problems for this solution, apart from the lack of massive support at this particular moment, would be the territorial question. In drafting the borders of the new state, many Basques would be left out if Navarra were not part of it. Conversely, many non-Basque people would be included in the new state if Navarra were incorporated. A similar problem could arise for the province of Alava, whose rate of Basque national identity is clearly lower than the one of Biscay and Gipuzkoa. Citizenship of the new state should be inclusive in any case, and possibilities for keeping double nationality (like in Northern Ireland) would be strongly recommended. However, at the moment, the Spanish (and French) state can never accept this possibility without fearing a strong effect on the national sentiment of its population. e position of Spain (and France) would be decisive for the new state to be recognized within the international community and to keep itself inside the EU. In any case, the territorial autonomy established through the Statute of is today in crisis. ere is no defined model for the future of the Basque Country and all possible
73
74 75
76
e Basque president (a member of PNV), has recently announced an initiative to propose a new status of free association with Spain in which the Basque Country would enjoy new powers and the right to decide its final political framework in a referendum. e proposal has been strongly rejected from the start by the Spanish unionist parties. is is supposed to be the political branch of ETA. As we mentioned already, this party was banned in . EA (Basque Solidarity) is a centre-left wing party that was created in after an important split in the PNV. e PNV and EA went in a coalition to the last regional polls in , obtaining % of the votes, the best percentage ever reached by any political formation in the Basque Autonomous Community. We could include here some other minor political parties on the left, like Aralar or Batzarre.
Territorial Autonomy and European National Minorities solutions appear equally unsatisfactory for a significant sector of the population. e current model has helped to consolidate an autonomous system that worked reasonably well for about years. However, at any given moment, an important political sector of the Basque Country has been excluded from this consensus. is exclusion of an important political share has also created the political condition for the keeping of a violent group alive. Today, disagreements in the interpretation of the statute and in the political aspirations of both the Spanish and the Basque parties are taking the situation to a permanent confrontation. Unless there is a kind of consensus on the principle of self-determination to create a new system with the agreement of all main parties, it will remain difficult to achieve a lasting solution to the national identity conflict in the Basque Country. However, in a very different situation, like the one in South Tyrol or the Åland Islands, a specific model of territorial autonomy can be considered as a successful experience. Taking into account the present high standard of living both in Åland and South Tyrol, it can be argued that a functioning autonomy is still the best way to guarantee the ethnically non-fitting state borders from the fear of secession and at the same time assure the minority the right to self-government and to maintain its identity. South Tyrol is often quoted as a rare example of solving violent ethnic conflict by introducing a functional territorial (and personal) autonomy. South Tyrol enjoys effective minority protection and its economy has flourished during the time it has formed an autonomous province within the Italian state structure. e Italian state has benefited as well from the booming, stable South Tyrolean economy. Furthermore, South Tyrol’s natural resources, especially its hydroelectric capacities, are valuable for the whole country.77 However, the case of South Tyrol also shows some degree of uncertainty. e peaceful solution to the conflict was meritoriously found after the goodwill shown by different parties to the dispute. e remedy was ‘tolerance established by law’ incorporating a system of rotation, parity and proportional representation.78 Due to current minority protection, the threat of assimilation is not present anymore. e structure of the autonomy status is based on ethnic division, to parallel societies that have rather little in common. ese societies have been living together peacefully for the last years. As things are at the moment, it could be claimed that South Tyrol is a prisoner of its own past. As time goes on, intermarriages are increasing at least in the urban areas of the region where the different linguistic groups have some interaction. Still, reform of the institutionalized lingual division has not really started nor is it desired by the majority of politicians and inhabitants. e German-speaking South Tyroleans have traditionally given their votes to the SVP based on the belief that a strong German party is needed to protect and guarantee their status. So far the attempts to establish a multiethnic party which would be attractive for large number of voters have been in vain. e secularization of society has led people to search elsewhere for belonging and continuity in their lives. For some individuals ethnicity and nationalism offer a way to 77 78
Melissa Magliana, e Autonomous Province …, -. Jens Woelk, ‘Reconciliation Impossible …, -.
Eduardo J. Ruiz Vieytez and Markko Kallonen fulfil this need. For politicians this might offer a way to gain easy votes by appealing to the emotionally charged topic of ethnicity. Despite many decades of peaceful coexistence, the potential threat of a return to shallow-minded ethnic policy has not entirely vanished from South Tyrol. e overwhelming victory for the position of the Italian nationalist right-wing parties in a local referendum held in Bolzano in October , could be seen as a sign of an important protest attitude from the Italian group to the current situation. e EU has had a positive effect on certain sectors. For instance, it has increased cross-border cooperation between neighbouring regions. However, the question of the applicability of certain autonomy regulations (aimed at protection of the minorities) with EC law is problematic as these regulations collide with the principle of free movement in the common market. So far the European Court of Justice (ECJ) has not questioned the legitimacy of autonomy provisions.79 e issue of shifting the policy and recomposing the institutions in South Tyrol touches very profound values of a society and its individuals. e question is should South Tyrolean society move away from maintaining linguistic groups and toward promoting a multiethnic society. Some authors suggest that the collective identity of the region could be based on the acceptance of the already-existing multicultural society, as a reality apart from the ethnicity of a member of the South Tyrolean society. e strategy to achieve this goal would call for concentrating on younger generations, establishing and increasing interethnic bonds among young people.80 In general it can be said that South Tyrol’s extensive autonomy structure has been successful both in economic terms and for the preservation of the South Tyrolese (German) identity. e standard of living is high in the area, which serves to defuse the potential tensions between the language groups and promotes the maintenance of the current structure. Furthermore it has allowed for maintaining Italian unity without creating a bitter conflict. Apart from the aforementioned problems relating to the autonomy status of South Tyrol, no drastic changes in its status would be anticipated in the near future. As for the Åland, a remarkable feature is the absence of violence from the very beginning. Finland’s reluctance to give up sovereignty over the islands has been demonstrated, for example, by the speeches given by the last two presidents of the state when visiting Åland. e reasons can be interpreted as being strategic. Finland holds a long democratic tradition and it would be rather unlikely that the majority of the Finnish-speaking population would not to be ready to accept the right of Ålanders to self-determine their future. Åland has not been satisfied with its possibilities to influence decision-making on the European level. It has been disappointed with the fact that Finland has not been willing to preserve for it a seat among the representatives Finland has on European Parliament. Furthermore, the enlargeere have been two judgments issued by the ECJ touching on the field of language rights within South Tyrol’s autonomy regulations. Neither of the rulings challenged the autonomy provisions but extend their scope. Ibid., . 80 is kind of idea would form sort of matrix for a shift towards shared society and ‘civic nationalism’, omas Kager, ‘South Tyrol …’; Joseph Marko, ‘L’Alto Adige. Un ‘modello’ per la composizione dei conflitti etnici?’ in Joseph Marko, Sergio Ortino and Francesco Palermo (eds.), L’ordinamento speciale …, -, at -.
79
Territorial Autonomy and European National Minorities ment of the European Union brings with it the uncertainty of unforeseen influencing possibilities in the future. Åland’s strategic position on the Baltic Sea also changed after the Baltic countries joined the North Atlantic Treaty Organization (NATO). Perhaps the potential membership of Sweden and/or Finland in NATO would finally allow Åland to make a clean break and open up all options for Åland from which to choose. As a part of Sweden, Åland could probably not maintain its special status, especially with regard to its linguistic protection and right to domicile. Another option presented would be the independence of the islands and joining the group of microstates. is would not, however, abolish problems rising from its insular location and dependence on external markets. Well-functioning contacts with the neighbouring countries as well as with EU institutions will continue to play a crucial role for the Åland Islands. One can ask whether the benefits gained by independence would be exceeded by the negative impacts and risks. Finally, all three cases have their own variable historical contexts and characteristics. It seems that in particular the cases of South Tyrol and Åland stress the importance of flexible autonomy implementation that permits asymmetry within the state structure. e small size of a given population with respect to that of the state, its distinguishable ethnic characteristics and its compact settlement are all factors which apparently increase the tolerance of special arrangements regarding that population within a democratic unitary state. Table . Comparison between the ree Autonomous Areas a) Territory and society
Åland Islands
South Tyrol
Basque Country
. Small percentage of state territory
Yes
Yes
Yes
. Size of the respective territory c. km²
No
Yes
Yes
. Border land
Yes
Yes
Yes
. Mountainous landscape
No
Yes
Yes
. Sea cost territory
Yes
No
Yes
. Administrative division of the historical territory
No
No
Yes
No No
No
Yes
Yes
No
Yes
No
. Part of North-South axis
No
. Controversial delimitation of the territory
No
. Population over ..
. Strong state migration flows in century
th
. Separate ethnic communities . Own language as a minority
No
Yes
No
No
Yes Yes
Yes
Yes
Eduardo J. Ruiz Vieytez and Markko Kallonen . Linguistic plurality
No
Yes
Yes
. Higher income than the average of the state
Yes
Yes
Yes
. Economy based on third sector
Yes
Yes
Yes
b) Politics and conflict
Åland Islands
South Tyrol
Basque Country
. Catholic religious tradition
. Contradictory political aspirations
No
Yes
Yes
No
Yes
Yes
. Strong nationalist parties with a Christian-Democrat ideology
No
Yes
Yes
. Traditional support from the Catholic Church for national identity
No
Yes
Yes
. Ethnic/origin influence in electoral behaviour
No
Yes
Yes
. Constant electoral sociology
Yes
Yes
Yes
. Majority support for nationalism
Yes
Yes
Yes
. International implication in the conflict
Yes
Yes
. Existence of a kin-state
. Use of violence and human rights violations
Yes81 No
Yes
. Largely settled conflict
Yes
Yes
No
Yes
c) Legal framework
Åland Islands
South Tyrol
Basque Country
. Nationalism as a social and political No movement
. Fascist regimes in the past . Separatist nationalism
. High sensitiveness of the state population
No No
No
Yes
Yes No
No
Yes
Yes Yes
No No
Yes
No
. Territorial autonomy
Yes
Yes
Yes
. High level of self-government
Yes
Yes
Yes
. Some elements of asymmetry
81
Yes
Yes
Yes
Even though Sweden’s policy towards Åland has not been active during the last decades its existence has an importance for Ålanders and influence on Finland’s policy.
Territorial Autonomy and European National Minorities . Basic rules: constitution + statute (act on autonomy)
Yes
Yes
Yes
. Parliamentary system
. One chamber parliaments
Yes
Yes
Yes
. Equal representation of provinces in regional parliament
Yes
No
Yes
Yes
. Internal distribution of political power on two levels
Yes
Yes
No
Yes
Yes
. Election of ministers by the president
No
No
Yes
. Representation of different No linguistic groups in the main bodies
Yes
No
. Participation in the election of constitutional court
No
Yes
No
. Participation in the election of the head of state
Yes
Yes
No
No
Yes
No
. Period of residence before of achieving political rights
Yes
Yes
No
. Reform of the statute by local referendum
No
No
Yes
. Autonomous treasury and tax law . Constitutional guarantees of the autonomy system
No
Yes
No
Yes
Yes
No
Yes
Yes
. International guarantees of autonomy
Yes
Yes
No
No
Yes
Yes
. Presence/powers in international relations82
Yes
No
No
. Good provision of finance autonomy Yes
Yes
Yes
. State controls over autonomous entities
Yes
Yes
Yes
. Participation of president in Council of Ministers’ meetings
. Conflicts of powers set up by constitutional court
. Minority and state language as co official languages
82
No
We refer to an international presence at an intergovernmental level and consequently exclude sub-state representation, e.g., the European Committee of Regions, in which obviously all the three areas are represented.
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Vadim Poleshchuk* and Boris Tsilevich†
e Baltic States before EU Accession: Recent Developments in Minority Protection
For years the Baltic states – Estonia, Latvia and Lithuania – have been attracting the attention of the academic community because of both their geopolitical position near Russian borders, and the remarkable percentage of ethnic Russians in their population (Table ). In Estonia and Latvia, drawbacks in minority protection have begun to challenge the security and cooperation in the region, especially upon the enlargement of the EU and NATO. At the same time, peculiarities of the local situation are extremely interesting for minority rights’ experts. Furthermore, the positive example of Lithuania with regards to minority protection is an excellent frame of reference for its northern neighbours. Estonia, Latvia and Lithuania are expected to become members of the EU in . We would like to highlight the most vulnerable problems of minority populations in these countries on the eve of their joining the EU. Table . Ethnic Composition of the Population of the Baltic States, According to Most Recent National Censuses1 Estonia
Ethnic origin
1
Russians
Ukrainians
Others
†
Belarussians
*
Ethnic origin
Estonians Russians
Latvia
%
Latvians
Ukrainians Others
Ethnic origin
Poles
Belarussians
Lithuania
%
Lithuanians
Russians
Others
Belarussians
%
Analyst of the Legal Information Centre for Human Rights (Estonia). Member of parliament and member of the Parliamentary Assembly of the Council of Europe (Latvia). Source: Statistical Offices of Estonia, Latvia and Lithuania, Data provided by local statistical offices at
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Vadim Poleshchuk and Boris Tsilevich I. B A. History of the Region In the thirteenth century almost the entire territory of Estonia and Latvia was conquered by German and Danish crusaders. Later, the major part of both countries was included into Livonia – a conglomerate of small feudal states governed by knightly orders and Church nobles. Livonia ceased to exist in the sixteenth century when the Russian tsar Ivan the Terrible made the first serious attempt to incorporate it into the emerging Russian Empire. Estonia and northern Latvia became part of Russia following the Nystad Peace Treaty with Sweden. e Duchy of Kurland (Kurzeme) – the western part of Latvia – and Latgale – the eastern part – were incorporated by the end of eighteenth century. Despite these dramatic political changes, Germans constituted the upper classes in Estonia and Latvia for seven hundred years, and German was the official language and the language of education until the end of the nineteenth century. Lithuania, however, experienced enormous territorial expansion in the Middle Ages, beginning with the territories of the ancient Russian State, Kiev Rus (modern Ukraine, Belarussia, and Western European Russia). In Lithuania and Poland became a single state. e union with Poland empowered the positions of Catholicism and Polish language and culture. Lithuania (except for Klaipeda) became part of the Russian Empire by . e independence of all three states was recognized by the Bolshevik government after the October Revolution in Russia, followed by recognition by the world community. However, in they were incorporated into the Soviet Union and remained part of it until . After the Second World War, the three Baltic states were subjected to industrialization projects accompanied by high migration flows from other territories of the Soviet Union. eir demographic make-up was also changed during Stalin’s mass repressions and deportations. In poorly inhabited Estonia and Latvia all these factors combined and resulted in the drastic shrinking of the percentage of the indigenous population while the number of ethnic Russians (and the so-called Russian-speakers) soared. Table . Demographic Changes in Estonia and Latvia in the Twentieth Century (%)2 Censuses / Ethnic origin
(Estonia) (Latvia)
2
Estonia Estonians Russians . . . .
. .
Latvia Latvians Russians . . . .
. .
the authors’ request. e national census in Estonia and Latvia took place in and in Lithuania in . Priit Järve and Christian Wellmann, ‘Minorities and Majorities in Estonia: Problems of Integration at the reshold of the EU’, ECMI Report No. (Flensburg, ), (Table ); Paul Kolstoe (ed.) NationBuilding and Ethnic Integration in Post-Soviet Societies. An Investigation of Latvia and Kazakhstan (Boulder, Oxford, ), (Table .).
e Baltic States before EU Accession B. Overview of the Minority Situation Since the period of independence had been rather short, the state- and nation-building processes in Estonia and Latvia were far from completed. e demographic changes during the twentieth century made Estonians and Latvians worry about the preservation of their identity. As a result, after independence was regained in , both countries employed exclusive policies in the sphere of minority protection. In the early s new regimes tried to foster the ‘re-emigration’ of the Russian-speakers. ose who came between and were denied automatic citizenship of the restored states and subjected to long-term chaos in terms of status and valid documents. On the contrary, Lithuania employed very inclusive policies by granting the possibility of citizenship to almost all its residents. As a consequence, even in the national censuses of , one of every five residents in Estonia and Latvia claimed to be a non-citizen (Table ). Most of these ‘alien residents’ do not have any citizenship at all. In Latvia these persons enjoy a special status.3 In Estonia for different reasons, many preferred Russian citizenship to statelessness. Table . Estonian and Latvian Population by Legal Status, National Censuses (%)4 Status Citizenship of the country of residence Stateless Russian citizens Others and unknown Total
Estonia ,,
, , , ,,
Latvia ,,
, , ,,
In Estonia and Latvia noticeable difficulties were also associated with linguistic policies. While the last Soviet census of registered a low level of proficiency in local languages by the Russian-speaking residents, the knowledge of Estonian and Latvian was officially made a prerequisite for naturalization, work in public and even some private sectors of the economy and (until recently) for passive suffrage.5 Since the mid s, both countries decided to start official integration policies. Being in nature a rather vague concept, integration in Estonia and Latvia is nevertheless explic3 4
5
See Vadim Poleshchuk, Advice not Welcomed. Recommendations of the OSCE High Commissioner to Estonia and Latvia and the Response (Münster, ), -. Source: Statistical Office of Estonia, , Naturalization Board of Latvia, . Data provided in Population and Housing Census, Citizenship, Nationality, Mother Tongue and Command of Foreign Languages, II (Tallinn, ), Table ; and the web site of the Naturalization Board of Latvia, at http://www.np.gov.lv/ en/index.htm. See for details Boris Tsilevich, ‘Development of the Language Legislation in the Baltic States’, () MOST Journal on Multicultural Societies (), at http://www.unesco.org/most/vlntsilevich.htm; Priit Järve, ‘Two Waves of Language Laws in the Baltic States: Changes of Rationale’, () Journal of Baltic Studies (), -.
Vadim Poleshchuk and Boris Tsilevich itly oriented at the promotion of accelerated mastering of the state languages by minorities.6 Allegedly as a part of this strategy, both states are planning the transition of minority secondary education into the official language. Compared to Estonia and Latvia, Lithuania has a more liberal approach to education in minority languages: Polish and Russian minorities enjoy access to publicly funded secondary education in their mother tongue. C. e OSCE and Minority Protection in the Baltics Mass statelessness among minorities in the Baltics has made the international community pay attention to the region. Several fact-finding missions were sent by international organizations to Estonia and Latvia to study the situation in situ.7 As a result the Conference on Security and Cooperation in Europe (now the OSCE) decided to open its permanent missions in Tallinn and Riga, which started their work in early . Additionally these two countries were regularly visited by the first OSCE High Commissioner on National Minorities (HCNM) Mr. Max van der Stoel. Estonia and Latvia received a number of his recommendations. Against quite a different background, an OSCE mission was not opened in Lithuania and only one recommendation was sent to the local administration by the OSCE HCNM.8 D. Accession to the EU and NATO e accession to the EU and NATO was a solution to the problems of security and development decided at the highest political level in Estonia, Latvia and Lithuania. e Baltic states are due to become members of the Union and NATO in . e influence of the process of harmonization of local legislation with the acquis communautaire cannot be overestimated. e European Commission was involved in regular monitoring of the implementation of political criteria in Estonia, Latvia and Lithuania.9 e Commission did not hesitate to refer to recommendations and opinions of the HCNM and the Council of Europe (CoE) e.g. by underlining the necessity of softening the naturalization requirements.10 e involvement of the EU was crucial upon discussion of the changes to language legislation in Estonia and Latvia in the period -, when the Commission tried to make local laws correspond to both European Treaty requirements and criteria established in other international human rights’ instru6 7 8 9
10
See official documents: National Program Integration in Estonian Society - (Tallinn, ) and e Integration of Society in Latvia: A Framework Document (Riga, ). See for details Hanne-Margret Birckenbach, Preventive Diplomacy through Fact-finding. How International Organisations Review the Conflict over Citizenship in Estonia and Latvia (Hamburg, ). Vadim Poleshchuk, Advice not Welcomed ..., . e progress reports are available at http://www.europa.eu.int/comm/enlargement/index_en.html. Stefanie Ricken, ‘Multi-organisational Response: e Case of the Russian-speaking Minorities in the Baltic States’, in Holger Moroff (ed.), European Soft Security Policies: e Northern Dimension (Helsinki, Berlin, ), -, at .
e Baltic States before EU Accession ments.11 In the meantime, it is essential to stress that the EU itself has neither a strong legal framework on minority protection, nor specialized procedures or institutions able to effectively monitor the compliance of the candidate states with the Copenhagen political criteria on minority protection. As a result, rigorous monitoring of compliance with the requirements formulated by the OSCE was often replaced in accession negotiations by mere political bargaining with the accession states’ governments.12 E. Closure of the OSCE Missions in Estonia and Latvia e Estonian and Latvian administrations had to tolerate the presence and monitoring of international organizations and try to cooperate with them in a constructive manner. However, the aspiration of becoming members of the EU and NATO forced them to eliminate any signs of perceived instability.13 e long-term presence of OSCE missions was evaluated with harsh criticism by the local political establishment, and that resulted in their active low-profile diplomatic activities in Western European capitals. e mandate of the missions was concentrated on minority issues.14 In , there were still unsolved problems in this field, and the Austrian chairmanship of the OSCE compiled a list of requirements necessary to fulfil in order to ensure the closure of the missions. For instance, for Estonia the list was as follows: softening linguistic requirements in the private sphere; the abolition of the language requirements for deputies on local and national level; improving the work of the ombudsman; implementation of the state integration programme; residency issues and naturalization.15 For Latvia, the list included similar issues. As in Estonia, the demand to abolish the language requirements for deputy See Vadim Poleshchuk, ‘Estonia, Latvia and the European Commission: Changes in Language Regulation in -’, Eumap’s featured articles: e Limits of the Law, January , at http://www.eumap.org/ articles/content///#top. 12 For more detailed consideration of the EU impact on development of minority protection in the candidate states, see Boris Tsilevich, ‘EU Enlargement and the Protection of National Minorities: Opportunities, Myths, and Prospects’, Eumap’s featured articles: European Standards in Minority Protection, October , at http://www.eumap.org/articles/content//; Bruno de Witte, ‘Politics versus law in the EU’s approach to ethnic minorities’, European University Institute, Working Paper RSC No. (); Gabriel N. Toggenburg, ‘A Rough Orientation rough a Delicate Relationship: e European Union’s Endeavours for (its) Minorities’, () EIoP (), at http://eiop.or.at/eiop/texte/-a.htm; Yekaterina Dorodnova, ‘EU Concerns in Estonia and Latvia: Implications of Enlargement for Russia’s Behavior Towards the Russian-Speaking Minorities’, European University Institute, Working Paper RSC No. (). 13 ‘In the beginning and especially during the time we were tarred with the brush of Bosnia, when I raised the issue of stigmatization I was invariably rebuffed by Western diplomats who forcefully told me: there is no stigma whatsoever to having a Mission in your country. Curiously, however, when we got to the final negotiations on an exit strategy, I was just forcefully told the opposite: no candidate country with an OSCE Mission will ever be taken into NATO or the EU’, in Toomas Hendrik Ilves, ‘e OSCE Mission in Estonia’, () HM (), -, at . T.H. Ilves is a former Estonian Minister for Foreign Affairs. 14 Walter Kemp et al. (eds.), OSCE Handbook (Vienna, rd ed. ), -. 15 ‘Report to the OSCE Permanent Council on the work of the OSCE Mission to Estonia’ presented by Ambassador Doris Hertrampf, Head of Mission on June , Vienna (document on file with the authors). 11
Vadim Poleshchuk and Boris Tsilevich candidates was the only concrete precondition on the list. All other requirements were of a general nature and implied in-depth evaluation to conclude whether these conditions were met. Again, in practice this evaluation was replaced by a purely political debate. e decisions to close the OSCE missions in Estonia and Latvia were adopted in December on the institutional level where the consensus of all member states was not required. A number of European states, including the Russian Federation, have consistently opposed stopping the missions’ work, claiming its continuation to be necessary in the interests of ethnic reconciliation in both countries.16 e adoption of important decisions without consensus revealed serious problems regarding the efficiency of the OSCE as a watchdog for European stability. is was a negative precedent as well. Later, Russia used a similar simplified procedure to abolish a mandate of the OSCE Assistance Group in Chechnya.17 F. Political Participation of Minorities In Latvia only citizens can participate in local and national elections. us, half of the minority population lacks an opportunity to influence the decision-making process on any level. Despite the fact that Russian-speakers constitute a majority in many cities of the country, ethnic Latvians are not politically marginalized in a single local council.18 In the meantime, minorities are substantially under-represented both in elected and executive bodies, at the national and municipal level.19 e political union of three parties, For Human Rights in United Latvia (Par cilvēka tiesībām vienotā Latvijā), was the only mainstream political organization with parliamentary representation that strongly advocated minority rights. In the national elections, this coalition gained mandates out of ; in the elections, .20 In both cases, a big majority of the Members of Parliament (MPs) elected on this list were citizens belonging to the Russian-speaking minority. Practically all MPs elected on the other parties’ lists were ethnic Latvians. us, in Latvia, despite the absence of explicitly ethnic political parties, ethnically-based patterns of electoral behaviour clearly dominate. In Estonia non-citizens can vote in local elections, but not in national elections. ey cannot stand for office in local elections either. In the mid s, several ethnic Russian parties participated in local elections in the regions where minorities were present in big numbers. In several self-governments they participated in ruling coalitions. In and See the Statement by the Russian Foreign Ministry Regarding the Cessation of Work of the OSCE Missions in Estonia and Latvia of December at www.mid.ru (in Russian). 17 ‘e mandate of the OSCE Assistance Group to Chechnya expired on December as the OSCE’s participating States were unable to agree on extending it’, OSCE Press release of January , at www.osce.org/news. 18 Latvian Human Rights Committee, ‘Report on the Implementation of the Framework Convention for the Protection of National Minorities in the Republic of Latvia’ (Riga, ), , at http://www.minelres.lv/coe/ report/Latvia_NGO.htm. 19 Ibid., -. 20 Results of all Latvian elections are available at http://web.cvk.lv. 16
e Baltic States before EU Accession six deputies were elected to parliament from the list of ethnic Russian parties. In , two Russians were also elected in the list of the mainstream Centre Party (Keskerakond). Despite the fact that ethnic Russian parties failed to overcome a % barrier in national elections, six non-Estonians were elected to the parliament on the mainstream parties’ lists. 21 II. C M S M 2002 M 2003 A. Estonia 1. Integration and Minority Status e Estonian government formed in January decided to keep the post of the Minister for Population Affairs (as a minister without portfolio), which deals with, inter alia, integration and ethnic policy issues. e post was offered to Mr. Eldar Efendijev (Centre Party) who became the first minister of non-Estonian ethnic origin since . e government formed after the national elections in March has also kept this post, which was offered it to the Estonian poet and politician Mr. Paul-Eerik Rummo. e State Programme, ‘Integration in Estonian Society in -’, was approved by the government in .22 is programme foresees measures and activities in the framework of four sub-programmes: general education, education and culture of ethnic minorities, teaching adult minorities the Estonian language and social competence. In recent years the language training programs have received considerably more financing and attention from the public authorities.23 ere were no major changes in the regulation of minority status in Estonia in . Two MPs of minority origin (Centre Party) initiated a draft Law on Minorities (draft law no. 24) on January which was supposed to replace the Law on Cultural Autonomy of National Minorities.25 is Law was adopted in but no cultural selfgovernments have been registered since. Furthermore, Article of the Law included a restrictive definition of minority members (citizens only are included). e new draft incorporated several principles of the Framework Convention for the Protection of National Minorities (FCNM), and the citizenship criterion was omitted from its definition of national minority. However, the provisions of the draft are in collision with numerous legal norms stipulated by other Estonian acts, principally the Law on Language.26 21
22 23 24 25
26
Results of all Estonian elections are available at http://www.vvk.ee. Published in Riigi Teataja Lisa (RTL), , , . Riigi Teataja Lisa is an appendix to the official State Journal. See Open Society Institute, EU Accession Monitoring Program, Monitoring the EU Accession Process: Minority Protection, Volume I, An Assessment of Selected Policies in Candidate States , (Budapest, ), . All draft laws submitted to the Estonian parliament and information about their progress can be found at the parliament’s official website (http://www.riigikogu.ee). Published Riigi Teataja (RT) I , , . Riigi Teataja is an official State Journal. Published RT I , , .
Vadim Poleshchuk and Boris Tsilevich e draft employed a much more liberal approach to public signs, electronic media and publicly funded education in minority languages. It was not adopted before the national elections of March . It is highly probable that the deputies will submit a similar draft to the new parliament. 2. Ombudsman Office In Estonia, the function of ombudsman is attributed to the Legal Chancellor (Õiguskantsler), and it is s/he who should control the correspondence of national and local legal acts with the Constitution. As an ombudsman s/he can deal with complaints against activities of state or municipal institutions.27 On February parliament amended the Law on the Legal Chancellor.28 As of January everyone will also be able to address the ombudsman in case of discrimination by a private person or organization on the grounds of sex, race, ethnic origin, colour, language, origin, religious, political or other belief, property or social status, age, disability, sexual orientation or other grounds of discrimination as stipulated by the law. is amendment has been adopted to bring Estonian legislation into compliance with the EU Racial Equality Directive () and Employment Equality Directive ().29 e definitions of direct and indirect discrimination, harassment, principles of victimization, positive action, and reasonable accommodations of the disabled and the like are stipulated by the Law on Equality and Equal Treatment (LEET). e first draft of the LEET (draft law no. ) was submitted to parliament by the government on December . 3. Linguistic Requirements After the local elections in October , new regulations regarding the working language of local self-governments came into force. On November , the Estonian Parliament abolished language requirements for local and national deputies (candidates at local and national elections).30 However, the same month, another amendment explicitly introduced Estonian as the only working language of the parliament.31 As for local self-governments, on December the parliament made Estonian the only working language of local councils.32 According to the Estonian Constitution, in the regions where the majority of the permanent residents speak a minority language, it is possible to use this as an internal working language (Article ). According to the Law on Language, this right can be granted only by a permission of the Estonian Government (Article ). Such a right has not been According to the Law on Legal Chancellor, Chapter IV. e Law published RT I , , . Published RT I , , . 29 Council Directive //EC of June Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin; Council Directive //EC of November Establishing a General Framework for Equal Treatment in Employment and Occupation. 30 Amendments published RT I , , . 31 Amendment published RT I , , . 32 Amendment published RT I , , . 27
28
e Baltic States before EU Accession granted to a single self-government so far. However, even if a council receives this right, it is only empowered to translate its sessions from Estonian to a local minority language (not vice versa): If a local government has been granted … the permission to use the language of the national minority constituting the majority of the permanent residents of the local government alongside Estonian as the internal working language of the local government, the council and the government may decide to translate part or whole of the sessions into the language of the national minority.33 According to the Estonian Constitution in the regions where the majority of the resident population speak a minority language, it is possible to receive replies from municipal and local state institutions in this minority language (Article ). As for all other regions, an amendment to the Law on Language of January 34 provided for the right to speak with public officials and some other persons performing public functions in any language (if agreed) or using the services of a translator (if not agreed). e party not proficient in Estonian pays the translator’s services. is provision is applicable inter alia in Tallinn, where persons who speak Russian as a mother tongue make up % of all residents.35 4. Minority Education Before , Russian-language education on all levels, alongside Estonian-language education was ensured in Estonia. Today state higher educational institutions work only in Estonian with rare exceptions for some groups of students. As for secondary education, for the time being, minority languages can be used as languages of instruction but there are plans for the transition of minority upper secondary schools to Estonian as the means of instruction. However, Russian-language education will be preserved in kindergartens, elementary and basic schools.36 e decision regarding transition of minority upper secondary schools to Estonian was adopted in when a new Law on Basic School and Upper Secondary School stipulated the first deadline for this change (the year ).37 In , the deadline was postponed to the academic year /.38 In , upper secondary schools were permitted to provide up to % of the curriculum in a language other than Estonian.39 33
34 35
36 37
38 39
Law on Local Self-government Organization, Article () as amended on December . Amendment published RT I , , . Compared to % of persons who speak Estonian as a mother tongue, according to the data of national census. See Population and Housing Census…, Table . Estonian school system is structured as follows: elementary school (- grades), basic school (-), upper secondary school (-). Published RT I , , . Amendments published RT I , , . Amendments published RT I , , . According to Article (-) (-) of the amended Law, ‘[t]he language of instruction is the language in which at least sixty per cent of the teaching on the curriculum is given.’.
Vadim Poleshchuk and Boris Tsilevich Minority representatives and foreign experts raised concerns regarding the very fundamentals of this reform.40 A new deadline was not regarded as being realistic, as many schools would face difficulties with staff after the transition. In March , the parliament supported a proposal by two MPs of minority origin from the Centre Party to amend the Law on Basic School and Upper Secondary School.41 Now Article (-) of the Law stipulates that, … [i]n the upper secondary school stage, the language of instruction shall be Estonian. In the upper secondary school stage of municipal schools and in specific classes of municipal schools, any language may be the language of instruction. Permission for instruction in another language shall be granted by the Government of the Republic on the basis of an application by a local self-government council. A corresponding proposal shall be made to the local self-government council by the board of trustees of an upper secondary school based on the development plan of the school. According to the same amendment, the development plan of a non-Estonian upper secondary school shall set out ‘[t]he necessary and possible measures to be implemented in non-Estonian language upper secondary schools for transition to instruction in Estonian’. As such, this amendment provides ‘no stable institutional framework for the preservation of Russian-language gymnasium [upper secondary] education in Estonia’.42 However, Estonian politicians were able to reach a consensus regarding more flexible implementation of the education reform compared to their Latvian colleagues (see Section B.). e Law on Basic School and Upper Secondary School provided an opportunity for non-Estonian-speaking school children in Estonian-language educational institutions to study their mother tongue. e same opportunity (to study the mother tongue and culture) was recently granted to all school children who are not studying in their mother tongue in a basic school (i.e. in both Estonian and Russian-language schools). e relevant amendment was adopted on January .43 5. Naturalization Acquisition of Estonian citizenship is officially perceived as a basis for social integration alongside mastering proficiency in the official language. However, the tempo of naturalization has remained slow in Estonia where stateless persons currently account for to See e.g. Advisory Committee of the Framework Convention for the Protection of National Minorities, opinion on Estonia adopted on September , ACFC/INF/OP/I(), paras. -, reiterated also in the resolution of the Committee of Ministers of the Council of Europe, ResCMN(). 41 Amendments published RT I , , . 42 e opinion by Aleksei Semjonov, Director of the Legal Information Centre for Human Rights in Vadim Poleshchuk, ‘Legal Aspects of National Integration in Estonia and Latvia’, ECMI Report No. (Flensburg, ), . 43 Amendment published RT I , , . 40
e Baltic States before EU Accession % of all residents. Linguistic requirements seem to be a barrier for many non-Estonians who want to acquire local citizenship. us, between and , the majority of people naturalized were those who did not pass the language tests, but used different simplified procedures.44 e pattern of naturalization in was similar: Table . Naturalization in Estonia in 45
Grounds General procedure (language test or a certificate of graduation from an Estonian-language educational institution and civic test) Children under years old (including those naturalized with their parents) Stateless children under years old (simplified procedure for offspring of stateless parents) Article of the Law on Citizenship (naturalization of those who received Estonians citizens’ passports without any legal grounds) Disabled (persons whose inability to pass tests was certified by medical doctors) Citizenship for special merits Other Total
In numbers ,
% .
.
.
.
.
,
. . .
In for the first time since , there was no drop in the number of persons naturalized in Estonia. However, persons did become naturalized to keep the Estonian citizens’ passports they had received earlier without a legal basis (i.e. they received Estonian citizens’ passports in the early s without having ‘restored’ Estonian citizenship, mostly because of the mistake of state officials) (Article of the Law on Citizenship).46 On January , parliament amended the Law on Citizenship to recognise post factum the aforementioned persons as Estonian citizens.47 In , there were several attempts to In -, naturalization in Estonia was as follows (in parenthesis the number of persons who naturalized after language tests: – , (), – , (,), – , (,), – , (,), – , (,), – , (,), – , (,), – , (,), – , (,), – , (,). Data provided by the Citizenship and Migration Board at the authors’ request. In , a new Law on Citizenship was adopted that made naturalization requirements somehow more difficult. Furthermore, tests on the Constitution and the Law on Citizenship were introduced to the naturalization procedure. Since , naturalization language tests were equated with professional linguistic tests of any level. Additionally final state language tests in schools were equated with professional tests the same year. See Vadim Poleshchuk, Advice not Welcomed ..., -. All that resulted in a slight increase of the number of those who naturalized using the general procedure in . 45 Source: e Office of the Minister for Population Affairs, . Communication from the Office of the Minister for Population Affairs No. -./ of March . 46 Law on Citizenship published RT I , , . 47 Amendment published RT I , , . 44
Vadim Poleshchuk and Boris Tsilevich liberalize naturalization requirements for the elderly (draft laws nos. and ). ese proposals were made by the ethnic Russian party (United Peoples’ Party of Estonia, Eestimaa Ühendatud Rahvapartei) and minority MPs from the Centre Party. However, this initiative found no support in the parliament. e minority deputies also failed to shorten the naturalization procedure by six months (draft law no. ). 6. Status of Aliens Non-citizens make up around % of the entire population in Estonia. eir status is regulated by the Law on Aliens48 adopted in . One of the most challenging issues for local minorities has been the annual immigration quota. Before October , the quota amounted to .% of the permanent residents of Estonia. After the introduction of preferential treatment (exception from these quotas) for citizens of EU member states, Norway, Iceland and Switzerland, it was cut by half.49 Later Japan and the United States were added to the lists.50 is differentiation was perceived as discriminatory by various international organizations.51 Furthermore, this quota was perceived as discriminatory by minorities. It was not applied to residents of Estonia, but was clearly an obstacle to their family reunification with spouses originating from minority kin-states (primarily from Russia and Ukraine, whose citizens did not enjoy any privileges regarding the quota). e Estonian judiciary studied the issue. In , the State Court (Riigikohus, highest court in Estonia) found in the Ushakova case that in some situations the application of the migration quota could violate the constitutionally granted right to protection of family life.52 As a result the relevant provisions of the Law on Aliens were reviewed several times by the parliament. On June the amendment to the Law abolished quota requirements in the case of family reunification.53 However, this amendment entitled only permanent residents (Estonian citizens and aliens with permanent residence permits) to invite their spouses to Estonia. e Law stipulates the requirement of ‘groundedness’ of the application. Aliens should prove that reunification is not possible outside Estonia. In fact, this requirement also affects those aliens who were born in Estonia or have resided there for decades. Additionally, some of these residents failed to receive a permanent residence permit (due to lack of permanent income or official permanent place of residence, or being former Soviet military servicemen or security service veterans).54 Published RT I , , . Published RT I , , . 50 Published RT I , , . 51 See e.g. ‘Concluding Observations by the UN Committee on the Elimination of Racial Discrimination: Estonia’, April , CERD/C//Add., para. . 52 Decision of the Administrative Law Chamber of the State Court of May No. ---- (RT III , , ). 53 Amendment published RT I , , . 54 According to the Law on Aliens (Article ) former Soviet military servicemen or security service veterans cannot be granted a permanent residence permit because they receive temporary permits as an exception. However, a recent decision of the State Court has recognized the right of some former Soviet and Russian military servicemen to receive ordinary temporary permits, which could be later changed into permanent 48 49
e Baltic States before EU Accession According to the amendment of the Law on Aliens of June , … [t]he rights and interests of the minor child shall be taken into consideration above all. A residence permit shall not be issued if the settling of the child in Estonia would damage his or her rights and interests and if his or her legal, financial or social status may deteriorate as a result of settling in Estonia. We consider that an opportunity to live with his or her family may sometimes be more important for a child than loss of status. Furthermore, the amended Law is silent on the opportunity for a child of a previous marriage to obtain a residence permit in Estonia to settle with his/her parent who has remarried to an Estonian resident. 7. Illegal Aliens According to different estimates, there could be anywhere from , to as many as , illegal aliens in Estonia. Some of them are persons who failed to receive legal status during legalization campaigns when persons with permanent registration (propiska) in the Estonian Soviet Socialist Republic had to apply for temporary residence permits. e Law on Obligation to Leave and Prohibition on Entry was adopted in .55 In , it was radically amended,56 and stipulated that competent organs could issue to illegal aliens precepts of two kinds: precepts to legalize and precepts to leave. Both precepts could be argued in the court. e decision on expulsion was no longer made by the court. According to the amended Article of the Law a person could get a precept to legalize if s/he: – enjoyed family life in Estonia, which is protected by the law; – was an ethnic Estonian; – had settled in Estonia before July and had thereafter not left to reside in another country and did not damage the interests of the Estonian state. However, many persons who belong to these categories could not legalize their presence because they lacked any legal basis for the receipt of a residence permit.57 On December a new amendment was adopted to the Law. e criterion of steady family life was omitted from Article . is amendment worsened the situation of illegal aliens. In several precepts to leave were recognized as being void by the court with references to the (then) still-existing provision.58 However, this is no longer possible permits. Decision of the Administrative Law Chamber of the State Court of October No. --- (RT III , , ). 55 RT I , /, . 56 Amendments published RT I , , . 57 In practice, the only available basis for illegal aliens was family reunification. See for details Vadim Poleshchuk, ‘Illegals in Estonia: Final Solution?’, in Astrid Willer (ed.), Documentation. International Conference ‘e Baltic Sea as an Escape Route’, - November , Bad Segeberg, Germany, (Kiel, ), -. 58 Interview with Mr. Andrei Arjupin and Ms. Jelena Karžetskaja, Migration Lawyers, March , Tallinn.
Vadim Poleshchuk and Boris Tsilevich after the amendment. Furthermore, if an alien arrived to Estonia while on a visa and the visa expires, s/he can now be legally expelled within hours without a precept or court decision (Article (-) of the amended law). In fact, this provision is applicable to the majority of illegal aliens (including long-term ‘illegals’). e Law stipulates that expulsion cannot be executed if it can inter alia result in the alien’s torture, inhuman or degrading punishment or treatment, death or discrimination on ethnic, racial, religious, social or political basis (Article ()). It is debatable as to whether an ordinary official, as opposed to a judge, would be competent to take a decision in such a case, if an illegal alien was to allege these types of violations during the process of expulsion. B. Latvia 1. Integration of Society and Institutional Changes After the parliamentary elections in Latvia held on October , the new ruling coalition parties agreed to establish a new position in the Cabinet, the Minister for Society Integration Affairs.59 is minister has the status of the so-called ‘special task minister’, i.e. of lower rank than a fully-fledged minister but somewhat higher than a minister without portfolio. Although such a minister does not have a full ministerial staff, he does have a secretariat and separate budget allocated by the Law on State Budget. On November , the parliament approved Dr. Nils Muiznieks, Director of the Latvian Centre for Human Rights and Ethnic Studies, for this position.60 is was in fact the first precedent in which a leading human rights activist from the nongovernmental organization-sector was appointed as a high-ranking state official. e decision was welcomed by both minority-based parliamentary opposition parties and a number of human rights and minority nongovernmental organizations (NGOs). e minister’s secretariat includes three departments: the Society Integration Department (previously subordinated to the Ministry of Justice), the Department for Minority Affairs (created on the basis of the Unit for Minority Affairs of the Naturalisation Board), and the Administrative Department. e total number of staff is around employees recruited on the basis of competition. Under the supervision of Minister Muiznieks, two Advisory Councils have also been set up: on society integration and on ethnic affairs, as well as a working group to deal with the elaboration of the concept of ethnic policy. Financial support allocated for cultural activities of minority NGOs are also administered by the minister’s secretariat. Despite a certain amount of controversy in the government, the minister’s secretariat was finally allocated substantial resources (though less than requested). e establishment of the institutional framework to deal specifically with integration and minority-related issues opens the door for effective dialogue with minorities. However, the ultimate success or failure of the institution depends not only on the diligent work of the minister himself and his secretariat, but also on the political will of the entire government Latvian Human Rights Committee, Minority Issues in Latvia ( November ) at http:// www.minelres.lv/count/latvia.htm#MinIssuesLatvia.. 60 Latvian Human Rights Committee, Minority Issues in Latvia ( December ). 59
e Baltic States before EU Accession and parliamentary majority, and their willingness to listen to his proposals and recommendations. At the moment it would be premature to make any conclusions in this respect. 2. Ethnicity Record in Documents Until May , Latvia, unlike Estonia, remained one of the very few European states to adhere to the Soviet practices of mandatory ethnicity records on personal identity cards (IDs). In , the HCNM recommended ‘that the inclusion of these details should, in future, be a voluntary decision on the part of passport holders’.61 In his reply, the (then) Latvian Minister for Foreign Affairs Mr. Valdis Birkavs, ruled out prompt implementation of the recommendation, arguing that ‘the present passport of citizens of Latvia is internationally recognised, including the fact that information is given under all headings’, and that ‘implementation of the proposal would require a considerable number of amendments in Latvian legislation, which might be a lengthy process’.62 Indeed, it took more than five years to finally amend the corresponding legislation. Finally, on May , parliament adopted a new Law on IDs and Passports.63 According to the provisions of this law, the ethnicity record in personal IDs is not compulsory any longer, and mentioning ethnicity in the new documents is optional. However, ethnicity records in the Registry of Residents are still mandatory for all persons whose data are kept in the Registry, even for newborn babies. In the latter case, the child’s ethnicity must be the same as that of the parents; if the parents themselves have differing ethnicities, one of them should be chosen for the child. ese data are recognized as sensitive by law. erefore, the Law on the Registry of Residents64 is not a breach of Latvia’s international obligations with respect to the protection of personal data. At the same time, however, certain restrictions imposed on the choice of the ethnicity record are hardly compatible with the modern concept of identity: Indicating multiple identity is not permitted, and in the case of ethnically mixed couples, only the ethnicity of one of the parents can be chosen. is practice apparently does not comply with the provisions of Article of the FCNM, and will become a serious problem after Latvia ratifies the Framework Convention. In any event, the Law on Changing Registered Name, Surname, and Ethnicity of June has not yet been changed or amended. is Law establishes the detailed procedure for changing the ethnicity record clearly on the basis of the ‘principle of blood’ – i.e. the applicant must prove ‘the ethnicity of his or her direct antecedents within generations and if he or she can prove his or her belonging to this line of relations’.65 If the applicant wants to change his or her ethnicity record to ethnic Latvian, he 61
62
63
64 65
Letter of the HCNM to the Minister for Foreign Affairs, Valdis Birkavs, at http://www.minelres.lv/count/ latvia/r.htm; Minister Birkavs’ reply at http://www.minelres.lv/count/latvia/a.htm. See also Vadim Poleshchuk, Advice not Welcomed …, . Ibid., . Latvian Human Rights Committee, Minority Issues in Latvia ( June ). Published Latvijas Vēstnesis (LV), September . Latvijas Vēstnesis is an official State newspaper. Law on Changing Registered Name, Surname, and Ethnicity, Article (published LV June ), as amended on May (published LV June ).
Vadim Poleshchuk and Boris Tsilevich or she must also submit the Latvian language proficiency certificate.66 us, abolition of the mandatory ethnicity record in personal IDs represents a major step away from the Soviet pattern of institutionalization of ethnicity, but it will have to be complemented by amendments in a number of other legal acts. 3. Linguistic Legislation As in Estonia, major recent changes in the language legislation of Latvia are connected to the abolition of the state language requirements for candidates standing for parliamentary and municipal elections. However, unlike in Estonia, in the case of Latvia decisions of international bodies on corresponding individual complaints, not just the political requirements of the OSCE, played a crucial role. In July , the UN Human Rights Committee (HRC) found a violation by Latvia of the International Covenant on Civil and Political Rights (CCPR) in the case of Ignatane v. Latvia. In , the Riga Electoral Commission struck Mrs. Ignatane off the electoral list on the basis of ‘insufficient state language proficiency’. is decision was taken after the State Language Centre67 issued the reference that Mrs. Ignatane’s state language proficiency did not correspond to the third (highest) level of proficiency, based on the results of a language examination held by a state language inspector, despite the fact that Mrs. Ignatane possessed a required valid state language proficiency certificate of the third (highest) level. e HRC concluded that Mrs. Ignatane ‘has suffered specific injury in being prevented from standing for the local elections in the city of Riga in , because of having been struck off the list of candidates on the basis of insufficient proficiency in the state language. e Human Rights Committee considered that the author is a victim of a violation of Article CCPR, in conjunction with Article of the Covenant’.68 e European Court of Human Rights (ECtHR) found a violation of the right to free elections in a similar case, Podkolzina v. Latvia.69 In this case, the applicant was prevented from running for parliamentary elections in because of an alleged insufficient knowledge of the state language. Latvia thus found itself under an obligation to take steps to prevent similar violations from occurring in the future, as a state party to both the CCPR, and the European Convention on Human Rights. Once the OSCE missions to Latvia and Estonia were closed, Latvia – unlike Estonia – still kept in force the language requirement for deputy candidates. As a result, member states of the OSCE who insisted on closure of the missions – principally the US – implicArticle () of the same Law. A state body whose main task is to monitor the implementation of the language legislation in Latvia and to punish those who violate it. 68 Views of the Human Rights Committee under Article , Paragraph , of the Optional Protocol to International Covenant on Civil and Political Rights, Seventy-second session. Communication No. /, Antonina Ignatane v. Latvia, July , at http://www.minelres.lv/un/cases/ UNHRC_Ignatane_.html. 69 ECtHR, Podkolzina v. Latvia, Chamber Judgment of April . Press release issued by the Registrar, at http://www.echr.coe.int/Eng/Press//apr/PR%Podkolzina%E.htm. 66 67
e Baltic States before EU Accession itly had to undertake a political commitment to ensure that these requirements would be abolished soon after the closure. e US exerted substantial political pressure on Latvia, aiming to achieve this goal. As a result, on May the Latvian parliament excluded corresponding provisions from the two laws on parliamentary and municipal elections. However, the ‘compensation’ for this ‘concession’ appeared much more substantial than in Estonia. Even before the amendments to the election laws were adopted, the Latvian parliament at its extraordinary session on April approved amendments to the Constitution.70 us, Article was supplemented with the provision that every MP be obliged to take an oath of loyalty which includes the promise ‘to strengthen … the Latvian language as the sole state language’. e new wording of Article provides that the sole working language at the Saeima is Latvian (the provision earlier enshrined in other laws). Article stipulates that ‘the working language of local governments is Latvian’. Article (provides for the right to address submissions to state or local government institutions and to receive a materially responsive reply) was supplemented with the provision that ‘everyone has the right to receive [an] answer in Latvian’. ese amendments were presented as necessary measures to protect the state language in view of ‘weakening its positions’ as a result of harmonization of election legislation with human rights standards. e establishment of a new state body – the State Language Commission – has become another ‘compensatory measure’.71 e decision on the creation of the Commission was signed by the president and prime minister on January . e Commission’s main task is ‘to elaborate guidelines of the Latvian language policy’. It is essential that the Commission does not interfere with the mandate of the already existing State Language Centre. 4. Status of Non-Citizens As mentioned above, the persons who came into Latvia between and and were not recognized as citizens of the restored Republic of Latvia, enjoy a special status as ‘non-citizens’ (nepilsoņi). Existing differences in non-political rights between the citizens of Latvia and the persons with this status remain a major problem.72 Since the mid s, a number of discriminatory restrictions, particularly with respect to certain jobs and professions, have been cancelled. However, in the last year this trend seems to have been reversed. e new Law on Fire Safety and Fire-Fighting adopted by the parliament on October , for example, reintroduced the prohibition for non-citizens to work as firemen.73 Latvian Human Rights Committee, Minority Issues in Latvia ( May ). Latvian Human Rights Committee, Minority Issues in Latvia ( January ). 72 For the history of the problem see Boris Tsilevich and Alexander Ruchkovsky, ‘Difference in Status and Rights Between Citizens and Permanent Residents (Non-citizens) of Latvia’, () Newsletter of International Helsinki Federation for Human Rights (), -; Magda Opalski, Boris Tsilevich and Piotr Dutkiewicz, Ethnic Conflict in the Baltic States: the Case of Latvia (Kingston, ). For the description of the current situation, see Latvian Human Rights Committee, ‘Comments on the List of Differences between the Rights of Latvian Citizens and Non-citizens’, at http://www.minelres.lv/count/non_cit-rights_.htm. 73 Latvian Human Rights Committee, Minority Issues in Latvia ( November ). 70
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Vadim Poleshchuk and Boris Tsilevich A similar provision concerning the citizenship requirement for firemen was included into the previous Law on Fire Safety of December . However, this provision was abolished in January , following persistent recommendations of the OSCE HCNM, as well as conclusions of the National Human Rights Office74 which deemed this an ill-based restriction contradicting Latvia’s obligations under the non-discrimination provisions of the CCPR. Now the restriction has been restored by the new law, which assigns the status of civil servant to firemen. Following the same trend, parliament rejected the amendment which envisaged the possibility for non-citizens to be employed in the State Revenue Service (Valsts ieņēmumu dienests). Paradoxically, foreigners who have a permanent residence permit do have the right to work in this office.75An explicitly discriminatory amendment has been suggested by the government to the Law on Pharmacy:76 A pharmacist who is not a citizen of Latvia or of an EU member state, has to work one year in a chemist’s under the supervision of a licensed pharmacist, before s/he can start his or her own practice as a pharmacist. In March , parliament rejected amendments aimed at partial liberalization of the restrictions for non-citizens to own land in Latvia.77 Government officials explain this restrictive approach as the willingness to encourage the integration and naturalization of non-citizens. However, it is highly doubtful that restrictive policies will indeed facilitate the feeling of being a member of the state and willingness to apply for naturalization. 5. Naturalization No major changes in the legislation on citizenship and naturalization were made in . Despite the fact that all international organizations have persistently recommended that Latvia take the necessary measures to speed up naturalization, all these measures have been in fact limited to more or less effective information campaigns and language training, funded, as a rule, by foreign donors.78
Ombudsman-type state institution in Latvia. Latvian Human Rights Committee, Minority Issues in Latvia ( March ). 76 Law on Pharmacy published LV May . 77 Latvian Human Rights Committee, Minority Issues in Latvia ( March, ). 78 Open Society Institute, EU Accession Monitoring Program, Monitoring the EU Accession …, -. 74
75
e Baltic States before EU Accession Table . Naturalization in Latvia in the Period -79 Year Number of naturalizations , , , , , , , ( January) Total ,
e substantial increase in naturalizations between and can be explained by the liberalization of the Law on Citizenship80 approved by referendum in October . Taking into account that as of early about , non-citizens still resided in Latvia, much more effective measures, including legislative changes, are needed to resolve the problem of mass statelessness, in accordance with the recommendations of international organizations and for the sake of social integration. 6. Other Legislation Unfortunately, unlike in Estonia, no changes have been made to the most controversial legislation on education. e provision stipulating that as of ‘ September , in the tenth grade of state and municipal general education institutions and in the first year of state and municipal vocational education institutions studies are begun only in the state language’81 causes growing protests among minority NGOs, politicians, teachers, and parents. e Ministry of Education and Science confined itself to the elaboration of the so-called ‘minority education programmes for secondary schools’ which, as the ministry’s officials claim, permit teaching of some % (or even more) of the curricula in minority languages. Often reference is made to another law which allegedly permits the use of minority languages in secondary schools, despite the clear-cut provision quoted above.82 However, this provision only permits the inclusion of programmes teaching minority language within secondary school education, as well as of some subjects related to minority identity. Nothing is said about the language in which these curricula should be taught. us the information included, even in the Progress Report of the European CommisSource: e Naturalization Board of the Republic of Latvia, . Available at http://www.np.gov.lv/fakti/ statistika.htm. 80 e ‘timetable’, or ‘windows of naturalization’, which limited the right to apply for naturalization for certain groups of non-citizens on the basis of their age and time of arrival to Latvia, were abolished. 81 Law on Education of October , Transitional provisions, Article (). LV November . 82 Law on Secondary Education of June , Article (), LV August . 79
Vadim Poleshchuk and Boris Tsilevich sion,83 that after in secondary schools up to % of curricula will be taught in minority languages, sounds misleading and clearly contradicts the letter of the law in force. No changes have been made to the legislation on media either, particularly to Article of the Law on Radio and Television, which limits the rights of private media to broadcast in minority languages.84 On December , a group of minority MPs brought the case before the Constitutional Court, asking to declare Article () of the Law on Radio and Television unconstitutional.85 e consideration of this case might create an important precedent in the interpretation of freedom of expression and the rights of minorities in the field of the media. C. Lithuania ere were few changes in minority-related legislation in Lithuania in . However, one may highlight the news regarding the political participation of foreign nationals on the local level and new regulations on minority education. 1. Status of Aliens On June the Lithuanian parliament amended Article of the Constitution. By virtue of this legal move, non-citizens residing in the country were granted the right of both active and passive suffrage at local elections: Citizens of the Republic of Lithuania and other permanent residents of an administrative unit shall be elected according to the Law to Local Government Councils for a four-year term on the basis of universal, equal and direct suffrage by secret ballot by the citizens of the Republic of Lithuania and other residents of the administrative unit.86 Lithuania has thus made a considerable step forward in the promotion of political participation for all resident populations including ethnic minorities with legal local residence, but who do not have Lithuanian citizenship. On August new rules on the issuing of temporary resident permits came into force in Lithuania.87 On September , the Available at http://www.europa.eu.int/comm/enlargement/report/lv_en.pdf. Law on Radio and Television, published LV September , Article(): ‘e amount of broadcasting time in foreign languages in programmes produced by broadcasting organizations shall not exceed twentyfive per cent of the total volume of the broadcasting time in a twenty-four hours period.’ According to Latvian legislation, all languages except for Latvian and Liv are considered foreign languages. 85 Latvian Human Rights Committee, Minority Issues in Latvia ( December ). 86 Official English translation of the amended text of the Constitution and other Lithuanian laws referred to in this article can be found on the official web site of the Lithuanian parliament at http://www.lrs.lt/n/ eng/DPaieska.html. 87 Business Law Group ‘Foresta’, Legal Newsletter (November ), December , available at http: //www.litlex.lt. 83
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e Baltic States before EU Accession Lithuanian parliament also adopted a new Law on Citizenship. To a certain degree, more stringent migration rules were elaborated to meet the new realities after EU accession. 2. Minority Education e Decree of the Minister for Education and Science of January approved new Regulations on National Minorities Education.88 e regulations are to meet the special needs of national minorities in the sphere of education, to specify organisational and financial aspects of the work of minority educational institutions. For instance, special coefficients will be used for minority schools considering the fact that providing education in minority languages is more expensive than in an official language.89 In the academic year -, schools (about % of all schools) worked in minority languages in Lithuania (predominantly in Russian and Polish). Additionally up to Sunday schools accommodated educational interests of smaller ethnic groups. 90 Certain concerns of the international community were raised regarding the situation of the Roma community in Lithuania.91 In the framework of the Program of Integration of Roma into the Society of Lithuania - a Roma Public Centre was opened in Vilnius in September . In , Roma children graduated from special preparatory classes held there.92 III. C C While in Lithuania only the situation of the Roma minority is internationally recognized as vulnerable, many concerns amongst the international community are connected to the minority protection regime in Estonia and Latvia. In , there were no major changes in the minority legislation in the Baltic states. At least half of all the minority populations in Estonia and Latvia respectively will enter the EU as ‘non-citizens’. ‘e issue of Russian minority continues to be a permanent bone of contention, not only within Latvia and Estonia, but also in their relation with Russia. In this view the unsolved problem bears the risk of imposing major difficulties on relations between the EU and Russia, once Latvia and Estonia are members of the EU.’93 In Estonia and Latvia minority education issues were crucial in . Estonia seems to be more inclined towards positive changes in minority legislation. In this country 88 89
90 91
92 93
See at http://www.lrs.lt/n/eng/DPaieska.html. Danguole Grigoloviciene, ‘Pravovaja sistema i praktika ohrany prav menshinstv v Litve’ (‘Legal System and Practice of Protection of National Minorities in Lithuania’), in Minorities in the Baltics: Processes of Integration, International seminar, Tallinn (Estonia) - June (Tallinn, ), -, at (in Russian). Danguole Grigoloviciene is a Head of the Section of National Minorities, Department of National Minorities and Lithuanians Living Abroad under the Government of Lithuania. Data by the Ministry of Education and Science. See e.g. Open Society Institute, EU Accession Monitoring Program, Monitoring the EU Accession Process: Minority Protection (Budapest, ), -. Danguole Grigoloviciene, ‘Legal System and Practice …’, at . Stefanie Ricken, ‘Multi-organisational Response …’, at -.
Vadim Poleshchuk and Boris Tsilevich minority representatives in a legislative body were more successful compared to Latvia where similar attempts by pro-minority parties and organizations were in vain. If the government of Latvia shows no flexibility, substantially growing tensions over the most sensitive issue of minority education are inevitable. e major change in comparison with the previous years is related to the fact that the time of ‘political conditionality’ is over. Until very recently, Estonia and Latvia had to more or less diligently fulfil certain prescriptions formulated by international organizations, in order to achieve their strategic goals. Now this resource has been exhausted. Ideally, the stage of ‘political conditionality’ was aimed at ‘training’ the newly democratic states to the extent that after the completion of this stage, a sustainable democratic development is ensured, i.e. that these states are able to implement democratic policies, including minority-related policies, without further rigorous guidance on the part of the international community. We can conclude that this goal has only been achieved to a limited extent. In the case of Estonia, certain changes in minority legislation are already possible without direct pressure from Western Europe. Amendments to the education legislation, adopted without any major pressure from Europe, are persuasive evidence of this. e situation is much more complicated with Latvia, as a big part of the country’s political elite perceives the end of ‘political conditionality’ as a sort of carte blanche to implement any policies towards minorities they consider as corresponding to ‘national interests’. Differences in the situation in Estonia and Latvia may be explained by the extent of political participation of the minority population in each country. Non-citizens are in the majority among local minority populations. Estonian non-citizens can vote at local elections, causing local mainstream political parties to seek minority support, also seeking it by addressing the concerns of Russian-speakers. is practice was visible during both the last local (October ) and national (March ) elections in Estonia. In addition, within recent years Estonia, unlike Latvia, has made several important political decisions to accommodate minorities’ concerns. Partial liberalization of policies in the field of minority education, as well as ratification of the FCNM, are the most essential steps to this end. is appeared sufficient to break the ‘ethnic voting’ trend in Estonia. On the contrary, in Latvia the general legal framework for and practices towards non-citizens are more liberal than in Estonia. However, the absence of active voting rights for non-citizens, the persistence of restrictive minority education policies, and consistent refusal to ratify the FCNM (already signed by Latvia in May ) determine a high level of ethnic political mobilization and, as a result, articulate ethnicity-based patterns of political behaviour. e challenges of the EU accession urge Estonia and Lithuania to pay considerable attention to the problems of migration and illegal aliens. However, envisaged measures are neither always justified nor proportionate. e process of harmonization of minority legislation of Estonia and Latvia with the EU acquis communautaire – particularly, with its non-discrimination provisions like the Racial Equality Directive () – may influence the development of the situation in a very positive way. In Estonia and Latvia official linguistic requirements remain a challenging issue. In both countries, there were attempts to amend legislation in order to ‘compensate’ for the abolition of language requirements for minority candidates at elections; this in fact led
e Baltic States before EU Accession to the adoption of what resulted in overall more stringent provisions than those in force before ‘liberalization’. Under these circumstances, further efforts on the part of the international community, though perhaps in different forms, are indispensable in securing the stable democratic development of the Baltic states. Most importantly, the Baltic regimes should be encouraged to promote the political participation of minorities since it has a considerable reconciliatory effect under the circumstances of interethnic tensions, and is the key to seeking reasonable political compromises on most sensitive issues.
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Part B SPECIAL FOCUS: BELGIUM
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Dirk Jacobs *
Pacifying National Majorities in the Brussels Capital Region: What About the Immigrant Minority Groups?
I. I e process of state reform and devolution has put recognition of cultural-linguistic diversity in the foreground as the guiding principle for (representation in) Belgian political life. e (new) Constitution of ,1 indeed, clearly departs from the postulate of a ‘multination state’2 and recognizes the rights of (partial) self-determination of those groups which are seen to be the constitutive elements of the Belgian nation.3 e Constitution states that the Flemish, Francophone and Germanophone groups are the fundamental cultural communities of Belgium. is postulate then serves as the basis for organization of the entire Belgian political field. e Flemish-Francophone divide, however, clearly constitutes the central political axis. Belgium is not only officially built out of three Communities (a Dutch-speaking (i.e. Flemish), French-speaking and German-speaking community), it is also officially the sum of three territorial entities, the so-called ‘Regions’ (Flanders, Wallonia and the Region of Brussels-Capital). e Regions and Communities have specific political competencies. e Regions have jurisdiction over so-called ‘spacebounded’ matters, such as regional economy, agriculture, environment, infrastructure and *
1 2 3
Dr. Dirk Jacobs is a postdoctoral fellow of the National Fund for Scientific research Flanders (Belgium) and is based at the Institute of Social and Political Opinion Research, Katholieke Universiteit Leuven. He is also assistant professor at the Faculty of Political and Social Sciences of the Katholieke Universiteit Brussel and at the Katholieke Universiteit Leuven. His research fields are minority studies and political sociology. e author wishes to express his gratitude to Marleen Brans, Hassan Bousetta, Cristiano Codagnone, Adrian Favell, Marco Martiniello, Alexander Morawa, Mylène Nys+, Wouter Pas, Karen Phalet, Andrea Rea, Wilfried Swenden, Marc Swyngedouw and Peter Vermeersch for helpful comments, debate and assistance. For the Dutch text, see http://www.arbitrage.be/nl/basisteksten/basisteksten_grondwet.html, for the French http://www.arbitrage.be/fr/textes_base/textes_base_constitution.html. Will Kymlicka, Multicultural Citizenship, (Oxford, ); Alain Gagnon and James Tully, Multinational Democracies (Cambridge, ). Marco Martiniello, Sortir des Ghettos Culturels (Paris, ).
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Dirk Jacobs traffic. e Communities have jurisdiction over so-called ‘person-related matters’, such as health care, social policy, culture, education and language use. Belgium thus has a peculiar and complex system of federalism, combining both territorial (Regions) and non-territorial (Communities) substate levels in a fairly unique way.4 In the summer of , yet another phase in the process of devolution took place, further adjusting the already quite complex federal model. An important element5 was the new procedures for guaranteed representation of the Flemish in the bilingual Brussels Capital Region. In this contribution, I will focus my attention on this new regime of special representation rights of the Flemish in the Brussels Capital Region and will reflect on the consequences for immigrant minority groups. In order to do so, I will first discuss the demographic composition of the Region, its institutional framework and the multilevel governance situation with regard to policy towards immigrants. II. B, B C-R I e Region of Brussels-Capital, a territorial enclave within the Flemish Region, is an officially bilingual (Dutch- and French-speaking) region. Both the Flemish and the French Community have jurisdiction in the Region of Brussels-Capital. It contains autonomous municipalities. e sum of these autonomous municipalities is in ordinary life often referred to as the ‘city of Brussels’. is could (and often does) create some confusion. e Region of Brussels-Capital is not a city in exact legal terms and has no city government as a whole, but it is a region and has its own regional government and representative body alongside municipal councils. Only one of those municipalities is officially named ‘the city of Brussels’ (Brussel in Dutch, Bruxelles in French) and contains the historical (and tourist) centre. Other important municipalities in the Brussels Capital Region are Schaarbeek, Ixelles/Elsene and Anderlecht. According to the National Institute of Statistics, on January , the bilingual Region of Brussels-Capital had , inhabitants. Of these official inhabitants, , are non-nationals (.%). e official figures state there are , foreign EU citizens in Brussels (.% of the total population), while there are , non-EU foreign residents (or % of the population). Of the latter, % are Moroccan. Of the three regions in Belgium, the Region of Brussels-Capital is, in proportional terms, clearly hosting the largest number of foreign residents. e striking importance of the foreign population within the total population of Brussels is a phenomenon which has to be understood in light of the social and economic developments of the last three decades.6 From the s onwards, the Region of Brus4
5 6
Ronald Watts, ‘Models of Federal Power Sharing’, International Social Science Journal (), – . By examining the situation in the Brussels periphery (Flemish Region), Wilfried Swenden will in his contribution to this volume illustrate that this did not solve all contentious issues between the main linguistic groups. For a discussion of the complete reform, see Dirk Jacobs and Marc Swyngedouw, ‘Territorial and Non-territorial Federalism in Belgium. e Reform of the Brussels Capital Region in ’, /(), RFS -. Herman Vander Haegen, Greet Juchtmans and Christian Kesteloot, Multicultureel Brussel (Brussels, ).
Pacifying National Majorities in the Brussels Capital Region sels-Capital experienced strong economic growth, a process which led to a disrupted supply-demand situation in the labour market and the housing market. On the one hand, the city had a large demand for cheap, low-skilled labourers, on the other hand, the richer middle-classes moved to better and more modern neighbourhoods, which had been built on the periphery of the city in the s. Due to mortality- and emigration-surpluses amongst Belgians, many houses in the nineteenth century inner-city neighbourhoods of Brussels became vacant. e demands on the labour and housing markets were then filled by immigrants. Brussels increasingly attracted relatively large numbers of foreigners, while the original Belgian inhabitants started moving out of the city. e growth of the immigrant population in Brussels was further largely due to low-skilled foreign workers (predominantly from Italy and Spain, and later from Morocco and Turkey). e growth of the foreign population was caused by highly educated foreigners working for international organizations (and associated organizations) such as the European Community and NATO. In contrast to the low-skilled foreign labourers, these richer foreigners did predominantly look for housing on the periphery. Large numbers of Belgian inhabitants started moving out of Brussels to the suburban areas (later joined by rich foreign residents) and young Belgians no longer moved into Brussels at the same rate as they had previously. is process led to a deterioration of the quality of housing in significant parts of the inner city. As a result, the total number of inhabitants dropped below one million in the space of two decades. At the same time, foreign workers moved into the impoverished parts of the city. Between and , the number of Belgian inhabitants in Brussels dropped from approximately , to approximately ,, while the foreign population (people not holding a Belgian passport) grew from approximately , to approximately ,.7 As a result, the foreign population in stood at nearly % of the total number of inhabitants. It dropped to around % in due to the liberalization of the nationality legislation. It is unknown how many children of foreign residents in Brussels acquired Belgian nationality due to the introduction in (and its extension in ) of ius soli, the acquisition of nationality based on place of birth,. We do know that according to the census, , Belgian persons did not have Belgian nationality at the time of birth (and hence made use of the naturalization procedure). As a result, we know that at least .% of the inhabitants of Brussels were of foreign origin in . It may be noted that throughout the s, Belgium liberalized its nationality legislation, to the extent that the country now has one of the most open legislations in the world. As in most European countries, ius sanguinis, the intergenerational transmission of citizenship, constitutes the basic principle of access to Belgian state citizenship. Children born to Belgian nationals are automatically attributed Belgian nationality at birth. However, progressively (in , , , and ) ius soli has been introduced in Belgian citizenship law. As a result, citizenship is automatically attributed to anyone born in the country of a parent born there as well (double ius soli). Furthermore, there is 7
Ibid., .
Dirk Jacobs the possibility to opt for Belgian nationality. One has the right to semi-automatic access to Belgian citizenship if one is born in Belgium and has been continuously living there, if one has a Belgian parent or if one has been living in Belgium for seven years and has a permanent residence permit. Finally, one can apply for naturalization after three years of residence (two years for refugees). It is important to stress that there is no formal language test as a requirement to obtain Belgian citizenship. is is ironically mainly due to the fact that there is no agreement between Francophones and Flemish in which geographical areas – in particular in the periphery of Brussels – knowledge of which one of the national languages is deemed to be necessary. In any event, as a result of the evolution of the nationality legislation and demographic developments, in , probably around % of the Brussels population are Belgians of foreign descent (who acquired citizenship through ius soli, naturalization or the other systems for acquiring Belgian nationality). One can thus estimate that today approximately % of the inhabitants of Brussels are of immigrant – non-Belgian – origin. Among the nationals in Brussels, it is estimated, that -% are Dutch-speaking and -% are French-speaking. ese are unavoidably only rough estimates and it should be noted that there are some perfectly bilingual and also some Brussels-speaking8 people in Brussels. It is not possible to know the exact proportions by using official statistics since, in order to avoid political tensions, it has been forbidden since to conduct a language census. e number of votes cast in (obligatory) regional elections, in which voters are obliged to choose between linguistically divided lists of candidates, is one of the most frequently used alternative indicators for the linguistic proportions. Flemish lists usually receive % of the votes. Recent survey research by sociologist Rudi Janssens,9 in which language use of the respondents with their parents was monitored, shows that .% of the Belgian inhabitants of Brussels are from monolingual Dutch-speaking (Flemish) families and .% are from mixed Francophone-Flemish families. Still focusing on the population with Belgian citizenship in Brussels, .% is from monolingual Francophone families, .% are from families using languages other than Dutch or French and .% are from families using French alongside another language (other than Dutch). When looking at the total population of the Brussels Capital Region, including both Belgian citizens and foreign residents, the research of Rudi Janssens shows that .% are from a monolingual Flemish background, .% from a monolingual Francophone background, .% from a bilingual Flemish-Francophone background, .% from families combining French with another language other than Dutch and .% are from a family background in which neither French nor Dutch is used. Janssens correctly notes that those who can be considered to be ‘pure’ Francophones are indeed in the majority, while the ‘pure’ Flemish are clearly in a minority position, but that there is an equally important group of people with a bilingual Francophone-Flemish background or with another language background. As a result, it is 8
9
A local dialect, which is a mix of Dutch and French. Rudi Janssens, Taalgebruik in Brussel. Taalverhoudingen, taalverschuivingen en taalidentiteit in een meertalige stad (Brussels, ).
Pacifying National Majorities in the Brussels Capital Region artificial to claim one is simply Francophone or Flemish in the Brussels Capital Region. If we look at (self-reported) data on language knowledge of the population of Brussels, Janssens’ results show that .% are able to have a conversation in French, .% in Dutch, .% in English, .% in German, .% in Spanish, .% in Arabic, .% in Italian, .% in Turkish and -% can speak Portuguese, Greek, Russian or Berber. So without any doubt, French is by far the lingua franca of Brussels. At the same time, one third of the population is able to speak Dutch, the other official language of the region, and there is a considerable amount of people who speak other (foreign) languages. III. I S R B C Although the Flemish are clearly in a minority position in Brussels, in principle, Dutch is used next to French as a fully-fledged official language. e exact procedures to ensure this are the result of over three decades of difficult negotiations and complex reforms, which cannot possibly be exhaustively discussed in the limited context of this contribution.10 In this section, I will try to present the institutional structure of the Region of Brussels-Capital and the main principles which should ensure bilingualism in the municipalities of the Region and in the regional administration and regional services (fire brigade, hospitals), as they apply up until January (or the elections of ). In Section VI. I will discuss the changes brought about by the latest reforms. All administrators working in any of the municipalities of the Region of BrusselsCapital with a permanent contract have to be ‘perfectly’ bilingual (i.e. having passed tough language exams). Hence, there is a very strong protection of the Dutch language on the municipal administrative level. ere are, however, on the political level, no guarantees that Flemish people will be part of the local council if they are not directly elected into it. In addition, there is no guarantee that Flemish politicians who are elected into the local council would be part of the committee of the mayor and aldermen. e Flemish have been arguing that they should be granted these guarantees, given the official bilingual character of the municipalities. ere is, nevertheless, an indirect stimulus to ensure that a Dutch-speaking person is present in local government; if there is at least one Flemish member of the local government, the municipality is allowed to appoint one additional alderman. If no Dutch -speaking member is part of the local council for social welfare, which is appointed by the city council, the first ranked non-elected Flemish politician will de iure be added to it. Unlike at the municipal level, administrators and other personnel do not have to be bilingual in the regional administration and services. e administration and services should, however, be able to ensure that clients can at all times be helped in either official
10
For further reading, see John Fitzmaurice, e Politics of Belgium. A Unique Federalism (London, ); Alexander Murphy, e Regional Dynamics of Language Differentiation in Belgium (Chicago, ); Martijn Roessingh, Ethnonationalism and Political Systems in Europe. A State of Tension (Amsterdam, ); Els Witte, Jan Craeybeckx and Alain Meynen, Political History of Belgium, to the present day (Brussels, ).
Dirk Jacobs language. To ensure this in practice, there are quotas used for the employment of personnel. ese often boil down to a Flemish: Francophone ratio (per employees). On the political level, the parliament of the Region of Brussels-Capital consists of members. e members of parliament are elected on linguistically divided lists in order to be able to differentiate Flemish and Francophones who are to decide over their own Community matters. ere is no guaranteed minimal representation of the Flemish in parliament. e number of Flemish seats is dependent on the electoral results. Up until now, the Flemish parties have had or seats. e government of the Region of Brussels-Capital consists of one prime minister, four ministers and three secretaries of state. ey are chosen by a majority in the entire parliament and a majority in every language group. If this turns out to be impossible, the prime minister is chosen by the entire parliament, while every language group appoints their own two ministers. In any event, the Flemish are entitled to two ministers and at least one secretary of state. e Flemish thus enjoy a guaranteed representation in government. Since the government has to decide in consensus, this means substantial effective political power for the Flemish. In addition, there is an ‘alarm bell’ system that can delay any decision which the Flemish minority deems to be unacceptable. e parliament of the Region of Brussels-Capital can legislate in regional matters by means of ordinances, which are legally binding, and with by-laws (for matters such as those relating to the fire department, taxis and waste collection). Legislative power is exercised jointly by the parliament and the government: Each of these two bodies is entitled to the right of initiative. Ordinances come into effect after a simple majority has been achieved in parliament. Person-related, cultural and language matters in Brussels are not a prerogative of the Brussels Regional parliament but are dealt with by one of the two socalled Commissions for Community Matters. ere is the Vlaamse Gemeenschapscommissie (VGC) on the Flemish side and the Commission communautaire française (COCOF) on the Francophone side. eir legislative assemblies consist of the members of their respective linguistic groups in the Brussels-Capital parliament. Every Community Commission also has its own executive organ, composed of their own ministers and secretaries of state of the Brussels-Capital government. ese ‘mini-parliaments’ and ‘mini-governments’ have the role of ‘translating’ the policy frameworks of their overarching community level (Flemish or French) to Brussels. In a number of cases, institutions or policies regarding person-related matters cannot be seen to belong exclusively to one of the two linguistic communities. In those cases, the members of the two linguistic groups together make up the United Assembly of the Joint Commission for Community Matters (Gemeenschappelijke Gemeenschapscommissie or Commission Communautaire Commune, or ‘Bico’ for short). In practice, all members of the Brussels Regional parliament are thus also members of the United Assembly of the Joint Commission. Examples of its range of jurisdiction are the institutions for social welfare, a number of hospitals, health policy and public assistance. In exactly the same way as parliament, the United Assembly legislates by way of ordinances and by-laws. An important difference, however, is that each resolution must obtain a majority vote in each linguistic
Pacifying National Majorities in the Brussels Capital Region group. In practice, the Joint Commission for Community Matters is of minor importance. It has a very small budget and most political actors avoid resorting to it. IV. I I P B Due to the complex institutional framework of the Belgian federal political system, both the Flemish community and the Francophone community have jurisdiction with regard to policies concerning immigrants or ethnic minority groups in Brussels. is being said, the overall difference between the Flemish and Francophone approach to dealing with the immigrant groups in Brussels is striking.11 e main differences in the policies towards immigrants and ethnic minorities are schematically represented in Table . Although the Flemish and Francophone policies towards immigrants and ethnic minorities can be fitted into this general typology, one should bear in mind that different dimensions can be stressed in specific policy subfields and government agencies – for instance depending on the ideology of the responsible minister (given the fact that Belgium always has coalition governments). Table . Policy Approaches of Flemish and Francophones towards People of Immigrant Origin Flemish approach
Francophone approach
Policy emphasis for integration of settled immigrants Recognition of the existence of ethnic-cultural minority groups Cooperation with, and support of, immigrant self-organization Individual approach Only indirect targeting of immigrant groups (for instance, in certain neighbourhoods)
Policy for newcomers Citizenship trajectories (include language courses) None
Foreign inspiration Anglo-Saxon and Dutch ideas of group-based multiculturalism French assimilationistrepublican model
e Flemish government has had a clear preference for supporting self-organizations of migrants which are willing to cooperate in federations and are coordinated by quangos (quasi-nongovernmental organizations). In addition, the Flemish government has financially supported local initiatives aimed at urban renewal and integration of deprived groups in disfavoured neighbourhoods. In , the Flemish government adopted a new overarching policy framework clearly based on the recognition of ethnic-cultural groups and including both (settled legal) migrants and refugees on the one hand, and groups with nomadic lifestyles (woonwagenbewoners) on the other hand, as its target groups. e Flemish government has thus finally profiled its model of integration of immigrants in 11
Marc Verlot, Werken aan integratie. Het minderheden en onderwijsbeleid in Vlaanderen en de Franse Gemeenschap van België (-) (Leuven, ).
Dirk Jacobs line with Anglo-Saxon and (until recently) Dutch ideas of group-based multiculturalism. At the same time, however, the Flemish government is installing so-called ‘citizenship-trajectories’ (inburgeringstrajecten) in which Dutch language lessons and lessons of introduction to Flemish/Belgian society are to be taken by certain categories of immigrant newcomers. is scheme, copied from the Netherlands, will become compulsory for (most) non-EU newcomers in Flanders and optional in Brussels. Intellectually influenced by the individualist republican model of France, the Francophone and Walloon governments have not been willing to recognize ethnic-cultural groups as specific entities in its policies towards immigrants. Furthermore, although in practice often primarily directed towards immigrant groups, initiatives were often framed in such a way that immigrants were not specifically defined as target groups. ere is no special programme for newcomers on the Francophone side either. Given the fact that both the Flemish and the Francophone communities have jurisdiction in Brussels, the two – partly contradictory – approaches coexist in the Capital Region. at being said, it should be pointed out that the difference between the Flemish and Francophone approach for dealing with immigrant integration issues is very much interconnected with, and instrumental to, the strategies used by both parties as contenders in the political field of Brussels.12 eir divergent positions on integration policy allow them to protect and reinforce their respective positions in the multinational political arena. e Flemish Community has made substantial efforts to woo immigrant associations in Brussels. It is definitely not too farfetched to denounce these activities as – at least partially – strategic attempts of the Flemish government in Brussels to incorporate immigrant (often Francophone) self-organizations into its policy networks, thus hoping to strengthen the sphere of influence of the Flemish community within the Region of Brussels-Capital. Immigrant associations, of course, welcome the Flemish efforts as interesting new possibilities for funding and lobbying. On the Francophone side, the Flemish efforts are looked at with quite some suspicion. It is stressed that assimilation of immigrants into French culture is in their own best interest. ey rely on their dominant position within Brussels leading to (automatic) immigrant incorporation. It often seems that by denying the existence of ethnic minority groups, the Francophones equally hope to downgrade the legitimacy of Flemish demands for group-differentiated rights and special representation. Favell and Martiniello13 have correctly pointed out that this peculiar multilevelled governance situation in Brussels enables and encourages new types of immigrant opportunities and political voice. Indeed, immigrant associations can now – to give but one example – go ‘shopping’ for funding and influence in either the Flemish or Francophone community and can strategically opt for different forms of collective mobilization, stressing 12 13
Dirk Jacobs, ‘Multinational and Polyethnic Politics Entwined: Minority Representation in the Region of Brussels-Capital’, JEMS (), -. Adrian Favell and Marco Martiniello ‘Multi-national, Multi-cultural and Multi-levelled: Post-national Politics in Brussels, ‘Capital of Europe’’. Paper presented at the ECPR Joint Sessions, Warwick University, March .
Pacifying National Majorities in the Brussels Capital Region either ethnic identity or neutral forms of social insertion.14 As a result of the Francophone approach, a lot of immigrants are active within the structures of existing social organizations (trade unions, etc.) and antiracist organizations. e fact that migrant associations are treated as legitimate partners for discussion by the Flemish authorities has, however, also enhanced the creation of self-organizations and processes of ethnic mobilization. V. F F e multilevelled governance situation, however, also (re)produces problems of exclusion and non-representation of immigrant groups. is has particularly been the case in the debate over local enfranchisement of foreign residents. In earlier work,15 I have shown how polarization had transformed that debate into an electoral struggle over the antiimmigrant vote in the s and early s. It was only in the second half of the s that the Flemish-Francophone cleavage gained importance in the matter.16 Constrained by a European directive on the matter and urged by a judgment of the European Court of Justice, Belgium did in the end grant local voting rights to EU citizens in .17 e Constitution had been changed in , allowing equal enfranchisement of third-country nationals from onwards, but attempts to change the electoral law and effectively grant local voting rights to all foreign residents failed in . In both cases, the Francophones increasingly supported enfranchisement of foreign residents, while (a part of ) the Flemish establishment delayed any policy changes. Proposals for enfranchisement of all non-nationals were taboo for the main (Flemish) actors in the political field, fearing a white backlash and further success of the racist party Vlaams Blok. is was the main argument of the Flemish right-liberals to veto enfranchisement of non-EU foreign residents in early . e Flemish resistance to enfranchisement of (even European) foreign residents was at an earlier stage, however, equally linked to a twofold set of external issues: the political representation of Francophones in the Flemish periphery of Brussels on the one hand, and the political representation of Flemish within the regional and municipal institutions of Brussels on the other hand. e first issue was related to Flemish concerns about the increasing influence of the French language in the Flemish municipalities in the periphery of Brussels.18 e Flemish Dirk Jacobs and Marc Swyngedouw, Multiculturaliteit in Brussel. Een onderzoek naar attitudes van allochtonen jegens de Vlaamse Gemeenschap in Brussel en naar de verwachtingen en strategieën van de allochtone elite uit het middenveld in het tweeledige Brusselse publieke veld. Eindrapport (Brussels, ). 15 Dirk Jacobs, ‘e Debate over Enfranchisement of Foreign Residents in Belgium’, JEMS (), . 16 Dirk Jacobs, Nieuwkomers in de politiek. Het parlementaire debat omtrent kiesrecht voor vreemdelingen in Nederland en België (-) (Gent, ). 17 ECJ, case C-/, Commission of the European Communities v. Kingdom of Belgium, judgment of July , European Court reports , I-. 18 Hassan Bousetta and Marc Swyngedouw, ‘La citoyenneté de l’Union européenne et l’enjeu de Bruxelles. Le droit supranational européen confronté aux réalités d’une société multiethnique et multinationale divisée’, () Courrier hebdomadaire du CRISP (). 14
Dirk Jacobs feared that enfranchisement of EU citizens would lead to an increase of the political representation of Francophone politicians in the periphery of Brussels. is increase of Francophone power would deteriorate the Flemish character of the periphery and would lead to further demands to transfer Flemish municipalities to the bilingual Region of BrusselsCapital. In order to avoid this, the Flemish parliament – although not having any legal competence in this matter – first in November and once again in June , urged the Belgian government in a resolution to assure a set of conditions necessary to implement the citizenship of the EU. In the June resolution, these conditions included respect for the linguistic legislation by potential voters and the elected, the paying of taxes by potential voters, a sufficient length of residence of the potential voters in the municipality, and the preservation of local executive offices to nationals. ese Flemish demands are remarkable for two reasons. First, the relevant European directive had foreseen a specific derogation for Belgium, given the presence of the European institutions and its specific linguistic equilibrium, but apparently this was regarded to be insufficient by the Flemish parliament. Second, from a legal point of view, the Flemish demands were void. Not only did the European directive – which has priority over any national laws – not allow for additional conditions, changes to the Constitution and the electoral laws are also a clear federal prerogative in which the Flemish parliament has no say. e second issue for Flemish resistance was related to Flemish fears concerning their representation as a minority group in the Region of Brussels-Capital. Indeed, the Flemish fear that they would become even more of a minority group and in the long term would even lose their special protections when they are crowded out of local political institutions owing to the fact that (EU) foreign residents are allowed to vote. us, the Flemish have claimed that they need a rearrangement of the group-differentiated rights of the Flemish minority within regional and municipal institutions to effectively protect the official status of Dutch in the capital. According to the dominant argument, these differentiated rights should take the form of special-representation rights.19 In other words, a claim was made for a number of guaranteed seats within the various Brussels assemblies, and more specifically, within the regional council and the municipal councils. It should be noted that the claim for a guaranteed representation within the Brussels regional council went clearly beyond the issue at stake. Indeed, it links the issue of local voting rights to a discussion pertaining to another (supra-local) political level (e Region of Brussels-Capital) in which EU citizens will not be allowed to politically participate. e two matters were linked, however, since both a constitutional change allowing for enfranchisement of EU foreign residents and the issue of guaranteed Flemish representation within Brussels’ regional and municipal councils, require a two-third majority in the Federal parliament. In other words, Flemish politicians tried to secure a good bargaining position. In both cases, the entire Flemish argument relies on the implicit hypothesis that the foreign (European) vote would straightaway benefit French-speaking political actors and that Flemish politicians would weaken their electoral positions in Brussels and its periphery. It is a ‘public secret’ that Francophone politicians shared these views and 19
Ibid., .
Pacifying National Majorities in the Brussels Capital Region regarded maximal extension of the local electorate, although presented as a sacred universal principle, as a weapon in the conflict between the two communities. e debate over local enfranchisement of EU and non-EU citizens has thus become an issue in the power struggle between the two linguistic communities. One can wonder how well founded the Flemish fears about imminent electoral success of the Francophones are, in the event of enfranchisement of foreign residents. Predictions by Bousetta and Swyngedouw20 that the effect of EU enfranchisement is very diverse and local have been confirmed. Moreover, participation of EU citizens was so low,21 it hardly had any effects in Brussels and its periphery. Undoubtedly the overall majority of foreigners in Brussels will vote for Francophone parties. French is, after all, the lingua franca and the most likely language foreigners would (decide to) pick up. Since the overall majority of the Belgian electorate votes Francophone as well, it is hardly certain that the political presence of the Flemish in Brussels would automatically be affected in a negative way in the case that all foreigners went to vote. In municipalities where % of the Belgian inhabitants now vote for Francophone lists, a situation in which only % of the foreign residents would vote Francophone could even improve the situation of the Flemish. Positive campaigning of the Flemish within foreign communities – for instance stressing the Flemish multicultural model – could help them strengthen their positions. It could well be, however, that the negative position some Flemish political actors have taken in the debate in the past will turn their fear into a self-fulfilling prophecy: Foreign voters will not vote for political parties which have tried to keep them disenfranchised. In any event, whatever the electoral scores of the Flemish on the municipal level may be, there will be no direct consequences for the rights of the Dutch-speaking in Brussels since these are protected in the Constitution. e Flemish, however, fear that the Francophones will increasingly question these special minority rights if the political presence of the Flemish decreases. A comparable logic applies to the problematic Flemish periphery of Brussels, although the power relations between Flemish and Francophones are vice versa there. e Flemish will not accept that the Flemish status of these municipalities will be further put into question if Francophone parties win even more local political importance owing to foreign votes. In both cases, the situation in Brussels and the situation in the periphery of Brussels, the resistance of the Flemish to enfranchisement of foreigners boils down to defending the power and positions of the Dutch-speaking. Enfranchisement is said to disrupt the existing system of checks and balances between Flemish and Francophones which ultimately is the basis for the federal structure of the country. Bousetta and Swyngedouw22 have correctly pointed out that it is striking that the same arguments have not been put forward explicitly in debates over acquisition of state citizenship. It is nevertheless clear that there will be, especially in Brussels, an increasing Ibid., -. Dirk Jacobs, Marco Martiniello and Andrea Rea, ‘Changing Patterns of Political Participation of Immigrant Origin Citizens in the Brussels Capital Region. e October local elections’, Journal of International Migration and Integration (forthcoming). 22 Bousetta and Swyngedouw, ‘La citoyenneté …’. 20 21
Dirk Jacobs importance of the so-called ‘new Belgians’ (people of foreign origin who acquired citizenship through ius soli, option or naturalization) among the electorate. Martiniello23 has estimated that already in there were about , Belgian voters of foreign non-EU origin in Brussels, thus constituting .% of the electorate. It is clear that a large majority of these new Belgians are likely to be Francophone voters. Bousetta and Swyngedouw24 have put forward some plausible reasons to explain why the debates over acquisition of state citizenship in the s and early s did nevertheless not become an issue in the power struggle between the two linguistic communities. ey have suggested an interesting institutional explanation, referring to the fact that only once Belgium had become a true federal state, did it make sense to see the idea of group-differentiated rights as a stake. In addition, they have pointed out the importance of the difference in salience and social impact of enfranchisement on the one hand and acquisition of nationality on the other hand. e former is a measure immediately affecting a large group; the latter is a more gradual measure, which apparently is judged to be less threatening.25 VI. S R R F In , as part of a more general package deal,26 a number of measures were agreed upon by the leading Belgian and Brussels’ politicians, aiming at a minimal representation of the Flemish at the regional and municipal level. ese measures, agreed upon in the so-called Lombard Agreement, would have to safeguard the Flemish from being crowded out politically in the Brussels Capital Region by the immigrant population. e most important element is the increase of the number of members of the Brussels parliament from to members. A fixed number of seats will go to the Flemish, while a fixed number of will go to the Francophones. ese members of parliament will be elected on the linguistically divided lists of the Region of Brussels-Capital. e Flemish will thus have a fixed representation, regardless of their demographic strength. Before the reform, the first six elected Flemish members of the Brussels parliament also became members of the Flemish parliament. In the Flemish parliament they are only allowed to vote on community-related matters. In the new system, these six Brussels members will be directly elected into the Flemish parliament. ey will no longer be part of the Brussels parliament and in the Flemish parliament will only vote on community-related matters. On the municipal level, an additional incentive was created that a Dutch-speaking person would be present in local government; if there are Flemish politicians forming part of the majority coalition, at least one of these Flemish politicians should be appointed alderman or president of the local council for social welfare. e Francophone politicians Marco Martiniello, ‘Les élus d’origine étrangère à Bruxelles: une nouvelle étape de la participation politique des populations d’origine immigrée’, Revue Européenne des Migrations Internationales, (), -. 24 Bousetta and Swyngedouw, ‘La citoyenneté …’, . 25 Ibid., . 26 For a discussion of the complete reform, see Jacobs and Swyngedouw, ‘Territorial and Non-territorial Federalism in Belgium …’. 23
Pacifying National Majorities in the Brussels Capital Region accepted this incentive for power sharing with the Flemish in Brussels, in return for considerable additional financial means for the municipalities. A fixed yearly budget of bn BEF (EUR ,,) transferred from the federal level will be divided amongst all the municipalities in which the rule will be applied. e fixed guaranteed representation of the Flemish in the Brussels parliament also literally had a price. e Flemish had to agree to augment the financial means of the COCOF which had been in need of new funding for quite a while. A yearly budget of bn BEF (EUR ,,) transferred from the federal level will thus be given to the two Community Commissions, in an / division for the COCOF and the VGC respectively. Another linked institutional change is the addition of five members to the Flemish members of the Brussels parliament to take part in the VGC. ese additional members will not become full-fledged members of the Brussels parliament, but will only take part in the VGC. ey will have stood as candidates for the Brussels elections, but will be assigned according to the election results for the Flemish parliament. e election of the additional members of the VGC is thus not only influenced by the Flemish voters in Brussels but also by the Flemish voters outside of Brussels. is very unusual procedure27 was opted for in order to minimize the risk of having additional extreme–right-wing politicians in the VGC. It is based on the (debatable) hypothesis that the Vlaams Blok party28 will remain weaker in Flanders as a whole than in Brussels. e latter measure is part of a wider set of institutional changes opted for in order to avoid the Flemish extreme–rightwing party Vlaams Blok coming into government in Brussels. e measures should assure that the extreme–right-wing party Vlaams Blok, which is (already) the largest party on the Flemish side with four out of eleven seats, stays out of power without, however, having to modify the principle that the Flemish and the Francophones cogovern the Region of Brussels-Capital. e liberty has been taken elsewhere29 to introduce the neologism ‘lombarding’ to refer to these steps taken by a large consenting group of political parties to institutionally ostracize one extremist political party which is deemed to be undesirable by all other players in the political field. In Belgium, the racist and extreme–right-wing party Vlaams Blok is such an undesirable party. e Vlaams Blok wants to create an independent, white only, republic of Flanders, in which Brussels is to be incorporated.30 From a substantive point of view, the party is undemocratic since it has a number of policy propositions which are in breach of the European Convention on Human Rights. In addition, the Vlaams Blok is seen to be an undesirable political party in the specific context of the Brussels Arguing it is a measure which is in breach with the equality principle. e Arbitragehof, which functions as a constitutional court, decided on March to abolish the procedure of electing the five additional members. Hence, for the time being, all procedures involving the five additional members, are void. As a result, the newly established federal government and parliament – federal elections were held on May – will have to look into amending the legislation. 28 Marc Swyngedouw and Gilles Ivaldi ‘e Extreme-right Utopia in Belgium and France: e Ideology of the Flemish Vlaams Blok and the French Front National’, West European Politics (), -. 29 Jacobs and Swyngedouw, ‘Territorial and Non-territorial Federalism in Belgium…’. 30 Marc Spruyt, Wat het Vlaams Blok verzwijgt (Leuven, ). 27
Dirk Jacobs Capital Region since it aims to paralyze the political model of the Region. e party has the explicit objective of gaining a majority on the Flemish side in Brussels in order to be able to plunge the region into an institutional deadlock, by refusing to undertake any policy measure which would possibly trigger the collapse of the entire federal state. Mainly because of their racist views, all political parties have agreed never to cooperate with the Vlaams Blok, thus fostering a so-called cordon sanitaire. In Brussels, a number of steps have now been taken by all other political parties to give an institutional translation to this ostracizing, anticipating the situation in which the Vlaams Blok might attain a veto point position on the Flemish side. An important element of ‘lombarding’ was constituted by a remarkable change in the electoral system of the Region of Brussels-Capital. e electoral system of the region should be catalogued as a party list proportional-representation system. It is a two-tier system since the D’Hondt system is used to assign seats to parties within each language group, once the total number of seats has first been distributed between the two language groups (being clusters of parties). As has been mentioned earlier, from now on, a fixed number of seats will be assigned to each language group. As another new element, a particular apparentement procedure is installed within the language groups. In an apparentement system, parties can group together for seat-distribution purposes. is means that the parties themselves remain as separate entities and are listed separately on the ballot paper. However, in the process of assigning seats within the language group, parties linked into an apparentement are seen as one entity. Votes gained by each party taking part in an apparantement are taken together in the process of assigning seats in the first round. Afterwards, these seats are assigned to the participants of an apparentement in the second round. e number of seats assigned to each separate apparentement are then distributed to the participating parties using the D’Hondt system. e (semi-) hidden agenda of the introduction of this two-tier system was to allow for all the mainstream parties within each language group to form a big apparentement, going up against an isolated extreme–right-wing party or parties. Indeed, an isolated party would potentially be crowded out by a large apparentement of mainstream parties. It was thus hoped to isolate the Vlaams Blok on the Flemish side and the Front National and Front National Belge on the Francophone side. e measure is mainly aimed at diminishing the threat of the extreme–right-wing party Vlaams Blok, the largest party on the Flemish side, attaining the majority within its language pool. As such, it should be seen as an ad hoc measure. One can, however, question the effectiveness of the new procedure if the aim of the politicians was solely to weaken the Flemish extreme right. Calculations according to the new system, on the basis of existing electoral results, do not show a significant effect in the Flemish language group. e Vlaams Blok is already too strong to suffer major consequences if it can hold onto its electoral results. e system does crowd out the small Francophone extreme–right-wing parties. Of course, it also remains to be seen if the measure will indeed be used only to the effect of ostracizing the extreme right. It can just as well be used to crowd out new parties or small mainstream parties.
Pacifying National Majorities in the Brussels Capital Region e composition of the government was seen by the negotiators to be another issue allowing for ‘lombarding’. As explained earlier, the government of the Region of BrusselsCapital consists of one prime minister, four ministers and three secretaries of state. ey are chosen by a majority in the entire parliament and a majority in every language group. If this turns out to be impossible, the prime minister is chosen by the entire parliament, while every language group appoints their own two ministers. As was stated before, it has been feared that the extreme right wing party Vlaams Blok would be able to attain the majority within its language pool. To counter this possibility, the Lombard Agreement aims to modify the existing system without, however, endangering the fixed representation of both language groups in government. If it turns out to be impossible to elect a government according to the consensus procedure in which a general majority and a majority in every language group is achieved, a delay of one month will be introduced. In a new procedure, the government will be chosen by a simple majority of the members of parliament. e candidates, however, have to be nominated by a simple majority within the respective language groups. In this specific case, the additional five members of the VGC will be counted as being part of the Dutch language group. e same procedure comes into effect if parliament wants to hold a vote of confidence regarding a minister or the government. For a number of policy matters such as municipal law, institutional matters and community matters relevant for both language groups, a new procedure for the double-majority rule is installed. If a double majority – a majority in both language groups – cannot be attained, a new vote is held after one month. At that point in time, it suffices to have a simple majority in the entire council and the support of one third of the members in every language group. is measure is yet another instrument meant to keep the Vlaams Blok out of power. Of course, it cannot be ruled out that the new arrangement would also be used as a ‘normal’ political instrument against other political parties in order to avoid deadlocks within a coalition of the traditional parties. ere are already some hints to be found in contemporary governmental debates over delicate issues that this could take place in the future. VII. W S I M G It remains an open question how the de facto political incorporation of segments of the immigrant community – those who have been granted or have acquired Belgian citizenship – on the one hand, and the unavoidable debate over modes of (indirect) representation of the % disenfranchised inhabitants, will further affect the power balance between the dominant national groups in Brussels in the future. In any event, it seems to be unavoidable that the issue of political incorporation of immigrant minority groups will further encounter the Flemish-Francophone divide and the issue of group-differentiated rights for the Flemish in Brussels along the way. Given the newly guaranteed representation on the regional level from onwards, the scenario of the Flemish being crowded out is no longer a threat. e Flemish do, however, still run a risk of losing political ground on the municipal level. In addition, appealing to the immigrant origin electorate remains
Dirk Jacobs important for both the Flemish and the Francophone political parties in elections at the federal level. At the local level, the Flemish do run the risk of being crowded out by (Francophone) Belgians of foreign origin – although this has not been the case up until now31 – and will run this risk all the more if all non-nationals are someday enfranchised. As a result, it is most probable that demands for guaranteed representation of the Flemish on the municipal level will keep popping up in the future. In any event, for the foreseeable future, creating alliances with immigrant groups will remain an important political element in the power struggle between the two national language groups in Brussels. It will be interesting to see whether this will trigger changes in the overall policy approaches towards immigrants and ethnic minority groups of the Flemish and the Francophones. Will the Francophone establishment, for instance, be tempted to equally embrace a more multicultural framework, in which additional ethnocultural identities are publicly accepted, in the competition over the immigrant (origin) vote? In any event, politicians from both the Flemish and from the Francophone establishment hope immigrants in Brussels will, in the end, become respectively Flemish or Francophone. Both see their (parallel) educational systems in the Brussels Capital Region as an important instrument to this goal.32 Nevertheless, all research,33 both quantitative as qualitative, shows that up until now most of the ‘new Belgians’ do not want to choose. It is far from unproblematic to assume that the inhabitants of Brussels of immigrant origin will gladly step into the dual Flemish-Francophone structure of the political field of the Brussels Capital Region. It is not self-evident that the immigrant minority groups will choose between either the Flemish or the French Community. Research among Moroccan, Turkish and Kurdish community leaders34 shows that the overall majority of the allochthonous elite stresses being Belgian or an inhabitant of Brussels, rather than a Flemish or Francophone language identity. e following representative citations of leaders from immigrant self-organizations can illustrate the preference for a ‘Brussels’ or ‘Belgian’ identity. Even though one is de facto most often Francophone (rather than Dutch-speaking), this is not necessarily seen to be a political identity as well. ‘ose who come from North Africa are directly assimilated into the Francophone linguistic role, without them being asked about their opinion. is was so in my case, for instance, I have been receiving letters to go and vote, to pay my taxes, I have been assimilated into the Francophone linguistic role, which might perhaps Jacobs, Martiniello and Rea, ‘Changing Patterns …’. In contrast to what is claimed by Dominique Arel in ‘Political Stability in Multinational Democracies: Comparing Language Dynamics in Brussels, Montreal and Barcelona’ in Alain Gagnon and James Tully, Multinational Democracies (Cambridge, ), far from all children of immigrants are enrolled in French schools in Brussels. e Flemish school system in Brussels is attracting increasing and important numbers of immigrant pupils. 33 Marc Swyngedouw, Karen Phalet and Kris Deschouwer (eds.), Minderheden in Brussel. Sociopolitieke houdingen en gedragingen (Brussels, ); Jacobs and Swyngedouw, Multiculturaliteit in Brussel ...; Janssens, Taalgebruik in Brussel ... (Brussels, ). 34 Jacobs and Swyngedouw, Multiculturaliteit in Brussel.... 31
32
Pacifying National Majorities in the Brussels Capital Region be true in the sense that I do express myself in French, but, all the same, no one ever asked my opinion.’35 ‘As far as I am concerned, I define myself as being an inhabitant of Brussels. I don’t say I am Flemish or Francophone. I’m rather from Brussels.’36 ‘Me, I do not feel Francophone, I feel like an inhabitant of Brussels and Belgian above all.’37 ‘But it is true that the new Belgians do not always join sides of the one or of the other. ey do not say: ‘Me, I’m of the Francophone side’ or ‘I’m of the Dutchspeaking side’. I speak French, but I prefer to say I am Belgian rather than anything else. Belgian from Brussels.’38 ese echoes from qualitative research correspond neatly with the findings from quantitative research39 in which it was shown that the persons of immigrant origin in Brussels hardly identify with the Flemish or the Francophones, but can identify with a local ‘Brussels’ identity or an overarching Belgian identity. One loathes the idea that one would be forced to have to make an exclusive choice between the two communities. e worst case scenario would be that a choice of subnationality would be enforced upon the inhabitants of Brussels. e idea of having to chose between either the Flemish or the Francophone Community is seen by most allochthonous elite members interviewed by Jacobs and Swyngedouw40 to be very problematic. One of the interviewees compares the thought with the traumatic experience a child would have to endure when being forced to choose exclusively between father or mother: ‘But I think, on a strategic level, it would be a fundamental mistake to say you have to be Dutch-speaking or you have to be French-speaking. at would be like 35
36 37
38
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is and the following citations are interview fragments taken from Jacobs and Swyngedouw, Multiculturaliteit in Brussel …, and have been translated by the present author. e original French texts are provided in the footnotes. ‘[…] Ceux qui sont issus de l’Afrique du Nord sont assimilés directement au rôle linguistique francophone sans qu’on leur demandent leur avis. C’est mon cas par exemple, j’ai reçu des lettres pour aller voter, payer des taxes, je suis assimilé au rôle linguistique francophone, ce qui est peut-être vrai dans la mesure où je m’exprime en français mais toujours est-il qu’on ne m’a pas demandé mon avis.’’ ‘Moi en ce qui me concerne je m’identifie comme Bruxellois. Je ne dis pas que je suis Flamand ou francophone. Je suis plutôt Bruxellois.’ ‘Moi je ne me sens pas francophone, je me sens Bruxellois et je me sens Belge avant tout.’ ‘Mais c’est vrai que les nouveaux Belges ne se placent pas toujours d’un côté ou de l’autre. Ils ne disent pas: ‘Moi je suis du côté francophone ou du côté néerlandophone. […] Je parle français, mais je préfère dire que je suis Belge plutôt que de dire autre chose. Belge bruxellois’. Janssens, Taalgebruik in Brussel ...; Leen Ackaert and Kris Deschouwer, ‘De politieke instellingen in Brussel: kennis en attitudes’ in Swyngedouw, Phalet and Deschouwer, Minderheden in Brussel ..., -. Jacobs and Swyngedouw, Multiculturaliteit in Brussel ....
Dirk Jacobs demanding of a child: ‘do you want to go with your mum or with your dad, if you go with the one you will never again see the other.’41 On the contrary, most non-EU immigrant leaders stress the importance of cooperation between foreigners, Flemish and Francophones in the Brussels Capital Region. Brussels is more than an officially bilingual city, it is indeed a multicultural metropolis in which different groups coexist and different languages are being used on a daily basis. e overall majority of immigrant leaders explicitly stress the importance of taking this diversity into account when thinking about the future of Brussels. ‘You do notice that people are looked at from a communitarian perspective. is is not a bad thing in itself but I do think one has to absolutely ensure, be it in associational life or on an official level, that more contacts are installed, more communication is undertaken between the different communities living in Brussels.’42 ‘For us, the ethnic and linguistic diversity of Brussels is essential. Already from the start Brussels was a bilingual city, or even a Flemish city in the beginning, but one should really respect the history and the composition of this city. To the bilingual character of this city, along the years several other languages have been added, and even beyond the European languages. Among us over forty languages are spoken and one should respect this. Management of such a heterogeneous population is surely difficult. But it is also a great treasure for this city to manage this heterogeneity well.’43 ‘We are lucky in Brussels: we have over different nationalities; is that not a richness we have? We have the Flemish, the Francophones who think about it and all these other nationalities. Instead of us all working against each other, let’s work together. ere, I agree with the Flemish Minister of the Brussels Region; He is a man from Brussels, that guy, and he is opposed to the Flemish Community,
41
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‘Mais je pense qu’au niveau stratégique c’est une fondamentale erreur de dire ou vous vous serez néerlandophone ou vous serez francophone. C’est comme vous allez dire à un enfant, tu veux aller avec ta mère ou ton père, si tu vas chez l’un tu ne verras plus jamais l’autre’. ‘[…] on s’aperçoit […] que les gens sont vus de façon communautaire. Ce n’est pas une mauvaise chose en soi mais je pense aussi qu’il faut absolument, soit dans un cadre associatif, soit au niveau officiel, faire en sorte qu’il y ait plus de contacts, une plus grande communication entre les différentes communautés qui vivent à Bruxelles.’ ‘Pour nous la diversité ethnique, linguistique de Bruxelles est essentielle car à l’origine déjà, Bruxelles est une ville bilingue et même flamande au départ mais il faut bien respecter l’histoire et la composition de cette ville. Au caractère bilingue de cette ville s’est ajouté au fil des années plusieurs langues différentes, au delà des langues européennes, chez nous une quarantaine de langues se côtoient et il faut respecter cela, cette gestion d’une population tant hétérogène est difficile mais c’est aussi une grande richesse pour cette ville de bien gérer cette hétérogénéité.’
Pacifying National Majorities in the Brussels Capital Region because he also want to make the Flemish Community see that Brussels is a richness for both communities.’44 ‘Evidently, our goal is multiculturality, in the Flemish as well as Francophone community. If there only were such a harmony, but at the political level this is not always evident.’45 One might be tempted to predict that if it comes to a showdown and the new Belgians have to choose either linguistic side, it is not certain that the Francophones will automatically be the most attractive group to join. Given the fact that the immigrant population is not willing to take sides on the level of political identity, a theoretical alternative might be the abolition of the Flemish-Francophone divide and the establishment of a new ‘Brussels Community’ as a new institutional entity. is option was very recently suggested by a bilingual group of intellectuals.46 In doing so, they specifically referred to the difficulty of the existing system to take into account the situation of the immigrant (origin) groups. At this point in time, this suggestion has to my knowledge not (yet) been raised by immigrant (origin) groups themselves. Another theoretical alternative could be that certain factions of the immigrant population might be granted special-representation rights outside the Flemish-Francophone logic. is possibility has never been seriously claimed or defended by immigrant groups. A local councillor of ethnic minority background, and member of the militant pro-French Front Démocratique des Francophones, did organize a debate on the issue in June , focused around the following question: ‘Attributing an additional alderman to immigrant minorities, would this allow for a better political integration of these populations? Or would on the contrary, reserving forced representation for the one or the other community lead the way to the ethnic management of the city?’47 e organizer of the debate himself, however, soon stressed it was merely meant as a provocative stance and strongly condemned the idea of (any) guaranteed representation ‘On a cette chance de Bruxelles; on a nationalités différentes; ce n’est pas de richesse qu’on a? On a les Flamands, les francophones qui s’en rendent compte et toutes ces autres nationalités. Au lieu de travailler les uns contre les autres; travaillez ensemble. Et là, je rejoins le Ministre flamand de la région bruxelloise; c’est un bruxellois cet homme là et il s’oppose à la communauté flamande, parce qu’il veut aussi faire comprendre à la communauté flamande que Bruxelles est une richesse pour les deux communautés... .’ 45 ‘Evidemment notre but est la multiculturalité, donc tant la communauté flamande que francophone, qu’il y ait une harmonie mais au niveau politique ce n’est pas toujours évident.’ 46 http://www.manifestobru.be ( February ). 47 Translated fragment from a Francophone Sans Frontière leaflet : ‘L’attribution d’un échevin surnuméraire en charge des minorités immigrée permettrait-elle une meilleure intégration politique de ces populations? Ou n’est ce pas au contraire réserver des représentations forcées à telle ou telle communauté, pour ouvrir la voie in fine à la gestion ethnique de la ville?’ 44
Dirk Jacobs on ethnic basis. Interviews among immigrant elite members48 confirm that the idea of guaranteed representation of immigrant (origin) groups, parallel to the Flemish guaranteed representation, is not called for. For most, the main counter argument is that it would in their opinion turn out to be impossible to create a system in which all special interest groups could be represented in a just manner. VIII. C N Canadian political philosopher Will Kymlicka has correctly stressed that the issue of multicultural citizenship, or the recognition of ethnocultural pluralism in modern states, should best be looked at by distinguishing ‘multinational’ diversity on the one hand and ‘polyethnic’ diversity on the other hand. Indeed, multiculturalism can be related to the topic of incorporation of founding cultures into a larger state, but it can just as well refer to the incorporation of cultural diversity brought by immigrant newcomers. In order to avoid confusion, Kymlicka proposes to use distinct terms to designate both situations. Kymlicka’s framework has been criticized as being too North American, anecdotal and inapt for unmodified European use,49 but its terminology is nevertheless very useful in describing the current Belgian situation, particularly in the Brussels Capital Region.50 Indeed, in the capital of the EU, management of cultural diversity has to take into account the differential sources of the multicultural situation. On the one hand, Brussels is the Belgian capital which has over time evolved from a Flemish city into a metropolis in which French has become the lingua franca. To date, the capital is officially bilingual (French and Dutch) and there are a set of institutional measures to ensure political participation and power of both language groups. Brussels is thus heavily marked by what could be called ‘multinational’ politics. On the other hand, Brussels hosts a considerable number of foreign residents, and estimates are that about -% of its inhabitants are of non-Belgian origin (taking into account only one generation as a point of reference). A part of these immigrants reject assimilation, want to maintain some of their ethnic particularity and strive for public recognition of the new cultural diversity brought through immigration. Issues dealing with this can be referred to using Kymlicka’s term of polyethnic politics. e existence of ethnic minority groups has never been officially recognized as a reason for group-differentiated rights and special representation. Ethnic minorities have no independent public recognition outside the dual Flemish-Francophone structure of the political field. Often, members of ethnic minority groups are not even individually incorporated in the Brussels polity, since non-nationals are in principle disenfranchised. is illiberal situation is partly the result of Flemish-Francophone tensions, and is in Jacobs and Swyngedouw, Multiculturaliteit in Brussel.... Adrian Favell and Tariq Modood, ‘e Philosophy of Multiculturalism: e eory and Practice of Normative Political eory’, in Alan Finlayson (ed.), Contemporary Political Philosophy: A Reader and Guide (Edinburgh, forthcoming). 50 Jacobs, ‘Multinational and Polyethnic Politics Entwined …’.
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Pacifying National Majorities in the Brussels Capital Region particular the consequence of Flemish fears of being crowded out. Paradoxically, it is at the same time the Flemish who are more open to the idea of cultural diversity (and its institutional or political recognition) than the Francophone establishment. It is an empirical fact that any identity-based claim of immigrant groups in Brussels has to be able to compete with, or fit itself into, the Belgian political logic in which the linguistic identity cleavage is of central importance. is is not always easy, since most immigrant (origin) citizens have difficulty in internalizing the Flemish-Francophone divide. Even though a lot of the immigrant population have better knowledge of French and is de facto Francophone, this is not necessarily experienced as a political identity as well. Apparently the omnipresence of the bipolar institutional structure does not (yet) force immigrants to take sides on the level of identity. e new procedures for special guaranteed representation of the Flemish have partly alleviated the danger of the Flemish group being crowded out by immigrant (origin) newcomers. At first sight this might seem to be a paradox, but this will probably further encourage attempts at incorporation of the immigrants by the Flemish in Brussels since the latter can now feel more at ease about the political consequences of the immigrant presence. With the guaranteed representation rights for the Flemish, the bipolar institutional logic of Brussels is further strengthened in an important way. It remains to be seen whether the immigrant (origin) population will adapt to the complex Brussels’ institutional framework or will, instead, put the system under increasing pressure and, eventually, force changes. Whatever might happen, one thing is for sure: e issues of respectively Flemish (minority) representation in Brussels and of immigrant (minority) representation in Brussels will remain companions de route for some time to come.
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Wilfried Swenden*
Personality versus Territoriality: Belgium and the Framework Convention for the Protection of National Minorities
I. I On September , Belgium was hit by a small political storm. e Parliamentary Assembly of the Council of Europe (PACE) had just approved a resolution on the Protection of Minorities in Belgium.1 Sixty-eight members of the Assembly present and voting endorsed the resolution; twenty-three members present and voting rejected it.2 e resolution urged Belgium to ratify the Framework Convention for the Protection of National Minorities (FCNM) and to sign and ratify the European Charter for Regional or Minority Languages. In , the PACE defined as a national minority, ‘a group of persons in a state who () reside on the territory of that state and are citizens thereof; () maintain longstanding, firm and lasting ties with that state; () display distinctive ethnic, cultural, religious or linguistic characteristics; () are sufficiently representative, although smaller in number than the rest of the population of that state or a region of that state; () are motivated by the concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language.’3
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Postdoctoral Fellow of the Fund for Scientific Research, Flanders/Belgium, associated with the Institute for International and European Policy (IIEP), Department of Political Science, University of Leuven (Belgium) and visiting scholar, Minda de Gunzberg Centre for European Studies, Harvard University, USA. I wish to thank Peter Vermeersch (IIEP, Leuven) for his useful comments on the first draft of this article and Alan Patten (McGill University) for allowing me to cite from his forthcoming work. Resolution (). Bart Dobbelaere, ‘Juridisch gevecht over interpretatie van Nabholz-resolutie kan beginnen. Raad van Europa vindt dat Vlaanderen Franstalige minderheid beter moet beschermen’, De Standaard ( September ). Parliamentary Assembly, Council of Europe , Recommendation () (emphasis added).
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Wilfried Swenden With this definition in mind, the resolution on the Protection of Minorities in Belgium identified as national minorities the German-speaking community at the national level, the French-speakers in the Dutch language Region and in the German language Region, and the Dutch-speakers and German-speakers in the French language Region. e recognition of linguistic entities at the regional level as ‘national minorities’, is, so the resolution argues, a direct consequence of the federalization of Belgium. e devolution of powers has made ‘the sub-state entities competent in respect of fields of interest to minorities [such as education and culture]… [erefore], to exclude the applicability of the Framework Convention at the sub-state level would thus be contrary to the object and aim of the Convention itself.’4 e resolution was hailed as an important victory by most of the French-speaking Belgian community, but condemned by a majority of the Dutch-speaking politicians and the Dutch-language press. It was welcomed by the former because the recognition of the French-speakers living in Flanders as a national minority, so they hoped, would secure and possibly broaden the linguistic rights or facilities already offered to them. e Flemish political parties and the press dismissed the resolution because it would speed up the ‘Frenchification’ of Flanders and violate the spirit of these ‘linguistic facilities’: transitory measures which ultimately should lead to a homogeneous Dutch-speaking Flanders. In this article, I will not seek to address the judicial strength or weaknesses in the Parliamentary Assembly’s resolution or in the Nabholz-Haidegger’s Report on which it is largely based.5 Instead, I will explain the political dynamics which have led some of the Frenchspeakers living in the Brussels’ periphery to advance their cause with the Council of Europe (CoE). To understand why, the federalization process of Belgium, and the relevance of language therein must first be explained. e political-historical analysis also clarifies what makes the concerns of the French-speaking minority in Flanders so different from, say, the concerns of the other national minorities which were identified by the CoE’s resolution. In the second part of the article, the Belgian case is placed within a comparative framework of linguistic policy-making. In essence, the debate is not about how to define a national minority. Instead, the crucial question is which principle of organizing linguistic policy is best suited to managing Belgium’s linguistic problems: ‘territoriality’ (citizens adopt the majority language of a region or country in which they live) or ‘personality’ (citizens communicate with public services in their own language, even if that is not the language which is spoken by most people living around them). e comparative overview demonstrates that other states with a multilingual character, such as Canada, Spain and Switzerland have faced the same question. In Belgium, the territoriality principle finds strong resonance among the Flemish political elites and public. e personality principle finds more support among a majority of the French-speaking political elites and public. 4
5
European Commission for Democracy through Law (‘Venice Commission’), ‘Opinion on Possible Groups of Persons to which the Framework Convention For the Protection of National Minorities Could be Applied in Belgium’, CDL-AD(), , paragraph . ‘Protection of Minorities in Belgium’ Report, Committee on Legal Affairs and Human Rights, Rapporteur: Mrs. Lili Nabholz-Haidegger, CE Doc. ( September ).
Personality versus Territoriality: Belgium and the Framework Convention Belgian linguistic practice displays examples of both principles, even if a vast majority of the Belgian population live in a monolingual (hence territorially defined) Dutch- or French-speaking area. e more qualified question, therefore, is to assess the normative justifications underpinning the deviations to territoriality. Placing the Belgian case in a more comparative context, we find that territoriality is most frequently advanced by a group of people who, although they may not comprise a minority in demographic terms, fear that their language is sociolinguistically inferior to the competing language. In Belgium, Dutch-speakers have feared that linguistic facilities to French-speakers might cause French to advance in previously Dutch-speaking areas. Using some recent empirical survey results collected and analyzed by the Brussels sociologist Rudi Janssens, the article discusses whether these Flemish fears are inspired by historical experience, or still make sense today. e article concludes by presenting some tentative conclusions as to whether or not the results of this survey cast a different light on the reading of the CoE’s resolution. II. L P B: F ‘LA BELGIQUE FRANCOPHONE ’ T 6 A. Political-Historical Overview Belgium became an independent state in . At the time of its independence, most of the people in the South (currently known as Wallonia) spoke French, while a majority of the inhabitants living in the North (currently known as Flanders) spoke either Dutch, a Flemish dialect or, in the case of the urban elites, French.7 Brussels was a predominantly Flemish-speaking city. From the very outset, the Flemish-speaking population outnumbered the French-speaking population. Yet, notwithstanding a constitutional provision propagating the ‘freedom of languages’, French was soon made the only official language, even in the North of the country and in Brussels. ree reasons explain this choice. First, French espoused the values of the French revolutionary ideas of freedom and equality, all of which were reflected in the wording of the, for its time, relatively liberal Belgian Constitution. By comparison, Dutch was associated with the regime of Dutch King Willem I, who reigned over Belgium as an enlightened, protestant despot from -. Based on linguistic policy in Jacobin France, the French-speaking elite in Belgium propagated the ‘Frenchification’ of Flanders as a prerequisite for Belgian nation-building.8 6
7
8
A detailed account of the history of language policy falls beyond the scope of this article. For two excellent and concise English accounts, see Val R. Lorwin, ‘Belgium: Religion, Class and Language in National Politics’ in Robert A. Dahl, Political Oppositions in Western Democracies (New Haven, ) and Els Witte, Jan Craeybeckx and Alain Meynen, Political History of Belgium (Brussels, ). Alexander B. Murphy, e Regional Dynamics of Language Differentiation in Belgium (Chicago, ), -. As Orts, a parliamentary representative proclaimed: ‘As long as Belgian young people are not educated along the same lines, as long as the two races … have not, by sharing a common education, effected an intellectual fusion, we will always have two races, and we will never have a nation, possessing one common character, one common spirit, one common name, we will have … Flemings and Walloons, but we will not have Belgians’ Orts cited (and translated) in Alexander B. Murphy, Ibid., .
Wilfried Swenden Second, as alluded to above, in the North, no standard Dutch language was spoken as of yet, but rather a variety of Flemish dialects. is contributed to the status of French as an ideal ‘connecting language’, linking Flemish elites from eastern and western Flanders, who otherwise would not have been able to understand each other very well. ird, a majority of labourers were French-speaking. e early industrialization of Wallonia explains why class did not work in favour of the ‘minority’ language. Unions and representatives of what would become the Belgian Socialist Party were more interested in campaigning for extending the voting rights and improving the living conditions of the working classes which they represented. Advancing linguistic concerns would detract from that aim and weaken their cause. erefore, Flemish linguistic rights were more strongly advanced by the lower clergy, and in the latter half of the nineteenth century, also by a growing number of people representing the Flemish middle classes. eir social advancement would not have been possible without acquiring French at a certain cost first. Both groups formed the core of what presently is referred to as the ‘Flemish Movement’. e growing strength of the Flemish Movement resulted in a gradual relaxation of the official French-only policy. Unless a person explicitly requested French, national legislation prescribed that criminal (), administrative () and (primary) educational () matters in Flanders were to be dealt with exclusively in Dutch. Yet, the lack of adequate supervisory mechanisms, and insufficient representation of members of parliament (MPs) sincerely advocating these policies, turned the first language laws into examples of symbolic politics. While extending linguistic rights was not among the primary concerns of the emerging Social Democrats, the gradual extension of voting rights gave the linguistic issue a more prominent place on the political agenda. Reducing the tax-paying requirements of the electorate, and by , granting each Belgian adult male at least one vote, substantially increased the weight of the numerically dominant Flemish population in the total pool of votes. In , universal male suffrage on the basis of ‘one man, one vote’ (women had to wait a further years) was made the guiding electoral principle. Symbolic politics was no longer good enough. In , the parliament adopted an Equal Treatment Law, as a result of which all acts of parliament were to be promulgated and assented to in Dutch and French. is was the first in a series of language laws, which eventually culminated in asserting the territoriality principle as the basic guideline of Belgian linguistic politics in . us, Dutch was made the sole official language in Flanders and French was confirmed in its position as the sole official language of Wallonia. e principle of territoriality was reaffirmed by the linguistic laws of -. By then, a Flemish nationalist party, the People’s Party (Volksunie) had forged a parliamentary breakthrough. e emergence of the Volksunie radicalized the other Flemish parties in their views on language policy. e Volksunie primarily campaigned on entrenching the linguistic borderline. Furthermore, Flanders was about to surpass Wallonia in socioeconomic wealth for the first time since Belgian independence. Finally, a class of Flemish politicians emerged which had received most of its state education, including university education in Dutch. For all these reasons, the Flemish political elites were in a strong enough political position to push through, in a majoritarian way, the legal demarcation of the linguistic borderline. e language laws of
Personality versus Territoriality: Belgium and the Framework Convention - created three monolingual regions: the French-speaking region, the Dutch-speaking region and the German-speaking region.9 Brussels received a bilingual status. In , the division of Belgium into four linguistic zones was constitutionally entrenched.10 Once the borders were fixed, powers could be devolved to linguistic Communities (Flemish Community, French Community, German-speaking Community) and territorially defined Regions (Flemish Region, Brussels Capital Region and Walloon Region). is process of federalization started in , and it is still continuing today: the last ‘mega-round’ of constitutional discussions resulted in the Lambermont and Lombard agreements.11 e gradual transformation of Belgium into a federal state has not affected the applicability of territoriality. As a general rule, the federal government communicates with citizens in the regional minority language, not in their individual language. Hence, a Dutch-speaking Belgian living in Namur will receive his federal taxation form in French, and a French-speaking Belgian living in Leuven will receive hers in Dutch. B. Two Exceptions to Territoriality: Brussels and the Facility Municipalities Territoriality was not applied all round. e first, and arguably foremost, exception is debated in some detail in the contribution of Dirk Jacobs: bilingual Brussels. By , French-speakers already made up % of the capital’s inhabitants; by the end of World War II their share had increased to %.12 Brussels, as the nation’s capital, was gradually accorded a bilingual statute. Its geographic position makes Brussels a predominantly French-speaking island surrounded by a Flemish (if not always predominantly Dutchspeaking) territory. erefore, demarcating the borderline between Flanders and Brussels was a contentious issue. Two elements of controversy arose: the size of bilingual Brussels and the mechanism defining the linguistic borderline. First, the more it became obvious that Flanders was turning into a monolingual Dutch-speaking language area, the more French-speakers attempted to maximize the geographic size of Brussels, where bilingualism was (and is) the rule. For instance, FrenchAfter World War I, the districts of Eupen, Malmédy, Sankt-Vith and Moresnet (now Kelmis) were transferred from Germany to Belgium. With approximately , inhabitants, they now make up the small German linguistic community. 10 André Alen (ed.), Treatise on Belgian Constitutional Law (Deventer, Boston, ), -. 11 See the contribution by Dirk Jacobs in this volume, ‘Pacifying National Minorities in the Brussels Caoital Region: What About the Immigrant Minority Groups?’. 12 e statute of Brussels as a national capital attracted several thousand immigrants from both linguistic parts of the country. e pattern of immigration perpetuated existing class differentials: French-speaking immigrants sought employment in the (French-speaking) public sector, press or corporate sector. Flemish speakers were more likely employed as day-labourers, domestic servants or labourers, who started using the socially and culturally superior French as a higher language variant. e introduction of compulsory primary education in the second half of the nineteenth century first led to a shift from monolingualism to bilingualism. Next generation children would be raised in French only, thus giving the process of Frenchification even more momentum. See, Marleen Brans, ‘High Tech Problem-Solving in a Multi-Cultural State: the Case of Brussels’, Dutch Crossing (), -; Els Witte and Harry van Velthoven, Language and Politics: the Belgian Case in a Historical Perspective (Brussels, ), -. 9
Wilfried Swenden speaking MPs approved a language law in , which considerably strengthened the position of Dutch as the principle language of administration in Flanders, but only on the condition that a further five municipalities were transferred from Flanders to Brussels. In , a further three municipalities were added to Brussels, bringing the agglomeration to its contemporary size: a capital region comprising municipalities. Second, the linguistic laws of the s established that municipalities in which % or more of the population spoke a minority language should be offered linguistic ‘facilities’ (see Section II.C.). When % or more of the inhabitants declared themselves as speaking the majority language of the other region, the municipality was to be transferred to that region. e data on the basis of which such decisions were made were collected in a census every ten years. In several questions, respondents were asked to provide information on the use of languages. In essence, the outcome of the language census determined the linguistic borderline. e censuses of and documented the increasing Frenchification of Brussels and its suburbs. Indeed, as Brussels had become more French in time, so too would its suburbs. Following a European-wide trend of ‘suburbanization’, the affluent, predominantly French-speaking middle classes would increasingly decide to purchase land, and move to the green suburbs (the Flemish Movement pejoratively referred to this process as the ‘expansion of the Brussels oilslick’). e publication of the language census resulted in the enlargement of the Brussels agglomeration, as alluded to above, and brought the extension of linguistic facilities to four suburban municipalities, with a French-speaking population of more than %. ese were the municipalities of Wemmel, Kraainem, Linkebeek and Drogenbos. In two further suburban municipalities, Wezembeek-Oppem and Sint-Genesius Rode, the share of French-speakers came very close to %.13 Unsurprisingly then, defining linguistic zones by means of a language census was hotly contested, particularly among leading representatives of the Flemish Movement. ey claimed that Flemish respondents underreported their actual use of Dutch, reflecting the socially and culturally dominant status of French.14 e results of the language census of were not made public until . e legal demarcation of the linguistic borderline in - banished the practice of a language census to the history books. However, the - legislation did not come as a victory without a price for the Flemish Movement. One of the important questions left on the table concerned the future of municipalities, which under the previous regime were allowed to offer facilities to linguistic minorities. Four geographically distinct groups of facility communes were acknowledged. First, administrative and educational facilities for French-speakers were retained in the four suburban municipalities around Brussels. Wezembeek-Oppem and Sint-Genesius Rode were added to this list. Second, nine municipalities which had previously belonged to the Dutch linguistic area were transferred to the French linguistic zone, albeit as municipalities, providing linguistic facilities to the Dutch-speakers (Bas-Warneton, Comines, Dottignies, Herseaux, 13 14
Lode Wils, Van Clovis tot Happart (Leuven, ), . Murphy, Regional Dynamics of Language Differentiation …, .
Personality versus Territoriality: Belgium and the Framework Convention Houthem, Luinge, Mouscron, Ploegsteert, Warneton). ird, linguistic facilities for French-speakers were extended to a further six municipalities located within the borders of the Dutch linguistic area (Mesen, Spiere, Helkin, Ronse, Bever, Herstappe). However, six municipalities, located near the Dutch border, were transferred from the French to the Dutch linguistic area, albeit as municipalities offering linguistic facilities to the French-speakers (‘s Gravenvoeren, St.-Martens-Voeren, St.-Pieters-Voeren, Moelingen, Remersdaal and Teuven).15 Finally, linguistic facilities were also offered to French-speakers living within all nine municipalities which presently form the German-speaking Community (Amel, Büllingen, Burg Reuland, Butgenbach, Eupen, Kelmis, Lontzen, Raeren and St. Vith), and to German-speakers living in two municipalities situated in Wallonia (Malmédy and Waimes). A Belgian-wide effort in to increase administrative efficiency by merging several municipalities reduced the number of municipalities offering facilities to linguistic minorities in Dutch, German or French to twenty-seven.16 In , Belgium comprised municipalities. erefore, only .% of all municipalities deviate from a strictly monolingual regime (e municipalities of the bilingual Brussels Capital Region are included in this calculation). In popular terms, the municipalities of Brussels mark the largest exception. In , they represented approximately , citizens. e six suburban municipalities consist of , inhabitants. About , people populate the remaining Flemish municipalities which offer facilities to French-speakers, while , inhabitants live in Walloon communes offering facilities to Dutch-speakers. e two Walloon communes providing facilities to German-speaking minorities are populated by approximately , inhabitants, while the nine municipalities of the German-speaking Community comprise a population of , people.17 is brings the total number of people who live in municipalities that offer facilities in the regional minority language to ,. In sum, about ,, Belgians, representing .% of Belgium’s ,, million strong population, do not live in a strictly territorial linguistic regime. e data documents territoriality as the cardinal principle for organizing linguistic policy in Belgium. C. e Scope of Linguistic Facilities 18 e Belgian Constitution stipulates that the nature and scope of linguistic facilities can only be changed by a federal law, requiring majorities within the Dutch and French lin15 16 17 18
eo Luyckx and Marc Platel, Politieke Geschiedenis van België (Antwerp, th ed., ), -. André Alen, Treatise…, ; Francis Delpérée, Le Droit Constitutionnel de la Belgique (Brussels, Paris, ), -. See ‘Population de Droit Commune au Janvier ’, National Institute for Statistics Belgium at http: //www.statbel.fgov.be for separate population data for each of the municipalities. For an excellent overview, see Bart Distelmans and Jimmy Koppen, ‘Deel I – Hoofdlijnen in de ontwikkeling van de faciliteitenproblematiek’, in Jimmy Koppen, Bart Distelmans and Rudi Janssens, Taalfaciliteiten in de Rand. Ontwikkelingslijnen, conflictgebieden en taalpraktijk (Brussels, ), -.
Wilfried Swenden guistic groups in both parliamentary houses. Linguistic facilities are only open to ‘the governed’, not to those who govern. Consequently, all official documents ought to be published in the regional majority language. Local civil servants must use that language for internal communication and whenever they address external (other municipal, provincial, regional or federal) authorities. No civil servant can be employed without proven knowledge (schooling certificate or language exam) of the regional majority language. A mayor, alderman, president of the municipal council for social assistance, or municipal councillor cannot be forced to sit a language exam, but his/her election to either of these positions assumes a sufficient knowledge of the regional majority language. In practice, this means that an elected official should at least take the oath in the regional majority language. Municipal councillors have a right to question a mayor’s or alderman’s ability to address the public in the regional majority language. e Council of State, Belgium’s highest administrative court, may remove them from office, should such doubts be well founded. ese provisions underline that facility communes do not, unlike the municipalities located within the Brussels Region, have a bilingual status. How then, should we understand the concept of linguistic facilities? First, local civil servants providing direct services to the inhabitants of these facility communes should demonstrate sufficient knowledge of the regional minority language. Public messages which are addressed to the municipal inhabitants at large should be made public in the regional majority and minority languages (these include for instance street names, standing orders for the use of municipal libraries, and arguably also sign posts).19 Individual messages (for instance a building licence, but also federal, regional, or municipal taxation forms) should be made available in the regional majority or minority language, depending on each individual’s preference. Local labour relations may be conducted in the regional minority language. Second, facilities are provided in the educational sector. Nursery schools and primary education can be offered in the regional minority language, if requested by at least family heads residing in that municipality. ‘Minority’ schools may be required to provide a more intensive programme of education in the regional majority language (in the case of the suburban municipalities, at least four hours per week starting from the second grade, i.e. for children between the ages of eight and ten; increasing to eight hours per week in the third grade, i.e. for children between the ages of ten and twelve).20 ird, the smooth operation of these linguistic facilities necessitates the presence of impartial supervisory mechanisms. A distinction should be made between monitoring, 19
20
e publication of signposts in a minority language is not entirely clear. e province of Flemish-Brabant, in which the suburban facility communes are located, recently decided to replace all bilingual signposts located along provincial roads with monolingual signposts. It is argued that provincial, unlike e.g. municipal roads, do not exclusively or primarily target inhabitants of the facility communes. erefore, the territoriality principle can be strictly applied. See Jimmy Koppen, ‘Taalgebruik van bestuurders ten opzichte van bestuurden’, in Koppen, Distelmans and Janssens, Taalfaciliteiten…, -. Jimmy Koppen, ‘Faciliteiten: permanente minderheidsrechten of uitdovende taaltegemoetkomingen gericht op integratie van de Franstalige inwijkelingen?’, in Koppen, Distelmans and Janssens, Taalfaciliteiten…, -.
Personality versus Territoriality: Belgium and the Framework Convention supervising and enforcing linguistic legislation. An important function in collecting and reporting complaints is played by the Standing Commission for Linguistic Supervision (SCLS). e SCLS comprises a Dutch and French-speaking section; but, when deciding on concrete linguistic issues, both sections sit and decide together. e SCLS may also carry out proper inspections, communicate its opinion to the responsible public authorities, and file requests for annulment of administrative acts with the Council of State. e Council of State defines which interpretation is judicially correct (judicial enforcement).21 e activities of the SCLS pertain to Brussels and the facility communes. In addition, ‘special federal commissioners’ (bearing different titles, but with comparable portfolios), have been established to monitor linguistic legislation in some of the facility municipalities (Voeren/Fourons, Mouscron, suburban municipalities). However, neither the SCLS, whose opinions are not binding, nor any of these additional monitoring agents, provide a supreme political interpretation (‘administrative tutelage’) of the language laws.22 As a matter of controversy, subsequent constitutional reforms have shifted that responsibility to regional policy makers: a subregional or provincial governor, or most importantly, one or several ministers in the regional government.23 eir interpretation of how linguistic facilities should be applied can only be annulled by the Council of State. Fourth, the previous paragraphs made clear that the meaning and scope of linguistic facilities leave some room for interpretation. e laws demarcating the linguistic borderline and establishing the linguistic facilities are not consistently interpreted by Dutch- or French-speaking politicians. In , Leo Peeters, the then Flemish Minister of the Interior, representing the Flemish Social Democrats, issued a controversial circular letter addressed to all of the facility municipalities located in Flanders.24 In this letter, André Alen, Treatise…, -. ey may suspend municipal acts which, in their view, violate the provisions of the language laws, but a decision to annul them is made by ministers in the regional government. Such decisions are, of course, subject to a right of appeal to the Council of State. See Bart Distelmans, ‘Het Sint-Michielsakkoord: versterking van de Vlaamse voogdij en nieuwe maatregelen ter bescherming van de Franstalige minderheid in de Rand’, in Koppen, Distelmans and Janssens, Taalfaciliteiten,… -. 23 Two constitutional reforms of the last decade have affected the monitoring of linguistic facilities in the suburban facility communes. e first reform resulted in the split of the bilingual province of Brabant into a Flemish and Walloon province (respectively Flemish-Brabant and Walloon-Brabant). As a result of this change, the suburban facility communes were made a part of Flemish-Brabant, and a centrally appointed government commissioner was attached to the governor of the new Flemish province to monitor the use of linguistic facilities in the six municipalities. e second, and more important change, affects the position of all facility communes. A constitutional amendment resulted in a transfer to the regional governments of the authority to legislate on the composition, functioning, organization and competencies of the provinces and municipalities (subregional or local governments). is implies that all public municipal actions are primarily screened by the regional and not the federal government. However, these changes leave intact the role of the central commissioners, the reporting function of the SCLS as well as the possibility of judicial redress via the Council of State. 24 e circular letter ‘Peeters’ addressed the provincial governors, the mayors and aldermen of the facility communes. A similar letter, issued by Luc Martens, the then Flemish Minister of Culture, Family and Social Welfare, pertained to the use of languages in the municipal councils for social assistance. erefore it addressed the presidents of these councils. 21
22
Wilfried Swenden Leo Peeters reminded the local public officeholders and civil servants of the exceptional nature of these facilities, given that these communes are located within a monolingual Dutch area. Facilities were tolerated precisely because they could serve an ‘integrative function’, enabling the local French-speaking population to gradually start speaking Dutch. In this sense, facilities are temporary in character, and because they are temporary, French-speaking citizens should annually renew their request to receive documents or education in that language. Such a restrictive reading of the facilities went completely against the existing practice, whereby citizens had to declare the language in which they preferred to be served only once. One such written request entitles citizens living in these municipalities to linguistic facilities for as long as they deem fit. In the opinion of the Flemish minister, his interpretation could be historically documented by a preparatory document (the so-called Harmel Report). is document, so he argued, strongly influenced the parliamentary debates leading to the enactment of the national linguistic laws. Needless to say, his interpretation was strongly contested by the local officeholders of the suburban facilities, the French Community government, the Walloon regional government, the French-speaking press and public opinion. As most of these communes have a predominantly French-speaking population, the local public officeholders (the mayors and a majority of the aldermen are French-speaking) and civil servants simply refused to apply the circular letter.25 Not long after the ‘Peeters letter’ was issued, the French Community government, the Walloon government, as well as one of the municipality communes, applied to the Council of State, asking for its annulment. Simultaneously, a group of French-speaking politicians, headed by Georges Clerfayt, a French-speaking national MP representing the Front of Democratic Francophones (Front Démocratique Francophone, FDF) and municipal councillor in Sint-Genesius Rode, sought redress with the European Human Rights Commission and with the CoE. Echoing previous jurisprudence, the former did not perceive the monolingual statute of Flanders as a violation of basic human rights. However, the CoE took the complaints of the twelve claimants seriously and in sent out a Swiss member of the PACE, Mr. Domenico Columberg, to investigate the matter. His report was endorsed by the competent standing committee of the Council but did not reach the required majorities in the PACE. A second attempt, this time with a broader mandate to investigate the position of all Belgian minorities, was inspired by the most recent constitutional reforms of . ese reforms, as indicated above, resulted in the transfer of the authority to organize provincial and local governments to the regional level. is transfer, so George Clerfayt argued, could further erode the position of the minorities. Only a swift ratification of the FCNM could prevent this.26 e Council took the complaints seriously and sent out Swiss MP Lili Nabolz-Haidegger to investigate the matter. As indicated in the introduction, her report was subsequently endorsed by the competent committee and the PACE. Jimmy Koppen, ‘De Omzendbrief Peeters als climax van een communautair conflict’, in Koppen, Distelmans and Janssens, Taalfaciliteiten,… , -. 26 Ibid. , -. 25
Personality versus Territoriality: Belgium and the Framework Convention D. e Peculiarity of the Suburban Facility Communes e recent events described above demonstrate that the demarcation of the linguistic borderline has not extinguished differences of opinion among Dutch- and French-speaking elites on language policy. e political events building up to that demarcation, and the political aftermath, demonstrate this. For instance, the rise of the Volksunie (-) radicalized the opinions of most Flemish politicians who, at that time, were still part of unitary Belgian political parties. In turn, a French nationalist party, the Front Démocratique Francophone (FDF), emerged (-). e FDF’s representatives and voters campaigned against a fully bilingual status of Brussels and opposed the Flemish nature of the suburban municipalities, notwithstanding the linguistic facilities offered to the French-speakers there. In the parliamentary elections, the FDF polled .% of the vote in Brussels (lower house results). ree years later, its vote share in Brussels increased to .%. In , the FDF reached its historical high in national elections, when it polled .% of the vote in Brussels.27 e uncertain future of Brussels within the context of a regionalized Belgian state, the desire to expand the borders of Brussels beyond the municipalities, as well as the linguistic split of the Catholic University of Louvain in , fuelled the support of the FDF.28 e rise of the Volksunie and the FDF further weakened the centres of what had already become weak ‘confederal’ political parties. Between and , the Christian Democrats, Liberals and Social Democrats split along linguistic lines, each electing their own party conferences, executives and presidents, and, with the exception of Brussels,29 each campaigning within monolingual electoral markets. By splitting along linguistic lines political parties could radicalize their linguistic profile and in this way, recuperate a share of the electorate which had flocked to the Volksunie and the FDF. However, the split of political parties along linguistic lines can be seen as a weakness of the Belgian federal model, as there are no direct electoral incentives for federal, regional or local politicians to take a pragmatic stance on linguistic issues. Furthermore, in the absence of intra-party mechanisms for reconciling differences of opinion among representatives of both language groups, linguistic issues which are played out at the local level easily spill over into the national arena. ere, they should be solved by the federal executive which comprises an equal number of Dutch- and French-speaking ministers.
A detailed overview of all federal (national), regional, provincial and municipal election results can be found in the electoral databank, maintained by the Free University of Brussels (VUB). e databank can be consulted at http://www.vub.ac.be/belgianelections. 28 Once territoriality was established, a bilingual university in (Flemish) Leuven, attracting several thousand French-speaking professors and university students was felt to be out of place. Flemish politicians and the public feared that French-speakers could ask for linguistic facilities in Leuven and its suburban villages. Major student protests, and a government crisis resulted in a decision to split the university into a Dutchand French-speaking university. e Belgian government subsidized the building of a new, French-speaking university campus in Louvain-la-Neuve, kilometers to the south, within the French linguistic zone. 29 More precisely, Brussels-Halle-Vilvoorde, an electoral district which also comprises the six suburban municipalities. 27
Wilfried Swenden As a strategy, the FDF, and French-speaking political parties in general, have linked any improvements in the position of the Dutch-speakers in Brussels (where their share has shrunk to less than %), to strengthening the minority rights of the French-speakers in the suburban communes. e maximum aim is to elevate them to a bilingual status and by doing so, to attach them to the Brussels Capital Region. By comparison, the Flemish political parties have considered the privileged position of the Dutch-speakers who live in Brussels as a compensation for the institutional guarantees benefiting the Frenchspeaking Belgians at the federal level. e resolution of the CoE is consistent with this argumentation insofar as neither the French-speakers at the national level nor the Dutchspeakers living in Brussels are considered to be minorities. Municipal politics in the suburban municipalities roughly mirrors national politics insofar as most of the parties competing in local elections are also split along linguistic lines. With the notable exception of Voeren/Fourons,30 I see the bifurcation of the electorate into two linguistic groups as a first characteristic which sets the six suburban municipalities apart from most other communes with a comparable linguistic status.31 e second such characteristic relates to the de facto minority position of the regional majority language. e share of French-speakers was well above % in four of the suburban communes, and hovered around % in two municipalities when the results of the last language census were revealed (). Meanwhile no further language censuses have been held. erefore, the outcome for local elections provides the best estimate for measuring the share of French- and Dutch-speakers in each of these municipalities. Table illustrates the share of votes which Dutch, French and bilingual electoral lists received in the local elections (the latter lists are registered under a French and Dutch name and list candidates from both linguistic groups).
A municipality comprising no more than , inhabitants, the communal politics of Voeren/Fourons brought several national governments of the s to the brink of collapse. As indicated above, in Voeren/Fourons was transferred from the French province of Liège to the Flemish province of Limburg. For most of the s, the municipality was lead by José Happart, a French-speaking social democrat who headed a municipal electoral list, named Retour à Liège (return to Liege). Happart developed into a figure of high symbolical importance for the French-speaking social democrats. He (and his twin brother) have consistently attracted among the highest number of preferential votes in recent national (and European) parliamentary elections among French-speaking Belgian voters. In , Mr. Happart, currently a minister in the Walloon regional government, had to give up his position as mayor, following a controversial ruling by Belgium’s highest administrative court forcing him to resign from office (due to his inability to speak Dutch). Furthermore, after the municipal elections, Retour à Liège lost its majority position to a Dutch-speaking electoral list. e recent arrival of Dutch-speaking immigrants from nearby Holland, who, as of , were allowed to cast their vote in municipal elections is said to have tilted the balance in favour of the Dutch-speakers. Likewise, the arrival of non-Belgian citizens in the suburban municipalities with a special linguistic status is said to have contributed to their process of ‘Frenchification’. 31 Even in the municipalities of the Brussels Capital Region, local elections often feature bilingual electoral lists. 30
Personality versus Territoriality: Belgium and the Framework Convention Table . Party Political Strength in the Six Suburban Municipalities: Linguistic Roll of Electoral Lists and Distribution of Votes (%) in the Local Elections32 Municipality Kraainem Linkebeek Wezembeek-Oppem Sint-Genesius Rode Wemmel Drogenbos
French . . . . . .
Dutch . . . . . .
Bilingual . . . . . .
Total
Table illustrates that the French-speaking electoral lists attract an absolute majority of the votes in half of the suburban municipalities and constitute a plurality in one such municipality. Wemmel is the only commune in which a bilingual electoral list is capable of reaching out to a majority of the electorate. Finally, if voting were solely on the basis of linguistic affiliation, then Drogenbos would be the only municipality in which French is the local minority language. Table provides some indication for the observation that the demarcation of the linguistic borderline, as a result of which these municipalities remained within the Dutch language zone, seems not to have stopped the increasingly French-speaking character of these municipalities. To say that this process is primarily a consequence of the French language facilities, is altogether a different matter. e high level of national political commotion, caused by the presence of linguistic facilities, is a third characteristic which sets the suburban communes apart from the other facility municipalities. Leaving aside linguistic rights in the tiny village of Voeren/Fourons, the suburban municipalities are very much in the frontline of Belgian linguistic ‘warfare’. Some occasional complaints may be heard from Comines, but few Belgian citizens would even know the other facility municipalities by name, let alone be aware of their special status. e strategic location of these municipalities, near Brussels, certainly contributes to this observation. For instance, for years now, the official Flemish Sporting Organization organizes each year in September a walking and cycling event which guides happy walkers, joggers or cyclists through the countryside beauty of the suburban communes (the suburban ‘Belt’). Flemish public opinion is reminded well in advance of this event by the launch of a publicly commissioned ‘Belt-song’, which is regularly broadcast on Flemish public television and radio. In , the event attracted , participants. e federal prime minister – in the last three decades always a Flemish politician – and the minister-president of Flanders usually take part.33 e French-speaking minority is well organized too. e FDF has a considerable stronghold in most of the municipalities, and via its electoral alliance with the French-Liberal Party (PRL), exerts substantial influence in national politics. However, as a matter of controversy, the French-speakers also receive Source: Koppen, ‘De Omzendbrief-Peeters …’, -, and Electoral Databank, VUB, Brussels at http: //www.vub.ac.be/belgianelections (my calculations). 33 See http://www.bloso.be and http://degordel.be. 32
Wilfried Swenden subsidies from the French Community, for instance for the publication of a magazine – a semi-political pamphlet – named Carrefour.34 A fourth reason setting the suburban facility municipalities apart from most of the other facility communes also relates to the proximity of Brussels. e international vocation of Brussels, the de facto capital of the European Union, explains why the share of non-Belgian citizens is substantially higher in the suburban municipalities than it is in almost any of the other facility communes (this said, the proximity of Voeren/Fourons to the Netherlands, as well as of the German facility communes to Germany, has increased the number of Dutch and German citizens respectively living in these communes as well). e number of non-Belgian citizens ranges from .% in Wemmel to % in Kraainem.35 Flemish politicians have long feared that a majority of these recent immigrants might further tilt the linguistic balance in favour of French. eir reasoning assumes that these immigrants will prefer to communicate with the local authorities (and have their children sent to schools) in French. Similar fears explain why non-Belgian EU citizens have only been granted the right to vote in municipal elections since October . EU citizens, so it was feared, would more likely vote for French than for Dutch-speaking parties. At least the second of these fears has not been realized insofar as the share of non-Belgian EU citizens bothering to vote in local elections has varied between .% in Wemmel and .% in Kraainem.36 However, the first of the fears, as I will discuss later, holds some truth. A fifth and final reason pertains to the suburban character of the facility municipalities. Due to a process of suburbanization, the annual number of inhabitants moving into or leaving these municipalities, as a share of the entire local population, is about twice as high in the facility communes as in the average Flemish municipalities. As a result, in the time span of one generation, the demographic composition of the suburban communes has profoundly changed. Flemish nationalists have frequently argued that these communes are clearly becoming alienated from their historical (Flemish) roots, given that most of the recent arrivals pertain to non-Dutch-speaking families. is, in their (arguably restrictive) view, is a sufficient reason to at the very least restrict, or possibly even abolish, linguistic facilities. III. B L P C C Belgium is one of several western democracies facing the difficulty of peacefully accommodating different linguistic communities. e multilingual democracies of Switzerland, Canada and Spain, amongst others, have had to deal with comparable issues in their history. Arguably, the question of whether or not the CoE’s resolution appropriately recognizes the French-speakers living in Flanders or the Dutch-speakers living in Wallonia See Carrefour, ‘Le Site des Francophones de la Périphérie Bruxelloise’ at http://www.carrefour.be. e remaining figures are . per cent for Linkebeek, . per cent for Drogenbos, . per cent for SintGenesius Rode and . per cent in Wezembeek. See, Rudi Janssens, ‘Taalgebruik in de Faciliteitengemeenten’, in Koppen, Distelmans and Janssens, Taalfaciliteiten …, , Table . 36 Janssens, ‘Taalgebruik …’, , Table . 34 35
Personality versus Territoriality: Belgium and the Framework Convention as national minorities, raises a more fundamental question: In a multiethnic state that is composed of n ethnic groups, each of which speaks a different language, should linguistic policy be organized on the basis of the personality or of the territoriality principle? No multilingual democracy provides for a watertight demarcation of homogeneous linguistic zones, matching the number of official languages spoken. Is the absence of such zones in itself a sufficiently strong argument for defending personality as the normatively superior principle of the two? Or, given the non-congruence between linguistic and ethnic borders, what are the conditions which could justify territoriality? A solid normative political theory of ‘minority rights’ also requires a normative political theory of language rights. e last decade produced an extensive library of books addressing multicultural and group rights. e writings by the Canadian political theorist Will Kymlicka have assumed a central position in this library.37 Language politics is touched upon in several of these volumes, but it is only recently that very specific efforts have been made to situate and accommodate the thorny issue of language rights within the political theory of multiculturalism.38 A. e Accommodation of Language Rights: A Comparative Perspective While Belgium provides a strong example of territoriality, notwithstanding two important exceptions, Canada is frequently cited as the most perfect example of bilingualism. What exactly does this policy of bilingualism entail? First, the federal government employs a policy of nationwide bilingualism, providing citizens with an opportunity to be served in French or English, irrespective of their place of living.39 More concretely, either language may be used in the federal legislature, the federal courts, in communication with the federal government or federal agencies. Federal statutes are published in both languages, and ‘where numbers warrant’, education should be available in the minority language.40 In particular Will Kymlicka, Multicultural Citizenship (Oxford, ); Will Kymlicka and Wayne Norman, (eds.), Citizenship in Diverse Societies (Oxford, ); Will Kymlicka, Politics in the Vernacular. Nationalism, Multiculturalism and Citizenship (Oxford, ), but for arguments against collective group or multicultural rights, see Brian Barry, Culture and Equality (Cambridge, ). 38 In particular, Will Kymlicka and Alan Patten (eds.), Language Rights and Political eory (Oxford, ); Alan Patten, ‘Political eory and Language Policy’, () Political eory (), -; Philippe van Parijs, ‘Mill, Rawls, Machiavel: quelle philosophie politique pour une démocratie plurilingue?’, at http: //www.etes.ucl.ac.be; Id., ‘Linguistic Justice’, () Politics, Philosophy & Economics (), -; Id., ‘e Ground Floor of the World: On the Socio-economic Consequences of Linguistic Globalization’, (), International Political Science Review (), - and Abram de Swaan, Words of the World (Cambridge, ). 39 Denise G. Réaume, ‘Official Language Rights: Intrinsic Value and the Protection of Difference’, in Kymlicka and Norman, Citizenship…, . 40 Although education is primarily a competence of the provinces, the federal policy of bilingualism promotes four types of schools: English schools for Anglophone children, offering French as a second language; French schools for Francophones in which English is taught as a second language; mixed schools providing some education in the regional minority language, but also offering classes in the regional majority language, the latter taught to children representing both linguistic groups; ‘immersion schools and classes’ in which 37
Wilfried Swenden Second, while the status of French at the federal level was at least formally protected relatively early on in Canadian history, little was done to protect it at the provincial (and by implication also local) level. In Québec, where Francophones clearly outnumbered Anglophones, English was accorded equal status to French, but in the provinces of New Brunswick, Nova Scotia, Manitoba and Ontario, French-speaking minorities were not offered any protection. e Manitoba Act (), which specified the terms under which Manitoba could join Canada, contained a clause seeking to protect the French-speaking minority. In content, this clause was very similar to the one that was constitutionally assigned to the English speakers living in Quebec. However, it was not until that the Supreme Court forced Manitoba to enforce that clause, which it unilaterally repealed in .41 e Canadian Charter of Rights and Freedoms (), apart from declaring institutional bilingualism at the federal level, also improved the rights of French-speaking minorities at the provincial level, outside of Quebec. e Charter explicitly states that English and French are the two official languages of New Brunswick. is means that even in provincial affairs, the government of New Brunswick must communicate with its French-speaking citizens in French, if they so desire. Yet, a similar provision does not apply to Nova Scotia and Ontario which, admittedly, host much smaller French-speaking minorities. In sum, Canadian institutional bilingualism does not provide linguistic minorities with the same right of protection in relation to their provincial governments as in relation to the federal government. Furthermore, the provincial government of Quebec has refrained from endorsing the Constitution Act (), to which the Charter is attached. Instead, it has sought to push through a more territorial application of language politics. Such policies comply with defending the minority status of French in a vastly Anglophone North America, and with promoting the status of Quebec as a ‘distinct society’ within the Canadian federation. e French language is the most important marker of Quebec identity. Collective policies seeking to protect the interests of Quebec sit uncomfortably with the individual rights discourse colouring the Charter. e resulting confrontation has continued to produce severe constitutional turmoil, which is likely to persist in upcoming years.42 In contrast to Canada, Switzerland is usually regarded as a prime example of a country applying territoriality as its guiding principle of language politics.43 However, just as Canada’s linguistic regime is not bilingual all round, so Swiss language politics is not entirely territorial either. For a start, Switzerland has three official languages (German, French and Anglophone children across Canada, in the early years of education, receive more than half of their schooling in French. See, Maxwell F. Yalden, ‘e Bilingual Experience in Canada’, in Martin Ridge (ed.), e New Bilingualism. An American Dilemma (Los Angeles, ), -. 41 Senator Gerald A Beaudoin, ‘Canada – the Constitutional Protection of Minorities in Canada’, in Venice Commission, Protection of Minorities in Federal and Regional States, CDL-MIN ()-e-prov-restr, at http://venice.coe.int/docs//CDL-MIN()prov-e.html. 42 Kenneth Mc Roberts, Quebec – Social Change and Political Crisis (Toronto, rd ed., ). 43 Kenneth D. McRae, Conflict and Compromise in Multilingual Societies (Waterloo, Canada, ).
Personality versus Territoriality: Belgium and the Framework Convention Italian) and four national languages (German, French, Italian and Romansh). e value of recognizing Romansh as a national language is symbolic, as only the official languages can count on extensive federal administrative protection. For instance, in federal parliament and federal courts, proceedings may occur in the three official languages, and documents (statutes) are made available in those three languages as well. In practice, MPs representing the tiny Italian minority will more often address their peers in German or French, rather than in their native tongue. e composition of the federal government, departments, agencies, courts, the military and diplomacy roughly reflects the linguistic make-up of the country. Advancing to the higher positions in central ministerial departments requires a good knowledge of German and French.44 Decentralized agencies, such as the postal services, recruit on the basis of local needs. Post offices in the canton of Graubünden will therefore almost certainly employ several Romansh-speaking employees. As far as central communication with individual citizens is concerned, the personality, rather than the territoriality principle is applied. Unlike in Belgium, Swiss citizens, irrespective of their place of living, may communicate with the central government in German, French or Italian.45 As in Belgium, the Swiss cantons apply the territoriality principle at the cantonal level. As a corollary, cantonal politics and education are taken care off in the official cantonal languages, and the federal public services communicate with the cantons in the latter’s official languages. In Belgium and Canada, deviations from regional territoriality are constitutionally stipulated (cf. institutional bilingualism in Brussels and the special statute of municipality facilities, regional bilingualism in Quebec and New Brunswick). In Switzerland, however, individual cantons may opt for institutional bilingualism if they so desire. e cantons of Valais, Fribourg, Bern and Graubünden adopted a multilingual status, while the remaining cantons have endorsed a monolingual status (German in the case of cantons, French in the case of four cantons and Italian in the case of one canton). e monolingual cantons generally provide education in their language, but prescribe the instruction of German (in the French or Italian cantons) or French (in the German cantons) as a compulsory second language.46 e four multilingual cantons (bilingual in the case of three, multilingual in the case of one) may apply bilingualism or multilingualism all round, apply it to certain of their administrative districts or rather opt for subdividing However, because German-speakers make up more than per cent of the total Swiss population, Jean Laponce remarks that ‘Ninety percent of [federal] documents intended for publication are written originally in German… the linguistic majorities of Switzerland have, de facto if not de jure, accepted the preponderance of [German] in the central federal institutions as a set-off against rigid linguistic internal frontiers that allow cantonal unilingualism… the francophone official who gets a plum posting to Bern goes there with no illusions –he or she will have, with few exceptions, to operate in German’ J.A. Laponce, Languages and their Territories (Toronto, ), -. 45 Kenneth D. McRae, ‘Constitutional and Institutional Adaptation to Plurilingualism’, in McRae, Conflict…, -. 46 In principle, these cantons could open up their educational schools to minorities should the ‘numbers so desire’, but Kenneth McRae mentions that French-speaking Geneva has done so without restrictions, as far as education in a private German school is concerned, while a comparable school in German-speaking Zurich, could only offer instruction in French for a period of three years. McRae, Conflict…, . 44
Wilfried Swenden the canton into several monolingual administrative districts. In the latter case, the cantonal language regime vis-à-vis the administrative districts or municipalities is similar to the language regime which is applied by the federal government in relation to the cantons. In Valais, members of the regional minority language (German), have a right to use their language in courts and parliament and have access to German-speaking schools. e German-speaking minority in Fribourg, which populates three out of seven administrative districts but comprises a majority in only one, has not received similar protective guarantees. e near proximity of predominantly German-speaking Bern may explain this. Bern, Switzerland’s national capital, has long provided a strong protection to its French-speaking minority. However, the breakaway of the French-speaking Jura, resulting in the formation of a separate French-speaking canton in , seriously diminished the protective rights of the (now much reduced in number) minority. Finally, while Graubünden recognizes German, Romansh and Italian as official cantonal languages, common services are most frequently provided in German, on the grounds that – unlike Romansh – it is a language that can be acquired by all.47 In sum, rather than characterizing these cantons as ‘bilingual’, they may be considered as territorial, providing certain linguistic facilities to the speakers of the regional minority language. However, the scope of these facilities varies from one canton to another, possibly even from one municipality to another. Spain provides a third interesting example of a country seeking to accommodate the aspirations of historic communities (Catalonia, Euskadi – or the Basque Country – and Galicia), each with clearly identifiable languages. Article of the Spanish Constitution stipulates that Castilian (Spanish) is the official language of the state, while ‘t[he] other Spanish languages will also be official in their respective Autonomous Communities, according to their own statutes’.48 e Statute of Autonomy, providing Catalonia with a considerable measure of self-government, recognizes Catalan and Castilian as Catalonia’s two official languages. Subsequent statutes of autonomy, increasing the self-governing powers of the other regions, also resulted in the recognition of their regional languages as coofficial languages. is applies to Galician in Galicia, Basque in the Basque Country and Navarre, Catalan in the Balearic Islands and Valencia (as Valencian), and Asturian in Asturias.49 However, in all of these cases, a policy of regional bilingualism is applied, since, with the exception of Catalonia, the number of Castilian (Spanish) speakers clearly outnumbers the number of inhabitants who speak the regional language as their first language. Put differently, leaving aside Catalonia, the regional language has the status of a minority language, at least on the basis of demographic criteria.50 is also explains why McRae, ‘Constitutional and Institutional Adaptation…’, in McRae, Conflict…, -. Article , translated by Daniele Conversi, ‘e Smooth Transition: Spain’s Constitution and the Nationalities Question’, , National Identities (), -. 49 e Catalan government has also recognized Aranese as an official language within Catalonia. See Ibid., . 50 Even the majority status of Catalan in Catalonia is debatable, as studies have shown that extensive immigration during the Franco era resulted in per cent of all Catalans being native Castilian speakers, per cent being native Catalan speakers, and the remaining per cent being brought up in bilingual families. 47
48
Personality versus Territoriality: Belgium and the Framework Convention Catalonia could more easily employ language as an element of national identity-building than the other mentioned Autonomous Communities. e Spanish national government communicates in Castilian (Spanish) with all regional authorities, as well as with all citizens living within the Autonomous Communities, irrespective of whether or not they speak the regional majority language. In this sense, national linguistic policy is less accommodating to regional linguistic concerns than Canadian, let alone Swiss and certainly Belgian, federal language politics. However, since the Autonomous Communities are largely competent in educational matters, and the use of languages in crucial public services such as the media and postal services is devolved to the Autonomous Communities, the latter may actively engage in promoting the regional language.51 As indicated above, the Catalan government has done so most successfully. First, it has made schooling in both languages compulsory for all school-age children. In Roller’s view, the spread of Catalan via schooling could be seen as a first phase in Catalan linguistic politics, described as a policy of ‘normalization’, seeking to restore Catalan to its pre-Franco status. Second, and more controversially, as of , the Catalan government has engaged in an effort to promote the use of Catalan in the private sector, the media and cinema (dubbing of films in Catalan), establishing its status as the de facto lingua franca of Catalonia.52 e more openly cast preference for Catalan has been perceived as violating the coequal status of Castilian. On the other hand, the Catalan government defends it on the grounds that Spanish already benefits from its status as the language of the central government. e asymmetric treatment of Castilian at a nationwide level, so it argues, warrants an asymmetric treatment of Catalan at home. However, this stance has aroused considerable debate, even within regionalist parties, such as the governing Convergence and Union (CiU), on defining the permissible boundaries in promoting and regulating the use of Catalan. B. e Normative Justifications of Language Policy What reasons could underpin the choice for territoriality and to what extent are these motivations defensible from a normative perspective, keeping the specific concerns of the minority language in mind? Specialists of linguistic politics have frequently stressed the double meaning of language: language as an instrument of communication between the governors and the governed, and language as a vital marker of national identity. In a stimulating article, Alan Patten has argued that the principle of territoriality can be defended when it is connected to the role of language as an instrument, but that the personality principle is morally defensible as soon as the value of language as an identity marker comes into play.53 In the following sections, I will draw on his analysis, and seek to illustrate it with Belgian and comparative observations in mind. 51 52
53
Elisa Roller, ‘When Does Language Become Exclusivist? Linguistic Politics in Catalonia’, National Identities (), -. Ibid., -. Alan Patten, ‘What Kind of Bilingualism?’, in Kymlicka and Patten (eds.), Language Rights …, -.
Wilfried Swenden Focusing on the instrumental value of language, territoriality, so Patten argues, contributes to making the overall provision of public services more cost-effective, facilitates the social mobility of all, and prevents the segmentation of deliberative discourses along linguistic lines. However, faced with a society comprising a significant group of speakers of the regional minority language, territoriality cannot be applied, without certain conditions being met first. First, citizens speaking the minority language should be provided with ample opportunities to acquaint themselves with the majority language. Younger generations can achieve this objective via schooling. e ‘mixed’ schools in Canada or the ‘mixed’ Catalan-Castilian education programmes in Catalonia provide clear examples of this strategy. Likewise, the French-speaking primary schools which are located in the Belgian suburban facility municipalities provide a much more intensive programme in Dutch-language classes than the French-speaking schools which are based in Brussels or Wallonia. Indeed, many of the schools that are situated in the latter two areas now offer English rather than Dutch as a second language, causing some friction among Dutch-speakers. Second, for older generations, reaching a level of almost perfect individual bilingualism is very difficult, and therefore, the possibility of providing linguistic facilities of a transitory nature should be recognized. In addition, evening courses in the regional majority language should enable senior citizens to transfer gradually to the regional majority language. However, transferring from one language to another involves a considerable cost that is exclusively borne by speakers of the regional minority language. erefore, the least that speakers of the regional majority language should do is to share in the financial costs of this learning process. In the case of the suburban municipalities, this would mean that the Flemish Community government sponsors education in the regional majority language, in essence, making its instruction entirely free to speakers of the regional minority language. Acquiring the regional majority language may also broaden employment opportunities, and more generally substantially increase the potential number of fruitful friendships, relationships, etc. If the majority language provides a substantially wider ‘context of choice’54 than the minority language, then promoting territoriality, so Patten argues, may be defensible from a normative viewpoint, at least when its introduction is accompanied by the same transitory measures that were described above.55 In Switzerland, French-speakers are well advised to learn German if they aspire to an important function in federal administration or business. is is so, even if they are living in a canton where French is the regional majority language. However, a case could be made that in the Belgian context French-speakers living in the suburban municipalities are left with sufficient channels of social mobility. e near proximity of predominantly French-speaking Brussels and Wallonia, provides them with access to excellent employment, educational and recreational opportunities, which they can enjoy in their native tongue. e suburban municipalities 54 55
Will Kymlicka, Multicultural Citizenship (Oxford, ), -. Alan Patten, ‘What Kind of Bilingualism?’, -.
Personality versus Territoriality: Belgium and the Framework Convention themselves may set up extensive cultural programmes for their French-speaking citizens, including theatre performances in French or the financing of a French-speaking library.56 erefore, while a better knowledge of Dutch may be of added value in terms of further extending employment opportunities and building a wider network of friends, it is by no means a necessity. Conversely, Patten raises the argument that territoriality may be required to protect the vulnerable societal culture. While historically speaking, the vulnerable societal culture in Belgium was Flemish, rather than French, one cannot really argue that Flemish citizens who at present live in the suburban municipalities have a more limited ‘context of choice’ than citizens populating the neighbouring Flemish municipalities, let alone than French-speaking citizens living there. e facilities themselves leave intact the right to education, leisure and employment in Dutch. In addition, Dutch-speakers, as much as French-speakers, may commute to Brussels for employment and jobs. Furthermore, they may find each of these ‘life choices’ in Flanders. erefore, in my view, neither the French- nor the Flemish-speaking societal cultures are vulnerable in a sense that citizens who live in the facility communes without knowledge of both languages are left without sufficient contexts of choice. As a tool fostering deliberative processes, territoriality may at least facilitate communication which otherwise would occur along segmental lines.57 As indicated above, territoriality is already colouring the way in which Belgian federal politics is handled, given the bifurcation of its party system and the absence of explicit electoral rewards for politicians who reach out to both linguistic groups.58 Unsurprisingly then, this ‘weak spot’ of Belgian federalism is largely (but not completely) translated into local politics as well, where there could have been a wider scope for bilingual electoral lists (cf. Table ).59 e absence of bilingual parties harms the interests of the Dutch-speakers at the level of municipal politics in the facility communes, given their status as a local minority, but deprives the French-speakers of any significant influence in regional politics. In fact, By way of example, the following web-link http://www.kraainem.be/fr/culture.htm testifies the well-filled cultural agenda serving the Frenchspeaking community in Kraainem. 57 Alan Patten, ‘What Kind of Bilingualism?’, -. 58 Wilfried Swenden, ‘Asymmetric Federalism and Coalition-Making in Belgium’, Publius: e Journal of Federalism (), -. 59 Although lacking intraparty accommodative mechanisms, French minority interests cannot be ignored at the national level, and Flemish minority interests must be taken into consideration in Brussels. e parity rule in the federal executive, the double majority requirements for legislation touching upon community sensitive issues, as well as the alarm-bell mechanism, serve as institutional devices securing the accommodation of the French-speaking community. e chapter by Wouter Pas in this volume illustrates that similar consociational mechanisms are at work to protect Flemish minority interests at the level of the Brussels’ regional government. However, similar ‘minority’-protecting guarantees have not been devised for the governance of the bilingual (Brussels) and certainly facility municipalities. Arguably, in the case of the suburban communes such mechanisms would serve the interests of the local minority (Dutch-speakers). More fundamentally, while introducing power-sharing mechanisms (e.g. requiring a mixed Dutch-French composition of the college of mayor and aldermen) could protect the minority, it could also ‘institutionalize’ segmentation, e.g. by fostering linguistically split electoral lists to arise where at present, these may still be of a mixed nature. 56
Wilfried Swenden in the Flemish regional elections, the Union Francophone, a party representing the interests of French-speakers living in Flanders, attracted .% of the vote (, votes), delegating just one councillor to the member strong Flemish regional parliament.60 However, in federal and European parliamentary elections, French-speakers can vote for French-speaking parties because the suburban communes are made a part of the bilingual electoral district of Brussels-Halle-Vilvoorde. For a long time, Flemish activists have campaigned for splitting this electoral district into one bilingual district (Brussels), leaving Halle and Vilvoorde (geographic areas in which the suburban facility communes are situated) as a part of a monolingual Dutch electoral district. e above analysis reveals that territoriality seems to be justified, insofar as switching to a uniform language of communication improves efficiency and facilitates processes of deliberative democracy. is said, territoriality should not be implemented at once, but accomplished gradually, leaving ample opportunities for the speakers of the regional minority language to accommodate themselves in the new linguistic situation. Furthermore, keeping the specific situation of the facility communes in mind, arguments of ‘social’ vulnerability cannot be invoked by either community, given the nearby proximity of Brussels and Flanders. However, since each community is entitled to enjoy its own identity, and language is a central component of identity, Patten considers personality the morally defensible principle, from the moment language is recognized as more than just a tool of communication.61 Although language and culture have played a central role in identifying Flemish, Quebecois or Catalan identity, one cannot simply dismiss the importance of French, English or Castilian in defining the identity of Walloons, English Canadians or Spaniards. Yet, some authors would argue that territoriality may still be defended, not because those who speak the regional minority language would otherwise be left with insufficient ‘contexts of choice’, but because without territoriality, one language will ‘eat’ the other, gradually eroding the identity of those who speak the ‘tastiest’ language. is may or may not be the identity that is linked to the regional minority language. Not all languages are equal, or as Philippe van Parijs phrased so neatly, ‘the nicer people are with one another, the nastier languages are with each other.’62 e Quebecois would argue that the vulnerable language in need of protection is French (vis-à-vis English), the Catalans say it is Catalan (vis-à-vis Castilian), the Flemish claim it is Dutch (vis-à-vis French), as much as the Frisians argue it is Frisian (vis-à-vis Dutch). e early history of Belgian linguistic politics certainly demonstrates that Flemish labourers who left for a job in the Walloon industry, smoothly assimilated into the French-speaking culture. e rapid Frenchification of Brussels offers further evidence of the process of linguistic homogenization following the exposure of Dutch to the influence of French. Had it not been for territoriality, so the argument goes, French would now have been spoken throughout the country. Conversely, had it not been for the presence of linguistic facilities, Dutch would Source: http://www.vub.ac.be/belgianelections/.html (Belgian electoral databank). Patten, ‘What Kind of Bilingualism?’, -. 62 Van Parijs, ‘e Ground Floor of the World …’, . 60 61
Personality versus Territoriality: Belgium and the Framework Convention now have been spoken more widely in the suburban facility municipalities. Accepting the argument that languages are not equal, and that in the case of Belgium, Dutch is sociolinguistically inferior to French, is accepting a normative defence of territoriality.63 e sociolinguistic strength of a language, is not only defined by the share of people who speak it as a first or native language, but also by the share of people who have acquired it as a second, possibly third or fourth language.64 e latter component is important in explaining which of the two languages is to play the role of a ‘connecting’ language, and thus also which of both languages will be transferred from one generation to another. A recent survey-study coordinated by the Brussels’ sociologist Rudi Janssens provides important insights into the knowledge and use of French and Dutch (and English) in the suburban municipalities.65 To that purpose, respondents were interviewed, of whom live in one of the suburban facility communes and who populate three Flemish suburban municipalities without a facility status. Using the language of their parents as a defining criterion, respondents were classified into five categories: Dutch, French, traditionally bilingual (one parent is Dutch-speaking the other is French-speaking), newly bilingual (one parent is French-speaking, the other speaks a language other than Dutch as his/her first language) and miscellaneous (i.e. neither parent speaks Dutch or French). e spread of respondents among these five categories reflects the popular distribution of each within the municipalities.66 ‘In a world of contact and movement, there is no other means of durably protecting vulnerable languages (and therefore, no other means of sustainably securing linguistic peace) than the firm assertion of the territoriality principle: when people intend settling in a particular territory, they should kindly but firmly be asked to have the humility to learn the local language, however widely their language is spoken, however superior they sincerely believe their own language to be.’ Van Parijs, ‘e Ground Floor of the World …’, . 64 e Dutch sociologist of language, Abram de Swaan, has calculated a ‘Q-value’ for each world language. e ‘Q-value’ measures the sociolinguistic strength of a language, on the basis of two criteria. First, the share of inhabitants living within a certain region, using that language as their first or native language, and secondly, the share of nonnative speakers living within the same region, speaking it as a second, third or fourth language. On the basis of the first criterion for instance, the European scores for German are higher than the scores for French and English. However, since the share of Europeans who speak English (and to a lesser degree also French) as a second or third language is substantially higher than the share of Europeans who speak German as a second, third or fourth language, the total Q-values of English and French are substantially higher than the total Q-values of German. is means that when both languages (English and German) are exposed to each other in equal quantities, and the principle of territoriality is not applied to protect the language with the lower Q-value, citizens will resort to English as the ideal connecting language. In one or two generations, everyone will speak English. Similarly, the argument could be made that since Dutch has a considerably lower Q-value than French, French will be used as the connecting language. See Abram de Swaan, Words of the World (Cambridge, ). 65 Janssens, ‘Taalgebruik …’, -. 66 erefore, within the suburban facility communes, the share of Dutch-speaking respondents varies between . per cent in Wezembeek and . per cent in Drogenbos, the share of French speaking respondents fluctuates between . per cent in Drogenbos and . per cent in Wezembeek; the share of traditional bilingual respondents varies between . per cent in Kraainem and . per cent in Wezembeek; the share of newly bilingual respondents ranges between . per cent in Wezembeek and . per cent in Drogenbos and the share of respondents with a native Dutch- or French-speaking parent varies between . per cent in Wemmel and . per cent in Kraainem. In the case of three Flemish suburban communes, without facili63
Wilfried Swenden Respondents were asked whether they thought of themselves as being able to master Dutch, French or English, either very well or excellently. e survey results clearly illustrate the higher ‘connecting value’ of French, particularly in the suburban facility municipalities, but also in the other suburban communes. In suburban facility municipalities with a linguistic statute, .% of Dutch-speakers claimed to be fluent in French, while only .% of French-speakers considered themselves to be fluent in Dutch. All respondents from a traditionally bilingual background claim to be fluent in French, while only .% are fluent in Dutch. All respondents from a newly bilingual background are fluent in French, but only .% of them claim to master the Dutch language. Finally, .% of newcomers from a non-Dutch or non–French-speaking background say to be fluent in French, but the comparable share of respondents claiming to be fluent in Dutch is only .%.67 Interestingly, the knowledge of English is higher than the knowledge of Dutch in the suburban facility communes for three groups of respondents: French-speakers (.%), newly bilingual speakers (.%) and non-Dutch or native–French-speakers (.%).68 In sum, irrespective of the size of each category of respondents, French scores much higher than Dutch and this supports the argument that without some protective measures, Dutch would stand little chance of survival in the medium-long term. Even in a context of full Dutch territoriality (cf. the three non-suburban facility municipalities), French has remained a better-known language among those respondents who do not speak it as their first language. When it comes to choosing between territoriality and personality, the above survey results seem to favour a restrictive reading of the linguistic facilities, certainly if the objective is to secure the survival of Dutch as a living culture in these municipalities. However, proposing territoriality as a solution to protecting the cultural identity of citizens who, in this particular case, speak the regional majority language, denies citizens who speak the regional minority language a right to fully enjoy their cultural identity at the local level. While French-speakers may recognize that the regional majority language has a harder time surviving, they may also consider the ‘unequal treatment’ of both languages as a source of discrimination. Although many French-speakers have moved to the facility municipalities in recent generations, as Belgian citizens, they can claim to have a right to be served in their language and to share in the benefits of a broader French culture. Yet, the differences in sociolinguistic strength between French and Dutch may explain why, ties, the share of Dutch-speakers is generally higher (between . per cent in Tervuren and . per cent in Sint-Pieters Leeuw), while the share of French-speakers is lower (on average . per cent). See Janssens, ‘Taalgebruik …’, , Table . 67 See Janssens, ‘Taalgebruik …’, , Table . Even in suburban communes without facilities, knowledge of French is more widespread than knowledge of Dutch, although Dutch is better known, and French is somewhat less well known than in the suburban facility communes. For instance, while all respondents from a French, traditionally bilingual and newly bilingual background still claim to be fluent in French, the share claiming to also master Dutch stands at ., . and . per cent respectively. Conversely, only . per cent of Dutch-speakers claim to be fluent in French. 68 In the non-facility suburban municipalities, English is only better known by two groups of respondents: newly bilingual families (. per cent) and non-Dutch or native–French-speakers (. per cent).
Personality versus Territoriality: Belgium and the Framework Convention other things being equal, fewer Dutch-speakers make use of similar facilities offered to them in the French-speaking facility communes.69 erefore, the crucial question which we are left with is whether or not the first objective (the survival of the vulnerable language community) justifies a violation of the principle of personality, arguably, at first sight, the more ‘liberal’ of both principles. IV. C In this article I have sought to document the political, historical and normative arguments underpinning the language politics of Belgium. Referring to the example of other multiethnic states, I have put forward various ways in which multilingualism can be handled and have presented the normative arguments supporting the territoriality or personality principles. Belgium, as I have argued, is a clear example of a multinational state in which territoriality was pushed through by the demographically dominant, but for a long time, socioculturally inferior, linguistic community. e Belgian linguistic equilibrium has been primarily built on applying territoriality where possible and relaxing it where necessary (full institutional bilingualism in Brussels, relaxed territoriality in the facility municipalities). Based on a reading of the definition of national minorities of the CoE (cited earlier), I believe that the CoE is correct in identifying three different groups of ‘national minorities’ in Belgium. However, the non-ratification of the Framework Convention for the Protection of National Minorities is explained by diverging views among Dutch and French-speakers on its potential implications for the present language equilibrium, particularly for its effect on the French-speaking minority living in the six suburban facility municipalities. In her explanatory memorandum to the draft resolution, Lili NabholzHaidegger acknowledges these different views: ‘… it does seem to me that both the hopes French-speakers invest in the effect of such a ratification, and the fears that Dutch-speakers associate with it, are overdone’.70 Personally, I believe that with the exception of one recommendation, a majority of Flemish MPs would not find great difficulty in ratifying the FCNM; that is, if they satisfy themselves with retaining the present institutional status quo.71 For instance, a growing group of Flemish MPs have made it clear that they would no longer support a restrictive reading of the linguistic facilities as proposed by the Peeters letter. While a judgement of the Council of State is still pending, the auditor-
69 70
71
Unfortunately, no hard empirical data can be given to sustain this claim, so that one would have to rely once more on the results for municipal elections. Nabholz-Haidegger, ‘Protection of Minorities …’, paras. -. Nabholz-Haidegger mentions that ‘the compliance of the Flemish ministerial circular letters with the provisions and the spirit of the Framework Convention might have to be reviewed.’ As indicated earlier, most Flemish MPs are willing to review the restrictive interpretation of the facilities. Furthermore, she emphasizes that ‘French-speakers living in Flanders outside of the communes with facilities would not have the right to schooling in their language’. e only measure of potential controversy therefore is the recommendation to open up ‘minority schools which are located in the facility municipalities to children of parents not resident in the six communes with linguistic facilities in Brussels’. Ibid., paras. - (my emphasis).
Wilfried Swenden general of the competent chamber that is to rule on the case has already indicated that the circular letter was not only law-interpreting, but also law-creating. e latter practise obviously falls beyond the scope of the authority of a regional government minister and, therefore, it seems likely that the Council of State will annul the ministerial letter. e comparative and normative analysis has offered arguments as to why the Flemish MPs should or should not support ratification. e reader may decide for him or herself what he or she believes is the appropriate attitude. However, one reason why the Flemish MPs may not ratify, relates to what I have identified as the ‘weak spot’ of Belgian federalism. Since the petition, on the basis of which the resolution was made, was initiated by a prominent FDF politician, ratifying, in the short term, equals conceding defeat. Given the absence of federal political parties, doing so in the midst of a ‘federal’ election campaign is politically unwise. Perhaps Georges Clerfayt, the moral victor, could express in front of the Flemish press, why all Belgian regional parliaments should ratify. All the better, if he would do so in Dutch.
Simona Granata-Menghini *
e Application of the Framework Convention for the Protection of National Minorities in Belgium: e Opinion of the European Commission for Democracy through Law e most significant work carried out by the European Commission for Democracy through Law (Venice Commission) in the field of minority protection in the period under consideration is undoubtedly its opinion on ‘Possible groups of persons to which the Framework Convention for the Protection of National Minorities (hereinafter ‘the Framework Convention’) could be applied in Belgium’.1 When, in October , the Venice Commission was asked by the Committee on legal affairs and human rights of the Parliamentary Assembly of the Council of Europe (PACE) to give an opinion on this matter, the first thing which appeared necessary for it to determine with exactitude was what would be the object of the opinion. e Commission would then have to decide what kind of approach to take to this matter. As regards the object, the question, though seemingly presented in purely legal terms, was clearly intertwined with political arguments and had to be understood in the context of the debate raging in Belgium about whether the Walloons (French-speaking Belgians) deserved any protection under the Framework Convention in addition to the one attached to their status as one of the three communities under the Belgian Constitution and relevant legislation.2 e Commission considered that its task was to say whether, in its view, persons belonging to the three Belgian communities – Flemish-speakers, French-speakers and German-speakers – could be considered as minorities within the meaning of the Frame* 1 2
Head of Division at the Secretariat of the Venice Commission. e opinions expressed are solely those of the author. Adopted by the Venice Commission at its th Plenary Meeting (Venice, - March ), CDL-AD () . Upon signing the Framework Convention on July , Belgium declared that ‘the notion of national minority will be defined by the inter-ministerial conference of foreign policy’. To date, it has not ratified the Framework Convention.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Simona Granata-Menghini work Convention.3 In order to do so, the Commission would first address the abstract question of how to determine the scope of application ratione personae of the Framework Convention. e Commission decided not to address the question of whether in Belgium there were other groups of persons eligible to fall within the scope of application of the Framework Convention, this question not pertaining to Belgium specifically.4 As regards the method, the Commission could choose among a variety of options, ranging from an academic, abstract approach, aimed at setting out guidelines based on European common standards in a particular area – the Commission’s typical approach in its studies – to a very pragmatic one, oriented at finding workable solutions adapted to the relevant country’s specific context – typically followed by the Commission when it is called to give a legal opinion on constitutional provisions or draft legislation or regulations on a given subject in one or more European states. Several combinations of these approaches were, of course, possible. is choice, to the extent that it was bound to determine the degree of the Commission’s implication in the actual Belgian political context, was of particular importance for a number of reasons. In the first place, the request for the Commission’s opinion had come from a political body which had become deeply involved in the virulent Belgian national debate over whether or not to ratify the Framework Convention, and with what sort of ‘reservation’. Indeed, one of the most recurrent objections raised by the Flemish in the course of the debates within the PACE was why an international body of political character should intervene in such a direct manner in a purely domestic expediency decision on whether or not, and to what extent, to ratify an international instrument (furthermore, other member states of the Council of Europe (CoE), such as France or Greece, have not ratified the Framework Convention but are merely the object of exhortations or reminders at regular intervals). In addition, since the Framework Convention has not been ratified by Belgium, the Advisory Committee on the Framework Convention (ACFC), the naturally competent organ for determining whether a possible limitation of the scope of application ratione personae of that Convention is acceptable or not,5 could not provide its wisdom. e Commission is not a political body, and did not wish (nor had it been requested) to be involved in a political debate. Furthermore, the Commission was of course well cognizant – unlike, it seemed, many of the people involved in the debate – that the impact of the Framework Convention on the actual level of protection afforded to a given minority group in a given country is not a matter which can be evaluated a priori and in abstracto. It is the result of complex and delicate processes as well as interactions between national authorities, the minority groups concerned, observers and the Committee of Ministers
3 4 5
See the Commission’s opinion, para. . Ibid., para. in fine. See Jochen Abr. Frowein and Roland Bank, ‘e Effects of Member States’ Declarations Defining ‘National Minorities’ upon Signature or Ratification of the Council of Europe’s Framework Convention for the Protection of National Minorities’, () ZaöRV (), -, at .
e Application of the FCNM in Belgium: e Opinion of the Venice Commission (with the ACFC).6 e Commission consequently decided to take an academic approach to the matter: It would indicate in the first place what was, in its view, the correct methodology for determining the scope of application ratione personae of the Framework Convention, and subsequently it would apply this line of reasoning to the Belgian constitutional structure in order to conclude to which of its three communities, if any, the Framework Convention could be deemed to be applicable. e first substantial question that the Commission was faced with was to what extent the numerical inferiority of a group could be regarded as sufficient – in the presence of course of the other constitutive elements of a national minority7 – for this group to constitute a ‘minority’. In fact, while it was undisputed that the German-speakers are a minority group, the question arose whether the French-speaking Belgian community is not too substantial in numbers, despite being less numerous than the Flemish-speaking group,8 to be regarded as a minority group. As is well-known, in the Framework Convention (as in the other relevant instruments of minority protection) there is no reference to a fixed – minimum or maximum – quantitative threshold for a group to qualify as a ‘minority’. ere only exists a criterion of ‘substantial numbers’, which is designed to introduce a notion of reasonable minimum quantitative element. And yet, at least in countries made up, like Belgium, of more ‘constituent’ groups of persons, a mere numerical inferiority of one in respect to another of these groups (in an extreme case, % against %) cannot be sufficient, of itself, for the need for protection of this group to arise.9 6
7 8
9
For an exhaustive explanation of the working methods of the Advisory Committee on the Framework Convention, see Rainer Hofmann, ‘Preferential Treatment of Kin Minorities and Monitoring of the Implementation of the Framework Convention for the Protection of National Minorities’, in Council of Europe, e Protection of National Minorities by their kin-state, Collection Science and Technique of Democracy, No. (Strasbourg, ), -. Notably in the light of Article () of the Framework Convention. In Belgium, there are three communities, which are characterized by common language and culture: the Flemish, representing % of a population made up of approximately ,, people, the Walloons, representing % of the population, and the German-speaking group, who are approximately ,, or less than % of the population. For an explanation of the Belgian constitutional structure, see Jean-Claude Scholsem, ‘Federalism and Protection of Minorities in Belgium’, in Council of Europe, e Protection of Minorities, Collection Science and Technique of Democracy, No. (Strasbourg, ), -; Philippe De Bruycker et al., ‘Mécanismes Institutionnels et Droits Individuels dans la Protection des Minorités de la Belgique Fédérale’, in Nicolas Levrat (ed.), Minorités et Organisation de l’Etat (Bruxelles, ), -; Alexander Murphy, ‘Belgium’s Regional Divergence: along the Road to Federation’, in Graham Smith (ed.), Federalism: e Multiethnic Challenge (London, ), -. Whether a ‘constituent’ group would wish to be regarded as a minority in order to benefit from the protection of the Framework Convention is a matter which largely depends on complex factors, including the relevant historical background. In Bosnia and Herzegovina, for example, none of the three constituent peoples appears to intend to prevail itself of the guarantee of Article of the Framework Convention (see CDL () , ‘Meeting of the Venice Commission rapporteurs with representatives of the Bosnian authorities and of the international community on the rights of persons belonging to national minorities in Bosnia and Herzegovina’, para. ).
Simona Granata-Menghini In the Commission’s opinion, in such a situation of multiple ‘constituent’ communities, the numerical inferiority had to be evaluated in conjunction with a possible situation of dominance or codominance.10 is is because a teleological interpretation of the Framework Convention leads to the belief that minority groups need to be protected on the ground and to the extent that their numerical inferiority exposes them to the risk of succumbing to the majority by operation of the ordinary democratic mechanisms. When, conversely, more groups run the state institutions on an equal footing, there is, at least in principle, no need to afford protection under the Framework Convention to the one amongst them which is numerically inferior. e Commission decided therefore to consider that those minority groups which are in a dominant or codominant position are not, in principle, entitled to claim the protection of the Framework Convention. As a consequence, in the Commission’s opinion it would be necessary to assess whether the Belgian communities found themselves in such a situation of codominance. Another substantial matter was subsequently to be addressed: To what extent does the federal structure of a state have an impact on the determination of the existence of minority groups.11 e Commission had run into the controversial question of the ‘minorities within minorities’. e Commission moved from the premise that logically, and consistently with the object and aim of the Framework Convention, the need to provide a numerically inferior group with ‘defence tools’, i.e. mechanisms correcting the functioning of the democratic processes, arises at whatever level these processes take place; that is to say whenever and wherever any decisions significantly and directly affecting the rights of this group are taken. In a situation where powers are decentralized, territorial subdivisions must be taken into account when determining if a group is exposed to the pressures of the majority. Accordingly, in a federal state the existence of a minority group – and insofar as relevant in this context, the possible situation of dominance or codominance of such a minority group – must be determined both at state and at substate levels. e Commission was comforted in this reasoning by the fact that the possibility for persons belonging to a national minority to form a majority within one area of a state is explicitly contemplated in Article of the Framework Convention, which sets out the obligation for them to respect the rights of this ‘local’ minority.12 e Commission e Commission held that a numerically inferior group of persons which finds itself in a dominant or codominant position is not to be considered as a minority (para. of the opinion) as opposed to saying that a group needs to find itself in a subdominant position in order to be considered as a minority. It is to be noted that in its Proposal for a European Convention for the Protection of National Minorities, the Commission did not include, amongst the constitutive elements of a national minority, the position of subdominance (see Article () of the Venice Commission’s Proposal for a European Convention for the Protection of Minorities, CDL()). 11 For the purposes of this opinion, the Commission took for granted that the three Belgian communities were, in principle, capable of falling within the ambit of application of the Framework Convention pursuant to Article (). It thus confined itself to assessing whether and where they were in a position of dominance or codominance. 12 For an explicit reference to the scope of this provision in the relevant preparatory works, see in particular, CAHMIN(), -. See also Article () of the Venice Commission’s Proposal for a European Conven10
e Application of the FCNM in Belgium: e Opinion of the Venice Commission was of course aware of the fact that the UN Human Rights Committee, in the famous case of Ballantyne, Davidson and McIntyre v. Canada 13 had excluded that Article of the International Covenant on Civil and Political Rights (CCPR) could be applicable to minority groups at a substate level. However, the Commission was not persuaded that this interpretation of Article CCPR prevented a different – and in its view more progressive – application ratione personae of the Framework Convention.14 e Commission decided therefore that the existence of ‘minorities within minorities’ at the local level was to be taken into account. Accordingly, it needed to determine whether any of the Belgian communities constituted a ‘minority’ locally, i.e. whether any of them was locally numerically inferior without being in a codominant position. e Commission thus moved to examine the Belgian constitutional structure with a view to determining whether the French-, the Flemish- and the German-speaking communities constitute, at the state or at a lower level, a group less significant in number than the others, and whether they find themselves, at any level, in a dominant or codominant position. It concluded that at the level of the central state, French-speakers, despite being less numerous than Flemish-speakers, participate, unlike German-speakers, in the management of the institutions on an equal footing with the Flemish. Accordingly, French-speakers do not, while German-speakers do constitute a ‘minority’. On the other hand, each of the three communities finds itself in a minority position at the regional and local levels, i.e. in the regions where they are numerically inferior but are not granted sufficient corrective mechanisms similar to those existing at the state level (French-speakers in the Dutch-language and in the German-language regions, Dutchspeakers and German-speakers in the French-language region15). is does not apply, however, to the Flemish in the Brussels region, who benefit from substantive guarantees of equality with respect to the Walloons. e conclusions of the Venice Commission16 were of course not accepted by the Flemish-speaking community, who saw in the recognition of the French-speakers as a minority at the local level a risk that they would claim a change in their status, notably in the Brussels periphery. It is not the purpose of this brief article to enter into or analyze the political debate which surrounded the adoption of this opinion. Yet, it is difficult to share such concerns about the impact of the Commission’s opinion or the PACE’s resolution. e mere fact that the French-speaking community may be entitled to claim protection under the Framework Convention is not going to have direct repercussions on its status under the Belgian constitutional and legal framework. Ratification of the Framework Convention, tion for the Protection of Minorities. RUDH (), -. 14 See paras. - of the Commission’s opinion. 15 ere are no German-speakers in the Dutch-language region and no Dutch-speakers in the German-language region. 16 is opinion extensively served as a basis for the report of the PACE’s Rapporteur, Ms. Lili Nabholz Haidegger (see Doc. , Report of the Committee on Legal Affairs and Human Rights). e PACE subsequently adopted its Resolution (), ‘Protection of Minorities in Belgium’ on September (th Sitting). 13
Simona Granata-Menghini even in the absence of any reservation or declaration excluding French-speakers from its ambit of application, would therefore not, in itself, threaten constitutional or legal changes. Such changes might eventually indeed appear necessary: But the relevant debate and decision may not be shifted from the national to the international forum. As regards the opportunity of granting at a local level a status of ‘minority within a minority’ – hence protection under the Framework Convention – to a group which belongs to the majority at the national level, it is the opinion of the Venice Commission that no historical past, as unjust as it may have been, may justify the deprivation of protection to a vulnerable minority group. Obviously, such protection may be granted only to the extent that the relevant claim is not abusive or manipulative. Moreover, it is highly unlikely that similar attempts would not be spotted under the monitoring of the CoE’s Committee of Ministers with the ACFC. In sum, it is up to the Kingdom of Belgium to decide whether or not to ratify the Framework Convention. By ratifying it, Belgium would certainly show that it shares the belief of the other CoE’s member states that respect for minority rights forms an integral part of respect for human rights, a cornerstone of our common democratic values. After ratification, Belgium would remain primarily responsible for ensuring the compatibility of its Constitution and legislation, including and most importantly their practical application, with the principles enshrined in the Framework Convention, and would benefit from the flexible interpretation of the provisions of the latter. Nevertheless, Belgium has been warned, by the Venice Commission in primis, that a limitation of the application ratione personae of the Framework Convention by way of an arbitrary – or even too strict – definition of what it means by ‘national minorities’ – i.e. of the exclusion of French-speakers in Flanders – would likely cause the censure of the ACFC and the Committee of Ministers: something which would collide with a full and genuine commitment by Belgium to the respect for human rights. A concluding remark: e question may be raised whether the Venice Commission’s findings in this opinion are of a general nature or are only applicable to the Belgian situation. e Commission cautiously pointed to the latter possibility.17 It would however seem difficult to justify (and indeed not entirely consistent with the structure of the opinion itself ) that the two principles highlighted in this context – first, that minority groups enjoying a dominant or codominant position are, in principle, not entitled to additional protection under the Framework Convention and second, that ‘minorities within minorities’ may legitimately claim protection under the Framework Convention – are not of a general application. After all, a pragmatic approach to the determination of the existence of a minority group within the meaning of the Framework Convention, coupled with the relevant monitoring mechanism, should suffice to reduce – significantly if not entirely – the risks of arbitrary and unjustified limiting or conversely, broadening of its scope of application.
17
See para. in fine.
Part C SPECIAL FOCUS: NEW MINORITIES
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Asbjørn Eide*
e Rights of ‘Old’ versus ‘New’ Minorities
I. P D International minority rights law is law in the making. Important developments took place during the last decade of the twentieth century, but many issues remain vague and uncharted. In the long-standing efforts by the international community to develop international protection of minority rights, it has been impossible to agree on a definition of ‘minority’. One of the stumbling blocks has been the disagreement on whether so-called ‘new’ minorities should be included, and if so, whether they should have the same rights as the ‘old’ minorities. e purpose of this paper is to address that issue de lege ferenda (how the law should be, i.e. to which extent should minority protection extend to new minorities?). A second, related question is by which criteria we should separate the ‘old’ from the ‘new’. I shall use as illustration the provisions of the United Nations Declaration of the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (UNDeclMin). As a basis for a meaningful discussion of the first question we would have to examine the justifications for minority protection, in order to make a reasoned assessment as to whether new minorities should be included, and if so, how far that protection should go. e second question – by what criteria we should distinguish old from new minorities – is not easy to answer. I start with a very general working distinction, but will later show that there has to be considerable flexibility in its application. Provisionally, the distinction will be as follows: Old minorities are composed of persons who lived, or whose ancestors lived, in the country or a part of it before the state became independent or before the boundaries were drawn in the way they are now. New minorities are composed of persons who have come in after the state became independent. To be a minority, the old as well as the new
*
Senior fellow and former Director, Norwegian Centre for Human Rights, Oslo; Guest Professor, University of Gothenburg, Sweden; Chairman, UN Working Group on Minorities; Member, Advisory Committee under the Framework Convention for the Protection of National Minorities.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Asbjørn Eide must be numerically inferior to the dominant majority in the country, and share common ethnic, religious or linguistic features which they want to preserve. ere has rarely been a clear articulation of the reasons behind the claim for a distinction between the rights of old versus those of new minorities. It seems to be based on some conception of the need to respect the cultural and ethnic elements in the social contract. In the building of a nation, all the different groups already living there should be respected and their cultural practices and languages should be taken into account. Regarding groups of persons who immigrate after the state has been established and its present borders have been drawn, however, there seems to be a broad assumption that since they have decided to immigrate of their own free will, they should generally accept the cultural and linguistic make-up of the country in which they now want to settle. As will be pointed out below, however, it is difficult to sustain a clear-cut division when fully taking into account contemporary human rights law. II. J F M P I suggest that there are fundamentally three major considerations which sustain the evolution of international minority law. e first is to ensure full enjoyment of human rights for everyone, including persons belonging to groups which otherwise might face exclusion or discrimination in society. e second is to ensure the preservation and evolution of cultural pluralism or diversity in society. A combination of these two considerations points also to the need to ensure respect for the identity of individuals belonging to minorities, to prevent the humiliation of individuals caused by negative stereotyping of any given minority. e third purpose is to preserve or strengthen peace and security, nationally and regionally.1 e first set of justifications sees minority protection essentially as an extension of human rights. When the foundation of modern international human rights was laid with the adoption of the Universal Declaration of Human Rights (UDHR) in , the majority of the members of the UN were opposed to the inclusion of special provisions on minority protection. One of the main arguments was that there was no longer a need for such provisions: If the ‘ordinary’ human rights of everyone were respected, the needs of the minorities would also be respected.2 ere is considerable truth in that argument: Properly implemented, ‘ordinary’ human rights would cover many, if not all the needs of minorities. International minority rights law may help to strengthen that protection, precisely because without it, minorities are 1
2
Athanasia S. Åkermark suggests a similar categorization which largely coincides with the one given above. Her three justifications for minority protection are: () peace and security, () human dignity, and () culture. See Athanasia S. Åkermark, Justifications of Minorities in International Law (Uppsala, ), and -. I have analyzed in some length the positions on this matter during the drafting. See Asbjørn Eide, ‘e Non-inclusion of Minority Rights: Resolution C (III)’, in Gudmundur Alfredsson and Asbjørn Eide (eds.), e Universal Declaration of Human Rights: A Common Standard of Achievement (e Hague, ), -.
e Rights of ‘Old’ versus ‘New’ Minorities vulnerable to human rights violations. International minority rights can also help clarify some uncertainties that might otherwise exist. To illustrate: e freedom of expression and information also includes the freedom to express oneself and to be informed in one’s own minority language. If anyone tried to argue against that interpretation of the right to freedom of expression, it has been made clear by relevant minority rights law that minorities can use their own language in their exercise of the freedom of expression, but it should not have been necessary. e preservation of cultural pluralism is a purpose which does not necessarily follow from ordinary human rights law, and which therefore finds its main strength in minority protection provisions. e support for that purpose may be somewhat less strong than the support for human rights in general: ere are those who feel strongly that linguistic pluralism is a positive feature, and others who do not worry that a small number of languages are gradually replacing many local languages. e purpose of preserving and strengthening international and local peace can be very important in some contexts and much less relevant in others. Early minority protection in Europe emerged out of peace settlements following wars and violence, initially related to religion and later to the formation of nation-states, where ethnonations came to be divided by state borders. is sometimes caused very serious kin-state/home-state conflicts and contributed to the outbreak of World War II. e function of the OSCE High Commissioner on National Minorities is primarily to prevent international conflicts arising from grievances by minorities which have a kin-state in the neighbourhood. Domestic peace can also be seriously jeopardized by neglect of minority rights. e UNDeclMin makes it clear in its preamble that one of the purposes is to protect domestic peace: ‘Considering that the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contribute to the political and social stability of States in which they live …’. International or domestic peace is threatened not only when certain minority rights are violated, but also when an ethnic group considers itself a nation without a state (the Tamils of Sri Lanka, the Kurds in Turkey and elsewhere) or wants to break out of the country to join a neighbouring state (the Armenians in Nagorno-Karabakh). ese are issues that cannot be dealt with by human rights, not even by existing minority rights. III. A J O N D e core question to be faced is whether the different justifications for minority protection are equally applicable to the new as well as to the old minorities. e Human Rights Committee (HRC) in its General Comment on Article of the International Covenant on Civil and Political Rights (CCPR) has expressed the most authoritative view:3 3
HRC General Comment No. (fiftieth Session, ), Report of the Human Rights Committee, Vol. I, GAOR, forty-ninth Session, Supplement No. (A//), -.
Asbjørn Eide Article confers rights on persons belonging to minorities which ‘exist’ in a State party. Given the nature and scope of the rights envisaged under that article, it is not relevant to determine the degree of permanence that the term ‘exist’ connotes. ose rights simply are that individuals belonging to those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practice their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents. us, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights. As any other individual in the territory of the State party, they would, also for this purpose, have the general rights, for example, to freedom of association, of assembly, and of expression. e existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria. e HRC was on solid grounds legally speaking. In conformity with Article of the Covenant, states parties are under an obligation to respect and ensure all the rights therein, including Article , to everyone within its territory and under its jurisdiction, whether the person – or group of persons – are citizens of the country or not. Persons who are not (yet) citizens of the country in which they reside can form part of or belong to a minority in that country. is does not mean that migrants as such constitute a minority, but individual migrants can be part of a particular ethnic, religious or linguistic minority. Persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language, whether they are citizens or not. It is important to note, however, that the Committee placed a heavy emphasis on the limited content of the rights in Article : ‘Given the nature and scope of the rights envisaged under that article … . ose rights simply are that individuals belonging to those minorities should not be denied the right to ...’. e point here is that the Committee focussed only on the passive or negative obligations contained in Article , not on the possible positive measures required, which have been elaborated more extensively in the UNDeclMin and in the Framework Convention for the Protection of National Minorities (FCNM). It may also be asked whether ‘national’ minorities, the term used in the Framework Convention, are different from those listed in Article . Does this include only those who are ‘nationals’ of the country concerned? ere is clearly no consensus on that; one of the reasons that no definition of ‘national minorities’ was agreed on was precisely that some wanted it to be limited to citizens, while others did not. In the implementation of the Framework Convention, some use citizenship as a restrictive criterion while others do not. Some interpret the term to include only those who form part of an ‘ethnic nation’, while others use a very different understanding. Usages therefore differ significantly, and no conclusions can be drawn merely on the basis of the term itself. e main thesis in the following is that as a starting point, minority rights are applicable to all minorities, new or old, but when it comes to the requirement to take positive
e Rights of ‘Old’ versus ‘New’ Minorities measures, the rights of the old minorities are stronger than the rights of new ones. e distinction between old and new should not, however, be confused with the citizenship issues. As pointed out in section V., there are many and different reasons why some groups of persons do not have citizenship. ey can still be old minorities with a justified claim on positive measures. IV. T A D C M R In the following, I shall use the UNDeclMin as a basis. e same analysis could be pursued in relation to the Framework Convention. I start with comments on the rights set out in the Declaration Articles and , and then examine the state obligations contained in Articles , , and . A. e Scope of Minority Rights in the Declaration Article (): Persons belonging to national or ethnic, religious and linguistic minorities (hereinafter referred to as persons belonging to minorities) have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination. Comment: is text is practically identical with Article CCPR. ere is generally no justification for distinction in this regard between old and new minorities. Article (): Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life. Comment: e relevant distinction is not whether the minority is new or old but whether the person is a citizen or not. ose members of new minorities, who are citizens of the country, must be fully entitled to participate in the cultural, religious, economic and public life. ose among them who have not become citizens, must also as a general rule be entitled to participate, except where there are particular and justified restrictions applicable to non-citizens. is raises the broader question of the relationship between citizenship and human rights in general (see section V.). Article (): Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation. Comment: Again, the relevant distinction is not whether the minority is old or new, but whether the person concerned is citizen or not. Political rights can under human rights
Asbjørn Eide law be restricted to citizens, and in national practice it is the general rule that participation at the national level is restricted to citizens. ere is a growing practice, however, at least in Western Europe, that lawful residents who have lived in the country for a certain period (often set to three years) are entitled to participate at the local and regional level, with voting rights, the right to election, and the right to hold public office at that level. Strictly speaking, however, states are not obliged to extend such rights to non-citizens, and this must be one of the reasons that the last sentence of Article () says that the participation must be ‘in a manner not incompatible with national legislation’. ere are also other considerations underlying that restriction, which will not be addressed here. Article (): Persons belonging to minorities have the right to establish and maintain their own associations. Comment: is is an application of the general right to establish and be member of associations (Article CCPR and comparable regional provisions). As a general rule, new minorities are no less entitled to do so than old minorities. Any restriction would have to be based on the permissible limitations to the freedom of association, which in Article () CCPR are formulated in this way: No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. None of these grounds could justify a general rule to prohibit new minorities from establishing and maintaining associations. It might be that in particular cases, the concern with national security could more easily justify restrictions on certain new minorities, but it would have to be explained in each case why that was needed. Article (): Persons belonging to minorities have the right to establish and maintain, without any discrimination, free and peaceful contacts with other members of their group and with persons belonging to other minorities, as well as contacts across frontiers with citizens of other States to whom they are related by national or ethnic, religious or linguistic ties. Comment: at they have a right to maintain contacts with other members of their group inside the country follows already from general human rights such as freedom of movement and freedom of association. is cannot in general terms be restricted to old minorities. On the basis of national security or public order, there may be some particular reasons applicable to special networks, but this has to be argued concretely and cannot be based on a general limitation of new minorities.
e Rights of ‘Old’ versus ‘New’ Minorities Article (): Persons belonging to minorities may exercise their rights, including those set forth in the present Declaration, individually as well as in community with other members of their group, without any discrimination Comment: e main purpose of Article () is not to regulate the application of the Minority Declaration to different kinds of minorities, but it has a bearing on that issue as well. What is at stake here is not the distinction between old and new minorities, but between new and old individuals in their exercise of minority and other rights. e general rule, reinforced by Article (), is that no discrimination can take place in the enjoyment of their rights. is has to be interpreted, however, in light of other human rights provisions. In spite of the general rule in Article (), distinctions can in some limited cases be made between those persons belonging to minorities who are citizens and those of the same minority who are not. As explained above, the main area where that distinction can be made is in regard to effective political participation, since under international human rights law political rights can be limited to citizens. A more complicated question arises where the state is obliged to take positive measures, such as ensuring teaching in the minority language in areas traditionally inhabited by a minority. Should also new immigrants enjoy those extended rights in line with the previously existing members of the same minority? In general, it seems that the answer should be in the positive, but a closer assessment of each case would appear necessary. B. e Scope of State Obligations or Commitments Article (): States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. Comment: States are generally obliged to ensure human rights to everyone within their territory and subject to their jurisdiction. is obviously applies also to persons belonging to new minorities. Some restrictions can be made in regard to non-citizens (see section V.) but not to other members of ‘new minorities’. Article (): States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards. Comment: is is where distinctions start to become more acceptable. It follows already from Article () UNDeclMin and from Article CCPR that states shall not prevent members of new minorities from expressing their characteristics and developing their culture. It is a different matter to argue that states shall take positive measures to ensure that different groups of immigrants shall be able to maintain their culture. If we take the
Asbjørn Eide case of the United Kingdom, in which there are many and numerous new minorities, the policy started with a general denial of a duty to support the new multiculturalism, but over time it changed into a greater acceptance or even positive attitude towards active support.4 ere is probably not yet, however, an international consensus on the duty to do so – on the contrary, the dominant attitude seems still to be an expectation that new arrivals will assimilate and that any effort to maintain their cultural identity will have to be done by themselves. Article (): States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue Comment: Probably the same goes here as in the previous case. States cannot and should not deny members of new minorities, through their own efforts – including running their own private schools, or in other ways – to ensure that their children learn their own language. ere is probably no consensus, however, that the state is obliged to take positive measures for that purpose. Article (): States should, where appropriate, take measures in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing within their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of the society as a whole. Comment: e last part is certainly applicable to new as well as old minorities. In regard to the first part, the obligation is undoubtedly stronger with regard to old than to new minorities. It would nevertheless be desirable that the children in the country as a whole have some acquaintance with the history, traditions and culture also of new minorities. It can hardly be required that they will have to learn or even achieve a rudimentary knowledge of the language of those new minorities. Article (): States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country. Comment: Much depends on the interpretation of this provision. States should ensure that there is no discrimination between members of majorities and minorities in the economic life of the country. ere may be some acceptable limitations for non-citizens (see below) but not for members of new minorities as such. If, however, Article () is interpreted to mean that states shall ensure that the participation of minorities in the economic progress 4
John Rex, ‘e Political Sociology of a Multicultural Society’, in Daniele Joly, Scapegoats and Social Actors (London, ), -, gives an interesting account of the changes in British policy in this regard.
e Rights of ‘Old’ versus ‘New’ Minorities shall take into account the particular culture, tradition and way of organizing their economic activity, then this can hardly be stretched to include new minorities. Article (): National policies and programmes shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities. Article (): Programmes of cooperation and assistance among States should be planned and implemented with due regard for the legitimate interests of persons belonging to minorities. Comment: is is an area where the concerns of the old minorities are much stronger than the ones of new minorities. e difficulty would be more or less the same as under Article (): States should generally ensure that the legitimate interests of all residents are taken into account in national policies, but the obligation to take into account the particular way of life of minorities probably extend only to old minorities. Article : States should cooperate on questions relating to persons belonging to minorities, inter alia, exchanging information and experiences, in order to promote mutual understanding and confidence. Comment: e primary concern underlying this provision is the relationship between kinstate and home-state where ethnic groups are divided by borders and where the kin-state is concerned with the fate of their ethnic kin in the neighbouring state. is is generally not the situation for new minorities, but it may apply in some particular cases, depending on how the notion of new minorities is defined. ere are, however, good reasons to argue that even in relation to new minorities generally, there should be a degree of cooperation between the new home state and the state from which the minority originates. e arguments in favour are weaker than in relation to old minorities, but it can still be important in order to promote understanding and confidence. Article : States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity. Comment: States must clearly be obliged to protect the existence of all minorities against harassment and persecution by other members of society. is must apply to new as well as old minorities. States are also clearly obliged to respect the national or ethnic, cultural, religious and linguistic identities of new as well as old minorities, and to afford a reasonable degree of protection when that identity is attacked by other members of society. It is more uncertain whether states can be required to encourage conditions for the promotion of the ethnic, religious or linguistic identities of non-citizens, but it cannot be entirely neglected. Recent international instruments using the term ‘identity’ as part of the trend towards the protection and promotion of cultural diversity include Articles and of the International Convention on the Rights of the Child (CRC), which is applicable also
Asbjørn Eide to non-citizens, and Article of the International Convention on the Protection of the Rights of All Migrant Workers and Members of eir Families,5 which mainly applies to non-citizens. It sets less stringent requirements, however, on the state with regard to the protection of persons who have recently arrived to a country which they knew was not their own. e question is therefore not one of citizen versus non-citizen, but whether the group concerned has existed for a long time and sought to preserve its identity, or whether it consists of persons who have only recently arrived and who may also be numerically few, since immigrants under normal conditions come from many different countries and with different ethnic backgrounds. It cannot reasonably be expected that the state shall actively promote the identity of each of these smaller groups of new arrivals. V. T R C E H R, M R If faithfully implemented, human rights law reduces significantly the difference between the rights of citizens and non-citizens. In general terms, states are obliged to ensure the enjoyment of human rights to everyone within their territory and subject to their jurisdiction. e UDHR states that the rights contained within it shall be enjoyed by everyone, without discrimination; thus also by non-citizens. Article () CCPR reads as follows: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. e state shall ensure the rights contained in the CCPR to all individuals (not only citizens) within the territory of the state, and there shall be no distinction made in the enjoyment of these rights. ere are, as we shall see, some important exceptions. But the main rule should be clear: Citizens and non-citizens should enjoy most of the civil rights contained in that CCPR without distinctions.6 e European Convention on Human Rights and Fundamental Freedoms has the same scope: Its Article states that the state parties shall secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. e CRC is even more explicit in its Article ():
5 6
Adopted by the UN GA resolution no. / on December , entered into force on July . It has very few ratifications, almost none by the main host countries of migrant workers. See on this point also HRC, General Comment No. , e Position of Aliens under the Covenant, dated April , UN Doc. HRI/Gen/Rev. () at .
e Rights of ‘Old’ versus ‘New’ Minorities States parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. e International Covenant on Economic, Social and Cultural Rights (CESCR), Article () requires the state parties to guarantee that the rights contained in the CESCR will be exercised without discrimination on grounds listed there, such as national or social origin. Article (), however, contains an exception: Developing countries can determine to what extent they would guarantee the economic rights contained in the Covenant to non-nationals. Antithetically, industrialized countries can make no such distinction. Other factors, such as legal residence, work permit and other elements may be relevant, but not citizenship as such. While the UDHR had established that human rights were to be enjoyed by everyone, at least two of its articles contain restricting language – Article on political rights and Article on the right to freedom of movement. e UDHR in Article (), and the CCPR in Article deal with the right to take part in the government of one’s country, directly or through freely chosen representatives. Equally important is the right of everyone to equal access to public service in one’s own country (UDHR, Article (); CCPR, Article (c)). e enjoyment of human rights is precarious when the person does not have the citizenship of his or her country of residence. Political rights are among the most precious of all human rights since their enjoyment makes it possible to influence the laws and policies of the country and therefore also to be able to protect one’s own interests and value. It is particularly serious when many individuals belonging to ethnic, religious or linguistic minorities or the weaker social groups are denied citizenship, since this will make it difficult to ensure reasonable protection for them. is can seriously weaken the functioning of democracy, one of its main functions being to ensure peaceful settlement of conflicts through effective participation by all groups. e UDHR in Article and the CCPR in Article deal with freedom of movement. Everyone, citizen or not, is entitled to freedom of movement and residence within the borders of the state and to leave any country including his own, but the right to enter a country is limited to ‘his own country’. is would at first sight limit the right of entry as a human right to citizens only, but it cannot be understood in such a rigid way. e Human Rights Committee, which is the official body supervising the implementation of the CCPR, has noted that in some circumstances, a non-citizen may enjoy protection under Article of the CCPR. In this connection, considerations of non-discrimination, prohibition of inhuman treatment, and respect for family ties will have to be taken into account.
Asbjørn Eide VI. C C R O N M It is often assumed that persons without citizenship are relatively new arrivals and form the bulk of the so-called new minorities. e reality is more complex. Questions arise regarding persons who live in a territory which has come under new sovereignty and thus need a new citizenship as well as for those who have moved from their country of citizenship to another country to settle there. A. Rights of Citizenship in Cases of State Succession Four situations of state succession (when a territory is the subject of change of sovereignty) can be identified: (i) unification of states (ii) transfer of part of the territory to another state, (iii) dissolution of a state and the emergence of several newly independent states, and (iv) separation of part of the territory to become an independent state. e problems of citizenship arise for the residents of the territory who had already been citizens of the previous state. e situations in category (i) do not give rise to doubt: e former citizenship is replaced by citizenship of the unified country. In the other situations, evidence from practice has been that nationality (citizenship) follows the territory. Residents should have an automatic option of citizenship of the state where their territory of residence is included, but may sometimes have the option to retain their former citizenship. In situations of category (iii), the total dissolution of a state and the emergence of several newly independent states, the situation is different. Since the country no longer exists, the former citizenship no longer exists and can therefore not be retained. Citizenship has to be determined anew for all. As a general rule of thumb, residents will have to be given the citizenship of the new state in which they live and cannot normally demand to become a citizen of one of the other states emerging out of the dissolution.7 Such other states are, of course, free to offer their citizenship but are not obliged to do so, unless special reasons therefore exist. As a consequence of Article () of the CRC, at least one point can be made with great certitude: A child born on a state’s territory has to be given the citizenship of that country if it otherwise would be stateless. us, in so far as otherwise stateless children are concerned, the principle of jus soli has now become universal law. To date, states have ratified the Convention; the United States, which is the main state which has not ratified it, applies in any case the jus soli principle. e best guidance in advanced legal opinion on these matters is to be found in the European Convention on Nationality (hereinafter ‘the Nationality Convention’),8 Articles 7
8
Summarizing the practice observed in previous times, Ian Brownlie concludes that ‘the evidence is overwhelmingly in support of the view that the population follows the change of sovereignty in matters of nationality’. See Ian Brownlie, Principles of Public International Law (Oxford, th ed., ), -. Dated November , entered into force on March , ETS No. .
e Rights of ‘Old’ versus ‘New’ Minorities and . Preferably, the matter should be settled by treaty between the states concerned, but the principles to be followed in making such decisions shall according to Article take into account human rights, including the principle that everyone has a right to a nationality and that statelessness shall be avoided. e burden of avoiding statelessness by extending its citizenship will fall mainly on the country of residence, and as mentioned above this will at least be so with regard to children born on that territory. In sum, the evolution of human-rights-inspired international law at present gives reason to conclude as follows: In cases of state succession, citizens of the former state living habitually (as distinct from temporarily) on the territory under new sovereignty are entitled to obtain the citizenship of the state which has obtained sovereignty over the territory. Such persons shall always have the option to accept the offer of citizenship of the other country concerned, but are not obliged to take it, and the other country is not generally obliged to offer it. Both states are obliged to ensure that statelessness does not ensue, and the burden of proof will fall on the state of domicile to show that it has legitimate cause to deny citizenship to any person habitually resident there. Is there a right to obtain citizenship of the state of residence in cases of state restoration? State restoration occurs when a previously independent state has been incorporated into a larger entity for some time but subsequently has regained its independence. e prime examples from recent time are the three Baltic states which were incorporated into the Soviet Union in and regained their independence in . Claims that situations of state restoration do not have to follow the rules applying to state succession are based on the assertion that restored states are entitled to reinstate the legislation on nationality as it stood before their incorporation and such states can thereby determine the allocation of nationality at restored independence based on the previously existing law.9 Such claims can only have validity when the incorporation of previously independent states has resulted from illegal threat or use of force, which arguably happened to the Baltic states in . During long periods of incorporation, migrations within that larger entity may have taken place at a large scale. Where the settlement has lasted for two or more generations before restoration takes place, allocation of citizenship cannot in the aftermath of restoration be handled in the same way as it would at the end of a regular military occupation. And yet it is not obvious that the descendants of those who arrived during the period of incorporation have an automatic right to citizenship in the restored country, even if they had citizenship of the larger state entity before the restoration of independence. Due to their established domicile, however, they cannot be treated as aliens. If they do not immediately acquire citizenship, they would at least have the right to remain in the restored state and enjoy equality of treatment with nationals of the restored state in regard to social and economic rights, including access to work, with one exception: Until they
9
A detailed discussion of the citizen issue in restored states is found in Ineta Ziemele, ‘State Continuity and Nationality in the Baltic States and Russian Federation. International and Constitutional Issues’, unpublished Ph.D. manuscript, Cambridge University, .
Asbjørn Eide obtain citizenship they can be excluded from such public service which involves the exercise of sovereign power. On this point see also the Nationality Convention, Article . B. New Arrivals: Human Rights Requirements in Favour of Non-discriminatory Naturalization Do migrants in the strict sense of the word, i.e. persons or their children who arrive in a country which they know is not their own, have a right to citizenship in their country of arrival? Many states practice the principle of jus soli, which means that children born on the territory as a general rule obtain citizenship of that country even if their parents were not citizens. Others restrict themselves to jus sanguinis, meaning that only children born of parents who already are citizens automatically (ex lege) obtain citizenship. As a consequence of the evolution of human rights law, even those who otherwise apply the jus sanguinis principle have to apply the principle of jus soli to children born on their territory who would otherwise be stateless. Most immigrants, however, have another pre-existing citizenship in their country of departure, and their children can therefore not demand citizenship on the basis of statelessness. For persons who do not become citizens ex lege, states can bestow citizenship through naturalization. Is the host country obliged, at any stage, to naturalize those who have become permanent residents in the country? e Nationality Convention, Article (acquisition of nationality) provides in its section that states shall in their internal law provide for the possibility of naturalization of persons lawfully and habitually resident on its territory, and in such legislation the time of residence required before an application can be lodged should not exceed ten years. Controversial, and of great significance for minorities, is the question of whether the state can make distinctions between different sets of applicants for naturalization. is has traditionally been a jealously-guarded domestic prerogative, and international law remains weak on this point, but it is slowly changing under the impact of human rights. Distinctions on the grounds of ethnicity or culture could be held to be a violation of the International Covenant on the Elimination of All Forms of Racial Discrimination, particularly its Article (d)(iii), whereby state parties have undertaken to guarantee the right of nationality to everyone, without distinction as to race, colour or national or ethnic origin. e implication seems to be that preference cannot be given to particular ethnic groups among those who seek naturalization. In practice, however, several countries continue to give such preference. International law is unfortunately still rather vague on this issue. Article of the Nationality Convention provides that the rules of a state party shall not contain distinctions or include any practices which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin. Furthermore, states shall be guided by the same principle of non-discrimination between their nationals (citizens), whether they are nationals by birth or have acquired nationality subsequently.
e Rights of ‘Old’ versus ‘New’ Minorities VII. C T N M: R P A frequent weakness in debates over definition is an underlying assumption that all groups which fall inside a possible definition should have the same rights, and that those who fall outside should not. is is not a fruitful approach. ere is a great variety of minorities, living under highly different circumstances, with very different needs, and the justification for their protection varies greatly. Rather than striving to have one common definition of ‘minorities’ one should focus on which rights should be held by which type of minority under particular circumstances. Considerations of reasonability and proportionality have to be taken into account. is is not to say that there should not be some general standards on minority rights, but these should be conceived as broad frameworks within which any specific situations could be addressed in ways which correspond to the needs of the context and situation. International law does not in general terms make a distinction between old and new minorities, and this is so for very good reasons. International standards of minority protection cover a broad set of rights and obligations, ranging from the universal principle of non-discrimination, through reinforcement of fundamental freedoms when applied in a minority context, to various forms of positive measures of lesser or greater burden in terms of resource allocation and in other ways. Members of all minorities, whether new or old, are entitled to the basic freedom from discrimination and the other fundamental freedoms. However, those parts of positive measures which constitute significant burdens on the state can more reasonably be reserved for old or traditional minorities. e distinction between old and new minorities should not be based on criteria of citizenship, since the status as non-citizens is not always a result of recent arrival. But lack of citizenship can have serious consequences for members of minorities. In particular, it can seriously undermine their possibilities of effective participation in the political life of the country. For that and other reasons, it is also necessary to underline that states are no longer entirely free to determine their criteria of citizenship. International human rights law has already set important requirements to state legislation in this area, particularly in the context of state succession and state restoration.
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Roberta Medda-Windischer *
Legal Indicators for Social Inclusion of New Minorities Generated by Immigration
I. I In recent decades, most EU member states have experienced a marked increase in the number of third country nationals (TCNs) residing on their territory. Partly for political and humanitarian reasons, partly as a result of differing economic situations as well as the freedom of movement entailed by growing economic integration in Europe, an increasing number of people have settled with varying degrees of permanence in countries other than their countries of origin. is situation creates for the governments and other public authorities concerned the task of integrating such foreign residents into the communities in which they live – a problem which is all the more acute in the light of racist and xenophobic incidents which have often occurred and still occur. Since the late s, the European Commission has acknowledged the importance of this theme: ‘e integration of migrants is an imperative dictated by the democratic and humanitarian tradition of the member states and constitutes a fundamental aspect of any immigration policy. e integration of immigrants is essential to safeguard equilibrium in our societies.’ 1 Following the conclusions of the Tampere European Council on the fair treatment of TCNs, it was agreed that the legal status of TCNs should be approximated to that of the nationals of the member states: A person, who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit, should be granted in that Member State a set of uniform rights which are as near as possible to those * 1
Researcher at the European Academy of Bolzano, Minorities and Autonomies, Law Degree, LL.M. (University of Essex); currently doctoral candidate in Law (University of Graz). European Commission –- Proposal for a Council Act establishing the Convention on rules for the admission of third country nationals to the Member States, COM () , July , Explanatory Memorandun.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Roberta Medda-Windischer enjoyed by EU citizens; e.g. the right to reside, receive education, and work as an employee or self-employed person, as well as the principle of non-discrimination vis-à-vis the citizens of the State of residence. e European Council endorses the objective that long-term legally resident third country nationals be offered the opportunity to obtain the nationality of the Member State in which they are resident.2 e Council of Europe (CoE), while calling for stronger protection of migrants’ rights, also recognizes a clear link between migrants and minorities. e Parliamentary Assembly of the CoE (PACE) stated: e Assembly recognizes that immigrant populations whose members are citizens of the state in which they reside constitute special categories of minorities, and recommends that a specific Council of Europe instrument should be applied to them.3 Accordingly, the Assembly instructed its Committee on Legal Affairs and Human Rights, to provide a report, and its Committee on Migration, Refugees and Demography, an opinion, to study the situation and the rights of ‘new’ minorities originating from immigration.4 Although migrants possess ethnic, religious, cultural and/or linguistic characteristics differing from those of the host communities, they are usually excluded from conventional definitions of minorities.5 e Advisory Committee (ACFC) on the Framework Convention for the Protection of National Minorities (FCNM) has consistently held that the Convention contains no definition of the notion of national minorities and that the individual contracting parties enjoy a margin of appreciation in determining the groups to which the Convention shall apply. Yet, on the occasion of the examination of some recent state reports,6 the Advisory Committee considered the possibility of enlarging the scope of the Framework Convention to new minority groups. Due to the significant proportion of non-citizens – includ2
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Tampere European Council, Presidency Conclusions, - October , , para. . PACE, Recommendation no. () on the Rights of National Minorities, January . PACE, order no. () on the Rights of National Minorities, January . e PACE in its recommendation () on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights, proposed the following definition: ‘… the expression ‘national minority’ refers to a group of persons in a state who: a) reside on the territory of that state and are citizens thereof (emphasis added); b) maintain longstanding, firm and lasting ties with that state; c) display distinctive ethnic, cultural, religious or linguistic characteristics; d) are sufficiently representative, although smaller in number than the rest of the population of that state or of a region of that state; e) are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language.’ ACFC, Opinion on Austria, adopted on May , ACFC/INF/OP/I/, paras. -, ; ACFC, Opinion on Germany, adopted on March , ACFC/INF/OP/I/, paras. -, ; ACFC, Opinion on Ukraine, adopted on March , ACFC/INF/OP/I/, para. .
Legal Indicators for Social Inclusion of New Minorities ing migrant workers – in the total population of the countries concerned, the Advisory Committee found that it would be possible to consider the inclusion of persons belonging to these groups in the application of the Framework Convention on an article-by-article basis, and noted that the authorities of the countries concerned should consider this issue in consultation with those concerned at some appropriate time in the future.7 Although there is no consensus at an international level on a single definition of the term ‘minority’, the most commonly used definitions of minorities can be divided into two groups: those according to which minorities are exclusively citizens of the country in which they reside and have historical, well-established and lasting ties with that country (the so-called ‘old’ or ‘historical’ national minorities) and those which assert that citizenship is not a pre-requisite for the constitution of a minority in a given country (the socalled ‘new’ minorities). e difference is of considerable significance because the principal cause of the emergence of minorities today can be considered to be the large-scale population movements across countries due to wars, persecutions or economic difficulties. ese movements, enforced or voluntary, leading new groups of individuals to reside in countries different from that of their respective origins, constitute indeed the major source of (new) minorities in the world today. e purpose of this article is to try to understand how and to what extent the definitions and categories that generally apply to national or old minorities are also valid for the new minorities originating from immigration. e ultimate objective of this effort would be then to find a means of providing an enhanced and more comprehensive protection for the new minorities. With a view to improving the legislation pertaining to this target group, it is first necessary to identify the core areas in which members of new minorities are particularly disadvantaged or discriminated against in comparison to the rest of the community in which they live. e basis for the discussion will be the LISI project (Legal Indicators for Social Inclusion of New Minorities Generated by Immigration; hereinafter ‘the project’) in which the issues illustrated above represent the most relevant elements.8 7
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It is worth reporting a passage from Germany’s reply to the ACFC on this point: ‘… [T]he objective of the Framework Convention is to protect national minorities; it is not a general human rights instrument for all groups of the population that differ from the majority population in one or several respects (ancestry, race, language, culture, homeland, origin, nationality, creed, religious or political beliefs, sexual preferences, etc.). Members of these groups are protected by the general human rights and – insofar as they are nationals – by the guaranteed civil rights. … e article-by-article approach would not just dilute the specific objective of the Framework Convention, i.e. the protection of national minorities; it would also entail the risk of creating first and second-class national minorities – that is, minorities that would benefit from the protection of all rights, and those who would be only granted selective rights.’, GVT/COM/INF/OP/I(), no. . e LISI project ( January -August ) was launched by the Department of Minorities and Autonomies of the European Academy of Bolzano/Bozen, Italy and co-financed by the EC (DG Employment and Social Affairs - Call for Proposals for Preparatory Actions to Combat and Prevent Social Exclusion -VP/ /). e LISI partners were: EURAC (European Academy of Bolzano/Bozen) (Applicant Organization), ETC (European Training and Research Centre for Human Rights and Democracy - Graz) and the Aire Centre (Advice on Individual Rights in Europe – London). In addition there were two supporting partners: the Provincial administration of Bolzano/Bozen and IFIAS (Institute for International Assistance
Roberta Medda-Windischer II. L I S I N M G I e primary objective of the LISI project was to devise common legal indicators for measuring social inclusion of new minorities originating from immigration. e type of indicators that can be defined as indicators of accessibility to key social sectors of the receiving communities pertain to the legal framework in which the new minorities live. ree geographical areas were examined that encompassed very different typologies of social exclusion. ese areas were: the Province of South Tyrol in Italy, characterized by a special legal framework aiming to protect linguistic minorities; the Region of Styria in Austria, exposed to immigration linked to EU enlargement and to flows of refugees from the former Yugoslavia; and London, which has a long-standing immigration tradition in an urban environment. e geographical and social diversity of the examined areas maximized the potential applicability of the indicators in an EU-wide context. e main assumption of the project was that the degree of integration of new minorities is widely determined by the legal national and local framework in which the members of the target group live. e ultimate objective of the project was to provide policy makers at various political levels – local, national and European nongovernmental – organizations (NGOs) active in the fight against social exclusion, international organizations, experts and scholars with common indicators to measure social inclusion potentially relevant for situations which are generally not homogeneous. A. Definitions and Categories of the LISI Project At the outset, the LISI partners agreed upon a set of common and clear-cut working definitions of basic concepts. is was an important phase of the project because the precise choice of the target group, the meaning of the term ‘inclusion’ and the scope of legal indicators would have all exerted an enormous influence on the implementation of the project research. 1. Old versus New Minorities e drafters of international instruments have generally been unsuccessful in efforts to define the term ‘minorities’. ere is no generally recognized legal definition of the term ‘national minority’, far less of ethnic, religious or linguistic minorities in international law. A significant amount of time and energy has been spent over the past five decades in various international forums in the quest for a generally acceptable definition of the term minority, mainly for codification purposes, yet no conclusive results can be reported. In the Declaration of the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UNDeclMin) as well as the FCNM, for example, drafters expressly and Solidarity – Brussels). A major publication, consolidating the main achievements and research findings, concluded the project’s activities. See Roberta Medda-Windischer et al., Legal Indicators for Social Inclusion of New Minorities Generated by Immigration (Bolzano/Bozen, ).
Legal Indicators for Social Inclusion of New Minorities avoided a definition of the term ‘minorities’, leaving this task to the member states and to the courts or other bodies involved in the interpretation of these instruments. ere are several reasons why these efforts have failed. First, there is no consensus either among countries or within the UN and regional organizations on this matter. Second, it is extremely difficult to settle the question in the abstract. Some categories of non-citizens, for instance, could enjoy many of the rights listed in the instruments devoted to minorities but not necessarily all of them. e most quoted definition of minorities is the descriptive definition proposed, in , by Francesco Capotorti, in which one of the key elements is citizenship or nationality. e important passage in this context states: ‘A group numerically inferior to the rest of the population of a state whose members – being nationals of the state9 – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population.’10 e Human Rights Committee in its comment on Article of the International Covenant on Civil and Political Rights (CCPR)11 went well beyond the Capotorti definition, and stated: e terms used in article indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. ose terms also indicate that the individuals designed to be protected need not be citizens of the State party.12 ... A State party may not, therefore, restrict the rights under article to its citizens alone. Article confers rights on persons belonging to minorities which ‘exist’ in a State party. Given the nature and scope of the rights envisaged under the article, it is not relevant to determine the degree of permanence that the term ‘exist’ connotes. ose rights simply are that individuals belonging to those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practise their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents. us migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights. As any other individual in the territory of the State party, they would, also for this purpose, have the general rights, for example, to freedom of association, or assembly and of expression. e existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.13 9
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Emphasis added. Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN doc. E/CN./Sub.//Rev., , para. . Article CCPR provides: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.’ Emphasis added. HRC, General Comment No. , UN Doc. HRI/GEN//Rev. at (), paras. .-..
Roberta Medda-Windischer Accordingly, it can be said that persons who are not citizens of the country in which they reside can form part or belong to a minority in that country. It is relevant to note, however, that Article CCPR speaks of ‘ethnic, religious and linguistic minorities’, whereas the FCNM, for instance, refers specifically to ‘national minorities’. On this difficult issue, the Chairman of the UN Working Group on Minorities, Asbjørn Eide, wisely noted: … [t]he best approach appears to be to avoid making an absolute distinction between ‘new’ and ‘old’ minorities by excluding the former and including the latter, but to recognize that in the application of the UN Declaration [on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities], the ‘old’ minorities have stronger entitlements than the ‘new’.14 He continues, by saying: While citizenship as such should not be a distinguishing criterion which excludes some persons or groups from enjoying minority rights under the UN Declaration other factors can be relevant in distinguishing between the rights that can be demanded by different minorities. ose who live compactly together in a part of the State territory may be entitled to rights regarding the use of language, and street and place names which are different from those who are dispersed, and may in some circumstances be entitled to some kind of autonomy. ose who have been established for a long time on the territory may have stronger rights than those who have recently arrived.15 It is worth mentioning that, in , the Working Group discussed the proposal to work on a definition of the concept of minority which, rather than being all-encompassing and covering all criteria and characteristics, should be concise and acceptable to all states. is, it was suggested, should be the first step towards the development of a worldwide convention on the protection of persons belonging to minorities. e opinions on this subject were divided, both among the members of the Working Group and the observers. It was argued that there was little prospect of arriving at a definition, taking into account that it had been possible neither at the global nor at the regional level for the last years. Observers and scholars further commented that there was no specific need to categorize or define minorities in order to progress in the field of minority protection.16 In addition to general considerations of a legal nature, in discussing the issue of the definition of minorities, practical political aspects should be taken into account. At the 14
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Asbjørn Eide, Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, WGM, UN doc. E/CN./Sub./AC.//WP.. For further reference, see Asbjørn Eide, ‘e Rights of ‘Old’ versus ‘New’ Minorities’ in this volume. Ibid. WGM, Report on the Fifth Session, June , UN Doc. E/CN./Sub.//.
Legal Indicators for Social Inclusion of New Minorities moment, different European states apply different working definitions of minority, ranging from very inclusive and generous to extremely restrictive ones. e introduction of a commonly accepted definition would inevitably mean alignment by the lowest common denominator. If in international law there is no common definition of the term minority, the same can be said for the term ‘migrants’. A definition has been suggested by the UN Special Rapporteur on the Human Rights of Migrants, Gabriela Rodríguez Pizarro.17 According to this definition migrants are: – persons who are outside the territory of their state of nationality or citizenship and not subject to its legal protection, and are in the territory of another state; – persons who do not enjoy general legal recognition of the rights inherent in the status of refugee, permanent resident, naturalized citizen or other similar status granted by the host state; – persons who likewise do not enjoy general legal protection of their fundamental rights by virtue of diplomatic agreements, visas or other accords. After discerning the various definitions of minority and recognizing the difficulties of conceptualizing the issues referred to above, for the purpose of the LISI project, the partners agreed upon a working definition of new minorities originating from immigration. is definition encompasses different categories of TCNs legally present on the territory of an EU member state and includes not only migrant workers with permanent or seasonal contracts, but also asylum-seekers, refugees and co-ethnic migrants with the main focus on the integration of the first generation. When necessary, the Cooperation and Association Agreements of the European Community and other bilateral agreements facilitating access to certain civil or economic rights for some of the new minorities, although not explicitly considered, can be mentioned by the users of the LISI indicators in explanatory comments. roughout the implementation of the project gender within the LISI categories of new minorities was a mainstreaming issue. e choice to consider a broad definition of target group, in spite of some methodological difficulties, had the advantage of better reflecting the social reality of most European countries. Seasonal workers, for instance, represent a sub-category of migrant workers; their main feature is not the motive of their presence in the host country but the limited duration of their residence. e LISI partners deemed that this category of migrant workers had to be included in the study because, on one hand, many of them remain in the host countries for significant periods of time and, on the other, it gave the possibility to address the problem of the growing tendency among European countries to admit seasonal workers mainly on the grounds of avoiding integration policies. With regard to asylum seekers, the current patterns of migration in Europe show that they usually remain in the host country for a rather long period – even if their application is finally rejected. e duration of a normal asylum procedure can easily exceed two years, 17
Gabriela Rodríguez Pizarro, Special Rapporteur of the Commission on Human Rights, A//, Human Rights of Migrants, Note by the Secretary-General, dated August .
Roberta Medda-Windischer and there are cases with significantly longer waiting periods. e LISI partners considered that migration policies should take into account this fact and aim at avoiding exclusion of this category of non-citizens, particularly if asylum claims are not manifestly ill-founded. Although it can be argued that the goal of such policies should not be the full integration of asylum seekers, a minimum level of social inclusion seems to be a reasonable aim, promising advantages for the host countries and for the asylum-seekers, either in case of their application being accepted or in their returning to their country of origin. Refugees face different problems, as the need for their social inclusion is generally acknowledged – usually even more than for migrant workers. Still, a distinction has to be made between individuals whose status has been officially recognized under the terms of the UN Refugee Convention,18 and those admitted only temporarily on humanitarian grounds. e LISI indicators take into account this distinction and, when necessary, provide for the possibility of adding comments and clarifications on norms pertaining to this specific category of non-citizens. Co-ethnic migrants are individuals living outside the territory of a given country, who do not have the nationality of that country, but who, through language, culture and ethnic origin, considers themselves to be ethnically nationals of that country.19 e legislation of several European countries distinguishes ethnic co-nationals living abroad, from other groups of immigrants and grants them privileged conditions of immigration. In some cases, co-ethnic migrants can acquire the citizenship of their historic homeland quite easily or are included in special immigration quotas and have immediate access to the labour market, social benefits and special integration benefits such as extensive language and vocational skills courses. In spite of this, the integration of these individuals in their ‘ancestral country’ is generally rather difficult because, often, they are considered by their co-nationals as ‘foreigners’ and thus they share with other migrants a number of integration problems in the receiving society. In addition, the funds for their integration such as schooling and language courses are generally very uncertain and can be withdrawn depending on unpredictable economic and political circumstances of the receiving country. Including co-ethnic migrants in the LISI project has the advantage of identifying and highlighting the differences in the treatment between various categories of migrants in order to have a better knowledge of the national legislation on migration. 2. Areas of Concern e integration process of the target group described above is determined by legal provisions regulating a broad range of life domains. e areas of concern identified by the LISI partners were: Convention relating to the Status of Refugees, adopted on July by the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution (V) of December , entered into force on April , UN, A Compilation of International Instruments, ST/HR//Rev. (Vol. I/Part ), -. 19 Rainer Münz and Rainer Ohliger, ‘Immigration of German People to Germany: Shedding Light on the German Concept of Identity’, () e International Scope Review (), . 18
Legal Indicators for Social Inclusion of New Minorities – employment, housing, social security, education and the media; – effective participation in public life, justice, citizenship, residence and right to family life. In addition, a number of cross-cutting issues such as gender, interculturalism, monitoring systems, duties and positive actions have also been taken into consideration as relevant to the assessment of the level of inclusion of the target group in a given legislation. e areas of concern were grouped around, on the one hand, economic, social and cultural rights, and on the other, civil and political rights. is classification had a chronological value only rather than a hierarchical importance. e first set of rights has, in fact, a particular importance in the period immediately after the arrival of the TCNs in the receiving country, whereas the second category gains importance with continued residence. Apart from this chronological ranking, the LISI partners decided to avoid as far as possible any kind of discretionary evaluation of the indicators in terms of their value. is is due to the difficulty in precisely evaluating what factors have most impact on the individual course of integration and at what stage. e methodological approach followed in the project will be further examined in the following paragraphs. 3. Basic Concepts of Immigration Policies With regard to the definitions of other key issues under discussion, it is important to note that, in this context likewise, there is no general consensus on concepts such as ‘inclusion’, ‘exclusion’, ‘integration’, ‘assimilation’, or ‘segregation’.20 Comparative analyses are thus hampered by the fact that so far, no common language exists for discussing the topics at issue. e term ‘intergration’ is, for instance, rejected in some countries, where more neutral expressions such as ‘insertion’ or ‘incorporation’21 or ‘coexistence’22 are the preferred terminology. ‘Integration’ expresses a complex concept whose meaning can differ according to a specific time, space and country, as well as political and historical circumstances. Concepts of integration range from multiculturalism to full assimilation and even segregation.23 Generally, integration refers to the broader context of legal access to resources, rights, goods and services, whereas social inclusion, includes also the foreigner’s individual choice to be part of the host community’s social life. For further reference see Joseph Marko Autonomie und Integration. Rechtsinstitute des Nationalitätenrechts im funktionalen Vergleich (Graz, Wien, Köln, ). 21 Rainer Bauböck, ‘e Integration of Immigrants’, Report of the th Meeting of the Joint Group of Specialists on Migration, Demography and Employment, CoE, Strasbourg, - March , CDMG() , para. .. 22 Beate Winkler, Speech addressed at the ESC Conference on Immigration: e Role of Civil Society in Promoting Integration, - September , Brussels. 23 Stephen Castles, ‘e process of Integration of Migrant Communities’, Expert Group Meeting on Population Distribution and Migration, Santa Cruz, Bolivia, UN/UNFPA, ; Miroslav Macura and David Coleman, ‘International Migration: Regional Processes and Responses’, UN Economic Commission for Europe, UN Population Fund, Economic Studies no. , New York and Geneva, , -. 20
Roberta Medda-Windischer Developing a definition of the term ‘integration’ is rather difficult because integration is itself a dynamic concept: It may point to the process leading to inclusion or to the status achieved through inclusion.24 Integration, as an interactive system of relationships between two entities, can be analyzed from the perspective of the immigrants and the host society. It might also involve questions of choice and needs: As a ‘choice’ it means the freedom to live in a given place, to look for a job and to enjoy civil rights; as a ‘need’ it implies a more or less explicit persuasion of the people concerned.25 In the LISI project the terms ‘inclusion’ and ‘integration’ are to be understood as referring to a process of mutual accommodation between immigrants and the majority population, implying a two-way process of adaptation in which minority and majority groups learn from each other and borrow aspects of each other’s culture.26 According to this model, the inclusion of newcomers in the host society implies respect for the identities of both migrant and host populations, positive interaction and peaceful cohabitation among all communities concerned.27 In this perspective, integration has a positive connotation. However, integration might also exist in negative forms when the inclusion of new elements in a given unity has disintegrative effects. is is the case, for instance, when immigrants participate in petty criminal activity or simply in illegal entry or irregular employment, which do lead to forms of social participation but at the same time undermine the rule of law in the receiving societies.28 e concept of integration as a policy on immigration was developed as an alternative option to both assimilation and segregation. ‘Assimilation’ can be defined as a one-sided process of adaptation to the lifestyle and value systems of the host society. According to this model, immigrants have to give up their distinctive linguistic, cultural and social characteristics and become indistinguishable from the major population.29 Assimilation has been also defined as ‘the idea of the superiority of the dominant culture, (aiming) to produce a homogenous society by getting groups to discard their culture in favour of the dominant one.’30 It is not the same as fusion, which is the combination of two or more cultures producing another one which is different from the parent cultures. In this case, fusion reflects the equality of cultures as a process and a result.31 24 25
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Stephen Castles, ‘e process of Integration of Migrant Communities’, UN Department of Economic and Social Affairs, Population Division, Population Distribution and Migration, New York, , -. Raimondo Cagiano de Azevedo and Barbara Sannino, ‘A European Research project on Migrants’ Integration’, in Council of Europe, Measurement and Indicators of Integration, Directorate of Social and Economic Affairs (Strasbourg, ). Stephen Castles, ‘e process of Integration …’. Giovanna Zincone (ed.), Secondo Rapporto sull’integrazione degli immigrati in Italia, Commissione per le politiche di integrazione degli immigrati, Dipartimento per gli Affari Sociali, Presidenza del Consiglio dei Ministri (Bologna, ), . Raimondo Cagiano de Azevedo, International Migrations as a Factor of Security and Cooperation in Europe and in the Mediterranean Region, Rome, Università degli Studi di Roma, ‘la Sapienza’,. Stephen Castles, ‘e process of Integration …’. Patrick ornberry, International Law and the Rights of Minorities (Oxford, ), . Ibid.
Legal Indicators for Social Inclusion of New Minorities e processes of integration and assimilation are often interrelated and this link may lead to tensions. For instance, second generations of immigrants having less cultural distance from the host society than their parents, have often undergone an assimilation process without having reached a satisfactory degree of integration from a socioeconomic viewpoint. is situation may evidently create difficulties among immigrants and host societies but also among first and second generations of immigrants.32 e processes of ‘segregation’ refer to the separation of a minority from the rest of the population in one or more core areas of daily social life. From a socioeconomic perspective, immigrants in a segregated position usually have low-skilled jobs, live in low-standard housing conditions and lack access to public services.33 e purpose of a comprehensive, long-term integration policy should be to ensure that immigrants can take an equal part in the life of society: Participation and equal opportunities are, thus, the key elements in such policies. In this perspective it is vital to promote all areas of social integration, both separately and interactively, including the labour market, education, language, culture and social and legal integration. Another central aspect is participation in public life by virtue of certain civic rights and civic duties. From a cultural viewpoint, integration policies strive to bring immigrants into mainstream society while simultaneously protecting minorities’ ability to develop and express their own sociocultural features.34 is concept is based on two elements: reciprocity and sociocultural diversity. e emphasis in this model is therefore intercultural integration or integration with preservation of the individual identity of both immigrant and receiving communities as well as mutual exchange among different cultures. In this perspective interculturalism is a step forward in comparison to multiculturalism, which refers to the development of immigrant populations with regard to language, culture, and social behaviour, but yet, remaining separate and distinguishable from the host population.35 e concept of integration adopted by the LISI project can be defined as ‘civic integration’, and is based on the idea of bringing immigrants’ rights and duties, as well as access to goods, services and means of civic participation, progressively into line with those of the nationals of their host state, under conditions of equal opportunities and treatment. In this perspective, integration can be measured in terms of citizenship rights rather than of nominal citizenship status.36 e concept of civic integration is in line with the EU Charter of Fundamental Rights37 that is moving towards the concept of ‘civic citizenship’ aiming specifically at putting member states’ nationals and long-term third-country 32
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Raimondo Cagiano de Azevedo and Barbara Sannino, ‘A European Research Project …’, . Ibid., . Council of Europe, Diversity and Cohesion: New Challenges for the Integration of Immigrants and Minorities (Strasbourg, ), -. Stephen Castles, ‘e process of Integration …’. Rainer Bauböck, ‘e Integration of Immigrants …’, para... OJC of December , . Article () (Fundamental Rights) of the Draft Treaty establishing the European Constitution provides: ‘e Charter of Fundamental Rights shall be an integral part of the Constitution. e Charter is set out [in the second part of/in a Protocol annexed to] this Constitution.’ CONV// – Draft of Articles to of the Constitutional Treaty, February .
Roberta Medda-Windischer residents on a similar legal footing. e idea of civic citizenship was first introduced by the European Commission in its Communication on a Community Immigration Policy38 which is part of the follow-up to the Tampere conclusions on the legal status of TCNs. is status would be acquired after five years’ residence in an EU country and would entail rights comparable to those of EU citizens, including the right to free movement and establishment throughout the EU. It is worth noting that the rights conferred by the Charter of Fundamental Rights under the chapters Dignity, Freedoms, Equality, Solidarity and Justice are already valid for all persons regardless of their nationality. ese include, for instance, the rights of everyone to freedom of associations at all levels, in particular political, trade unions and civic matters. e principle of universalism applies also to most rights of the Charter under the chapter on Citizens’ rights. Both nationals of the member states and immigrants residing there have the rights of access to documents and to petition the European Parliament or the European Ombudsman whereas the right to good administration is extended to ‘every person’. Yet there are important exceptions to the rights which are reserved only for the nationals of member states, including the rights to vote and stand as a candidate in European Parliament and local elections. 4. Indicators According to a classification proposed by the CoE, indicators can be divided into three categories:39 – Legal Indicators or Indicators of Accessibility: ese deal with the legal framework in which the immigrants live and reflect the country’s political perception and tendencies on immigration policy as well as determining to what degree migrants have access to crucial sectors of the host society. – Social Indicators: ese describe the actual situation of migrants in the host country and are mostly provided by national statistical offices. ese classical indicators can be divided into objective and subjective indicators: the former are statistics, which represent social facts independently of personal evaluations; the latter emphasize the individual perception and evaluation of these aspects. – Attitudinal Indicators: is third set concerns the attitudes of the migrants towards the host country, their personal expectations regarding their condition and participation in the social and political processes. e basis for the analyses of attitudes is opinion polls and surveys. In order to have as complete a picture as possible of a given phenomenon, the three sets of indicators should be applied simultaneously. By devising legal indicators only, the LISI projCommunication from the Commission to the Council and to the European Parliament on a Community Immigration Policy - COM(). See also, European Commission, Proposal for a Council Directive concerning the status of third country nationals who are long-term residents - COM() . 39 CoE, Measurement and indicators of integration, Directorate of Social and Economic Affairs (Strasbourg, ), . 38
Legal Indicators for Social Inclusion of New Minorities ect aims thus at complementing research and analyses conducted in the field of the social exclusion of migrants that do not always consider to a sufficient degree the legal aspects pertaining to social integration. e classical empirical analyses of the social integration of the LISI target group are, in fact, usually based on social indicators, i.e. statistical data, which are generally available to a limited degree only and are often not suitable for supporting comparative analyses because they are usually based on different survey methods. B. Methodology and LISI Indicators In the LISI project legal indicators are devised to measure social inclusion: Hence, the indicators are formulated as questions on accessibility rather than on obstacles, measuring means of inclusion and integration in national legal provisions relevant to the target groups. In order to generate a set of indicators that can be easily applied by different users, it was further decided that the indicators should be shaped as closed questions offering a yes or no option, indicating a positive attitude towards inclusion if answered yes and negative attitude if answered no. Obviously, some categories of target groups are excluded by definition from the scope of some indicators e.g. voting rights at national elections or citizenship claim for seasonal workers. Due to the rigidity and complexity of some indicators, the possibility of adding explanatory comments was introduced. is option can be used in cases in which a simple yes or no answer is not sufficient to reflect the existing legal situation in a country and, in particular, the actual implementation of some legal provisions. e advantage of this system is that non-legal considerations can be taken into account without challenging the fundamentally legal characteristics of the LISI indicators. Finally, in order to identify shortcomings and pitfalls in the national legislation, the LISI indicators should be used by a variety of actors ranging from government officials to NGO representatives. In this way, problems pertaining to the implementation of legal provisions or concealing indirect discrimination can emerge from the comparison of different comments even in the presence of consistent answers related to the mere existence or non existence of an abstract norm. As mentioned above, the LISI partners decided not to adopt a ‘rating system’ which assigns a discretionary point value to each indicator.40 e outcome of the completed questionnaire will provide coherent country reports identifying weaknesses, strengths and 40
An example of such a rating system is the IAS-Index (Institute of Advanced Studies – Vienna) which is constructed by measuring and quantifying the level of legal discrimination migrant workers and their families face in comparison to citizens of the host countries examined. According to this system, a group of experts evaluated and assessed relevant legal provisions on immigration awarding to the related indicators a number of points on the basis of their importance, with ‘zero’ meaning complete openness for integration and ‘one’ extremely high obstacles. e IAS-Index adopted the following formula: Is = -(Ir+Imw)/n(-), with Is = Importance of a specific indicator, Ir = Importance of the indicator legal claim, Imw=Importance of the indicator minimum waiting period and n(-) = Number of indicators (-). e indicator legal claim and the indicator minimum waiting period have very important implications in almost all domains of the migrants’ daily lives and, thus, are awarded more points than the other indicators, which are rated equally. For further reference, see Harald Waldrauch, Ein Index der rechtlichen Diskriminierung, Institute of Advanced Studies, (Wien, ).
Roberta Medda-Windischer best practices of the legal framework pertaining to migration. From this in-depth analysis report the reader will be able to infer the level of inclusion of the legislation on immigration in force in a given country as well as the political tendencies towards integration, assimilation or segregation. A few examples taken from different areas of concern will serve to illustrate how the LISI indicators function and are formulated: – Is it possible to obtain within five years41 of residence the least restricted work permit available within the national legislation? – Is it possible for TCNs42 to apply for citizenship based on their residency in less than five years? – Is it possible within three years of legal residence for migrant workers to obtain a permanent permit to stay? – Do TCNs have the possibility to apply for family reunification immediately upon their arrival in the host country? Other indicators refer, more specifically, to migrants as minorities as well as to interculturalism: – Are there legal provisions for TCN detainees ensuring the respect for their religious beliefs? – Does the labour law provide for cultural and religious diversity among workers, including TCNs (e.g. flexible holidays)? – Are there any legal provisions taking into account the cultural diversity of patients in the medical sector? – Are there legal provisions to promote awareness raising the of minority issues such as cultural diversity in the national curriculum for all children? – Is there a legal provision obliging schools to offer optional mother-tongue language courses for TCN children? – Do immigrants have the right to declare their ethnic/national background in census and other official/statistical data? C. Involvement of Stakeholders e experience generated so far in preventing and combating social exclusion has shown the need to adopt an integrated approach and to involve as many actors as possible in the design and implementation of actions aimed at combating social exclusion. roughout the implementation of the LISI project, the partners ensured the active involvement of a wide range of actors not exclusively from the three selected areas by consulting them and reviewing with them the results and achievements of the research. 41 42
References to time periods are based on empirical data available from EU member states with a focus on the data from the three regions examined (South Tyrol, Styria, London). In the LISI project, the term TCN is used in all those cases where the whole target group (migrant workers, seasonal workers, asylum-seekers and refugees) is addressed, whereas a distinction in wording is made when the situation described makes it necessary.
Legal Indicators for Social Inclusion of New Minorities During the project, a number of local and international workshops as well as a wide consultation forum were organized to both deepen discussion and widen the debate on the various issues under study. ese activities were open to a variety of actors, including representatives of the target groups, NGOs active in the fight against social exclusion experienced by this specific target group, local authorities, academics and researchers as well as other civil actors engaged in addressing problems centred around social exclusion of the new minorities originating from immigration. Furthermore, during the final Open Discussion Forum that was held on the Internet, actors not exclusively from the three selected areas were consulted to assess the relevance and applicability of the proposed set of indicators in an EU-wide context. In addition, through this large-scale consultation, the achievements and research findings of the project were made available to the general public. ese processes of dissemination had a multiplying effect and contributed to creating awareness and understanding of the problems of social exclusion of TCNs, promoting dialogue and facilitating the exchange of knowledge and experience with respect to these issues through mutual learning processes. III. C Common legal indicators are necessary to assess and discuss challenges and trends in the field of social inclusion and to arrive at common understanding and diagnosis as well as at comparable data. e LISI indicators are designed to engender standardized and comparable data in different countries and different contexts as well as to assess the impact of legal provisions on the social inclusion of the new minorities originating from immigration. e LISI indicators constitute a useful instrument for systematic comparisons across countries in specific policy areas and for generating inductive typologies or clusters of countries that show similar features in their approach to the legal integration of new minorities. ey are also a useful tool for underpinning areas in which legal measures should be adopted by the political bodies in order to counteract discrimination and forms of exclusion. In this perspective, they contribute to shedding light on the question of whether extending the range of legislation pertaining to national (old) minorities is actually useful for improving the protection of new minorities, or whether it would be more effective to focus on the implementation of general human rights law together with the specific instruments concerning migrants such as the UN Migrant Workers Convention43 or the CoE Convention on the Legal Status of Migrant Workers.44
International Convention on the Protection of the Rights of All Migrant Workers and Members of eir Families, adopted by General Assembly resolution / of December , entered into force on July , UN, A Compilation of International Instruments, ST/HR//Rev. (Vol. I/Part ), -. 44 European Convention on the Legal Status of Migrant Workers, adopted on November , entered into force on May , ETS No. . 43
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Part II Reports
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Part A INTERNATIONAL DEVELOPMENTS
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Rainer Hofmann*
Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities
I. I is review covers the period between January and December .1 It presents procedural and substantive aspects of the monitoring activities of the Advisory Committee on the Framework Convention for the Protection of National Minorities (hereinafter ‘the Advisory Committee’ and the Committee of Ministers and gives an overview of the follow-up activities which took place in subsequent to the adoption of the relevant opinions by the Advisory Committee and conclusions and recommendations by the Committee of Ministers. Before doing so it seems appropriate to give some information on factual and other developments related to the monitoring of the Council of Europe Framework Convention for the Protection of National Minorities (hereinafter ‘the Framework Convention’ or FCNM). e Framework Convention entered into force on February subsequent to its ratification by twelve Council of Europe (CoE) member states. As of January , it was in force for of the then member states2 and one non-member state;3 within a very *
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Professor Dr.; Director, Walther-Schücking-Institute for International Law, University of Kiel, Germany; President of the Advisory Committee under the Council of Europe Framework Convention for the Protection of National Minorities. e following views, however, are solely those of the author. For a review of the pertinent developments in previous years, see Rainer Hofmann, ‘Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities’, EYMI (/), -. ese were: Albania (entry into force on January ), Armenia ( November ), Austria ( July ), Azerbaijan ( October ), Bosnia and Herzegovina ( June ), Bulgaria ( September ), Croatia ( February ), Cyprus ( February ), Czech Republic ( April ), Denmark ( February ), Estonia ( February ), Finland ( February ), Germany ( February ), Hungary ( February ), Ireland ( September ), Italy ( March ), Liechtenstein ( March ), Lithuania ( July ), Macedonia ( February ), Malta ( June ), Moldova ( February ), Norway ( July ), Poland ( April ), Romania ( February ), Russian Federation ( December ), San Marino
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Rainer Hofmann short period of time, it had thus become one of the CoE human rights instruments with the highest rate of membership. is fact explains the considerable slowdown in additional ratifications of the Framework Convention which, in , entered into force for only one more member state: Portugal.4 is means that, as of January , seven CoE member states had signed but not yet ratified the Framework Convention5 whereas three member states had not yet taken any steps in order to become legally bound by this treaty.6 Another important event took place on May when, pursuant to Rule of resolution () of September which contains fundamental provisions on the monitoring arrangements under Articles - FCNM,7 the term of office of nine of the original ordinary members of the Advisory Committee expired. By virtue of the aforementioned rule, they were replaced by nine persons who, at that time, served as additional members.8 II. P A M A A C C M e main aspects of the procedure followed by the Advisory Committee and the Committee of Ministers in the conduct of their monitoring activities under the Framework Convention have been described in detail elsewhere.9 erefore, it seems justified to limit this part of the present report to a brief overview highlighting important developments which occurred in . A. Practice of the Advisory Committee e by now well-established practice of the Advisory Committee as concerns its monitoring activities may be summarized as follows: Immediately after the receipt of a state
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( February ), Slovakia ( February ), Slovenia ( July ), Spain ( February ), Sweden ( August ), Switzerland ( February ), Ukraine ( May ), and United Kingdom ( May ). e – then – Federal Republic of Yugoslavia ( September ). Entry into force on September . ese were Belgium (signature on July ), Georgia ( September ), Greece ( September ), Iceland ( February ), Latvia ( May ) and the Netherlands ( February ). ese were Andorra, France, and Turkey. On this document see Matthias Weckerling, ‘Der Durchführungsmechanismus des Rahmenübereinkommens des Europarates zum Schutz nationaler Minderheiten‘, EuGRZ (), -; and Rainer Hofmann, ‘Review of the Monitoring Process …‘, at . us, the Advisory Committee was composed, on January , of the following persons: Gáspár Biró (Hungarian, Second Vice-President), Mihai Cernenco (Moldovan), Anastasia Crickley (Irish), Asbjørn Eide (Norwegian), Tonio Ellul (Maltese), Zdzisław Galicki (Polish), Dimitar Gelev (Macedonian), Ferenc Hajos (Slovenian), Rainer Hofmann (German, President), Giorgio Malinverni (Swiss), Vsevolod Mitsik (Ukrainian), Iulia Motoc (Romanian), Sara Nuñez de Prado y Clavel (Spanish), Vladas Sirutavičius (Lithuanian), Eva Smith Asmussen (Danish), Athanasia Spiliopoulou Åkermark (Swedish, First Vice-President), and Ahmed Žilić (Bosnian and Herzegovinian). See Rainer Hofmann, ‘Review of the Monitoring Process …‘, -.
Review of the Monitoring Process of the Council of Europe Framework Convention report by the Secretariat – in either English or French, both the official languages of the CoE – it is transmitted to all members of the Advisory Committee.10 e members of the respective working groups11 receive, in addition thereto, all pertinent information available at the Secretariat, such as the often quite voluminous appendices to the state report containing the texts of the relevant legislation and court decisions, reports of monitoring bodies established under other human rights instruments and, in particular, information provided by international and national nongovernmental organizations (NGO). In a first meeting, the members of the competent working group identify those issues which they feel to be in need of additional information, most often relating to the factual situation, in order to be able to adequately assess the implementation of the Framework Convention in the state concerned. ey then draft a questionnaire which subsequent to its adoption by the plenary will be sent to the competent authorities of that state. In most cases, the replies to such questionnaires have proved to be sources of valuable information. Probably the most important aspect of the procedure leading to the drafting of an opinion has proved to be, however, country visits which the respective working groups conduct upon a pertinent invitation by the government concerned. In , the working groups continued their practice of meeting not only with representatives of government and other state organs (members of parliament, ombudsmen, judges) but also with representatives of national minorities and knowledgeable members of civil society. In addition thereto, such country visits now include, as a rule, a visit to regions where members of national minorities reside in order to obtain a better understanding of the situation in situ.12 It should be stressed that all such country visits proved to be extraordinarily informative as they were characterized by the determination of all parties to assist the working group, in open and frank discussions conducted in a spirit of true cooperation, in understanding the extent to which the provisions of the Framework Convention have been implemented. ese discussions also regularly address shortcomings in its domestic application and ways and means to reduce them. After the final meeting, the working group identifies the essential aspects of its draft opinion. In , the following three state reports were received: Azerbaijan - ACFC/SR (); Poland - ACFC/SR (); and the Federal Republic of Yugoslavia - ACFC/SR (). In the preceding years, state reports from the following states were received: In , San Marino, Cyprus, Finland, Liechtenstein, Croatia, Czech Republic, Italy, Slovakia, Denmark, Hungary, Romania, United Kingdom, Malta, Ukraine, and Estonia; in , Germany, Russian Federation, Moldova, Austria, Slovenia, and Spain; in , Norway, Switzerland, Sweden, Armenia, Albania, Lithuania, and Ireland. e full text of these reports is available at http: ///www.coe.int/t/e/human_rights/minorities. 11 In order to perform its monitoring activities as speedily as possible, the Advisory Committee decided, at the beginning of its work, to establish country-specific working groups which are primarily responsible for establishing the necessary contacts with governments and other actors in a given country and for drafting the text of an opinion on a specific state; on this issue see Rainer Hofmann, ‘Review of the Monitoring Process …’, . 12 In , such visits were conducted to the following states parties (in chronological order): Slovenia, Russian Federation, Norway, Albania, Switzerland, Lithuania, and Sweden. 10
Rainer Hofmann is draft opinion is then transmitted to the plenary for a first reading and, with the amendments agreed upon, eventually put to a vote. In this context it should be mentioned that the Advisory Committee decided, at its th meeting on November , to introduce certain changes to the structure of its opinions. In particular, it decided to discontinue the practice of submitting a ‘Proposal for conclusions and recommendations by the Committee of Ministers’ (Section V of the earlier opinions) and to introduce a new Section IV, entitled ‘Main findings and comments of the Advisory Committee’. e Advisory Committee also decided to submit ‘Concluding remarks’ in Section V instead of Section IV. ese changes became effective as of November and apply to all subsequent opinions adopted in the first monitoring cycle. ey have been made in the light of the first country-specific decisions on the implementation of the Framework Convention by the Committee of Ministers in October . e opinions adopted13 are then transmitted to the governments concerned and to the Committee of Ministers which, in fact, means to the Ministries of Foreign Affairs of all member states of the CoE. In this context, mention must be made of the fact that the Advisory Committee – just like most other monitoring bodies established under human rights treaties – is faced with the problem of delayed state reports. In such a case, the President of the Advisory Committee informs the Permanent Representative of the respective state at the CoE of this situation. If there is a considerable delay, the President informs the Chairman of the Committee of Ministers who then decides upon the action to be taken. Regrettably, such actions did not prevent some member states from avoiding their reporting obligations.14 e Advisory Committee has, therefore, approached the Committee of Ministers with a view to obtaining, in cases of particularly lengthy delays, authorization to begin monitoring even in the absence of the (initial) state report. is issue appears to be all the more urgent in view of the approaching second reporting cycle which, for a large number of states parties, will commence in when their second state reports are due. e Advisory Committee felt that such persistent delays in the submission of state reports might result in a situation in which some member states could escape without any form of monitoring under the Framework Convention, raising a serious challenge for the credibility of the entire monitoring mechanism. It must be stated, however, that, as of January , 13
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In , the Advisory Committee adopted eight opinions on the following state reports: on March , on Germany, Moldova, and Ukraine; on May , on Armenia and Austria; and on September , on Norway, the Russian Federation, and Slovenia. is means that, as of January , the Advisory Committee had altogether adopted opinions (in , it adopted opinions on Denmark, Finland, Hungary, Liechtenstein, Malta, San Marino, and Slovakia; and in on Croatia, Cyprus, the Czech Republic, Estonia, Italy, Romania, and the United Kingdom. As of January , the following state reports were delayed more than months: Bosnia and Herzegovina (report had been due on June ), Bulgaria ( September ), and Macedonia ( February ). In addition thereto, reports from the following states parties had been received with a delay exceeding months: Armenia (report due on November , received on June ), Austria (due on July , received on November ), Azerbaijan (due on October , received on June ), Moldova (due on February , received on June ), Slovenia (due on July , received on November ), Spain (due on February , received on December ), and Switzerland (due on February , received on May ).
Review of the Monitoring Process of the Council of Europe Framework Convention the Committee of Ministers had not yet taken any final decision on this initiative by the Advisory Committee. B. Practice of the Committee of Ministers Before describing and analyzing the pertinent practice of the Committee of Ministers, the issue of the unacceptably long duration of the confidential stage of the monitoring cycle has to be dealt with.15 1. A Persistent Shortcoming: e Duration of Confidential Monitoring A widely criticized shortcoming of the monitoring mechanism under the Framework Convention constitutes the duration of the confidential stage of the monitoring cycle: Pursuant to Rule of resolution (), the conclusions and recommendations of the Committee of Ministers shall be made public upon adoption; according to Rule , the opinions of the Advisory Committee shall be made public at the same time, ‘unless in a specific case the Committee of Ministers decided otherwise’; finally, under Rule , comments by states parties which, pursuant to a decision taken by the Committee of Ministers on February , should be submitted to the Committee of Ministers within four months of the receipt of the pertinent opinion, shall be made public together with the conclusions and recommendations of the Committee of Ministers and the opinions of the Advisory Committee. In view of the sometimes quite considerable period of time needed by the Committee of Ministers to adopt its conclusions and recommendations, the strict observance of these rules might result in situations in which the monitoring cycle clearly exceeds two years. In view of the widely held conviction that the opinions of the Advisory Committee (which constitute, as concerns substantive aspects, the major element of the monitoring activities under the Framework Convention), should be introduced into the public domain as early as possible in order to stimulate the envisaged public dialogue between all parties concerned, many quarters strongly welcomed the decision taken by the Committee of Ministers on February to allow the government concerned to make the pertinent opinion public, together with its comments, even before the adoption of conclusions and recommendations by the Committee of Ministers. It is, therefore, important to note that, in , the governments of Romania, the Czech Republic, Estonia, the United Kingdom, Germany, and Austria availed themselves of this option16 and thus followed the positive example, set in , by Finland, Slovakia, Liechtenstein, and Hungary. Particular mention is owed to the position taken by the German government which annexed to its own comments, the pertinent comments by organizations representing the national minorities residing in Germany. is is to be seen 15 16
On this issue, see Rainer Hofmann, ‘Review of the Monitoring Process ...’, at . It might be added that also the governments of Albania and Norway decided, on and February respectively, to make public the pertinent opinions of the Advisory Committee, together with the respective government’s comments.
Rainer Hofmann as a most welcome initiative in continuing the dialogue between the government and such organizations established in the process of drafting the state report of Germany, and should, in the opinion of the Advisory Committee, be followed by other governments. On the other hand, it must be regretted that the governments of Croatia, Cyprus, Italy, and Ukraine were not prepared to adhere to this practice; as concerns these states, the opinions of the Advisory Committee were made public in , upon adoption of the conclusions and recommendations of the Committee of Ministers.17 is means that, as of January , the opinions of the Advisory Committee on the following state reports were not yet in the public domain: Albania,18 Armenia,19 Moldova,20 Norway,21 Russian Federation,22 and Slovenia.23 us, it remains to be hoped that the practice of early publication of the opinions of the Advisory Committee will become even more widespread and that, eventually, governments will agree to publish them upon their receipt.24 2. e Conclusions and Recommendations of the Committee of Ministers As in , the actual discussion of the opinions of the Advisory Committee, including the main findings and comments and the concluding remarks, as well as the comments which both the government of the respective state and other governments might wish to submit, took place in the Rapporteur Group on Human Rights, a sub-body of the Committee of Ministers. e opinions continued to be introduced by representatives of the Advisory Committee who were also invited to be available for an ensuing exchange of views. is practice clearly strengthens the constructive dialogue between the two monitoring bodies under the Framework Convention and adds considerably to mutual understanding. is atmosphere of cooperation and constructive dialogue is also well reflected in the comments by the governments concerned.25 In most instances, they continued to consist, to a large extent, of information on developments which had taken place after the adoption of the opinion and can frequently be seen as reactions to concerns raised therein or during the meetings held in the context of the visits to the countries in question. In addition thereto, governments of course expressed their views if they disagreed with the findings of the Advisory Committee. An analysis of the more substantial conclusions and recommendations contained in 17
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In , this approach was taken by Denmark, Malta, and San Marino. But see supra note . It should be mentioned, however, that the Committee of Ministers adopted its pertinent conclusions and recommendations on January by which the opinion of the Advisory Committee which had been adopted on May , was made public. is opinion, which had been adopted on March , was also made public when the Committee of Ministers adopted, on January , it conclusions and recommendations. But see supra note . e pertinent opinion had been adopted on September . e pertinent opinion had been adopted on September . On this issue, see also Rainer Hofmann, ‘Review of the Monitoring Process ...’, at . ese comments are all accessible at http://www.coe.int/t/e/human_rights/minorities.
Review of the Monitoring Process of the Council of Europe Framework Convention the seven resolutions adopted by the Committee of Ministers26 in clearly shows that it continued to be particularly guided by the pertinent opinions of the Advisory Committee. With regard to Croatia, the Committee of Ministers concluded: that Croatia had made efforts in the overall protection of national minorities, in particular with respect to the Italian minority, and that further improvements in the statements and attitudes of the government as concerns the protection of national minorities had also been noted recently, and that these had resulted in certain positive developments in the legislative sphere;27 that the implementation of the Framework Convention was complicated by the consequences of the - armed conflict on the territory of Croatia, which had been a factor in difficulties encountered in norms protecting the rights of persons belonging to Serb and other national minorities;28 that, despite certain normative improvements, there remained a number of inadequacies in the legal framework concerning the protection of national minorities which ought to be addressed in the context of the ongoing legislative reform, including through the adoption of a new constitutional law on national minorities;29 that practice related to the implementation of the Framework Convention had improved regrettably slowly and that, in particular at the local level, some authorities appeared reluctant to implement measures to remedy the negative consequences of discriminatory practices and other minority-related problems that had occurred in the past to ensure that such problems did not occur in today’s Croatia;30 and that measures of some urgency were needed to improve the protection of national minorities in the field of employment, including in the overall policy on unemployment, and that further measures were also needed to improve access of persons belonging to national minorities to various media and their portrayal therein.31 Furthermore, the Committee of Ministers recommended that Croatia take appropriate account of these conclusions together with the various comments in the opinion of the Advisory Committee. Finally, the Committee of Ministers invited the Croatian government to continue the dialogue in progress with
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In , the Committee of Ministers adopted resolutions with regard to Croatia – ResCMN(); the Czech Republic – ResCMN(); Cyprus – ResCMN(); Romania – ResCMN(); Estonia – ResCMN(); the United Kingdom – ResCMN(); and Italy – ResCMN(). In , the Committee of Ministers adopted seven resolutions, namely on Denmark, Finland, Hungary, Liechtenstein, Malta, San Marino, and Slovakia. It might be added that, by mid-February , it had adopted four more resolutions, namely with regard to Armenia, Germany, Moldova, and Ukraine. All these resolutions are available at http://www.coe.int/t/e/human_rights/minorities. is clearly reflects the finding of the Advisory Committee in para. and the comments in para. and, as regards the Italian minority, paras. and of the opinion on Croatia. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. - of the opinion on Croatia. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. and of the opinion on Croatia. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. and of the opinion on Croatia. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. - and - of the opinion on Croatia.
Rainer Hofmann the Advisory Committee32 and to keep it regularly informed of the measures taken in response to the conclusions and recommendations set out in the resolution.33 With regard to the Czech Republic, the Committee of Ministers concluded: that the Czech Republic had made commendable efforts to complete the legislative framework related to the protection of national minorities and to support them and their respective cultures, and that progress had also been achieved in community relations;34 that further measures were still required in order to ensure full implementation of the existing constitutional guarantees linked to a number of articles in the Framework Convention;35 that despite increased governmental action, there was still scope for improvement, including the use of law-enforcement officials, with regard to intercultural dialogue and tolerance and the protection against ethnically motivated threats, violence and hostility, especially as concerns Roma, and that despite the determination of the Czech authorities to improve significantly the situation of Roma through a long-term policy, real problems remained, notably as regards the discrimination encountered by persons belonging to this minority in various fields;36 and that supplementary appropriate measures were required in order to improve the situation – in areas such as the education system, access to the media and the use of minority languages in relation to public authorities – of persons belonging to numerically small minorities.37 As in its previously adopted resolutions, the Committee of Ministers also recommended that the Czech Republic took appropriate account of these conclusions together with various comments in the opinion of the Advisory Committee, and invited the Czech government to continue the dialogue in progress with the Advisory Committee and to keep it regularly informed of the measures taken in response to the conclusions and recommendations set out in the resolution. With regard to Cyprus, the Committee of Ministers concluded: that Cyprus had in many respects made commendable efforts in the protection of national minorities, notably in access to radio broadcasting and in state support for national minorities, particularly in the field of education;38 that a number of problematic issues still needed to be addressed 32
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In line with this recommendation, the Croatian government organized, together with the CoE, a follow-up seminar in order to further strengthen the dialogue in progress; this seminar took place in Zagreb on March , less than two months after the adoption of the resolution. is formulation had already been used in all the seven resolutions adopted in and was used in all the seven resolutions adopted in . It can, therefore, be considered as consistent practice of the Committee of Ministers. is clearly reflects the findings of the Advisory Committee in paras. and and the comments in paras. and of the opinion on the Czech Republic. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. , and of the opinion on the Czech Republic. is clearly reflects the finding of the Advisory Committee in paras. and and the comments in paras. , to , to and - of the opinion on the Czech Republic. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. , , , and of the opinion. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. and of the opinion on Cyprus.
Review of the Monitoring Process of the Council of Europe Framework Convention considering at the same time that there are particular circumstances, including constitutional matters, to be taken into account in the case of Cyprus, and that these issues include the obligation for religious groups and their members to choose adherence to the Greek Cypriot or to the Turkish Cypriot community, and the impossibility for Turkish Cypriots to cast a vote in elections and to conclude civil marriages, including with Greek Cypriots;39 that despite important steps taken to ensure the participation of persons belonging to religious groups in public life, consideration should be given to making this participation more effective;40 and that further governmental measures were required to promote the conditions necessary for the Maronites to maintain and develop the essential elements of their identity.41 Again, as in all its previously adopted resolutions, the Committee of Ministers recommended that Cyprus take appropriate account of these conclusions together with the various comments in the opinion of the Advisory Committee, and invited the Cypriot government to continue the dialogue in progress with the Advisory Committee and to keep it regularly informed of measures taken in response to the conclusions and recommendations set out in the resolution. With regard to Romania, the Committee of Ministers concluded: that Romania had made commendable efforts to support national minorities and their cultures, and that improvements had been recorded in recent years in intercommunity relations and in the promotion of a climate of greater tolerance towards minorities;42 that an institutional framework and important legal guarantees pertaining to some articles of the Framework Convention had been adopted and others were under discussion, but that efforts were still needed to complete this framework as well as to ensure its full realization in practice;43 that further efforts were required notably in the fields of media, public employment and education, areas where particular attention would have to be paid to the numerically smaller minorities;44 and that, despite the determination of authorities to speed up the social integration of Roma, real problems remained, notably regarding acts of discrimination in a wide range of societal settings, the wide socioeconomic differences between a large number of Roma and the remaining population as well as their treatment by some law-enforcement officials.45 Again, as in all previously adopted resolutions, the Commit39 40 41 42 43 44 45
is clearly reflects the findings of the Advisory Committee in para. and and the comments in paras. , , and of the opinion on Cyprus. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. - of the opinion on Cyprus. is clearly reflects the finding of the Advisory Committee in para. and the comments in para. of the opinion on Cyprus. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. and of the opinion on Romania. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. , , -, and of the opinion on Romania. is clearly reflects the finding of the Advisory Committtee in para. and the comments in paras. , , , and of the opinion on Romania.. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. -, -, -, and - of the opinion on Romania.
Rainer Hofmann tee of Ministers recommended that Romania take appropriate account of these conclusions together with the various comments in the opinion of the Advisory Committee, and invited the Romanian government to continue the dialogue in progress with the Advisory Committee46 and to keep it regularly informed of the measures taken in response to the conclusions and recommendations set out in the resolution. With regard to Estonia, the Committee of Ministers concluded: that Estonia had made efforts to implement the Framework Convention and to improve intercultural dialogue in Estonia, and had paid, in particular, increasing attention to the integration of persons belonging to national minorities, including through the State Integration Programme;47 that protection of national minorities was not always addressed in an adequate manner in either the legislative process or administrative practice, and, despite certain recent improvements in the relevant legislation, there remained shortcomings with respect to the use of minority languages, including as regards private signs visible to the public;48 that some of the initiatives to protect national minorities, such as the National Minorities Cultural Autonomy Act, contained elements that were not particularly suited for the present situation of minorities in Estonia and needed to be revised or replaced in order for them to be effective with respect to all minorities concerned;49 that further efforts were needed in order to promote the process of naturalization, bearing in mind that the number of stateless persons remained high;50 and that, concerning the implementation of the ongoing reform of the educational system, including with respect to bilingual education, it was essential that the provisions aimed at increasing knowledge of the Estonian language were coupled with improved guarantees for persons belonging to national minorities to receive instruction in or of their language.51 Again, as in all previously adopted resolutions, the Committee of Ministers recommended that Estonia take appropriate account of these conclusions together with the various comments in the opinion of the Advisory Committee, and invited the Estonian government to continue the dialogue in progress with the Advisory Committee52 and to keep it regularly informed of the measures taken in response to the conclusion and recommendations set out in the resolution. In line with this recommendation, the Romanian government organized, together with the CoE, a followup seminar in order to further strengthen the dialogue in progress; this seminar took place in Bucharest on October , seven months after the adoption of the resolution. 47 is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. and of the opinion on Estonia. 48 is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. -, -, -, and of the opinion on Estonia. 49 is clearly reflects the finding of the Advisory Committee in para. and the comments in para. of the opinion on Estonia. 50 is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. -, and of the opinion on Estonia. 51 is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. - and - of the opinion on Estonia. 52 In line with this recommendation, the Estonian government organized, together with the CoE, a follow-up seminar in order further to strengthen the dialogue in progress; this seminar took place in Tallinn on September , three months after the adoption of the resolution. 46
Review of the Monitoring Process of the Council of Europe Framework Convention With regard to the United Kingdom, the Committee of Ministers concluded: that the United Kingdom had made particularly commendable efforts in opening up the personal scope of the Framework Convention to a wide range of minorities, and that commendable efforts had been made to establish a legal and institutional framework for the protection of national minorities through the application of the Race Relations Act () and its Amendment Act ();53 that valuable efforts had been made to tackle institutional racism in British institutions generally but that, however, further efforts were required to keep up the momentum in dealing with this issue, in particular by the police in areas such as the recording of racist incidents, the fair use of ‘stop and search’ and the recruitment and retention of persons from ethnic minorities;54 that further efforts were required to reduce the levels of unemployment of persons belonging to certain national minorities and also to tackle school exclusion and academic achievement levels;55 that commendable efforts had been made through the devolution process in Scotland, Wales and Northern Ireland, to create the conditions necessary for persons belonging to national minorities to participate effectively in affairs concerning them, and that devolution had brought with it increasing awareness and demand for recognition of the identity and in particular the language of national minorities, for which there remained scope for further protection, notably concerning the use of Irish;56 that, despite some commendable efforts, the implementation of the Framework Convention had not been fully successful as concerns Roma/ Gypsies and Irish Travellers, inter alia, due to the lack of adequate stopping places as well as the significant socioeconomic differences, and differences in educational levels, between Roma/Gypsies and Irish travellers and the remaining population;57 and that further consideration should be given to the development of comprehensive legislation providing persons belonging to national minorities with protection against religious discrimination, including a reform of the blasphemy laws.58 Again, as in all previously adopted resolutions, the Committee of Ministers recommended that the United Kingdom take appropriate account of these conclusions together with the various comments in the opinions of the Advisory Committee, and invited the British government to continue the dialogue in progress with the Advisory Committee and to keep it regularly informed of the measures taken in response to the conclusions and recommendations set out in the resolution.
53 54 55 56 57 58
is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. -, , , and - of the opinion on the United Kingdom. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. -, -, and - of the opinion on the United Kingdom. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. - and - of the opinion on the United Kingdom. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. -, -, - and - of the opinion on the United Kingdom. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. -, -, , and - of the opinion on the United Kingdom. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. - of the opinion on the United Kingdom.
Rainer Hofmann With regard to Italy, the Committee of Ministers concluded: that Italy had made most commendable efforts in many areas including education, media and effective participation for the German-speaking, French-speaking, Ladin and Slovene minorities living in the regions enjoying special autonomy; and that the series of measures taken in favour of the German-speaking minority of Trentino-Alto Adige had led to a commendable level of protection for this minority, and the system of allocating public posts strictly according to the size of the Italian-speaking, German-speaking and Ladin communities in the province of Bolzano had contributed to making the participation of these groups more effective;59 that the appreciable efforts recently made had led to the adoption of a coherent legislative framework designed to secure protection, on a national level, for the twelve historical linguistic minorities, including the numerically smaller ones for which measures aimed at preserving their identity were of particular relevance, but that this legislative framework would, however, not be fully operative until the protection perimeters applying to each minority had been defined;60 that certain national minorities, particularly the Albanian, Franco-Provençal, Walser and Ladin minorities, faced additional difficulties in maintaining and developing their identity since they were traditionally settled in several provinces and/or regions under protection arrangements that could differ markedly, and that, in order to remedy these difficulties, special efforts would have to be made to ensure that the new legislative framework was fully applied in practice, and that sufficient protective measures were taken at all levels, and that continued attention also be paid to the implementation of the recently adopted legislation governing the protection of the Slovene minority in the Friuli-Venezia Giulia region;61 and that real problems remained with respect to the implementation of the Framework Convention as concerns Roma, especially as regards access to housing, certain discriminatory practices, socioeconomic inequalities and participation in public affairs concerning them, and that the existing statutory provisions for safeguarding the identity and culture of the Roma were not yet adequate, and that Italy should consider a comprehensive and coherent strategy vis-à-vis the Roma, particularly so as to promote their integration into Italian society.62 Again, as in all previously adopted resolutions, the Committee of Ministers recommend that Italy take appropriate account of these conclusions together with the various comments in the opinion of the Advisory Committee, and invited the Italian government to continue the dialogue in progress with the Advisory Committee and to keep it regularly informed of the measures taken in response to the conclusions and recommendations set out in the resolution. is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. , , , , , , - and of the opinion on Italy. 60 is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. , -, , , , , , and of the opinion on Italy. 61 is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. , , , , , and of the opinion on Italy. 62 is clearly reflects the finding of the Advisory Committee in para. and the comments in paras. -, -, , , , and of the opinion on Italy.
59
Review of the Monitoring Process of the Council of Europe Framework Convention By way of conclusion, it seems important to stress that, as in the resolutions adopted in , all these conclusions of the Committee of Ministers clearly reflect the pertinent findings of the Advisory Committee; in fact, it should be emphazised that all the issues which the Advisory Committee had identified, in the concluding remarks of its opinions, as being of particular relevance were indeed addressed also in the conclusions of the Committee of Ministers. is, taken together with the fact that the Committee of Ministers continued its previous practice of recommending to states that they continue their dialogue in progress with the Advisory Committee and that they keep the Committee regularly informed about the measures being taken in order to implement the conclusions and recommendations set out in the resolutions, clearly shows the high relevance that the Committee of Ministers attaches to the Advisory Committee in the context of its monitoring activities under the Framework Convention. Moreover, it also shows the strong determination of both monitoring bodies to further strengthen the established, continuous and constructive dialogue between themselves, the state governments and national minorities concerned as the best means to monitor and improve the implementation of the provisions of the Framework Convention. III. S A M A A C When analyzing the substantive aspects of the monitoring activities of the Advisory Committee, it seems appropriate to differentiate between issues of a general character, such as the approach taken by the Advisory Committee as regards the personal scope of application of the Framework Convention, and the actual comments made under the various articles in each of the nine opinions which became accessible to the public in .63 A. General Issues Among the various general issues connected with the monitoring of the implementation of the provisions of the Framework Convention, the question as to its personal scope of application remains to be of particular significance. Since the pertinent approach taken by the Advisory Committee has been already explained in detail in a previous review,64 a brief survey of the rationale underlying this approach is deemed to be sufficient. In addition, a few other comments of the Advisory Committee addressing issues of a more general character are presented. ese were (in chronological order) the opinions on Romania (published on January and already dealt with in the report covering the period between January and December ); the Czech Republic (published on February ); Croatia (published on February ); Cyprus (published on February ); Estonia (published on April ); the United Kingdom (published on May ); Italy (published on July ); Germany (published on September ); Austria (published on November ); and Ukraine (published on November ). 64 See Rainer Hofmann, ‘Review of the Monitoring Process …‘, -. 63
Rainer Hofmann 1. e Personal Scope of Application of the Framework Convention At the outset, it must be recalled that the drafters of the Framework Convention did not agree on a definition of the term national minority and thus failed to provide the monitoring bodies with a clear indication as to the personal scope of application of the Framework Convention. is prompted several states to add declarations to their instruments of ratification.65 ese usually limit the applicability ratione personae to such groups as are commonly referred to as ‘old’ or ‘traditional’ minorities, i.e. those which have long-lasting ties with the territory on which they live and are nationals of the state of which that territory is a part. ey thus wished to exclude, in particular, ‘new’ minorities from the scope of personal application of the Framework Convention. A similar approach was taken by some states which indicated in their reports only ‘old’ minorities as being covered by the Framework Convention, whereas other states opted for a broad and inclusive approach making the Framework Convention applicable also to ‘new’ minorities. In view of this situation, in particular of the quite intricate legal problems raised by such declarations,66 the Advisory Committee decided, after considerable internal deliberations, to make use of the flexibility inherent in the wording of the Framework Convention and adopted, at least with respect to the first cycle of its monitoring activities, a pragmatic and flexible approach. It should be stressed that this approach has been followed also in those opinions which were adopted after June , i.e. by the Advisory Committee in its new personal composition.67 As concerns the issue of declarations as well as indications regarding the personal scope of application of the Framework Convention made only in the state report, the Advisory Committee continued and, thus, consolidated its previous practice. It sets out by underlining that, in the absence of a definition in the Framework Convention itself, the states parties must examine the personal scope of application to be given to the Framework Convention within their respective countries. e position of each government is, therefore, deemed to be the outcome of this examination. e Advisory Committee would then continue by noting that, on the one hand, states parties have a margin of appreciation in this respect in order to take into account the specific circumstances prevailing in their countries and that, on the other hand, this margin of appreciation must be exercised in accordance with general principles of international law and the fundamental principles set For the text of these declarations see http://www.coe.int/t/e/human_rights/minorities/. ese issues concern questions as to their legal quality (they might constitute declarations, interpretative declarations or even – disguised – reservations) as well as to their legal effect (are they considered to be binding upon the Advisory Committee and the Committee of Ministers?). For a thorough discussion of these complex issues, see Jochen Abr. Frowein and Roland Bank, ‘e Effect of Member States’ Declarations Defining ‘National Minorities’ upon Signature or Ratification of the Council of Europe Framework Convention for the Protection of National Minorities’, ZaöRV (), at . 67 Cf. the opinions on Albania (adopted on September and published on February ) and Norway (adopted on September and published on February ); as of April , the other opinions adopted after June , namely those on Lithuania (adopted on February ), the Russian Federation (adopted on September ), Slovenia (adopted on September ), Sweden (adopted on February ) and Switzerland (adopted on February ), were not yet in the public domain. 65
66
Review of the Monitoring Process of the Council of Europe Framework Convention out in Article FCNM. e Advisory Committee stresses, in particular, that the implementation of the Framework Convention should not be a source of arbitrary or unjustified distinctions. For this reason, the Advisory Committee considers as part of its duty the examination of the personal scope of application given to the implementation of the Framework Convention in order to verify that no such arbitrary or unjustified distinctions have been made. Furthermore, it considers that it must verify the proper application of the fundamental principles set out in Article FCNM.68 is approach of the Advisory Committee well reflects its general position of avoiding unnecessary confrontation with governments and rather of seeking to engage in constructive dialogue with a view to settling any disagreement as to the interpretation of the Framework Convention. In this context, it should also be indicated that the Advisory Committee expressly stated that it agrees with and welcomes the approach by the German authorities to consider that members of a national minority who live outside the minority’s traditional settlement area are also entitled in principle to protection under the Framework Convention.69 As regards the issue of the potential applicability of the Framework Convention also to persons belonging to ‘new’ minorities, the Advisory Committee continued and, thus, consolidated its previous practice. It notes that some of the provisions of the Framework Convention – such as Article () with its explicit reference to areas traditionally inhabited by persons belonging to a national minority – would obviously be applicable only to ‘old’ minorities. In contrast thereto, it is clear that Article FCNM applies to ‘all persons living on the territory’ of a given state party and, thus, also to persons belonging to ‘new’ minorities.70 Furthermore, it seems indeed possible to argue that also other provisions, such as Articles , , and FCNM could, at least in certain circumstances, be applicable also to persons belonging to ‘new’ minorities. See paras. - of the opinion on Austria (where the Advisory Committee encourages the Austrian authorities to continue to examine the issue of the existence of a Polish minority in consultation with the representatives of the Polish community, see in particular para. of that opinion; according to the Austrian government, only the following groups are considered to meet the conditions set out in Article () of the Law on Ethnic Groups (Volksgruppengesetz) and therefore recognized as national minorities: e Croat minority in Burgenland, the Slovene minority, the Hungarian minority, the Czech minority, the Slovak minority and the Roma minority); paras. - of the opinion on Croatia; paras. - of the opinion on Cyprus; paras. - of the opinion on the Czech Republic; paras. - of the opinion on Estonia; paras. - of the opinion on Germany; paras. - of the opinion on Italy; paras. - of the opinion on Ukraine (where the Advisory Committee expects that the results of the census will provide a basis for an improved dialogue between persons belonging to so-called subethnic groups of the Ukrainian people – such as e.g. Rusyns – and the authorities, covering also issues pertaining to the implementation of the Framework Convention, see para. of that opinion); and paras. - of the opinion on the United Kingdom (where the Advisory Committee noted that a number of persons living in Cornwall consider themselves to be a national minority within the scope of the Framework Convention, a view which is not shared by the British government, see para. of that opinion). 69 See para. of the opinion on Germany; see also para. of the opinion on Austria where the Advisory Committee welcomes the identical approach taken by the Austrian government and encourages the authorities concerned to ensure its full implementation as concerns the numerous Burgenland Croats living in Vienna. 70 See para. of the opinion on Austria; paras. - of the opinion on Germany; and para. of the opinion on Italy. 68
Rainer Hofmann Based upon this analysis, the Advisory Committee opted again for a flexible approach. As concerns persons belonging to groups other than those determined by the respective government to be covered by the Framework Convention, this approach makes it possible to consider the inclusion of persons belonging to such groups in the application of the Framework Convention on an article-by-article basis. As a result thereof, the Advisory Committee expressed its opinion that the competent state authorities should consider this issue in consultation with those concerned71 – again an example of the Advisory Committee’s general position of fostering and supporting constructive dialogue. It must be stressed, however, that the Advisory Committee clearly favours an inclusive approach as concerns the personal applicability of the Framework Convention as witnessed by several statements in which it either welcomes such an inclusive approach by a government72 or supports developments towards the de facto implementation of such an approach.73 In the international discussion on the contents of the term ‘national minority’, there is no unanimous view as to whether persons who differ from the majority population, only as regards their religion, might be considered as forming a national minority; in other words, whether international instruments aimed at the protection and promotion of the distinct identity of national minorities are also applicable to such ‘religious minorities’. At least as regards the Framework Convention, this issue has been solved by the recent practice of the Advisory Committee. In its opinion on Cyprus, it dealt extensively with the situation of the Maronites and, to a lesser extent, with other religious groups such as the Latin and Armenian communities74 and, thus, joined the approach followed by the Cypriot government which had explained in the state report that the Framework Convention applies to these groups. is position was also shared by the Committee of Ministers in its conclusions and recommendations on Cyprus.75 2. e Territorial Scope of Application of the Framework Convention Some states parties to the Framework Convention are faced with very complex issues resulting from the fact that the respective governments cannot exercise effective control over all parts of the territory of the state concerned. is applies, inter alia, to Cyprus (with respect to the part of the country presently under Turkish occupation), Moldova (with respect to the part of the country frequently referred to as Transnistria) and Serbia and Montenegro (with respect to Kosovo). Notwithstanding the fundamental historic, factual and legal differences existing between these situations, it seems to be of a more general
71
72 73 74
75
See para. of the opinion on Austria; para. of the opinion on Croatia; para. of the opinion on Cyprus; para. of the opinion on the Czech Republic; para. of the opinion on Estonia; para. of the opinion on Germany; para. of the opinion on Italy; para. of the opinion on Ukraine; and para. of the opinion on the United Kingdom. See para. of the opinion on the United Kingdom. See para. of the opinion on Croatia and para. of the opinion on Estonia. See e.g., -, , and - of the opinion on Cyprus. See supra text accompanying notes and .
Review of the Monitoring Process of the Council of Europe Framework Convention interest to present the approach chosen by the Advisory Committee in its opinion on Cyprus.76 e Advisory Committee pointed out that in examining the measures taken to give effect to the provisions of the Framework Convention, it had only taken account of the territory under government control. us, the situation in areas beyond such control falls outside the scope of its opinion. For the Advisory Committee, this approach seemed to constitute the only viable position since it respects, at the same time, both the territorial integrity of Cyprus and the factual limitations faced by the Cypriot government as concerns effective control over all Cypriot territory. e Advisory Committee also expressed the hope that a lasting and just political solution be found to resolve the problems, also in the interest of persons belonging to national minorities. It further underlined that the legal and constitutional arrangements included in a future political settlement must be compatible with the provisions of the Framework Convention and considered that the CoE could have an important role to play in ensuring this result. In this context, the Kosovo issue might be raised since the Advisory Committee will have to address it when preparing its opinion on the state report by Serbia and Montenegro.77 While it is clear that the Framework Convention applies, in principle, also in the area of Kosovo as a result of the accession to that treaty by the (then) Federal Republic of Yugoslavia on May , it is equally clear that the government in Belgrade is prevented from exercising effective control over that area by virtue of the pertinent United Nations Security Council Resolutions establishing the international administration of Kosovo. In such a situation, it might contribute to the improvement of the dialogue between the various ethnic groups in Kosovo if mechanisms could be found which, being acceptable to all parties concerned, would enable the Advisory Committee to monitor the effective implementation of the Framework Convention in the area of Kosovo. 3. e Framework Convention: A Living Instrument As with any international human rights instrument, the question arises as to whether the provisions of the Framework Convention ought to be interpreted in a dynamic manner, whether it constitutes a living instrument, or whether the implementation of its provisions should be monitored in view of the contents given to them by the respective states parties at a given moment in time. In the context of its examination of the issue of the compatibility of the system of individual declarations of linguistic affiliation, presently applicable in the Italian province of Bolzano (Bozen) by virtue of Article of the (Italian) Presidential Decree No. of July , in particular as concerns its effects on the right of every person to choose to be treated as someone belonging to a national minority or not, the Advisory Committee 76 77
It might be added that the same approach was followed in the opinion on Moldova (published on January and therefore outside the temporal scope of this report); see paras. - of that opinion. is report was received on October .
Rainer Hofmann concluded that the measures contained in the ‘package’ – a series of measures taken in favour of the German-speaking population of South Tyrol – must also allow for developments over time and not be rigidly set in time.78 is statement which is fully in line with a judgment of the European Court of Justice79 must be interpreted as a clear indication that the Advisory Committee when interpreting the provisions of the Framework Convention, adheres to the approach chosen by the European Court of Human Rights when interpreting the provisions of the European Convention on Human Rights, namely to consider CoE human rights instruments as living instruments and thus subject to a dynamic interpretation. is means that measures taken by states parties in order to favour a specific national minority should be constantly monitored as to whether they are still needed in order to achieve their goal, and therefore should be maintained, or whether they are no longer needed and, therefore should be adapted to a changed situation in order to prevent any unwelcome petrification of a given situation. 4. e Roma. A Particularly Vulnerable National Minority As appeared from the analytical overview of the comments of the Advisory Committee contained in the previous review, the situation of the Roma minorities in various countries raised serious concerns with regard to a large number of provisions of the Framework Convention.80 Most regrettably, the Advisory Committee, in its opinions dealt with in this review, came, with regard to many states parties, to the same assessment concerning the truly deplorable situation of the Roma, in particular, the widespread discrimination against them in many societal settings including in the field of education and their often disadvantaged position as regards their socioeconomic situation.81 e Roma are therefore to be considered as a most vulnerable national minority. So it is essential that activities aimed at a fundamental improvement of the specific situation of Roma are vigorously continued and, if need be, substantially increased, both on the national and international level. e Advisory Committee, therefore, strongly welcomes and fully supports pertinent initiatives by various governments both in and outside the CoE. B. Analytical Overview of the Comments of the Advisory Committee is report concerns the eight opinions which became accessible to the public in . Together with the eight opinions published in which were the subject of the report in the previous volume of this yearbook, they reveal a more complete picture of the issues dealt with so far and give an indication as to the understanding of the Advisory CommitSee paras. - of the opinion on Italy, in particular para. . See ECJ, case C-/, Angonese v. Cassa di Risparmio di Bolzano SpA, judgment of June , [] ECR . 80 See Rainer Hofmann, ‘Review of the Monitoring Process …‘, -. 81 For details see Section B. consisting of an analytical, article-by-article overview of the comments of the Advisory Committee.
78
79
Review of the Monitoring Process of the Council of Europe Framework Convention tee concerning the contents of the various provisions of the Framework Convention. It must be stressed, however, that a comprehensive analysis of its practice will, of course, only be possible upon completion of the first cycle of monitoring, i.e. in . Furthermore, it must be mentioned that the Advisory Committee continued, as in the opinions dealt with in the previous report, to consider – with respect to Articles , , and FCNM – that, on the information currently at its disposal, the implementation of these articles did not give rise to any specific observation. It stressed, however, that this statement was on no account to be understood as signalling that enough had been done and that efforts in that respect might be diminished or even halted. It was emphasized that the nature of the obligations of the Framework Convention requires a sustained and continued effort by the authorities to respect the principles and achieve the goals of the Framework Convention. It was also added that a certain state of affairs might, in the light of the recent entry into force of the Framework Convention, be considered acceptable now but that in further cycles of monitoring that would not necessarily be the case.82 Finally, it must be stressed that the purpose of this review is to report on the more general issues raised under the various provisions of the Framework Convention. erefore, it does not deal, or it deals only to a more limited extent with the comments of the Advisory Committee on the sometimes quite specific problems faced by certain national minorities in a given country, problems which are considered to be of lesser or no relevance, for the task of identifying the general contents of the various provisions of the Framework Convention as understood by the Advisory Committee. 1. Article 3 FCNM is provision guarantees, in its first paragraph, the right of every person belonging to a national minority to choose freely between being treated as belonging to a national minority or not, and that no disadvantage shall result from this choice or from the exercise of the rights connected to that choice, and, in para. , the right of such persons to exercise the freedoms flowing from the principles enshrined in the Framework Convention individually as well as in community with others. While the bulk of the comments made by the Advisory Committee under this article continued to concern the previously discussed issue of whether the applicability ratione personae of the Framework Convention might be restricted by pertinent declarations made by the states concerned on signature or ratification of the Framework Convention, or by indicating, in the state report, the groups which the respective government considers to be covered by the Framework Convention some comments also related to other issues of general relevance. e Advisory Committee stated again that the recognition of a group of persons as constituting an indigenous people does not exclude persons belonging to that group from benefiting from protection afforded by the Framework Convention since the fact that a group of persons may be entitled to a different form of protection, cannot by itself justify 82
See paras. of the respective opinions on Italy and the United Kingdom; paras. of the respective opinions on Austria and Germany; paras. of the respective opinions on Croatia, the Czech Republic, Estonia, and Ukraine; and para. of the opinion on Cyprus.
Rainer Hofmann their exclusion from other forms of protection.83 us, the Advisory Committee confirmed its position taken previously,84 a position which now can be considered as forming part of the practice of the Advisory Committee. is approach is of considerable importance for the examination of the reports of states, such as Norway, the Russian Federation and Sweden, whose populations all contain indigenous people. Another important issue concerns the collection of personal data for statistical purposes, in particular as regards the taking of censuses. In view of the fact that accurate statistical data are indispensable for any government policy aiming at the protection and promotion of the rights of persons belonging to national minorities, the Advisory Committee continued to be of the opinion that, on condition that the principles identified in the Committee of Ministers Recommendation () Concerning the Protection of Personal Data Collected and Processed for Statistical Purposes are respected, persons belonging to national minorities should be encouraged to make use of the possibility to identify themselves. In this context, the Advisory Committee noted, in particular, that states parties should ensure that the collection and publication of such data is coupled with adequate legal safeguards, also taking into account the principles contained in the Committee of Ministers Recommendation () on the Communication to ird Parties of Personal Data held by Public Bodies.85 It also stressed that the right not to be treated as a person belonging to a national minority also extended to census situations and that a mandatory question on one’s ethnicity is not compatible with this principle.86 Finally, the Advisory Committee continued to be of the opinion that the collection of personal data on an individual’s affiliation with a particular national minority without their consent and without adequate legal safeguards would not be in compliance with Article FCNM; this applies, in particular, if such collecting of data is carried out by state officials.87 2. Article 4 FCNM In para., this provision guarantees to every person belonging to a national minority the right to equality before the law and so prohibits any pertinent discrimination, and, in para. , obliges states parties to promote effective equality between the persons belonging to a national minority and those belonging to the majority. Its implementation by the states parties again prompted a large number of comments by the Advisory Committee.
83 84 85
86 87
See para. of the opinion on Ukraine with regard to the legal position of the Crimean Tatars resulting from Article of the Ukrainian Constitution. See para. of the opinion on Denmark with regard to Faeroese and Greenlanders, and paras. - of the opinion on Finland with regard to the Sami. See paras. - of the opinion on Croatia. See para. of the opinion on Estonia; and para. of the opinion on Ukraine; see also paras. - of the opinion on Italy. See para. of the opinion on Germany; and para. of the opinion on Ukraine; see previously paras. - of the opinion on Slovakia.
Review of the Monitoring Process of the Council of Europe Framework Convention e Advisory Committee stressed that this provision requires not only the enactment of legislation protecting all persons against discrimination, both by public authorities and private entities, but also effective remedies against such acts of discrimination.88 e Advisory Committee also noted that wide discrepancies exist in some countries, between government statistics and the estimates of national minorities themselves as to the number of persons belonging to those national minorities. Since such discrepancies could seriously hamper the ability of the state to target, implement and monitor measures ensuring the full and effective equality of persons belonging to national minorities, the Advisory Committee considered again that governments should seek to identify ways and means of obtaining reliable statistical data.89 It also stated that, if – in view of the historical context and the particularly sensitive nature of this information for persons belonging to national minorities – exhaustive statistical data pertaining to national minorities cannot be collected, other methods should be used, with the cooperation of the national minorities, such as estimates based on ad hoc studies. is data should be broken down by age, gender and location.90 More specifically, the Advisory Committee considered that, in some countries, Roma face a broad range of socioeconomic problems to a disproportionate degree. erefore, the Advisory Committee welcomed pertinent government (plans of ) action, and stressed that when implementing such programmes, particular attention should be paid to the situation of Roma women.91 While refraining from addressing general issues of citizenship legislation, the Advisory Committee welcomed legislative developments which, in some states, contributed to the elimination of difficulties, faced in an inequitable manner by persons belonging to national minorities, as regards attempts to invoke relevant norms in order to clarify citizenship issues.92
88
89
90 91
92
See para. of the opinion on Austria; paras. - of the opinion on Croatia; paras. - of the opinion on Cyprus; paras. - of the opinion on the Czech Republic; para. of the opinion on Estonia; para. of the opinion on Germany; para. of the opinion on Italy; paras. - of the opinion on Ukraine; and para. of the opinion on the United Kingdom. See previously para. of the opinion on Denmark; para. of the opinion on Hungary; para. of the opinion on Romania; and para of the opinion on Slovakia. See para. of the opinion on Austria; para. of the opinion on Croatia; and para. of the opinion on the Czech Republic. See previously para. of the opinion on Hungary; para. of the opinion on Romania; and para. of the opinion on Slovakia. See para. of the opinion on Germany. See para. of the opinion on Austria; para. of the opinion on Croatia; paras. - of the opinion on the Czech Republic; para. of the opinion on Germany; paras. - of the opinion on Italy; para. of the opinion on Ukraine; and paras. - of the opinion on the United Kingdom. See previously para. of the opinion on Finland; paras. - of the opinion on Hungary; paras. - of the opinion on Romania; and paras. - of the opinion on Slovakia. See para. of the opinion on Croatia; para. of the opinion on the Czech Republic; para. of the opinion on Estonia; para. of the opinion on Italy; and para. of the opinion on Ukraine.
Rainer Hofmann 3. Article 5 FCNM In para. , this provision obliges states parties to promote the conditions necessary for the preservation and development of the distinct culture of national minorities, and prohibits, in para. , policies and practices aimed at the forced assimilation of persons belonging to national minorities. In this context, the Advisory Committee welcomed state programmes providing for financial support for cultural activities conducted by persons belonging to national minorities and stressed that they can only be successful if they are designed and implemented in close consultation and cooperation with the persons concerned.93 Particular attention should be given to the situation of numerically small national minorities.94 More specifically, the Advisory Committee found that there is a lack of adequate stopping sites for Roma and Irish Travellers and that this has contributed to many of them having to give up their itinerant lifestyle.95 Moreover, the Advisory Committee expressed its deep concern about the forced dissolution of a municipality with Sorbian character, by allowing lignite quarrying to continue, as such measures are likely to make the preservation of the Sorbian minority identity more difficult due to the population displacement involved. It called upon the competent authorities to pay due heed to a national minority’s legitimate aspirations maintaining their culture and preserving their identity when weighing any public interest.96 4. Article 6 FCNM is provision obliges, in para. , states parties to encourage a spirit of tolerance and intercultural dialogue and to take effective measures to promote mutual respect and understanding among all persons living on their territory, and, in para. , to take appropriate steps to protect persons against threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity. Its implementation by the states parties prompted a large number of comments. In this context, the Advisory Committee identified, as an apparently rather widespread and disconcerting phenomenon, ongoing discrimination against Roma in many social settings, such as in admission to places of entertainment and in the areas of employment and housing.97 It also noted with concern instances of physical attacks or threats against Roma
93
94 95
96
97
See paras. - of the opinion on Austria; para. of the opinion on Croatia; para. of the opinion on Cyprus; para. of the opinion on the Czech Republic; paras. and of the opinion on Estonia; paras. - of the opinion on Germany; paras. - of the opinion on Italy; paras. - of the opinion on Ukraine; and paras. - of the opinion on the United Kingdom. See previously para. of the opinion on Hungary; paras. and of the opinion on Romania; and paras. - of the opinion on Slovakia. See paras. and of the opinion on Austria; and paras. - of the opinion on Italy. See paras. - of the opinion on the United Kingdom. See paras. - of the opinion on Germany. See para. of the opinion on Austria; paras. - of the opinion on the Czech Republic; para. of the opinion on Germany; para. of the opinion on Italy; and para. of the opinion on Ukraine. See previously para. of the opinion on Finland; and para. of the opinion on Slovakia.
Review of the Monitoring Process of the Council of Europe Framework Convention and the existence of anti-Roma sentiment among members of the police forces amounting even to acts of police brutality against Roma.98 is serious situation is further aggravated by the fact that some media continue to present information in such a way as to rather strengthen existing negative stereotypes of minorities, in particular of the Roma. e Advisory Committee, therefore, called again upon governments to support professional exchange programmes for journalists as well as other measures aimed at promoting accurate and balanced reporting on minority questions, bearing in mind freedom of expression and the principles enshrined in the Committee of Ministers Recommendation () on the Media and the Promotion of a Culture of Tolerance.99 Finally, in line with the wide scope of personal applicability of Article FCNM, the Advisory Committee identified a number of serious problems faced by non-citizens, including asylum-seekers and migrant workers, in particular as regards incidents of xenophobia, discrimination as concerns access to work and remuneration, and over-representation in special schools for under-achievers and, correspondingly, under-representation at institutions of secondary and tertiary education.100 5. Article 7 FCNM is provision obliges states parties to ensure respect for the right of every person belonging to a national minority to the freedoms of peaceful assembly, association, expression, and of thought, conscience and religion. In this context, and in line with its so-called ‘article-by-article approach’, the Advisory Committee stated that laws which pertain to the freedoms guaranteed in this provision should not refer to citizens only as the subjects of the rights and freedoms in question as this might imply undue limitations on their scope of personal application.101 6. Article 8 FCNM is provision on the freedom to manifest one’s religion continued to be of only minor relevance for the monitoring activities of the Advisory Committee. It should be mentioned, however, that the Advisory Committee, while recognizing that the Framework Convention does not exclude all differences in the treatment of religious entities, was of the opinion that such differences must not result in undue limitations of the rights of persons See paras. - of the opinion on the Czech Republic; para. of the opinion on Italy; para. of the opinion on Ukraine; and paras. - of the opinion on the United Kingdom. See previously para. of the opinion on Finland; para. of the opinion on Hungary; paras. and of the opinion on Romania; and para. of the opinion on Slovakia. 99 See para. of the opinion on Austria; para. of the opinion on Croatia; para. of the opinion on the Czech Republic; para. of the opinion on Ukraine; and para. of the opinion on the United Kingdom. See previously para. of the opinion on Finland; paras. and of the opinion on Romania; and para. of the opinion on Slovakia. 100 See paras. - of the opinion on Austria; paras. - of the opinion on Germany; para. of the opinion on Italy; para. of the opinion on Ukraine; and paras. and of the opinion on the United Kingdom. 101 See para. of the opinion on Ukraine. 98
Rainer Hofmann belonging to national minorities.102 More specifically, the Advisory Committee held that the absence of comprehensive legislation to protect individuals from religious discrimination or religious hatred has an adverse effect on persons belonging to national minorities. is is, in particular, the case if blasphemy laws are restricted solely to one religion.103 7. Article 9 FCNM e first paragraph of this provision guarantees freedom of expression, and is concerned in paras. -, with the media. In addition to several country-specific comments,104 the Advisory Committee expressed its concern about the uneven allocation of resources to different national minorities concerning television and radio programmes.105 It also stressed that the availability of foreign broadcasting in the language of a national minority does not eradicate the need for and importance of, domestically produced broadcasting in that language.106 8. Article 10 FCNM is provision concerns the right of persons belonging to national minorities to use their language including in dealings with administrative authorities. In this context, the Advisory Committee welcomed the fact that the Croatian, Hungarian and Slovenian languages may be used in the Austrian Länder of Carinthia, Burgenland and Styria in relations with administrative authorities in districts where persons belonging to a given national minority represent at least % of the population;107 e Advisory Committee also considered that the Croatian law on the Use of Language and Script of National Minorities, adopted on May , has improved the pertinent legal framework, although the numerical threshold for the obligatory introduction of minority language in contacts with municipal and town authorities is high and uncertainties persist since it is unclear as to whether this obligation applies to municipalities and towns where persons belonging to a given national minority constitute an absolute majority of the population or whether it is enough that persons belonging to a specific minority constitute a relative majority.108 102 See para. of the opinion on Croatia.
103 See paras. - of the opinion on the United Kingdom.
104 See, e.g., para. of the opinion on Austria dealing with the specific needs of Czechs, Slovaks and Hungar-
105
106 107
108
ians living in Vienna; para. of the opinion on Estonia dealing with obligation for television broadcasters to provide Estonian translation of their broadcasting in a minority language; para. of the opinion on Italy dealing with the problem of technically restricted reception of radio and television broadcasts for some national minorities; and para. of the opinion on Ukraine dealing with the limited availability of broadcasting in the Crimean Tatar language. See paras. - of the opinion on Austria; paras. - of the opinion on Croatia; paras. and of the opinion on the Czech Republic; paras. - of the opinion on Estonia; paras. - of the opinion on Germany; para. of the opinion on Italy; paras. - of the opinion on Ukraine; and para. of the opinion on the United Kingdom. See para. of the opinion on Estonia; and para. of the opinion on Germany. See paras. - of the opinion on Austria. See paras. - of the opinion on Croatia.
Review of the Monitoring Process of the Council of Europe Framework Convention It noted some shortcomings as to the full implementation of the relevant legislation in the Czech Republic109 and concluded that the current legislative framework relating to the use of minority languages in relation between persons belonging to national minorities and the administrative authorities in Estonia lacks clarity and that the numerical threshold – that at least half of the permanent residents of the locality at issue belong to a national minority in order for that minority to enjoy the right to receive replies from state or local government agencies in a minority language – is too high.110 e Committee found that the German authorities should ensure that existing legal provisions concerning the use of Sorbian in official dealings are properly implemented in practice;111 concluded that, in Italy, persons belonging to the French-speaking, German-speaking, Ladin and Slovene minorities enjoy significant possibilities to use their languages in dealings with the administrative authorities, although some difficulties have been reported from the Friuli-Venezia Giulia region as concerns the use of Slovenian, whereas persons belonging to numerically smaller minorities such as e.g. Albanian, Catalan, Greek, Franco-Provençal, Friulian, Occitan and Sardinian minorities, in the geographical areas of their substantial or traditional settlements, have very limited, if any, possibilities for using their minority languages in dealings with the administrative authorities in Italy;112 considered that, in Ukraine, the legal threshold to use a minority language other than Russian in contacts with administrative authorities – in localities where a minority constitutes a majority – is too high whereas the Law on Languages provides far-reaching guarantees for such use of Russian;113 and concluded that the use of minority languages with administrative authorities within the United Kingdom is significantly less developed in Northern Ireland than either in Wales or Scotland.114 us, as concerns the highly controversial question as to the numerical threshold for invoking the right of persons belonging to national minorities to use their language in dealings with administrative authorities under Article () FCNM, the Advisory Committee has made it clear that the requirement that persons belonging to a specific national minority constitute the majority in the locality concerned is incompatible with the Framework Convention.115 e fact that the Advisory Committee expressly welcomed the Austrian legislation and jurisprudence according to which this right applies to all municipalities with minority populations exceeding % of the total population of those municipalities,116 might be seen as an indication of the final position still to be adopted in the future. 109 See paras. - of the opinion on the Czech Republic. 110 See paras. - of the opinion on Estonia. 111 See para. of the opinion on Germany. 112 See paras. - of the opinion on Italy.
113 See paras. - of the opinion on Ukraine.
114 See paras. - of the opinion on the United Kingdom.
115 See paras. , and respectively of the opinions on Croatia, Estonia and Ukraine. 116 See para. of the opinion on Austria.
Rainer Hofmann Finally, attention should be drawn to the fact that the Advisory Committee stressed that the fact that persons belonging to national minorities also have a command of the (dominant) language – the language other than their mother tongue used in dealings with administrative authorities – is not decisive, as the effective use of minority languages remains essential in consolidating the presence of those languages in the public sphere.117 9. Article 11 FCNM is provision concerns several linguistic rights, such as the right to use one’s own name in the form of the minority language (para. ); to display in a minority language signs and other information of a private nature to the public (para. ); and the right, granted under specific conditions, to display topographical signs in a minority language (para. ). As to the right enshrined in para. , the Advisory Committee noted with approval that recently enacted Czech legislation provides for the possibility of female surnames to be entered in registers without the feminine suffix required by Czech grammar;118 in contrast thereto, it found that, despite the existing legislation, there are reports suggesting that a Ukrainian version of names has in some cases been imposed upon persons belonging to national minorities.119 Concerning the right provided for by para. , the Advisory Committee concluded that Art. of the Estonian Language Act is not compatible with this provision insofar as it prevents persons belonging to a national minority from displaying signs and other information of a private nature visible to the public.120 With respect to the right guaranteed by para. , the Advisory Committee welcomed a recent decision by the Austrian Constitutional Court in which it had ruled that if a national minority formed more than % of the total population in an area over a long period of time, this was sufficient to entitle the inhabitants to the display of bilingual topographical indications.121 It noted that Croatian legislation provides for a legal framework for the display of topographical indications in a minority language but still lacked effective implementation;122 it also welcomed recently enacted legislation in the Czech Republic by virtue of which bilingual topographical signs may be displayed if % of the population residing in the municipality consider themselves as persons belonging to the national minority concerned, and, of these, at least % so request.123 With respect to the situation in Estonia, it concluded that the opportunity to display topographical indications in a minority language has not been widely exercised by the municipalities concerned;124 it found that despite legal requirements to display topographical indications in the Sorbian 117 See para. of the opinion on Germany.
118 See para. of the opinion on the Czech Republic. See previously para. of the opinion on Slovakia. 119 See paras. - of the opinion on Ukraine. 120 See para. of the opinion on Estonia.
121 See paras. -, in particular para. of the opinion on Austria. 122 See para. of the opinion on Croatia.
123 See para. of the opinion on the Czech Republic. 124 See para. of the opinion on Estonia.
Review of the Monitoring Process of the Council of Europe Framework Convention language in areas traditionally inhabited by Sorbians, monolingual signs are only being replaced by bilingual ones at a very slow rate;125 it welcomed the fact that recently enacted Italian legislation now provides a clear legal basis enabling local authorities to adopt topographical indications in accordance with local traditions and customs;126 and concluded that the numerical threshold for the introduction of place names in a minority language in Ukraine – the minority in question must constitute a majority in the locality at issue – constitutes an obstacle with respect to certain minority languages in areas traditionally inhabited by substantial numbers of persons belonging to a national minority.127 10. Article 12 FCNM is provision concerns the position of national minorities in the educational system. Its implementation by the states parties gave rise to a larger number of comments by the Advisory Committee. Particular attention was – again128 – accorded to the situation of Roma children. e Advisory Committee expressed its concern about the abnormally high level of absenteeism among Roma pupils129 and about an apparently widespread practice of placing Roma children in special educational groups or even schools designed for mentally disabled children, due to either real or perceived language and cultural differences between the Roma and the majority. e Advisory Committee stressed that such placing should only occur when absolutely necessary on the basis of consistent, objective and comprehensive tests. In order to effectively remedy this situation, governments should bear in mind the principles contained in the Committee of Ministers Recommendation () on the Education of Roma/Gypsy Children in Europe.130 In addition thereto, the Advisory Committee noted that, notwithstanding commendable efforts to improve the situation, a shortage of both available textbooks in minority languages and of qualified teachers still persists in some countries.131 Finally, the Advisory Committee noted that the ongoing reform of the Estonian educational system significantly limits the amount of instruction available in the Russian language and recommended that the authorities ensure that the increasing focus on the 125 See paras. and of the opinion on Germany. 126 See para. of the opinion on Italy.
127 See para. of the opinion on Ukraine.
128 See previously para. of the opinion on Finland; para. of the opinion on Hungary; paras. - of the
opinion on Romania; and paras. and of the opinion on Slovakia.
129 See para. of the opinion on Italy; para. of the opinion on Ukraine; and paras. - of the opinion on
the United Kingdom.
130 See para. of the opinion on Croatia; paras. - of the opinion on the Czech Republic; para. of the
opinion on Ukraine; and para. of the opinion on the United Kingdom. It should be noted, however, that the Advisory Committee commended Austria for the determined efforts of the authorities due to which there are no longer any Roma children attending special schools for mentally disabled children, see para. of the opinion on Austria. 131 See para. of the opinion on Austria; para. of the opinion on Croatia; and para. of the opinion on Ukraine.
Rainer Hofmann Estonian language not cause difficulties for persons belonging to national minorities with respect to their equal opportunities for access to higher education.132 11. Article 13 FCNM is provision obliges states parties to recognize the right of persons belonging to national minorities to set up and to manage their own private educational and training establishments. In this context, the Advisory Committee called upon national authorities to continue discussions with representatives of national minorities in order to find solutions to the financial problems linked to the running of private schools.133 12. Article 14 FCNM is provision is concerned with the right of persons belonging to national minorities to learn and to be instructed in their language. Its implementation by the states parties gave rise to a large number of comments by the Advisory Committee. e Advisory Committee stressed that, when decisions are taken concerning the continuation or closure of schools, particular attention should be paid to the fact that schools with instruction in, or of, a minority language contribute, by their very existence, to the preservation of the distinct identity of the national minority concerned.134 It also noted that states parties should when embarking upon a far-reaching reform of their educational system resulting in a decrease of instruction in minority languages, introduce detailed guarantees as to how persons belonging to national minorities will be provided with adequate opportunities for being taught the minority language or for receiving instruction in that language.135 e Advisory Committee also found that, in some countries, the language of the Roma is either not taught at all or to an insufficient extent. erefore, it called upon governments to examine whether that situation meets the demands of the Roma and to establish whether further measures are needed to ensure adequate opportunities for being taught the Roma language or for receiving instruction in that language.136 Finally, from a more general perspective, it should be mentioned that the Advisory Committee indicated, in some instances, that it considered a truly bilingual education to be a most appropriate way to implement the obligations flowing from Article FCNM.137
132 See para. of the opinion on Estonia.
133 See para. of the opinion on Austria; and paras. and of the opinion on Germany. 134 See para. of the opinion on Austria; and paras. - of the opinion on Germany.
135 See paras. - of the opinion on Estonia; and paras. - of the opinion on Ukraine. 136 See para. of the opinion on Croatia; and para. of the opinion on Italy.
137 See, e.g., paras. - of the opinion on Austria; and para. of the opinion on Estonia.
Review of the Monitoring Process of the Council of Europe Framework Convention 13. Article 15 FCNM is provision is concerned with the right of participation in public affairs, and in economic and social life. Its implementation by the states parties resulted in a large number of comments by the Advisory Committee. e Advisory Committee noted that, in some countries, the representation of national minorities on local, regional and central level legislative bodies is low, and recommended that governments examine ways and means to improve this situation.138 In particular, they should ensure that, if advisory or consultative bodies are established, they represent national minorities in an adequate manner.139 It also stressed the relevance of territorial autonomy for the preservation and promotion of the distinct identity of national minorities.140 Furthermore, the Advisory Committee found that, in some countries, persons belonging to national minorities are clearly under-represented in a wide range of public sector services,141 and that unemployment rates are often higher amongst persons belonging to national minorities.142 Finally, it stressed that language proficiency requirements should be limited carefully to situations where they are necessary to protect a specific public interest.143 Again, the Advisory Committee expressed its concern about the shortcomings that remain, notwithstanding a number of commendable efforts made by the governments concerned, as regards the effective participation of the Roma in social and economic life and the negative impact that these shortcomings have on the social and economic living conditions of this minority in general and of Roma women in particular.144 14. Article 16 FCNM is provision obliges states parties to refrain from measures which alter the proportions of the population in areas inhabited by persons belonging to national minorities and which are aimed at restricting the rights flowing from the Framework Convention. In this 138 See paras. - of the opinion on Croatia; para. of the opinion on the Czech Republic; paras. and
of the opinion on Ukraine; and para. of the opinion on the United Kingdom.
139 See paras. and of the opinion on Austria; para. of the opinion on Croatia; para. of the opinion
140 141 142 143
144
on Cyprus; para. of the opinion on the Czech Republic; paras. and of the opinion on Estonia; para. of the opinion on Germany; para. of the opinion on Italy; and para. of the opinion on Ukraine. See paras. and of the opinion on Italy. See previously para. of the opinion on Denmark; and para. of the opinion on Finland. See paras. - of the opinion on Croatia; para. of the opinion on Italy; and para. of the opinion on the United Kingdom. See para. of the opinion on Estonia; paras. and of the opinion on Ukraine; and para. of the opinion on the United Kingdom. See paras. and of the opinion on Estonia. See para. of the opinion on Austria; para. of the opinion on Croatia; para. of the opinion on the Czech Republic; para. of the opinion on Germany; and para. of the opinion on Italy. In this context, see previously para. of the opinion on Finland; para. of the opinion on Hungary; para. of the opinion on Romania; and para. of the opinion on Slovakia.
Rainer Hofmann context, the Advisory Committee stated that, if such changes have occurred as a result of an armed conflict, it is essential that the authorities address issues relevant for the return process.145 15. Article 17 FCNM In its comments made with respect to this article, the Advisory Committee continued to express the wish that initiatives to impose visa requirements on the citizens of neighbouring countries would be implemented in a manner that will not cause undue restrictions on the rights of persons belonging to national minorities to establish and maintain contacts across frontiers.146 16. Article 18 FCNM With respect to this provision, the Advisory Committee continued to welcome the fact that states parties had concluded bilateral treaties touching upon the protection of persons belonging to national minorities.147 17. Conclusion By way of a conclusion, it seems justified to state that this analytical survey of the substantive aspects of the monitoring activity of the Advisory Committee reveals the determination of the governments concerned to improve the situation of national minorities. is development is to be strongly welcomed. Admittedly, considerable problems as identified in the comments of the Advisory Committee persist in all countries but it seems possible to remedy them by concerted efforts based upon a constructive dialogue between all the actors involved. ere must be, however, deep concern as regards the socioeconomic situation of the Roma in many countries which is clearly incompatible with the principles laid down in the Framework Convention. In order to remedy this unacceptable situation, pertinent efforts have to be considerably increased, both on the national and the international level. IV. T F-U As concerns the follow-up procedure, it is essential to note that the Committee of Ministers, in its resolutions adopted in , confirmed its position taken in .148 In line with the position taken by the Advisory Committee, it decided that such a follow-up should 145 See para. of the opinion on Croatia.
146 See para. of the opinion on Estonia; and para. of the opinion on Ukraine. See previously para. of
the opinion on Hungary; para. of the opinion on Romania; and para. of the opinion on Slovakia.
147 See para. of the opinion on Austria; para. of the opinion on Croatia; para. of the opinion on Cyprus;
para. of the opinion on the Czech republic; para. of the opinion on Estonia; para. of the opinion on Germany; para. of the opinion on Italy; and para. of the opinion on Ukraine. See previously para. of the opinion on Finland; para. of the opinion on Hungary; para. of the opinion on Romania; and para. of the opinion on Slovakia. 148 See Rainer Hofmann, ‘Review of the Monitoring Process …‘, at .
Review of the Monitoring Process of the Council of Europe Framework Convention consist of a continuous dialogue between the respective governments and the Advisory Committee. As reported above, the Committee of Ministers did not only recommend that the states parties concerned take appropriate account of the pertinent conclusions adopted by the Committee of Ministers, but also of the various comments in the opinions of the Advisory Committee. Moreover, it invited the governments concerned to continue the dialogue in progress with the Advisory Committee and to keep it regularly informed of the measures taken in response to the conclusions and recommendations of the Committee of Ministers. is means that, in contrast to the mechanisms prevailing in some international human rights treaties monitoring systems, states parties are not only obliged to report periodically, but are under a legal duty to maintain a continuous dialogue with the Advisory Committee. It should be noted that the comments of the governments concerned on the respective opinions of the Advisory Committee must be seen as an essential part of that dialogue since they contain, to a large extent, information on recent developments which often directly relate to concerns raised and comments made by the Advisory Committee in its opinions. Moreover, it must be stressed that the governments are expected not only to regularly submit information as to the measures taken in response to the specific conclusions of the Committee of Ministers, but also as regards initiatives taken with respect to the detailed and specific comments made by the Advisory Committee. It is clear that the resolutions of the Committee of Ministers entrust the Advisory Committee with a most vital role in the follow-up procedure, notwithstanding the fact that the ultimate political responsibility for monitoring the application of the Framework Convention on the domestic level remains with the Committee of Ministers. It must also be noted that this decision of the Committee of Ministers reflects a high degree of confidence in the capacity of the Advisory Committee to perform its tasks within the follow-up procedure in a responsible manner based upon a legally sound interpretation of the provisions of the Framework Convention. Another and even more important element of the follow-up procedure concerns initiatives aimed at increasing public awareness and knowledge of the opinions of the Advisory Committee and stimulating a constructive dialogue on the domestic level. To this end, it is essential that the opinions be translated not only into the official language(s) of the state party concerned, but also into relevant minority languages. It must be stressed, however, that, during , follow-up seminars turned out to constitute the most important aspect of the follow-up procedure. Such follow-up seminars were held in Helsinki on February , in Zagreb on March , in Tallinn on September , in Sinaia (Romania) on - October , and in Budapest on December .149 ey were open to the public and attended by competent government officials, representatives of national minorities, members of civil society, and representatives of the Advisory Committee. ey offered an ideal opportunity to present the contents of the opinions of the Advisory Committee and the pertinent governments’ comments as well as to engage in a fruitful exchange of views as to the measures to be 149 e programmes of these seminars are available at http://www.coe.int/T/e/human_rights/minorities.
Rainer Hofmann taken by the respective governments concerned with a view to complying with the pertinent resolutions of the Committee of Ministers. Many more of these follow-up seminars, considered extremely useful by the authorities as well as the representatives of the national minorities concerned, are under preparation for . e advent of the second cycle of monitoring in will give additional momentum to the follow-up procedure. In the outline for state reports to be submitted under the second monitoring cycle,150 each state party is requested to indicate the follow-up activities organized subsequent to the adoption of the pertinent resolution by the Committee of Ministers, and to indicate what steps have been taken, by the state party concerned, to improve the implementation of the Framework Convention in response to said resolution; moreover, states parties are requested to answer specific questions submitted separately by the Advisory Committee as part of the continuing dialogue with the Advisory Committee. V. C R To sum up, it seems justified to state that the two bodies responsible for the monitoring activities under the Framework Convention continued their quite successful activities. eir practice has indeed contributed considerably to a constructive dialogue between governments and the majority and minority populations and, thus, played an important role as concerns the improvement of the situation of national minorities. is does indeed effectively diminish the risk of violence and instability. ere remains, however, reason for justified critique which concerns, in particular, the duration and lack of transparency of the monitoring activities. In this context, it is again suggested that states parties should give favourable consideration to an even earlier publication of the opinions of the Advisory Committee which constitute – from a substantive point of view – the core element of the monitoring system. Notwithstanding the increased number of governments which decided to make these opinions accessible publicly before the adoption of the pertinent resolutions by the Committee of Ministers, there remains a large number of governments which did not take such a decision. is means that in many cases the duration of the confidential stage of the monitoring cycle is unacceptable. It must also be stressed that representatives of national minorities should, as a rule, be involved in the process of producing the state reports and invited to comment on the opinion of the Advisory Committee. Finally, it must be emphasized again151 that, in this author’s opinion, a considerable shortening of the duration of the monitoring cycle is impossible in view of the financial and human resources presently available for the work of the Advisory Committee. Notwithstanding continuous requests for a considerable increase both as concerns financial and human resources which have been based upon the strongly increased amount of work 150 is outline was adopted by the Committee of Ministers on January , see CoE document ACFC/
INF().
151 See Rainer Hofmann, ‘Review of the Monitoring Process …‘, at .
Review of the Monitoring Process of the Council of Europe Framework Convention to be shouldered by the Advisory Committee and its Secretariat as a result of its central role in the follow-up activities and the advent of the second cycle of monitoring, there have been no additional resources made available. is most regrettable development implies that the admittedly necessary shortening of the monitoring cycle of each and every state report will remain impossible – unless one would accept a decrease in the quality of the opinions of the Advisory Committee. is, however, is an option unacceptable for the Advisory Committee and its Secretariat and, it is hoped, also for the states parties and national minorities concerned.
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Antonio Bultrini *
Developments in the Field of the European Charter for Regional or Minority Languages
I. T E C R M L: A O A. e Charter and its Material Provisions e European Charter for Regional or Minority Languages (hereinafter ‘the Charter’) is one of the most recently established conventions (it entered into force on March ) of the Council of Europe (CoE) and yet is one of the most dynamic: In just five years states have ratified it1 and more have signed it. Above all, the Charter constitutes the only existing legally binding instrument devoted to the protection and the promotion of regional or minority languages.2 e primary purpose of the Charter is of a cultural nature. Its drafters were inspired by the fact that many of the regional or minority languages spoken throughout Europe appeared to be highly endangered due to the levelling effect of modern societies dominated by mass communication and characterized by the rupture of the link between generations which had for centuries ensured the transmission of cultural features, including language, from one generation to the next. e drafters of the Charter thus considered that this phenomenon posed a major threat to the cultural and linguistic diversity of Europe, which is one of the key features of European identity. Of course, the fact that behind the languages are persons who speak them should not be underestimated and indeed the Charter does not neglect the ‘human dimension’. us, *
1 2
Lawyer, co-secretary of the European Charter for Regional or Minority Languages. Armenia, Austria, Croatia, Cyprus, Denmark, Finland, Germany, Hungary, Liechtenstein, the Netherlands, Norway, Poland, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom. For further information see the website of the Charter: http://www.coe.int/minlang. For an overview in French see Regina Jensdottir, ‘Qu’est-ce que la Charte européenne des langues régionales ou minoritaires?’, Hérodote, Langues et territoires, (), -.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Antonio Bultrini the preamble of the Charter, which contributes to explaining the philosophy behind the treaty, refers to the ‘right to use a regional or minority language in private and public life’ as ‘an inalienable right conforming to the principles embodied in the United Nations International Covenant on Civil and Political Rights, and in accordance with the spirit of the European Convention for the Protection of Human Rights and Fundamental Freedoms’.3 Having said that, it should be stressed once more that the primary concern of the Charter is the cultural dimension. at is confirmed by the fact that the Charter does not as such grant any individual or collective rights and that unlike the Framework Convention for the Protection of National Minorities – the CoE’s instrument for dealing with minorities as such – the Charter’s direct object is the languages themselves and not the groups who speak them. According to Article , the Charter covers the languages which have been traditionally used within a given territory of a state by nationals of that state who form a group numerically smaller than the rest of the state’s population. is latter provision excludes explicitly the languages of migrants and the dialects of the official language(s) of the state. Of course, in some cases the distinction may not be easy. For example, many of today’s European minorities were originally migrant communities, and deciding at what point in time a language could be considered as traditionally spoken in a given area may indeed give rise to delicate and tricky questions. Furthermore, the distinction between a language and a dialect may be controversial in several cases. erefore, the Charter leaves it to the state to make an assessment in such cases and would only question such an assessment in the case of a manifestly unjustified refusal to recognize the quality of being a language or the ‘traditionally spoken’ element.4 e context of mass communication in modern societies and the related endangered situation of many of Europe’s regional or minority languages led the drafters of the Charter to the conviction that only positive action by the states, not only to protect but also to promote these languages, could preserve the European linguistic heritage. at explains to a large extent the nature of the legal instrument they chose, which aims at imposing positive obligations upon states. ese positive obligations are of two different sorts and correspond to the two operative parts of the Charter, Parts II and III respectively. Part II applies to all regional or minority languages spoken within the state and lays down the aims and principles which are to be the states’ long-term policy targets. ese aims and principles, embodied in Article of the Charter, include, inter alia, the recognition of the regional or minority languages as an expression of cultural wealth, the respect for the geographical area in which each language is spoken, the facilitation and/or encouragement of the possibility to use regional or minority languages, in speech and writing, in 3
4
Linguistic and cultural rights can be considered as the third generation of human rights (civil and political rights being the first generation and social and economic rights being the second). In this sense see Florence Benoît-Rohmer, ‘Les langues officieuses de la France’, Revue française de droit constitutionnel (), -, at . For example, Germany decided to include Low German in the instrument of ratification, Low German being a very old form of German that many considered to be a dialect.
Developments in the Field of the European Charter for Regional or Minority Languages public and private life, and the teaching and study of these languages at all the appropriate stages. In addition, states are required to eliminate discrimination with respect to the use of regional or minority languages. Although the Charter is principally concerned with languages which are historically identified with a particular territory of the state, Part II of the Charter extends, mutatis mutandis, the protection provided by Article to ‘non-territorial languages’, such as Romany or Yiddish (Article para. ). Part III of the Charter provides for a more detailed set of specific obligations. It follows an à la carte pattern, whereby the state is offered the possibility: ) of selecting the languages to which Part III will apply; ) of choosing the undertakings it will enter into for each one of these languages amongst the paragraphs and subparagraphs set out in Part III. e specific obligations provided for under Part III cover all the main fields which are relevant in order to give real protection and promotion to regional or minority languages: education (Article ), justice (Article ), dealing with the administration (Article ), media (Article ), culture (Article ), economic and social life (Article ) and transfrontier exchanges (Article ). In each field various provisions are proposed and for many of these provisions the state may also choose an option corresponding to a concrete level of protection: For example, with regard to preschool education (Article () (a)) the state may choose to provide the entire basic education in the language or only a substantial part of it. e reason for this margin of choice is not, of course, to grant the state an arbitrary power of choice. e drafters of the Charter relied on the diverse factual situations in each specific country: In fact, each regional or minority language is a unique case. erefore, it would have made no sense to impose on states a uniform standard for the greatly diversified situations which exist in reality. e menu offered by Part III is aimed precisely at allowing the state to carefully tailor its undertakings to the specific context, features and needs of each language. In any event, in order to ensure at least a minimum range of commitments for each language, Article para. of the Charter requires the state to apply a minimum of paragraphs or subparagraphs chosen from among the provisions of Part III, including at least three chosen from each of the Articles and and one from each of the Articles , , and . Only Article (transfrontier exchanges) is therefore entirely optional. A final remark in this respect: As has already been mentioned earlier, legally speaking the Charter implies positive obligations on the state and does not, as such, grant any individual or collective rights. However, it is for the state to decide how best to implement the said positive obligations and the most efficient way to achieve this result may, in several cases, be the granting of rights.
Antonio Bultrini B. e Monitoring Mechanism Another key feature of the Charter’s system is its monitoring mechanism, aimed at ensuring that the Charter is effectively implemented. e central element of the mechanism is an independent Committee of Experts (Article of the Charter).5 e starting point of the monitoring process is in principle the presentation by the state of a report aimed at explaining the situation of the various languages affected by the implementation of the Charter and the measures, of a formal as well as of a practical nature, adopted by the national authorities with a view to complying with the state’s undertakings, both under Part II and under Part III.6 e first report must be submitted within a year following the entry into force of the Charter with respect to the state concerned. en subsequent reports are to be submitted at three-year intervals after the first report (Article para. ). Reports must be made public by the state concerned, at least in the official language(s). After a first examination of the initial state report, the Committee of Experts may decide, and usually does so, to ask the state to submit supplementary information or to clarify any issue that the state report may not have dealt with in a sufficiently clear or complete manner. e practice so far shows that such supplementary questions are not addressed to states in the context of the second monitoring round. On the other hand, a constant and crucial feature of the monitoring process which has so far concerned both the initial and subsequent rounds is the on-the-spot visit which the Committee of Experts carries out in the relevant state with a view to assessing how the Charter is actually implemented on the ground. To this purpose, the Committee of Experts meets with on-the-spot representatives of the users of the various regional or minority languages, nongovernmental organizations, media representatives, local, regional and central authorities, and may also decide to visit schools or courts. In the context of this fact-finding process, bodies or associations legally established in a party may draw the attention of the Committee of Experts to matters relating to the undertakings entered into by the state under Part III of the Charter. e bodies or associations in question may also submit statements concerning the policy pursued by states in accordance with Part II (Article para. of the Charter). After giving the state concerned the possibility to submit its observation and statements, the Committee of Experts may take such comments into account.7 Following this process of information gathering, the Committee adopts a report which contains its assessment on how the Charter is implemented by the state concerned. e state is then given the possibility to submit its comments and once they are received, the whole package – report plus Government’s comments – is sent to the Committee of Min5 6 7
e Committee of Experts is composed of one member for each contracting state, who is elected by the Committee of Ministers out of a list of three candidates proposed by the state concerned. e question as to how the mechanism would cope with a situation where a state failed to submit the report has never arisen so far. Such comments and statements must be submitted at the latest within a month after the on-the-spot visit has taken place.
Developments in the Field of the European Charter for Regional or Minority Languages isters (CM) of the CoE together with proposals, by the Committee of Experts, for the recommendations to be addressed by the CM to the state concerned. Unless the CM decides otherwise, the Committee of Experts’ report (including the Government’s comments) together with the recommendations that the CM may have adopted is then made public. It should be noted, in this respect, that the evaluation report of the Committee of Experts stands on its own and contains various recommendations and observations. Only the most urgent and serious points lead to a specific recommendation by the CM as well. e mechanism depicted above is completed by an additional feature, which is specific to the Charter. e Secretary General of the CoE is indeed required to report every two years to the Parliamentary Assembly of the CoE concerning the implementation of the Charter. Two such reports have been submitted to the Parliamentary Assembly so far (in and ). e interest of these reports, beyond their ‘institutional’ purpose, lies in the fact that they provide a comprehensive and horizontal overview of the implementation of the Charter. us, they are aimed, inter alia, at highlighting the problematical subject areas that the monitoring mechanism has spotted across the various states parties. II. D F C In the relevant period ( June -) two reports were examined and made public by the CM. ey concern respectively Germany and Sweden and constitute the eighth and ninth reports finalized up to June .8 1. Germany e report on Germany9 is the longest document produced so far by the monitoring mechanism. at is not surprising, given the complexity and wide scope of the German instrument of ratification. e following languages are covered by Part III of the Charter: Danish, North Frisian, Sater Frisian, Low German, Upper Sorbian and Lower Sorbian. In addition, Romany was at the time covered only by Part II of the Charter. It is worth noting that the complexity of the instrument of ratification is also due to the fact that the German Government chose a different menu of undertakings for each language and as far as Low German is concerned, it further tailored its undertakings to each one of the Länder to which Part III applies.10 Of course, the specific situation of Germany as a federal state and the structure of distribution of competences contribute to explaining the complex and particularly structured approach of the German authorities. A complex approach aimed at tailoring the undertakings to the specific situation of each language is in any event, as 8 9 10
e other reports finalized up to June concern the following countries: Croatia, Finland, Hungary, Liechtenstein, Norway, the Netherlands and Switzerland. Report of the Committee of Experts on the application of the Charter ECRML () , Strasbourg, July MIN-LANG () final, at http://www.coe.int/minlang. Namely to the Länder of Bremen, Hamburg, Mecklenburg-Western Pomerania, Lower Saxony and Schleswig-Holstein.
Antonio Bultrini already mentioned, totally in line with the spirit of the Charter. Two rather relevant general problems were tackled by the Committee of Experts in the German case. In the first place, the Committee of Experts dealt with the question of the self-executing nature of the Charter, as an international treaty, in German law and with the ensuing question as to whether or not this would be sufficient to ensure implementation. e Committee of Experts concluded that specific provisions (administrative or legal where necessary) may still be necessary in order for the undertakings to become operational in practice.11 It must be mentioned, in this respect, that in its comments to the report, the German government took exception to this line of reasoning and argued that particularly in the case of Articles and further regulations would not provide any legal advantage and would only create redundant rules of law.12 However, the CM adopted a specific recommendation on this point along the line followed by the Committee of Experts. e second general problem highlighted by the Committee of Experts stems from the fact that even though Low German, spoken in Brandenburg, Saxony-Anhalt and North Rhine/Westphalia, was not included in Part III, the German authorities decided nevertheless to enter voluntarily into some of the undertakings of Part III in this case. e Committee of Experts evaluated the concrete compliance with these voluntary undertakings13 but considered this approach acceptable only insofar as there would be an underlying intention to progress to full Part III protection.14 e German government took exception to this conclusion too. In its comments it clarified that the purpose of these voluntary undertakings was only to clarify the scope of protection afforded under Part II through Part III provisions which are met by the current administrative practice and thus to facilitate the monitoring of the implementation of Part II. According to the German government, which stressed that the relevant declaration was accepted by the Contracting Parties without any objection, the listing of voluntary undertakings does not imply any declaration of intent with a view to expanding the scope of Part III protection.15 As far as the interpretation of specific provisions of Part III is concerned, the Committee of Experts conducted a particularly detailed evaluation which led to the construction of a more accurate interpretation of some of the Charter’s provisions. e two following points seem worth mentioning. As far as Article (dealings with the public administration) is concerned, beyond the formal compliance with some of the undertakings under this provision, the Committee of Experts underlined the importance of concrete positive measures of encouragement to make the undertakings in this domain produce practical results leading to a more frequent use of the language in the sphere of public administration. e aim is on the one hand to 11 12 13 14
15
See report of the Committee of Experts., finding D., ; for concrete examples see e.g. paras. , - and . Ibid., -. Ibid., -. Ibid., finding B., . Ibid., .
Developments in the Field of the European Charter for Regional or Minority Languages make it clear to the speakers that they may use the languages in some of the dealings with the administration and on the other, to ensure that the public services concerned are fully aware of this. Such measures should be aimed at the authorities in the first place, through corresponding instructions (or, where necessary, formal legal rules), and then at the speakers as well, through publicity given to the instructions addressed to the authorities, or doorplates announcing the command of the minority language by the administrator concerned (and also through an increase of the staff having a command of the language).16 Concerning Article para. (b) (ii) and para. (c) (ii), which provide for the encouragement and/or facilitation of the broadcasting of, respectively, radio programmes and television programmes on a regular basis, the Committee of Experts considered that the existence of programmes broadcast regularly by public stations was commendable but not sufficient for the purpose of this provision, which requires measures of encouragement aiming at private stations as well.17 Finally, the Committee of Experts highlighted the endangered situation of Lower Sorbian, North Frisian and Sater Frisian.18 is concern was also shared by the CM in its recommendations (recommendation no. ). More generally, the CM also stressed the need for specific planning and adequate resource allocation in the field of education (recommendation no. ), as well as the need to improve teacher training (recommendation no. ) and to promote the presence of the regional or minority languages in the media (recommendation no. ). 2. Sweden e first evaluation report on Sweden was adopted by the Committee of Experts on December . On June the CM decided to make it public and adopted a series of recommendations for the Swedish authorities. According to the Swedish instrument of ratification, the following languages are covered by Part III of the Charter (further the general Part II protection): Sami, Finnish and Meänkieli in the Norrbotten County (Tornedal Finnish). Romani Chib and Yiddish (however, very little information concerning the latter was provided by the speakers of this language) are covered by Part II of the Charter as non-territorial languages. e Committee of Experts also dealt with the issue of Scanian, the nature of which (language or dialect) is disputed.19 e Committee of Experts expressed its concern in particular for South Sami, since substantial parts of the speaking population reside outside the area protected under Part III. Although the language is of course protected under Part II, the Committee of Experts
16
17
18 19
Ibid., in particular paras. , , -, -, -, , -, , , - and . See also finding L. e CM also emphasized the need to have a more structured approach in the field and to make the users better aware of their rights (recommendations nos. and ). Ibid., paras. -, , -, - , -, , - and -. Ibid., finding I. See paras. - of the report.
Antonio Bultrini stressed that the language is in a precarious state and that the whole traditional area of this language is excluded from Part III protection.20 A further problem highlighted by the Committee of Experts in the report on Sweden – but which is of a more general interest as well – concerns the implementation of a number of obligations under the Charter by regional and local authorities. Indeed, the obligations under the Charter are formally accepted by governments but in many areas implementation is also or even primarily in the hands of regional or local authorities. In the case of Sweden, where this structural problem is particularly evident in education, the Committee of Experts observed that the lack of measures by regional and local authorities has led in some cases to the non-fulfilment of a number of undertakings, even though the legal basis has been established. ese conclusions suggest a more general consideration of the importance of states paying due attention to the impact that the state structure has, regarding the division of competencies between the central, regional or local authorities on the responsibilities for implementing the Charter. C. Pending Monitoring Rounds Although the monitoring process was only completed for two state parties over the relevant period, producing two final reports – which is partly due to the complexity of the situation (especially as far as Germany is concerned) – it was at the same time in its initial stages for several other state parties, promising substantial results for the monitoring mechanism during the next relevant period ( July - June ). Before summarizing the situation of the pending monitoring rounds, two aspects of the monitoring process seem worth clarifying. First of all, the workload of the Committee of Experts may be unequal from year to year, since the number of periodic reports received depends on the moment of ratification and the number of ratifications has varied each year. Second, in the second half of and in the first half of the monitoring process entered its second phase for the countries which were the first to ratify. is means that during the next relevant period with regard to these countries the Committee of Experts will assess how they reacted to the results of the initial monitoring round, which is of course of paramount importance in assessing the impact of the monitoring as a whole. As a result, over the next relevant period initial monitoring rounds for some states will parallel subsequent monitoring rounds for others. 1. Initial Monitoring Rounds e United Kingdom, Slovenia, Denmark and Austria each submitted their initial reports and the initial on-the-spot visits to these countries took place in January, February, May and June December respectively. Spain also submitted its initial report. 20
See para. of the report and point D of the findings of the Committee of Experts. Similar remarks have also been made with respect to the Finnish-speaking population living outside the administrative area of Norrbotten county, as only % of the speakers of the Sweden Finnish live inside this area (see also point C of the findings of the Committee of Experts).
Developments in the Field of the European Charter for Regional or Minority Languages 2. Second Monitoring Rounds Norway,21 Hungary, Finland and Switzerland each submitted their second reports and the second on-the-spot visits to these countries took place in November , March, April, May and September respectively. e Netherlands and Croatia also each submitted their second reports. D. Signatures and Ratifications During the relevant period the Charter was signed by Moldova ( July ) and by Poland ( May ) and was ratified by Cyprus ( August ). E. Information Seminars An information seminar on the Charter took place in Kyiv/Kiev (Ukraine) on - October . Soon afterwards a new draft ratification instrument of the Charter was presented to the Ukrainian Parliament. On - June an information seminar on the Charter, co-organized by the CoE and the Polish Ministry of the Interior, took place in Warsaw. F. Relations with the European Union In February the CoE contributed to the consultation process launched by the European Commission in Brussels with a view to developing an Action Plan for language learning and linguistic diversity.22
e Committee of Experts has in the meantime adopted its second report on Norway, on 3 September 2003. 22 e text of the contribution by the CoE, which includes a section devoted specifically to regional or minority languages, is available from the Secretariat of the Charter. 21
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Roberta Medda-Windischer *
e Jurisprudence of the European Court of Human Rights In spite of the absence of a specific provision on minority rights in the European Convention on Human Rights (hereinafter ‘the Convention’) and its Protocols, the European Court of Human Rights (hereinafter ‘the Court’) has reviewed, since its early activity, several cases concerning minority issues, such as political participation of minority groups as well as identity, linguistic and cultural rights. In addition to Article , which guarantees the right not to be discriminated against in the enjoyment of the Convention rights on the grounds, inter alia, of their belonging to a national minority, language, religion and national origin, the Court has afforded some protection to minorities especially by means of other provisions of the Convention, such as Articles (right to freedom of expression), (right to freedom of association) and (right to family life).1 I. E P P L e Court has made several determinations as to whether restrictions on minority rights, such as freedom of association and expression, right to life and to non-interference in home, private and family life, founded on public territorial integrity, national security and public order comply with the provisions of the Convention and its Protocols. Following the judgment of the Court in the Loizidou case,2 the Court reviewed several cases concerning allegations against Turkey for violations committed in the Turkish Republic of Northern Cyprus (TRNC). In the Loizidou case, in fact, the Court concluded that the responsibility of a contracting state can arise when, as a consequence of military action, the state concerned exercises effective control of an area outside its national terri* 1
2
Researcher at the European Academy of Bolzano, Minorities and Autonomies, Law Degree, LL.M. (University of Essex); currently doctoral candidate in Law (University of Graz). Protocol No. to the Convention will provide a right to non-discrimination separate from the other substantive articles of the Convention. At the time of writing it has been ratified by four States: Croatia, Cyprus, Georgia and, on April , San Marino. ECtHR, Loizidou v. Turkey, judgment of December , Reports -VI. e case concerns a complaint lodged by a Cypriot national against Turkey in regard to the impossibility of her occupying the house she owned in the section of Cyprus under Turkish control.
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Roberta Medda-Windischer tory. erefore, Turkey’s jurisdiction must be considered to extend to securing in Northern Cyprus the entire range of substantive rights set out in the Convention and those additional Protocols which Turkey has ratified. Violations of those rights which occurred in Northern Cyprus can be considered as imputable to Turkey. Furthermore, in the interstate Cyprus v. Turkey3 case the Court clarified that having effective overall control over Northern Cyprus, Turkey’s responsibility cannot be confined to the acts of its own soldiers or officials in Northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of the Turkish military and other support. In the aforementioned cases it was not necessary for the Court to determine whether Turkey actually exercised detailed control over the policies and actions of the TRNC authorities; it was indeed obvious from the large number of troops engaged in active duties in Northern Cyprus that the Turkish army exercised effective control over that part of the island. It is relevant to note that following the Loizidou judgment, Turkey, as an unprecedented case among the contracting parties of the Convention, refused to execute this judgment and comply with its obligations for a long time, and in particular to pay the sums for damages suffered and for costs and expenses to the applicant. However, on March , in its reply to the Parliamentary Assembly of the Council of Europe on the implementation of the decisions of the Court, the Committee of Ministers reported that the Turkish authorities had indicated, at a recent Committee of Ministers meeting, their determination to comply with the Court’s judgment on the Loizidou case and that the Committee ‘expects to receive shortly information on concrete steps to this effect’.4 A recent case against Turkey concerning the TRNC is the case of Ilkay Adali v. Turkey 5 referring to the death of Kutlu Adali, a well-known Turkish Cypriot journalist and writer in the TRNC. e applicant, Mr Adali’s wife, alleged that her husband was killed on grounds of his political opinions and that following his death the authorities failed to conduct an effective investigation into his murder. Mr Adali was indeed known for having written and published articles strongly criticizing the policies and practices of the Turkish government and the authorities of the TRNC. He had always claimed that Cyprus should not be divided and that Turkish and Greek Cypriots should live in a united republic based on a pluralist democratic system. In his career, Mr Adali had also held various civil service posts, including the post of private secretary to Rauf Denktash, who later became the President of the TRNC. On July , Mr Adali was shot and killed in front of his house in the TRNC by unknown persons. e applicant alleged under various articles of the Convention that her husband’s murder was a manifestation of the continuing practice of the Turkish-controlled authorities of the TRNC, the aim of which was to suppress and discourage dissent by causing or encouraging the disappearance of dissenters. 3
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5
ECtHR, Appl. /, Cyprus v.Turkey, (Grand Chamber), judgment of May . Council of Europe, Reply adopted by the Committee of Ministers on March at the rd meeting of the Ministers’ Deputies, Implementation of decisions of the European Court of Human Rights by Turkey, Parliamentary Assembly Recommendation (), CM/AS()Rec. final, March . ECtHR, Appl. /, Ilkay Adali v. Turkey, decision on the admissibility of January .
e Jurisprudence of the European Court of Human Rights She alleged that her husband was killed because of his public expression of views strongly critical of the policies and practices of the Turkish government. She also complained that the authorities failed to carry out an impartial and effective investigation into the murder of her husband and that the courts in the TRNC were not sufficiently independent of Turkey’s influence to make it likely that they would act independently and impartially considering the particular circumstances of her case. e applicant alleged also that subsequent to the death of her husband, she has been subjected to the continuing practices of monitoring, harassment, intimidation and discrimination by the TRNC authorities. Finally, the applicant alleged under Article that the respondent government tried to hinder the effective exercise of her right to apply to the Court. She maintained that after having filed her application to Strasbourg, she met Prof. Bakir Çaglar, the former agent of the Turkish Republic at a meeting in Cyprus, who questioned her about her application with the Court and allegedly threatened her that if she won her case before the Court, she would be assassinated and her daughter’s scholarship would be cut. At the outset the Court noted that in light of the rulings made in the Loizidou 6 and in the interstate Cyprus v. Turkey cases,7 the present application fell within the jurisdiction of Turkey and therefore entailed the respondent state’s responsibility under the Convention. As to the substance of the complaints concerning the murder of the applicant’s husband, the treatment that the applicant faced following the death of her husband and the alleged interference of the authorities with the effective exercise of the applicant’s right to apply to Strasbourg, the Court considered that the complaints raised complex issues of law and fact under the Convention, the determination of which depended on an examination of their merits and consequently, it declared the application admissible.8 Another case related to the TRNC is the case of Djavit An v. Turkey.9 e applicant is a Cypriot national of Turkish origin living in Northern Cyprus and a critic of the Turkish Cypriot authorities and of the Turkish military presence in the northern part of Cyprus, which he defines as an ‘occupation’. e applicant is also the Turkish Cypriot coordinator of the Movement for an Independent and Federal Cyprus, an unregistered association of Turkish and Greek Cypriots founded in in Nicosia. e movement aims to develop close relations between the two communities and organizes political, cultural, medical and social meetings. In the period under consideration the applicant was unable to obtain a permit from the Turkish and Turkish Cypriot authorities to visit the UN-controlled buffer zone or the southern part of the island in order to participate in several bi-communal meetings. In May the TRNC authorities informed the applicant that permission was refused ‘for security reasons, in the public interest and because [the applicant] made propaganda against the state’.10 e applicant’s complaint was that the authorities, by 6
7
8
9
10
ECtHR, Loizidou v. Turkey, judgment of December , Reports -VI. ECtHR, Appl. /, Cyprus v.Turkey, (Grand Chamber), judgment of May . At the time of writing no judgment has yet been delivered. ECtHR, Appl. /, Djavit An v. Turkey, (Chamber), judgment of February . Ibid., , para..
Roberta Medda-Windischer constantly refusing to grant him permits to cross the buffer zone, had effectively prevented him from meeting Greek Cypriots and from participating in bi-communal meetings, thus affecting his right to freedom of assembly and association, contrary to Articles , and of the Convention. It is relevant to note that Mr Djavit An had already lodged an application to Strasbourg, Ahmet Cavit An and Others v. Cyprus,11 for the same facts under Article of Protocol No. for the restrictions on freedom of movement, but that application was declared inadmissible by the then European Commission of Human Rights (hereinafter ‘the Commission’). In this case the Commission found that the Republic of Cyprus ‘have since been prevented from exercising their jurisdiction in the north of the island. is restriction on the actual exercise of jurisdiction [...] is due to the presence of Turkish armed forces’.12 e Commission declared that application inadmissible on the grounds that the authority of the Republic of Cyprus was in fact limited to the southern part of Cyprus and thus it could not be held responsible for the acts of Turkish Cypriot authorities in the north of Cyprus of which the applicants complained.13 In the present case, however, in light of the Court’s rulings in the Loizidou and the Cyprus v. Turkey cases, Mr Djavit An submitted his application against Turkey. e Court observed that the applicant’s complaint under Article was not limited to the question of freedom of movement that is, to physical access to the southern part of Cyprus. e Court noted that the meetings the applicant wished to attend were all bi-communal. Irrespective of the form they took and by whom they were organized, their aim was the same, namely, to bring into contact Turkish Cypriots living in the north and Greek Cypriots living in the south with a view to engage in dialogue and exchange ideas and opinions with the hope of securing peace on the island. After having found that there was an interference with the applicant’s rights to freedom of peaceful assembly, the Court considered whether the interference was ‘prescribed by law’ as required by paragraph of Article . As there seemed to be no law regulating the issuing of permits to Turkish Cypriots living in Northern Cyprus to cross the ‘green line’ into southern Cyprus to assemble peacefully with Greek Cypriots, the manner in which restrictions were imposed on the applicant’s exercise of his freedom of assembly was not ‘prescribed by law’ and thus the Court concluded that there was violation of Article .14 A further case concerning Cyprus but referring to voting rights is the case of Ibrahim Aziz v. Cyprus, Greece, Turkey and the United Kingdom.15 In this case the Court reviewed 11 12 13 14
ECommHR, Appl./, Ahmet Cavit An and Others v. Cyprus, decision on the admissibility of October . Ibid. Ibid. e ad hoc Turkish judge, Feyyz Gölcüklü, expressed a dissenting opinion in which he stated that the present case was basically about freedom of movement, noting that ‘in public international law there is no general right to cross a State border or demarcation line to gain access to this or that property or to meet associates or friends in the name of freedom of association.’ ECtHR, Appl. /, Ibrahim Aziz v. Cyprus, Greece, Turkey and the United Kingdom, partial decision as to the admissibility of April .
e Jurisprudence of the European Court of Human Rights the issue of voting rights and the belonging to a national minority. e applicant was a Turkish Cypriot who was refused registration in the electoral lists for the Cypriot parliamentary elections because, according to the Cypriot Constitution and the Electoral Law, members of the Turkish Cypriot community could not be registered in the Greek Cypriot electoral role.16 e applicant complained, among others, under Article of Protocol No. , that the Cypriot government had failed to set up an electoral list for the members of the Turkish community preventing thus the applicant from exercising his voting rights on the grounds of national origin and/or association with a national minority. He also alleged that the Supreme Court did not intervene to fill the legislative gap in this respect by applying the law of necessity, as had done in many other similar instances, because he was a Turkish Cypriot. e applicant submitted that the respondent states, Cyprus, Greece, Turkey and the United Kingdom, had undertaken with the Treaty of Guarantee to safeguard the independence, territorial integrity and constitution of the Cypriot Republic. Allegedly the respondents with their actions and/or omissions had not guaranteed the state of affairs established by the Constitution and, as a result, the applicant was being deprived of his rights guaranteed by Article of Protocol No. . According to the applicant, the ‘revolutionary’ government of Cyprus established in -, while illegally replacing the bi-communal central federal government, was responsible for the constitutional crisis in until today; Greece backed the crisis and caused the military coup in against the Cypriot government; Turkey illegally invaded and still occupies nearly % of Cypriot territory and supports the illegal TRNC; and the United Kingdom gave support to the revolutionary Cyprus government to propose constitutional changes in and has done nothing ever since to uphold the constitution. At the outset, the Court noted that the applicant’s complaints, to the extent that they were directed against Greece, Turkey and the United Kingdom, were of a political nature and had no bearing on the situation complained of by the applicant, namely the refusal of the Cypriot authorities to register him in the electoral lists. erefore it rejected this part of the complaints as incompatible ratione personae. With regard to the violation of Article of Protocol No. , taken alone or in conjunction with Article , the Court considered that it could not, on the basis of the case file, determine the admissibility of this complaint and that it was therefore necessary to give notice of this part of the application to the respondent government. In conclusion, the Court unanimously decided to adjourn the examination of the applicant’s complaints concerning Article of Protocol No. and Article of the Convention insofar as they involve the Cyprus Government.17
16
17
Article of the Cypriot Constitution provides : ‘…every citizen of the Republic who has attained the age of twenty-one years, and has such residential qualifications as may be prescribed by the Electoral Law, shall have the right to be registered as an elector in either the Greek or the Turkish electoral list provided that the members of the Greek Community shall only be registered in the Greek electoral list and the members of the Turkish Community shall only be registered in the Turkish electoral list.’ At the time of writing no decision as to the admissibility of this case had yet been taken by the Court.
Roberta Medda-Windischer In the context of territorial integrity as a restriction of minority rights, particular attention should be paid to the cases against Russia and Turkey concerning, respectively, Chechnya and the south-east of Turkey. In the case of Ilascu and Others v. Moldova and Russia 18 on September the Grand Chamber of the Court decided that a delegation of four judges19 should carry out an on-the-spot investigation in Moldova. In this case the Court has reviewed, inter alia, a variation on the theme of imputability and jurisdiction. e applicants were convicted for their political activities by a court of the Moldovan Republic of Transdniestria, a region of Moldova, which declared its independence in but it is not recognized by the international community. e applicants were either sentenced to death or to terms of imprisonment ranging from - years. e judgments were subsequently declared unconstitutional by the Supreme Court of Moldova. e applicants considered that the Moldovan authorities were responsible under the Convention for a number of violations connected with the fair trial and prison conditions (Articles , , , , and Article of Protocol No. ), since they did not take adequate measures to stop them. ey further contended that the Russian Federation shared the same responsibility as the territory of Transdniestria was de facto under Russia’s control owing to the stationing of its troops and military equipment there, and its alleged support to the separatist regime. In its decision, the Court declared the application admissible in respect of both Moldova and the Russian Federation.20 On October , the Court received a preliminary application from a group of Chechens, Shamayev and others v. Georgia and Russia,21 in which they alleged that an extradition request from Georgia to Russia concerning them was about to be granted and implemented which, in their view, would have resulted in breaches of their rights under Articles and of the Convention. ey therefore asked the Court to apply an interim measure to prevent extradition.22 e Court decided to indicate to the government of Georgia that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to extradite the applicants to Russia until the Court had had an opportunity to examine the application in light of the information to be provided by the Georgian government concerning the basis of the extradition and the detention measures planned by the Russian government. Subsequently, on November , the Court decided not to extend the period of application of the interim measure which was due to expire on that day. e Court decided that, in light of the undertakings given by the ECtHR, Appl. /, Ilascu and Others v. Moldova and Russia, (Grand Chamber), decision on the admissibility of July . 19 Georg Ress (German), Sir Nicolas Bratza (British), Josep Casadevall (Andorran) and Egil Levits (Latvian). 20 At the time of writing no judgment has yet been delivered. 21 ECtHR, Appl. /, Shamayev and Others v. Georgia and Russia. At the time of writing no decision on the admissibility had yet been delivered. For further reference, see Alessia Sonaglioni, ‘e War in Chechnya and Actions Taken by the Council of Europe’ in this volume. 22 Rule of the Rules of Court. 18
e Jurisprudence of the European Court of Human Rights Russian authorities, which included guarantees of unhindered access for the applicants to appropriate medical treatment, legal advice and the Court itself, the interim measure could be lifted. e Russian authorities had further undertaken that the applicants would not face capital punishment and that their health and safety would be protected. e Georgian authorities, for their part, were likewise satisfied that the Russian Government had provided them with all the necessary guarantees regarding the future treatment of the applicants if extradited. e applicants, on the other hand, had requested that the interim measure remain in force. e main proceedings on the admissibility of the case have been given priority by the Court.23 Further cases concerning the situation in Chechnya are the six applications against Russia24 declared admissible by the Court in three separate decisions. ese concern the anti-terrorism operations involving civilians carried out in -. As a result of these operations, the applicants and/or their family members were either wounded, tortured or killed and their possessions destroyed. e applicants invoked Articles , , and of Protocol No. . e government initially requested the Court to declare the applications inadmissible as the applicants had failed to exhaust the domestic remedies available to them. e government submitted that although the courts in Chechnya indeed ceased to function in , legal remedies were still available to those who, like the applicants, had moved out of Chechnya because an established practice allows them to apply to the Supreme Court or directly to the courts at their new place of residence. e applicants submitted that the formal remedies were not effective, so they were not obliged to exhaust them. First, they submitted that the anti-terrorist operation in Chechnya, run by agents of the state, was based on the provisions of the Law on Suppression of Terrorism and was officially sanctioned at the highest level of state power. Second, the applicants suggested that an atmosphere of impunity reigned among the military and police units involved in the operations in Chechnya and that there were almost no cases where a military commander had been suspended from his duties for crimes against civilians committed by himself or his subordinates. ird, the applicants argued that whether or not an administrative practice as such existed, the domestic remedies were ineffective due to the failure of the legal system to provide redress. e Court decided to add the government’s objection concerning the non-exhaustion of domestic remedies to the merits, because, in the particular circumstances of the present case, it did not have sufficient information to enable it to make a ruling on that question. As for the merits of the application, the Court declared all the applicants’ complaints admissible.25
At the time of writing no decision on the admissibility had yet been delivered. ECtHR, Appl. /, Khashiyev v. Russia; Appl. /, Akayeva v. Russia; Appl. /, Isayeva v. Russia; Appl. /, Yusupova v. Russia; Appl. /, Bazayeva v. Russia; Appl. /, Isayeva v. Russia, decisions on the admissibility of December . 25 At the time of writing no judgment has yet been delivered. 23
24
Roberta Medda-Windischer In the period under consideration in this volume the Court reviewed, as in previous years, several cases against Turkey concerning the issue of territorial integrity and the compulsory dissolution of political parties.26 A recent case in this context is Sadak and Others v. Turkey,27 in which the applicants were thirteen members of the Turkish Grand National Assembly and a political party, the Democracy Party (Demokrasi Partisi, DEP). A few months after the DEP was formed in , the state counsel applied for an order for its dissolution on the grounds that it had infringed the Constitution and the Law on Political Parties in that some of its members and its former chairman had made statements that were apt to undermine the integrity of the state and the unity of the nation. In these statements reference was made to the existence of a separate Kurdish people in Turkey fighting for their independence, and to the acceptance of a Kurdish identity with all the consequences which that entailed, namely the creation of an independent state and the destruction of the existing one. As a result, five of the applicants were arrested and taken into police custody. Subsequently the Constitutional Court delivered an order dissolving the DEP and terminating the applicants’ parliamentary mandates. Fearing prosecution, some of the applicants fled overseas; others voluntarily surrendered to custody at the offices of state counsel. Some of the applicants were convicted under the Prevention of Terrorism Act (three years’ imprisonment for separatist propaganda, years’ imprisonment for being members of an armed gang and seven-and-a-half years’ imprisonment for aiding and abetting an armed gang). In , the Court of Cassation quashed the convictions of two of the applicants and ordered their provisional release. It upheld, however, the other applicants’ convictions. e applicants alleged the violations of various articles of the Convention. In particular, they complained of an infringement of their right to freedom of association, as guaranteed by Article , and maintained that the loss of their parliamentary emoluments constituted a breach of their right to the peaceful enjoyment of their possessions, contrary to Article of Protocol No . Subsequently, the Court ruled that the applications should also be examined under Article of Protocol No. (right to free elections). e Court noted that the applicants were automatically deprived of their parliamentary mandates not as a result of their political activities as individuals, but for the comments made abroad by the former chairman of the party and a written statement issued by its central committee. e Court considered that the penalties imposed on the applicants were extremely harsh measures and that they could not be regarded as proportionate to ECtHR, United Communist Party of Turkey and Others v. Turkey, judgment of January , Reports I; ECtHR, Socialist Party and Others v. Turkey, judgment of May , Reports -III; ECtHR, Freedom and Democracy Party (ÖZDEP) v. Turkey, (Grand Chamber), judgment of December , Reports -VIII; ECtHR, Freedom and Democracy Party (ÖZDEP) v. Turkey, (Grand Chamber), judgment of December , Reports -VIII; ECtHR, Appl. /, / and /, Yazar, Karatas, Aksoy and the People’s Labour Party (HEP) v. Turkey, judgment of April ; ECtHR, Appl. /, / and /, Yazar, Karatas, Aksoy and the People’s Labour Party (HEP) v. Turkey, judgment of April . 27 ECtHR, Appl. /, / to /, / and /, Sadak and Others v. Turkey, judgment of June . 26
e Jurisprudence of the European Court of Human Rights the legitimate aim relied on by Turkey, namely maintaining public safety and national security as well as protecting democratic order and territorial integrity. e Court further noted that the measures concerned were incompatible with the very essence of the right to stand for election and to hold parliamentary office and that they had infringed the unfettered discretion of the electorate which had elected the applicants. e Court therefore held that in this case there was a violation of Article of Protocol No. . In light of its finding, the Court concluded that it was unnecessary to examine the other complaints separately. It is relevant to note that on March , in its reply to the Parliamentary Assembly on the implementation of the decisions of the Court, the Committee of Ministers provided information on the case Sadak, Zana, Dicle and Dogan v. Turkey,28 in which some of the applicants of the case Sadak and Others v. Turkey 29 were also involved. e Committee reported that a new law has entered into force allowing domestic proceedings impugned by the Court to be reopened in all cases currently pending before the Committee for control of execution and, as a result, the criminal proceedings in the aforementioned case are to be reopened before the State Security Court of Ankara. e Committee nevertheless noted that the suspension of the execution of the original prison sentence of the applicants pending the new trial was not approved when the request to re-open proceedings was accepted, and that the scope of the new law would not extend to cases which are currently pending before the Court.30 One of the applicants of the afore mentioned cases, Mr Dicle, submitted another application in his own name, as the president of the DEP, and on behalf of the DEP, Dicle for the Democracy Party (DEP) v. Turkey.31 As seen in the case of Sadak and Others v. Turkey, the DEP was dissolved in by the Turkish Constitutional Court. In its decision, the Constitutional Court recalled that under the Treaty of Lausanne a different language or ethnic origin is not sufficient alone to qualify a group as a minority and concluded that the activities of the DEP were among those that could be restricted under paragraph of Article of the Convention. Furthermore that Constitutional Court referred to the Paris Charter for a New Europe in which racism, hatred based on ethnic origin and terrorism are condemned and to the Helsinki Final Act that protects and respects the inviolability of borders and territorial integrity. In the Strasbourg proceedings the applicant alleged that the dissolution of the DEP and the associated penalties infringed Articles , and of the Convention and complained of discrimination contrary to Article against the DEP on the grounds of its ECtHR, Appl. /, /, / and /, Sadak, Zana, Dicle and Dogan v. Turkey, judgment of July . 29 ECtHR, Appl. /, / to /, / and /, Sadak and Others v. Turkey, judgment of June . 30 Council of Europe, Reply adopted by the Committee of Ministers on March at the rd meeting of the Ministers’ Deputies, Implementation of decisions of the ECtHR by Turkey, Parliamentary Assembly Recommendation (), CM/AS() Rec. final, March . 31 ECtHR, Appl. /, Dicle for the Democracy Party (DEP) v. Turkey, judgment of December . At the time of writing the judgment was available in French only. 28
Roberta Medda-Windischer political opinions. e respondent government observed: ‘…[L]e DEP, en précisant qu’il existait un peuple kurde distinct en Turquie et soulignant que celui-ci livrait une guerre de libération nationale, essayait d’établir, au sein de la nation turque, une discrimination fondée sur l’appartenance ethnique. Cette approche, qui propose de créer une minorité basée sur l’origine ethnique au sein de la nation, est incompatible avec l’intégrité nationale. Or cette dernière notion se fonde sur l’égalité des droits des citoyens sans aucune distinction.’32 As to whether the DEP pursued aims that contravened democratic principles, the Court noted that if democracy is to work properly, it is essential that political bodies be allowed to make public proposals, even if they conflicted with the main planks of governmental policy or prevailing public opinion.33 With regard to the question whether the DEP carried on its political campaign by lawful and democratic means or whether its leaders had advocated the use of violence as a political tool, the Court had to examine whether, as the government had maintained, there was any incitement to ethnic hatred, rebellion or violence. In particular, the Court considered the declaration made by the former president of the DEP in Iraq, in which he compared the activities of the armed movement within the Kurdistan Workers Party (PKK) to a war to liberate north Kurdistan and to found a Kurdish state there. e Court noted that this part of the declaration amounted to approval of the use of force as a political tool and a call to use of force and that in the circumstances existing at the material time those words were capable of inspiring a deep irrational hatred of those who were presented as the enemies of the population of Kurdish origin. e Court noted, however, that criminal proceedings had been taken against the maker of the statement and that what was at issue, in the end, was a single speech by a former leader of the party that had been made overseas in a language other than Turkish and to an audience that was not directly concerned with the situation in Turkey. According to the Court, its potential impact on national security, public order or the territorial integrity of Turkey was therefore very limited.34 As a result, the Court found that that speech could not by itself justify so general a penalty being imposed as the dissolution of an entire political party and, in conclusion, it held unanimously that there was a violation of Article of the Convention. It is relevant to note that the Court, acting on a majority, awarded Mr Dicle , EUR for moral damage, to be transferred to the members and leaders of the DEP. e Court considered this sum to be fair and reasonable because the DEP had participated actively in Turkish political life and had represented a part of the Turkish population: ‘Sa dissolution a privé ces attentes d’être articulées et prises en compte en premier lieu dans l’enceinte du parlement turc et par la suite sur la scène politique nationale. Il en résulte que la dissolution du DEP a dû causer de profonds sentiments de frustration dans le chef de ses membres, de ses dirigeants de tous les niveaux, tant nationaux que locaux.’35 On Ibid., -, paras. -. Ibid., , para. . 34 Ibid., , para. . 35 Ibid.,, para. . 32
33
e Jurisprudence of the European Court of Human Rights this specific point, the ad hoc Turkish judge, Feyyz Gölcüklü, expressed a strong dissenting opinion: ‘[ J]e m’écarte radicalement de la majorité quant à l’application de l’article ... la somme accordée est exorbitante et sans précédent dans la jurisprudence de la Cour’.36 Another case concerning the dissolution of political parties in Turkey is the case of Refah Partisi.37 is case has major points of difference from the previous cases against Turkey on this subject.38 Refah Partisi (the Welfare Party) was a political party that, following the general election, became the largest political party in the Turkish parliament. In the Constitutional Court made an order dissolving Refah on the grounds that it had become a ‘centre of activities against the principle of secularism.’ at court took into consideration, among others elements, various writings and declarations made by leaders and members of the Refah Partisi, in which the institution of sharia law and a theocratic regime were indicated as some of the party’s objectives. In its Chamber judgment of July , the Court held, by four votes to three, that there had been no violation of the Convention’s provisions,39 and that any conduct which failed to respect the principle of secularism cannot be accepted as being part of the freedom to manifest one’s religion.40 In particular, the Court noted that the introduction of sharia is difficult to reconcile with the fundamental principles of democracy, mainly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts. As regarding the reference to jihad, the Court had observed that even if the Refah’s leaders did not call for the use of force and violence as a political weapon, they did not take prompt practical steps to distance themselves from those members of Refah who had publicly referred with approval to the possibility of using force against politicians who opposed them. On October the applicants requested that the case be referred to the Grand Chamber 41 and on December the panel of the Grand Chamber accepted that request.
36 37
38
39 40 41
ECtHR, Appl. /, Dicle for the Democracy Party (DEP) v. Turkey, judgment of December . ECtHR, Appl. /, /, / and /, Refah Partisi (the Welfare Party) and others v. Turkey, judgment of July . ECtHR, United Communist Party of Turkey and Others v. Turkey, judgment of January , Reports I; ECtHR, Socialist Party and Others v. Turkey, judgment of May , Reports -III; ECtHR, Freedom and Democracy Party (ÖZDEP) v. Turkey, (Grand Chamber), judgment of December , Reports -VIII; ECtHR, Appl. /, / and /,Yazar, Karatas, Aksoy and the People’s Labour Party (HEP) v. Turkey, judgment of April . For further reference, see the article by the same author ‘e Jurisprudence of the European Court of Human Rights‘, EYMI (/), -. ECtHR, Appl. /, /, / and /, Refah Partisi (the Welfare Party) and Others v. Turkey, judgment of July , , para.. Article ()() ECHR provides: ‘Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance.’
Roberta Medda-Windischer In its Grand Chamber’s judgment42 the Court further elaborated some points that had been already assessed by the Chamber. e applicants, among the others, disputed the statement of the Chamber’s judgment that ‘… [I]t is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia. ...’. ey submitted that such a statement could lead to a distinction between ‘Christiandemocrats’ and ‘Muslim-democrats’ and constituted discrimination against the million Muslims in a total European population of million. In any event, they considered that the question did not fall within the Court’s jurisdiction.43 e Court first noted that the freedoms guaranteed by the Convention ‘cannot deprive the authorities of a State in which an association, through its activities, jeopardizes that State’s institutions, of the right to protect those institutions.’44 e Court considered that a political party may promote a change in the law or the legal and constitutional structures of the state on two conditions: … firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention’s protection against penalties imposed on those grounds. … e possibility cannot be excluded that a political party, in pleading the rights of assembly, expression and thoughts, might attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention and thus bring about the destruction of democracy. In view of the very clear link between the Convention and democracy, no-one must be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society. Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole. In that context, the Court considered that it is not at all improbable that totalitarian movements, organised in the form of political parties, might do away with democracy, after prospering under the democratic regime, there being examples of this in modern European history.45 e Court noted that at the time of its dissolution, Refah had the real potential to seize political power without being restricted by the compromises inherent in a coalition. If ECtHR, Appl. /, /, / and /, Refah Partisi (the Welfare Party) and others v. Turkey, (Grand Chamber), judgment of February . 43 Ibid, , para . 44 Ibid., , para. . 45 Ibid., -, paras. -. 42
e Jurisprudence of the European Court of Human Rights Refah had proposed a programme contrary to democratic principles, its monopoly of political power would have enabled it to establish the model of society envisaged in that programme. e Court therefore considered that, in electing to intervene at the time when they did, the national authorities did not go beyond the margin of appreciation left to them under the Convention. e Court concurred in the Chamber’s view that sharia is incompatible with the fundamental principles of democracy, as set forth in the Convention. e Court considered that in the past political movements based on religious fundamentalism have been able to seize political power in certain states and have had the opportunity to set up the model of society which they had in mind. It considered that, in accordance with the Convention’s provisions, each contracting state may oppose such political movements in the light of its historical experience.46 e Court next examined the applicants’ argument that the Chamber allegedly contradicted itself in holding that Refah supported introducing both a plurality of legal systems and sharia simultaneously. It noted that Refah’s policy was to apply some of sharia’s private-law rules to a large part of the population in Turkey (namely Muslims), within the framework of a plurality of legal systems. e Court rejected the applicants’ argument that prohibiting a plurality of private-law systems in the name of the special role of secularism in Turkey amounted to establishing discrimination against Muslims who wished to conduct their private lives in accordance with the precepts of their religion. e Court noted that in Turkey everyone can observe the requirements of his or her religion in his or her private life. On the other hand, Turkey, like any other Contracting Party, may legitimately prevent the application within its jurisdiction of private-law rules of religious inspiration prejudicial to public order and the values of democracy for Convention purposes (such as rules permitting discrimination based on the gender of the parties concerned, as in polygamy and privileges for the male sex in matters of divorce and succession). e freedom to enter into contracts cannot encroach upon the State’s role as the neutral and impartial organiser of the exercise of religions, faiths and beliefs.’47 In making an overall assessment of the aforementioned points, the Court found that the acts and speeches of Refah’s members and leaders cited by the Constitutional Court were imputable to the whole of the party, that those acts and speeches revealed Refah’s longterm policy of setting up a regime based on sharia within the framework of a plurality of legal systems and that Refah did not exclude recourse to force in order to implement its policy and keep the system it envisaged in place. In view of the fact that these plans were incompatible with the concept of a democratic society and that the real opportunities Refah had to put them into practice made the danger to democracy more tangible 46 47
Ibid.,-, paras. -. Ibid., , para. .
Roberta Medda-Windischer and more immediate, the penalty imposed on the applicants by the Constitutional Court, even in the context of the restricted margin of appreciation left to contracting states, may reasonably be considered to have met a ‘pressing social need’ as provided by Article . It followed that the interference in issue in the case could not be regarded as disproportionate in relation to the aims pursued and consequently Refah’s dissolution had to be regarded as ‘necessary in a democratic society’ within the meaning of Article (). In conclusion the Court found that there was no violation of Article of the Convention. e Russian judge Kovler expressed a concurring opinion: What concerns me about some of the Court’s findings is that in places they are unmodulated, especially as regards the extremely sensitive issues raised by religion and its values. I would prefer an international court to avoid terms borrowed from politico-ideological discourse, such as ‘Islamic fundamentalism’, ‘totalitarian movements’ …, ‘threat to the democratic regime’ …, etc., whose connotations, in the context of the present case, might be too forceful. …. Not only legal anthropology but also modern constitutional law accepts that under certain conditions members of minorities of all kinds may have more than one type of personal status …. Admittedly, this pluralism, which impinges mainly on an individual’s private and family life, is limited by the requirements of the general interest. But it is of course more difficult in practice to find a compromise between the interests of the communities concerned and civil society as a whole than to reject the very idea of such a compromise from the outset.48 In the context of the applications against Turkey regarding territorial integrity as a restriction of minority rights and the fight against terrorism, it is relevant to report the recent case Abdullah Öcalan v. Turkey which concerns the death penalty, alleged ill-treatment, detention and trial of the former leader of the PKK.49 In , Abdullah Öcalan was arrested by Turkish officials under disputed circumstances after having been expelled from Syria, and having travelled to Greece, Russia, Italy and Kenya from where he was eventually flown to Turkey. e Ankara State Security Court charged him of carrying out actions calculated to bring about the separation of a part of Turkish territory and of forming and leading an armed gang to achieve that end and sentenced him to death. On February , the Strasbourg Court received Mr Öcalan’s application and, upon his request, it invited the Turkish authorities ‘to take all necessary steps to ensure that the death penalty [was] not carried out so as to enable the Court to proceed effectively with the examination of the admissibility and merits of the applicant’s complaints under the Convention’.50 e Turkish Assembly later decided to abolish the death penalty in peacetime and thus the
48 49
50
ECtHR, Appl. Nos. /, /, / and /, Refah Partisi (the Welfare Party) and others v. Turkey, (Grand Chamber), judgment of February . ECtHR, Appl. /, Öcalan v. Turkey, (Chamber), judgment of March . Rule of the Rules of Court (Interim Measures).
e Jurisprudence of the European Court of Human Rights Ankara State Security Court commuted the applicant’s death sentence to life imprisonment. However, even after the Assembly’s decision an application to set aside the provision abolishing the death penalty in peacetime for persons convicted of terrorist offences was dismissed by the Constitutional Court. In addition to the complaints relating to Öcalan’s detention and fair trail,51 the Court assessed the complaint concerning the execution and/or imposition of the death penalty. In this context, the Court preliminarily observed that although the death penalty had been abolished in Turkey, Mr Öcalan’s complaint related not only to the question of the implementation of the sentence but also to that of its imposition. e Court indeed admitted that the threat of implementation of the death sentence was effectively removed but it remained to be determined whether the imposition of the death penalty, in itself, gave rise to a breach of the Convention. e Court noted that even if the death penalty were still permissible under Article , in spite of the developments that had taken place in Europe leading to the universal abolition of capital punishment, an arbitrary deprivation of life pursuant to capital punishment would be prohibited. According to the Court, this follows from the requirement in Article () that the deprivation of life be pursuant to the ‘execution of a sentence of a court’, that the ‘court’ which imposed the penalty must be an independent and impartial tribunal within the meaning of the Court’s case law and that the most rigorous standards of fairness have to be observed in the criminal proceedings both at first instance and on appeal. Since the implementation of the death penalty is irreversible, the Court noted, it can only be through the application of such standards that an arbitrary and unlawful taking of life can be avoided. e Court then examined the implications of those points on the alleged violations of Article concerning the imposition of the death penalty. In the Court’s view, to impose a death sentence on a person after an unfair trial was to subject that person wrongfully to the fear that he would be executed. e fear and uncertainty as to a future generated by a sentence of death, in circumstances where there existed a real possibility that the sentence would be enforced, as was the case for the applicant in view of his high profile and the fact that he had been convicted of the most serious crimes, must had given rise to a significant degree of human anguish. According to the Court, such anguish could not be dissociated from the unfairness of the proceedings underlying the sentence. Having regard to the rejection by the contracting parties of capital punishment, which was no longer seen as having any legitimate place in a democratic society, the imposition of a capital sentence in such circumstances was considered, in itself, by the 51
With regard to Mr. Öcalan’s detention, the Court found a violation of Article () (the right to be brought promptly before a judge) given the failure to bring the applicant before a judge promptly after his arrest and a violation of Article () (the right to have lawfulness of detention decided speedily by a court) given the lack of a remedy by which the applicant could have the lawfulness of his detention in police custody decided. As for the proceedings before the Ankara State Security Court, in which was initially presided over by a military judge, the Court held that that court was not an independent and impartial tribunal within the meaning of Article (). Consequently, the Court found that there was a violation of that provision alone and taken together with Article () (b) (the right to adequate time and facilities for preparation of defence) and (c) (the right to legal assistance), in that the applicant did not have a fair trial.
Roberta Medda-Windischer Court to amount to a form of inhuman treatment. e Court thus held unanimously, that there was no violation of Articles (right to life) and (prohibition of ill-treatment) concerning the implementation of the death penalty but, by six votes to one, that there was a violation of Article as regards the imposition of the death penalty following an unfair trial. With regard to just satisfaction the Court held unanimously that its findings of the violations of the Convention’s articles constituted in themselves sufficient just satisfaction for any pecuniary or non-pecuniary damage sustained by the applicant.52 Since their early activity, the Strasbourg organs have dealt with a number of cases concerning political representation and minority groups. Recently the Court considered an alleged abuse of affirmative action connected with political activities of a minority group. In this context it is relevant to note that, as a general principle, the Court has not interpreted Article as implying a duty for national authorities to provide for positive discrimination in favour of minorities or to take affirmative action, i.e. positive steps designed to eliminate existing and continuing discrimination or to remedy the lingering effects of past discrimination.53 e case Gorzelik and Others v. Poland 54 concerns an attempt by a group of Silesians from Upper Silesia, to form an association called the Union of People of Silesian Nationality. e Polish authorities refused to register the association on the grounds that both the intended name and certain provisions of the Union’s memorandum of association, which characterized Silesians as a national minority, implied that their real intention was to circumvent the provisions of the electoral law. Indeed, had the members of this organization been recognized as a national minority, they would have automatically gained legally enforceable privileges. In its Chamber judgment the Court considered that the applicants could easily have dispelled the doubts voiced by the authorities, in particular, by slightly changing the name of their association and by sacrificing, or amending, a single provision of the memorandum of association. Considering that the Polish authorities had acted reasonably in order to protect the country’s electoral system the Court held, unanimously, that there had been no violation of Article in the case. On July , the case was referred to the Grand Chamber as, according to Article , ‘… it raised a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance.’ At the time of writing no judgment has yet been delivered. II. C I R e culture and identity of minority groups, together with different connected aspects, such as manifestation of religion, have been considered by the Strasbourg institutions in a number of cases under various norms of the Convention. e particular lifestyle of 52 53
54
e Court awarded the applicant a total of , EUR with respect to the claims made by his legal representatives. ECommHR, Appl. /, decision of March , D.R. . ECtHR, Appl. /, Gorzelik and Others v. Poland, (Chamber) judgment of December .
e Jurisprudence of the European Court of Human Rights a minority group has been recognized, for instance, as part of private life, family life or home and, thus, protected by Article . In this context, the Court considered various cases concerning the traditional lifestyle of Gypsies/Roma55 and reviewed a number of cases involving this special category of minorities referring to the prejudices and ill-treatment to which they are often subject. e case of Anguelova v. Bulgaria 56 concerned the ill-treatment and death under police custody of a Rom Bulgarian and the lack of domestic remedy in this respect. e mother of the deceased complained under Article that, among other things, the police officers’ and the investigating authorities’ perception of her son as a Rom/Gypsy was a decisive factor in their attitude and behaviour. She contended that the reference to her son’s origin and the authorities’ behaviour had to be seen against the broader context of systematic racism and hostility which law-enforcement bodies in Bulgaria repeatedly displayed and that it was widely documented by intergovernmental and human rights organizations. e government claimed that the reference in the official testimony of one of the police officers to the deceased as ‘the Gypsy’ was not evidence of discrimination. In the present case, the Court found a violation of Articles , , and but, with regard to Article , although it considered that the applicant’s complaints were based on serious arguments, it was unable to reach the conclusion that the ‘beyond reasonable doubt’ standard of proof was established. It declared, thus, that there was no violation of Article of the Convention. e Strasbourg Court has reviewed several cases where cultural identity derived from the fact that the applicant belonged to a particular religious group. A means to guarantee and preserve the identity of a minority group is represented by the protection of its autonomy and the limitations to the state’s interference with its internal organization. e case of Al-Nashif v. Bulgaria 57 concerns freedom of religion and the autonomy of religious groups. e applicant was a stateless person of Palestinian origin, born in Kuwait and lawfully resident in Bulgaria.58 Mr Al-Nashif submitted that after the Gulf War many Palestinians were expelled from Kuwait as Palestinian leaders had supported the Iraqi invasion in . e applicant left Kuwait with his wife in and moved to Bulgaria mainly because of the existing job opportunities there and the relatively easy procedure for obtaining legal status. e couple have two children, who were born in Bulgaria and acquired Bulgarian nationality. In , the board of the local Muslim religious community invited Mr Al-Nashif to teach a course on the Islamic religion to children and their ECtHR, Buckley v. the United Kingdom, judgment of September , Reports -IV; ECtHR, Appl. /,Varey v. the United Kingdom, judgment (friendly settlement) of December ; ECtHR, Appl. /, Chapman v. the United Kingdom; Appl./, Beard v. the United Kingdom; Appl./, Coster v. the United Kingdom; Appl. /, Lee v. the United Kingdom; Appl. /, Jane Smith v. the United Kingdom, judgments of January . 56 ECtHR, Appl. /, Anguelova v. Bulgaria, judgment of June . 57 ECtHR, Appl. /, Al-Nashif v. Bulgaria, judgment of June . 58 e applicant submitted that despite the fact that he was born in Kuwait and that his mother is a Syrian citizen, he could not acquire Kuwaiti or Syrian nationality because in both countries only offspring of male nationals of those states may obtain citizenship. 55
Roberta Medda-Windischer parents. Following a police investigation that he was teaching religion without authorization ‘encroaching on the national interests and the rights of the religious, ethnic and minority groups in the conservation of the national and cultural values and traditions’, the Bulgarian authorities revoked the applicant’s permanent right of residence and issued an order for his deportation and exclusion.59 Subsequently, Mr Al-Nashif was transferred to a detention centre located in the proximity of the Sofia airport, where the conditions were equivalent to prison conditions. Mr Al-Nashif was detained there for days in complete isolation and eventually he was flown to Damascus. e applicant complained that his deportation had been a reaction to and a punishment for his lawful religious activities and had therefore constituted an unjustified interference with his rights under Article of the Convention. He complained that in violation of Article in conjunction with Article , he had not had an effective remedy in this regard. He further complained that he had not been provided with elementary safeguards with regard to his deprivation of liberty as required by Article (). Finally, the applicant complained that there had been an arbitrary interference with his right to respect for his family life in breach of Article . e respondent government submitted that the applicant sought to open an Islamic study centre that allegedly would propagate extremist views, that he sought to impose fundamentalist Islam on others through the use of force and threats (‘aggressive fundamentalist proselytism’) and that he had links with fundamentalist organizations. According to the government, against the background of the applicant’s religious activities the authorities had justifiably feared that the classes given by him to children could be dangerous. In the government’s view an important aspect of the case was the regional context in south-eastern Europe where measures of active protection of religious tolerance were critical: ‘In Bulgaria, in particular, owing to a number of factors – such as disruptions in community traditions caused by decades of totalitarianism – the religious consciousness of the population was currently unstable and unsettled. Communities in general, and the Muslim community in particular, were thus allegedly susceptible to influences and hence it was necessary to protect them against Islamic fundamentalism.’60 e applicant categorically denied that he had ever been involved in any unlawful activity and asserted that the allegations that he was linked to fundamentalist organizations preaching violence had been invented and were not supported by any reliable evidence. e real facts demonstrated, in the applicants’ view, that his expulsion had been intended to put an end to his lawful religious activities. As to the deprivation of liberty, the Court noted that it was undisputed that in Bulgarian law no judicial appeal lies against detention pending deportation in cases where the deportation order is issued on grounds of national security. e Court noted that national authorities cannot do away with effective control of lawfulness of detention by the domestic courts whenever they choose to assert that national security and terrorism are involved and that there are means which can be employed which both accommodate 59
60
ECtHR, Appl. /, Al-Nashif v. Bulgaria, judgment of June , , para. . Ibid., , para..
e Jurisprudence of the European Court of Human Rights legitimate national security concerns and yet accord the individual a substantial measure of procedural justice. e Court recalled that following the Chahal judgment61 the United Kingdom introduced legislation making provision for the appointment of a ‘special counsel’ in certain cases involving national security. In the present case, however, Mr Al-Nashif was not provided with basic and elementary safeguards and did not enjoy the protection required by Article () and thus this article was found to be violated. e Court followed the same reasoning for the assessment of Article and the alleged lack of effective remedy to challenge the applicant’s deportation. With regard to the alleged violation of Article , the Court initially recalled that the right of an alien to enter or to reside in a particular country is not guaranteed as such by the Convention. In addition, the Convention does not impose on a state a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorize family reunions on its territory. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article (). After having considered that the deportation of Mr Al-Nashif interfered with his family life, the Court found that Mr Al-Nashif ’s deportation was ordered pursuant to a legal regime that did not provide the necessary safeguards against arbitrariness. e interference with the applicants’ family life could not be seen, therefore, as based on legal provisions that meet the Convention requirements of lawfulness. at being so, the Court was not required to determine whether the interference with the applicants’ family life was motivated by one or more of the legitimate aims set forth in paragraph of Article and ‘necessary in a democratic society’. e Court therefore concluded that there was a violation of Article . With regard to the alleged violation of Article , having found that Mr Al-Nashif ’s deportation constituted a violation of the right of the applicant to respect for his family life within the meaning of Article and that contrary to Article he did not have an effective remedy in this regard, the Court considered, unanimously, that it was not necessary to determine whether the same events contravened Article . A recent case concerning the restriction by the state of the right of expression on religious matters is the case Murphy v. Ireland.62 In this case, a pastor attached to the Irish Faith Centre, a Bible-based Christian ministry in Dublin, was refused permission to transmit an advertisement for a religious video on an independent, local and commercial radio station. According to the Irish Radio and Television Act , ‘no advertisement shall be broadcast which is directed towards any religious or political end …’. In the reasoning of the High Court ‘Irish people with religious beliefs tend to belong to particular churches and that being so, religious advertising coming from a different church can be offensive to many people and might be open to the interpretation of proselytizing. Religion has been a divisive factor in Northern Ireland and this is something which [Parliament] may well have taken into account.’63 e case was also reviewed by the Supreme Court which ECtHR, Chahal v. the United Kingdom, judgment of November , Reports -V. ECtHR, Appl. /, Murphy v. Ireland, decision on the admissibility of July . 63 Ibid., . 61
62
Roberta Medda-Windischer confirmed that the Radio and Television Act constituted a reasonable limitation on the right to communicate and that there were good reasons in the public interest for the ban. In Strasbourg the application was declared admissible as of Articles and . On November , the Court held the hearing on the merits but at the time of writing no judgment had yet been delivered. An important distinction which is being made in respect to the right to freedom of religion is whether a particular practice is an essential part of the manifestation of religion. Not every act influenced by a religion or belief is indeed recognized as a practice within the meaning of Article , and accordingly the protection of Article cannot be invoked either. e issue of which types of practices belong to the manifestation of religion has been reviewed by the Court in cases concerning the wearing of Islamic headscarves. Following the case of Dahlab v. Switzerland,64 the Court considered the cases of Tekin v. Turkey 65 and Sahin v. Turkey,66 concerning the ban on the applicants of wearing Islamic headscarves in Turkish higher education establishments. In both cases the applicants, at that time medical and nursing students, were refused admission to classes following a circular issued by the Higher Education Council stating that it was a disciplinary and criminal offence for students to wear Islamic headscarves in higher education establishments. e Turkish Government submitted that the ban to wear a beard or an Islamic headscarf in higher education establishments aimed at guaranteeing the principle of secularism laid down in Article of the Constitution as well as guaranteeing the peaceful co-existence of different religions and beliefs within the same community or establishment. e Court declared the applications admissible, inter alia, as of Article and of Protocol No. . On November , the Court held the hearings on the merits of these cases but at the time of writing no judgments had yet been delivered. In the context of religious minority groups, the Court also reviewed a number of cases concerning the difficulties experienced by the Catholic community in Northern Ireland. Recently, the Court dealt with a case concerning belonging to the Catholic minority. In the case Devenney v. the United Kingdom,67 the applicant, an Irish national, was dismissed without explanation from his job as a waiter in a hotel in Belfast. e applicant complained to the Fair Employment Tribunal that he had been unlawfully discriminated against on the grounds of religious or political opinion. However the Fair Employment Tribunal was informed that the Secretary of State for Northern Ireland had certified that the applicant’s contract had been terminated in order to protect public safety and public order. Accordingly the Fair Employment (Northern Ireland) Acts did not apply. Relying on Articles , and , the applicant alleged that the procedure based on the certificate issued by the Secretary of State denied him access to court. e Court concluded that the ECtHR, Appl. /, Lucia Dahlab v. Switzerland, decision on the admissibility of February . ECtHR, Appl. /, Tekin v. Turkey, decision on the admissibility of July . 66 ECtHR, Appl. /, Sahin v. Turkey, decision on the admissibility of July . 67 ECtHR, Appl. /, Devenney v. the United Kingdom, judgment of March . 64 65
e Jurisprudence of the European Court of Human Rights facts of the case disclosed a breach of Article and therefore did not consider it necessary to determine whether there was also violation of Article .68 Another case concerning discrimination and the belonging to a religious group is the case of Selim v. Cyprus 69 in which the applicant complained that in he was refused by the municipal authorities of Nicosia to contract a civil marriage with a Romanian citizen on the grounds that in Cyprus there was no law governing the rights of Turkish Cypriots professing the Muslim faith to contract a civil marriage. e couple were thus forced to marry in Romania without any of the applicant’s family or friends being able to attend. e applicant complained therefore that his right to marry and found a family was violated. In its decision on the admissibility70 the Court first noted that the legislation governing marriage in cases in which one of the parties is a Turk resident in Cyprus and professing the Muslim faith is Turkish Family Law, which was in force on the date of entry into operation of the Constitution and originally permitted civil marriages by a Marriage Officer who was a judge in a Turkish Family Court. is Law was subsequently amended by the Turkish Communal Chamber acting pursuant to the Constitution whereby Turkish Family Courts were replaced by Turkish Communal Courts. e Court recalled that, by excepting from the application of its provisions marriages between parties one of whom was a Turk professing the Muslim faith, the Marriage Law conferred on the Communal Chamber of the Turkish Community exclusive legislative power with regard to the ‘personal status’ of members of that community. Owing to the abnormal situation prevailing on the island, the Court further recalled that in the present case there were – and are – no Turkish Communal Courts operating in the government-controlled part of the Republic, whose judges can act as Marriage Officers. As for the objection of the government that the applicant did not exhaust domestic remedies because he should have appealed before the Supreme Court, the Court observed that the government had cited no authority in which in circumstances comparable to those in the present case a statutory provision was held to be unconstitutional and of no continuing effect. Indeed, the Court referred to a decision of the Cypriot Supreme Court in a case that appeared to support the contrary conclusion71 and that subsequently was referred to the Strasbourg Court.72 In conclusion, the Court dismissed the government’s preliminary objection on the exhaustion of domestic remedies because the government did not show with a sufficient degree of certainty the existence of an available and effective remedy and declared the See also ECtHR, Tinnelly & sons LTD and Others and McElduff and Others v. the United Kingdom, judgment of July , Reports , concerning discrimination against Catholics in Northern Ireland in the award of public works contracts. 69 ECtHR, Appl. /, Selim v.Cyprus, judgment (friendly settlement) of July . 70 ECtHR, Appl. /, Selim v.Cyprus, decision on the admissibility of September . 71 Ibid., -. 72 ECtHR, Appl. /, Aziz v. Cyprus, Greece, Turkey and the United Kingdom. For further details on this case, see above ‘Effective Participation in Public Life’ in this article. 68
Roberta Medda-Windischer application admissible as regards the substance of the complaint. Subsequently, the case was struck off the list because the parties reached a friendly agreement. e applicant accepted the offer of the government to pay a sum covering pecuniary and non-pecuniary damage as well as costs.73 Afterwards, the government informed the Court that on April a new law was enacted which allows civil marriage where one or both spouses are members of the Turkish community.74 III. L R With regard to language rights, the Strasbourg organs have held that the Convention does not provide for any right of a linguistic minority as such, and that the protection of individual members of such a minority is limited to the right not to be discriminated against in the enjoyment of the Convention rights on the grounds of their belonging to the minority.75 In the context of judicial proceedings, the Convention contains several special provisions on the use of language: Article () and Article () (a) provide for the right to be informed in a language which one understands of the grounds of detention and of any criminal charge, and Article () (e) guarantees the right of everyone charged with a criminal offence to the free assistance of an interpreter if s/he cannot understand or speak the language used in court. e principle of fair hearing (Article ()) may make it a requirement that translations or interpreters are made available in civil cases too.76 ese specific provisions, which at first sight might afford some protection to linguistic minorities, have proved to be not so relevant in practice. ose who have tried to read into Article () and Article () (a) and (e) a right to use one’s minority language in court proceedings, have been disillusioned by the Commission and the Court. According to the established case law, the judicial authorities are not obliged to take steps to comply with requests for translations or the assistance of interpreters, as long as they are in a position to establish that the applicant has in fact sufficient knowledge of the official language used in court.77 e government offered to pay Mr. Selim the sums of , Cyprus pounds as just satisfaction and , Cyprus pounds plus VAT for legal costs. 74 e new Law (I)/, entitled ‘Application of the Civil Marriage Law to Members of the Turkish Community (Temporary Provisions Law )’, provides for the temporarily application of the Marriage Law to members of the Turkish Community. According to the government, ‘ there is to be temporarily and so long as the abnormal situation prevailing in the island continues, a suspension of legislative arrangements envisaged under the Turkish Family Law (Marriage and Divorce) Law Cap. and the Turkish Communal Courts Law of which at present apply to the celebration of civil marriage of Cypriots of Turkish origin.’ ECtHR, Appl. /, Selim v.Cyprus, judgment (Friendly settlement) of July , , para . 75 ECommHR, Appl. /, X v. Austria, D.R., . 76 ECommHR, Appl. /, X v. Austria, D.R., . 77 See among others, ECommHR, X and Y v. Belgium, decision of October ; K. v. France, decision of December , D.R. , ; ECommHR, Bideault v. France, decision of October , D.R., -. 73
e Jurisprudence of the European Court of Human Rights Recently, the Court reviewed a variation on the above theme in the case of Lagerblom v. Sweden.78 e applicant, who had settled in Sweden but whose mother tongue was Finnish, complained that he was not allowed to be defended by a counsel of his own choosing, with whom he could have spoken Finnish and whose pleadings he would have fully understood. He also complained that he was able to communicate with the counsel appointed for him only via an interpreter. e applicant maintained that, belonging to the large Finnish minority in Sweden, the courts should have appointed a Finnish-speaking public defence counsel for him. e Court noted at the outset that, read as a whole, Article of the Convention guarantees the right of an accused person to participate effectively in a criminal trial. In general this includes not only the right to be present, but also the right to receive legal assistance, if necessary, and to follow the proceedings effectively. Although Article ()(c) entitles an accused person to be defended by a counsel ‘of his own choosing’, and notwithstanding the importance of the relationship of confidence between lawyer and client, the Court held that this right cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned. When appointing a defence counsel the courts must certainly have regard to the accused’s wishes but these can be overridden when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.79 With regard to the right for an accused person who cannot understand or speak the language used in court to have the free assistance of an interpreter, in the Court’s view this right extends to all those documents or statements in the criminal proceedings which it is necessary for the accused to understand or to have rendered into the court’s language in order to have the benefit of a fair trail. As for the interpreting assistance provided in criminal proceedings, the Court noted that it should be such as to enable the accused to have knowledge of the case against him/her and to defend him/herself, notably by being able to put before the court his/her version of the events. e Court accepted that in this specific case the applicant’s knowledge of Swedish might have been somewhat limited despite his lengthy stay in Sweden. However, noting that the applicant described his proficiency as ‘street Swedish’ and that he thus had a certain command of the language, the Court could not find that he was so handicapped that he could not communicate at all with his counsel or understand him. e Court further observed that interpreting between Finnish and Swedish was arranged at the national court’s hearings and that the applicant made oral submissions in Finnish during those hearings. Furthermore, in accordance with the Nordic Language Convention, he was allowed to make written submissions in Finnish to the domestic courts which were translated and entered into the case file. In these circumstances, the Court considered that the interpretation assistance provided for the applicant was adequate and that the applicant was able to participate effectively in his trial. Consequently, the criminal proceedings, taken as a whole, could not be regarded as unfair and accordingly there was no breach of Articles () and () of the Convention. 78
79
ECtHR, Appl. /, Legerblom v. Sweden, judgment of January . Ibid., , para. .
Roberta Medda-Windischer In addition to the special judicial provisions, the protection of minorities’ language rights can also be achieved through the education of children belonging to the group. However, as clearly stated in the Belgian Linguistic Case,80 under the Convention there is no right to mother-tongue education. In the recent interstate Cyprus v. Turkey 81 case, the Court nevertheless made an interesting pronouncement concerning secondary educational facilities for children of Greek Cypriots living in Northern Cyprus. is case was recently considered by the Committee of Ministers in its meeting to supervise the execution of the judgments of the Court.82 On this occasion, the Committee reviewed the adoption of general measures to comply with the judgment in this interstate case, notably with respect to the right of the Greek Cypriot population in Northern Cyprus. is case is particularly relevant in the context of language rights because the Court took into consideration the educational facilities in Northern Cyprus that had been formerly available to children of Greek Cypriots and were then abolished by the TurkishCypriot authorities. In these circumstances, the legitimate wish of Greek Cypriots living in Northern Cyprus to have their children educated in accordance with their cultural and ethnic tradition, and in particular through the medium of the Greek language, could no longer be met. As a result, children of Greek-Cypriot parents in Northern Cyprus wishing to pursue a secondary education through the medium of the Greek language were obliged to transfer to schools in the south. Taking into consideration the fact that the Convention does not specify the language in which education must be conducted in order for the right to education to be respected, the Court first noted that, in the strict sense, there was no denial of the right to education because it was open to children, on reaching the age of , to continue their education at a Turkish or English-language school in the north. However, the Court considered the option available to Greek-Cypriot parents to continue their children’s education in the north as unrealistic in view of the fact that the children in question had already received their primary education in a Greek-Cypriot school there. e authorities had to be aware that it was the wish of Greek-Cypriot parents that the schooling of their children be completed through the medium of the Greek language. e Court held: Having assumed responsibility for the provision of Greek-language primary schooling, the failure of the TRNC authorities to make continuing provision for it at the secondary-school level must be considered in effect to be a denial of the substance of the right at issue. It could not be maintained that the provision of secondary education in the south in keeping with the linguistic tradition of the enclaved Greek Cypriots suffices to fulfil the obligation laid down in Article of Protocol No. , having regard to the impact of that option on family life.83 ECtHR, Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits), judgment of July , Series A, No. . 81 ECtHR, Appl. /, Cyprus v. Turkey, judgment of May . 82 Committee of Ministers, DH meeting of - December . 83 ECtHR, Appl. /, Cyprus v. Turkey, judgment of May , paras -. 80
e Jurisprudence of the European Court of Human Rights e Court concluded that there had been a violation of Article of Protocol No. with respect to Greek Cypriots living in Northern Cyprus in so far as no appropriate secondary school facilities were available to them. Although the context in this case is particularly relevant, this pronouncement is rather promising as it might be transposed to other situations in which minority groups are denied education in their mother-tongue in circumstances where they had formerly enjoyed it. Language rights and the manifestation of culture and the identity of minority groups are obviously intertwined issues. Since the ratification of the Convention by Latvia, the Court reviewed several cases concerning the Russian-speaking minority, who following the independency of Latvia from the Soviet Union in , became stateless and forced to leave their home and country regardless of their long-term residence in Latvia. Following the judgment of the Court in the case of Slivenko and others v. Latvia,84 the Court reviewed an analogous case, Sisojeva and others v. Latvia.85 e applicants belonged to the Russian-speaking minority and were a former soldier of the Soviet Army and his family. Following the restoration of Latvia’s independence, they became stateless and forced to leave Latvia although they had been long-term residents there. Despite the fact that two of the applicants had obtained Russian nationality, they also applied for permanent residence permits in Latvia and, in one case, for a passport as a ‘permanent resident without citizenship’. ese documents were refused and the applicants were required to leave Latvia although they either had lived in Latvia for more than thirty years or were born there. e applicants complained that the Latvian authorities’ refusal to regularize their residence in Latvia was in violation of their right to private and family life. At the time of writing no judgment had yet been delivered.
ECtHR, Appl. /, Slivenko and Others v. Latvia, (Grand Chamber), decision on the admissibility of January . For further reference, see by the same author ‘e Jurisprudence of the European Court of Human Rights’, EYMI (/), -. 85 ECtHR, Appl. /, Sisojeva and Others v. Latria, decision on the admissibility of February . 84
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Christos Giakoumopoulos * and Alvaro Garcia Ormaechea †
e Protection of Minorities in the Activities of the Commissioner for Human Rights of the Council of Europe
e institution of the Commissioner for Human Rights was created by resolution no. () of the Committee of Ministers of the Council of Europe (CoE). e terms of reference on the Commissioner do not specifically refer to minority rights. However, minority issues have become an important aspect of the institution’s activities. e aforementioned resolution provides that the Commissioner is a non-judicial institution to promote education in, awareness of, and respect for human rights ‘as embodied in the human rights instruments of the Council of Europe’. Obviously this covers the Framework Convention for the Protection of National Minorities (FCNM), which is the most comprehensive of the CoE instruments touching on minority rights, but also the European Charter of Regional or Minority Languages (EChRML). Mr Alvaro Gil-Robles, the first elected Commissioner for Human Rights has repeatedly referred to minority protection policies in his reports and in his discussions with national authorities. A summary of the Commissioner’s statements on minority rights in the reports issued in can be found hereafter. I. G In his visit to Greece, (- June )1 the Commissioner stressed the need for Greece to ratify the FCNM and to continue to improve the situation of the various ethnic communities living in the country. Specifically, with regard to the protection of the Roma community, the Commissioner urged the authorities to continue the implementation of the programme of the Joint Ministerial Committee for Roma with the priority of ensur*
† 1
Director of the Office of the Commissioner for Human Rights. Trainee in the Office of the Commissioner for Human Rights. Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to Greece, - June , for the attention of the Committee of Ministers and the Parliamentary Assembly, CommDH(). All reports are available at http://www.commissioner.coe.int.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Christos Giakoumopoulos and Alvaro Garcia Ormaechea ing living conditions consistent with ‘human dignity’ in critical settlements such as the one in Aspropyrgos. e Commissioner also criticized some disproportion in prosecutions and convictions for proselytism to the disadvantage of minority religious groups and expressed the hope that the law, which bans proselytism, will be reviewed. He further recommended that the Greek government foment the construction of places of worship for religious minorities. As a result, the state authorities have agreed to consider measures for the construction of a Mosque and a Muslim cemetery near Athens. Most importantly the Commissioner underlined in his report the ‘right to identify oneself as one sees fit’. e Commissioner stated: e only officially recognised minority in Greece is the Muslim minority in race defined on the basis of religion. According to ECRI, members of the Turkishspeaking community in race are prevented from designating themselves as they wish, and this is regarded as an impediment to their freedom of expression. It has been generally observed in the past that Greek citizens belonging to groups defined by linguistic or cultural criteria could meet difficulties in exercising their right to freedom of expression or association and to identify themselves as they wish, a right secured in Article of the Framework Convention for the Protection of National Minorities signed by Greece on September but not yet ratified. During my visit I met someone who had been sentenced by the trial court to a suspended prison sentence for distributing a brochure of the European Bureau for Lesser Used Languages on the ground of ‘disseminating false information’ about minority languages in Greece. is conviction was set aside by a ruling of the Athens Court of Appeal delivered on September . e ruling has been hailed as indicating greater receptiveness by the Greek authorities to the phenomenon of diversity in the society. I wholeheartedly endorse this approach; it would be a constructive development if Greece continued on this course and ratified the Framework Convention for the Protection of National Minorities and signed and ratified the European Charter for Regional or Minority Languages. II. H Also during the Commissioner’s visit to Hungary (- June )2 the rights of the Roma/Gypsy Community were a priority on the agenda. Like in many other former socialist republics, the Roma/Gypsy community in Hungary is undoubtedly the group most directly affected by the adverse impact of the society’s transition to a market economy. Its members must now deal with difficult situations arising, inter alia, from job 2
Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to Hungary, - June , for the Committee of Ministers and the Parliamentary Assembly, CommDH ().
e Protection of Minorities in the Activities of the Commissioner for Human Rights insecurity, discrimination in access to education and lack of decent housing. Frequently less technically qualified than other employees, Roma/Gypsies are the first workers to be made redundant. In addition, the prejudice to which they are often subject means that they face considerable difficulties in maintaining or finding other employment. According to information received from community representatives, more than % of Roma/ Gypsies appeared to be currently unemployed. e Commissioner emphasized the need to pursue the already existing employment programmes and provide an assistance plan for the Roma/Gypsy community, with a view to combating the discrimination they face in access to employment, through legislative measures and targeted financial help. He further stressed the need to increase the number and improve the quality of vocational training programmes for Roma and provide their children with high-quality and non-discriminatory education. More generally, Mr Gil-Robles also underlined the need to accelerate the legal implementation of the constitutional right of Hungarian minorities to be represented in the national parliament. e reaction of the Hungarian government to these concerns has been quick. For instance, special ministerial commissioners responsible for Roma issues are being appointed in the ministries concerned. Within the Ministry of Employment Policy and Labour a Directorate General for Equal Opportunities was created this summer. One of the main tasks of this Directorate General is to facilitate the integration of the Roma community in the field of employment. Also the new comprehensive anti-discrimination act, which is likely to be adopted during the course of the year will be a milestone in the fight against discrimination in general, and in particular in the struggle against the discrimination against the Roma community regarding access to employment and education, as well as police maltreatment. III. R Finally, in Romania (- October ),3 the Commissioner for Human Rights invited the authorities to ratify the EChRML as well as to examine the possibility of ratifying Additional Protocol No. to the European Convention on Human Rights, which forbids any form of discrimination. Mr Gil-Robles had the opportunity to meet Roma/Gypsy representatives and to observe the deplorable living and hygiene conditions afflicting part of that community. e Roma/Gypsy community suffers greatly from poverty, unemployment, and lack of schooling, lack of access to health care and justice and discrimination in all its forms. Likewise, according to Roma/Gypsy organizations, one of this community’s growing concerns is the ‘anti-Roma/Gypsy phenomenon’, which is gaining ground both in Romania and in Europe. 3
Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to Hungary, - October , for the Committee of Ministers and the Parliamentary Assembly, CommDH().
Christos Giakoumopoulos and Alvaro Garcia Ormaechea e Commissioner recommended that the government, first, allocates the necessary resources for developing the national strategy on behalf of Roma/Gypsies to foster improvement in their circumstances; second, reduces or eliminates charges for issuing birth certificates; and finally, takes up the necessary measures in order to remedy to the serious public health problem afflicting the Ferentari area. e Romanian authorities have renewed their resolve to ensure effective implementation of the measures introduced in to improve the conditions of the Roma/Gypsy community in the health sector, in the form of the Partnership Protocol that regulates the collaboration between the Ministry of Health and Family and the Roma/Gypsy Social Democratic Party, the creation of a Ministerial Commission for the Roma/Gypsy and the Agreement instituting the position of health mediator (a representative of the community chosen by it to channel contacts with the local authorities). With regard to the latter, the government considers that, over the course of , health mediators will be established in all of Romania’s counties.
Matthew E. Draper*
e Activities of the OSCE High Commissioner on National Minorities: June 2002 – June 2003
I. I is overview of the activities of the High Commissioner on National Minorities (HCNM) of the OSCE covers the period June through June .1 Currently, the HCNM is Rolf Ekéus of Sweden. He took up his duties on July , succeeding Max van der Stoel of the Netherlands who served as High Commissioner between January and June . To commemorate the th anniversary of the institution of the HCNM, on January Daan Everts, Personal Representative of the Chairman-in-Office (e Netherlands) of the OSCE, gave a speech on the HCNM’s contribution to peace and ethnic harmony in Europe over the preceding decade. Ambassador Everts noted that the HCNM’s success could be attributed to the effective use of quiet diplomacy, complementarity with other international organizations, and the issuing of general and country-specific recommendations.2 e following day, the HCNM held an off-the-record dialogue on Preventing Conflict rough Integrating Diversity attended by a diverse group of experts on conflict preven*
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Matthew E. Draper holds a J.D. from Columbia Law School (NY) and a B.A. from Princeton University (NJ). He serves as a Junior Legal Officer at the Office of the High Commissioner on National Minorities. e views expressed in this article are those of the author and are not necessarily shared by the High Commissioner or the OSCE. An account of previous activities of the HCNM back to January can be found in Sally Holt, ‘e Activities of the OSCE High Commissioner on National Minorities January – May ,’ EYMI (/) -. For an account of the activities of the first HCNM, Mr. Max van der Stoel, from the founding of the office in to early , see Walter Kemp (ed.) Quiet Diplomacy in Action: e OSCE High Commissioner on National Minorities (e Hague, ). Daan Everts, ‘Ten Years High Commissioner on National Minorities: the cost of one modern warplane and the story of the dog that didn’t bark,’ January , available at: http://www.osce.org/hcnm/documents/ speeches//HCNM_jan_daan.pdf.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Matthew E. Draper tion, interethnic relations and minority rights. In a wide-ranging discussion, participants examined such areas as the HCNM’s involvement in Central Asia and his interaction with the European Union, including vis-à-vis ‘new minorities’. e participants agreed on several points. First and foremost, the HCNM was strongly encouraged to continue the work of the past decade with the same approach and engagement. Second, it was felt that counter-terrorism efforts in the EU threatened to undermine minority protections which needed to be safeguarded. Another broadly echoed point was that Central Asia deserved the HCNM’s full attention. Finally, the participants concurred that one of the HCNM’s greatest achievements has been the development and dissemination of general recommendations and urged further efforts to elaborate and disseminate additional general recommendations on relevant subjects.3 During the time period covered by this article, the HCNM initiated dialogue with two OSCE participating states for the first time: Turkmenistan and Turkey. He visited Turkemenistan in November , met with government officials and learned more about the government’s views on minorities.4 His visit to Turkey occurred in January . e discussions centred around Turkey’s legislative reforms and Turkish minorities in the OSCE area.5 II. M P As the HCNM often makes clear in his public statements, he is the High Commissioner on – not for – national minorities. e HCNM is not an advocate for minorities, however the HCNM has found that the protection of the rights of persons belonging to national minorities contributes greatly towards minimizing ethnic tensions that may lead to conflict. Norms of minority protection also serve as the minimum basis upon which minority claims and matters in dispute may be evaluated and negotiated in a democratic setting. us, much of the HCNM’s attention is focused on assisting states in adopting and implementing domestic policies, legislation and practices in accordance with their international obligations and commitments. A. Legislative Frameworks e Office of the HCNM works with governments on the development and reform of minority-related policy and law, including framework legislation on the rights of persons belonging to national minorities. In and , the Office of the HCNM focused 3
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e existing general recommendations include e Hague Recommendations on the Educational Rights of National Minorities (), the Oslo Recommendations on the Linguistic Rights of National Minorities (), and the Lund Recommendations on the Effective Participation of National Minorities in Public Life (). All are available, in a number of languages, at http://www.osce.org/hcnm/documents/ recommendations/. OSCE Newsletter, December , . Speech of the HCNM, Muller Lecture on ‘Preventive Diplomacy’, January , .
e Activities of the OSCE High Commissioner on National Minorities its energies in this regard primarily on Croatia, the Federal Republic of Yugoslavia (now Serbia and Montenegro), Georgia and Northern Ireland. e Office of the HCNM worked in close cooperation with the Council of Europe’s Venice Commission and the OSCE Mission to Croatia in advising the Croatian Government on the content of the Constitutional Law on the Rights of National Minorities (CLNM).6 e adoption of the CLNM was one of Croatia’s international obligations upon entry to the Council of Europe as well as an important benchmark for implementation of the EU Association and Stabilisation Process. Since May , the Croatian Parliament had debated various drafts of the CLNM. e HCNM commented on a new CLNM draft in July . During his visit to Croatia in September , the HCNM stressed the need for the law to provide adequate minority representation in parliament, strengthen the powers of minority self-government at both the local and the regional levels, and improve the capabilities and composition of the Council of National Minorities.7 e effective participation of national minorities in the governance of states is a recurring theme in the work of the HCNM. e HCNM has found that the effective participation of national minorities in public life is an essential component of a peaceful and democratic society.8 As such, the developments in Croatia were watched closely by the HCNM. In November the HCNM shared with the Croatian Government some of his concerns about the draft law, particularly on the proposal that voters who belonged to some national minorities would have two votes for parliament: an ordinary vote and a vote specifically for minority representatives. is approach, as the HCNM pointed out, was inconsistent with the equal suffrage requirement in international law. If Croatia decided to provide national minorities with a second vote, the HCNM suggested that it only should be for representatives who had competence on matters directly affecting the lives of persons belonging to national minorities. Another option, commonly followed by other OSCE states, is to allow everyone only a single vote, but to design the electoral system in a way that ensures adequate levels of minority representation.9 In any case, the version of the CLNM that was adopted in December deferred the decision on minority representation in parliament to the implementing legislation.
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Official Gazette (No. /). For more on this issue, see OSCE Mission to Croatia, Background Report, ‘Implementation of the Constitutional Law on the Rights of National Minorities (CLNM) and Related Legislation’ May , at http://www.osce.org/croatia/documents/reports/clnm_implement _.pdf, and Venice Commission, ‘Opinion on the Constitutional Law on the Rights of National Minorities of Croatia’ (- March ), opinion no. /, CDL-AD (). OSCE Newsletter, October-November , . For more on this, see the Lund Recommendations on the Effective Participation of National Minorities in Public Life (), at http://www.osce.org/hcnm/documents/recommendations/. See also John Packer, ‘e origin and nature of the Lund Recommendations on the Effective Participation of National Minorities in Public Life’, () Helsinki Monitor (), -. On this issue, see the Lund Recommendations-related Guidelines to Assist National Minority Participation in the Electoral Process (), at http://www.osce.org/odihr/documents/guidelines/ gl_nmpa_eng.pdf.
Matthew E. Draper e HCNM welcomed the passage of the CLNM and called on the Croatian authorities to ensure full implementation of the law so that the rights enshrined in it would be guaranteed.10 e methods for minority participation at the local and national levels were fleshed out in a series of laws debated and passed over the course of the first several months of . In February, in concert with the OSCE Mission to Croatia – which was deeply involved in the issues surrounding the CLNM and its implementation – the HCNM forwarded to the Croatian Parliament his office’s analysis of the Draft of the Law on Amendments to the Law on the Election of Members of Representative Bodies of Local and Regional Self-Government Units. e analysis concluded that although the draft law appeared to be in conformity with the CLNM, some of its provisions could be improved or made more specific. e parliament passed the law on March. e first local elections conducted under the new law were held in May and were generally considered successful by the OSCE Mission, although minority voter turnout was low.11 en in April the parliament passed amendments to the Election Law, granting eight seats in the parliament to representatives of minority groups, including three for the Serb minority. In a welcome development, the amendments avoided creating a double vote by giving voters belonging to national minorities the choice between voting in the general election or for minority representatives. In a similar manner, the HCNM followed closely the discussions over the Constitutional Charter of the Union of Serbia and Montenegro. On August , in a letter to the Minister of Foreign Affairs of the Federal Republic of Yugoslavia, the HCNM expressed the hope that minority rights would find an appropriate place in the Constitutional Charter and that the standards of minority protection achieved in the new Federal Law would not be jeopardized. One of the HCNM’s concerns was the effective implementation of the Law on the Protection of National Minorities with a view to ensuring continuity in the protection of minority rights in Serbia and Montenegro. In the reply received on September , the HCNM was assured that minority rights in the redefined Union of Serbia and Montenegro would not be less than those already existing in the FRY. Parliament adopted the Constitutional Charter on February . e HCNM then turned his attention to the provisions of the Charter on Human and Minority Rights that address the rights of persons belonging to national minorities. On February the HCNM forwarded his comments on the Charter to members of the Constitutional Commission. e Charter on Human and Minority Rights, which was finally adopted at the end of February, in the HCNM’s estimation ‘provides a good framework for the guarantee of minority rights in conformity with international standards and practices of good governance.’12 10 11 12
HCNM Press Release, ‘OSCE Commissioner welcomes adoption of minority law in Croatia’, December , at http://www.osce.org/news/show_news.php?id=. OSCE Mission to Croatia, Press Release, ‘OSCE Mission concerned about low voter turnout at minority elections in Croatia’, May , at http://www.osce.org/news/show_news.php?id=. () OSCE Newsletter, .
e Activities of the OSCE High Commissioner on National Minorities In some situations, the HCNM finds it useful to work closely with governments in order to assist them in implementing previously agreed protections for minority groups. For example, in the Office of the HCNM assisted the Federal Republic of Yugoslavia’s Ministry of National and Ethnic Communities in the preparation of the Law on the Rights of National Minorities. In order to assist the authorities in the implementation of this and other related laws, the HCNM deployed a full-time staff lawyer to Belgrade in November . e HCNM’s staffer also acts as a liaison to the government on a variety of issues related to the protection of national minorities. ese issues include monitoring the establishment of National Councils (which are foreseen under the Federal Law), the vehicles for minority groups to contribute their voices to government policies. e liaison officer also provides on-the-ground advice by commenting on policy initiatives and draft legislation, such as the Serbian Law on Education and Montenegro’s minority legislation, as well as by participating in various conferences and roundtable discussions held locally on topics that relate to minorities. e officer is regularly engaged with policy- and law-making communities at the federal/Union level, regional and local levels. e federal authorities have been particularly welcoming of this new mode of HCNM engagement. Another particular focus of the HCNM is the promotion of anti-discrimination legislation throughout the OSCE. e HCNM’s efforts are facilitated by the European Commission’s Race Directive (//EC), which requires all EU member states as well as all EU accession countries to adopt effective legal frameworks against discrimination. With broader reach, but less precision (especially in terms of any requirement for specific legislation or dedicated institutional arrangement), is Additional Protocol to the European Convention on Human Rights which prescribes a general prohibition of discriminatory policy, law or practice. Of course, aside from any international obligations which may bear upon the state, it is simply good governance not to discriminate. While the HCNM respects the right of each state to decide whether to adopt a single comprehensive law on anti-discrimination or act on a law-by-law basis, he has expressed the view that, ‘[i]n either case, in order to be effective, such legislation should, in my view, include creation of an independent and impartial national institution for the supervision and implementation of the law,’ such as an ombudsman or an equality commission.13 With regard to specific cases, such as in Hungary, the HCNM has raised the need for anti-discrimination legislation and sought resolution of the constitutionally required (but as yet unimplemented) representation of minorities in parliament.14 Hungary’s Parliament has begun discussing drafts of anti-discrimination legislation. e former Yugoslav Republic of Macedonia (fYRoM) adopted a law on local selfgovernment at the beginning of . e HCNM, as he has stated during discussions with government officials, considers this only the beginning of the process of decentralization. He has urged the government to draft a broader legislative package including the Law on Self-Financing and the Law on Territorial Division and offered the assistance 13 14
HCNM Speech to the OSCE Human Dimension Implementation Review Meeting (Warsaw, September ), at http://www.osce.org/documents/hcnm///_en.pdf, . OSCE Newsletter, October-November , .
Matthew E. Draper of his Office in the preparation of these laws in order to find politically acceptable and practically workable arrangements, in particular regarding revision of boundaries of municipalities. e HCNM also has been actively advising Georgia on the drafting of its State Language Law, along with development of a social integration policy and related legislation. e HCNM’s most recent comments on the Draft Law on the State Language came in September . Efforts by the parliament to draft a State Language Law continue. Separately, the HCNM is making a survey of Georgia’s legal framework relating to minorities and aims to conduct a series of consultations, training courses and seminars on legal standards of minority protection for various state bodies. Similarly, in Kyrgystan in September the Office of the HCNM, together with the national assembly, conducted a seminar entitled Legislation and the Protection of National Minorities: International Norms and Practice. e seminar sought to improve the general understanding of international standards and practical policy alternatives, and was attended by a wide variety of officials, parliamentarians, minority representatives and representatives of NGOs. Lastly, the Office of the HCNM provided comments to the Northern Ireland Human Rights Commission (NIHRC) on an issue related to a draft Bill of Rights for Northern Ireland. In accordance with the Belfast (Good Friday) Agreement (), the NIHRC is charged with drafting a bill of rights ‘drawing as appropriate on international instruments and experience.’ Since the draft bill of rights implicates the protection of minorities, the NIHRC sought a legal opinion from the Office of the HCNM. e first HCNM (i.e. Mr. van der Stoel) authorized his Senior Legal Adviser to share HCNM experiences and views during an oral exchange with members of an NIHRC working group at a meeting held in Belfast on November . Subsequent to that exchange, the Office of the HCNM was requested by the NIHRC to clarify whether, as a matter of international law, it is necessary to use the term ‘minority’ in the process of incorporating into domestic law international standards for the protection of minorities. In the context of Northern Ireland, there was concern that use of the term ‘minority’ – as employed by international minority rights instruments such as the Council of Europe’s Framework Convention for the Protection of National Minorities (hereinafter ‘the Framework Convention’) and the OSCE’s Copenhagen Document (upon which the Framework Convention is expressly based) – might be misunderstood or misapplied. Indeed, the fact that both the Framework Convention and Copenhagen Document refer to ‘national minorities’ throughout but nowhere define the term has led to confusion over its implementation in a variety of contexts. On February , the Office of the HCNM transmitted to the NIHRC its opinion, which stated, inter alia, that the use of the term ‘minority’ was not necessary and that, moreover, it may be desirable to use a more neutral term, provided that international standards for the protection of minorities were in substance still observed.15 Regardless of 15
Office of the OSCE HCNM, ‘Note on the Possible Use of Terminology in the Process of Incorporating Into Domestic Law International Standards for the Protection of Minorities’, January .
e Activities of the OSCE High Commissioner on National Minorities the terms used, international minority rights standards apply to any person who belongs to a national or ethnic, cultural, linguistic or religious group and is not in a position of dominance vis-à-vis the object of protection. OSCE officials are aware that some criticize the HCNM and the OSCE generally for over-focusing their efforts on participating states of the former East bloc.16 e engagement of the Office of the HCNM in Northern Ireland marks new involvement in a participating state ‘West of Vienna’ and demonstrates the relevance of its expertise to challenges faced by established European democracies. B. International Standards In making analyses, the HCNM relies upon the international legal standards accepted by the particular state in order to provide a basis for dialogue and grounding for eventual recommendations. e HCNM has continued to encourage states to join the relevant instruments for the protection of minorities, in particular the Framework Convention and the European Charter for Regional or Minority Languages. In , the HCNM singled out not a particular country, but rather the European Union as a whole. In the process of drafting a new constitution for itself, the HCNM argued that the EU should bring its own internal legislation up to the same standards it has been requiring of applicant states; i.e. the criteria stipulated by the European Council meeting in Copenhagen in . In a November address to a conference on the subject of national minorities in an enlarged European Union, the High Commissioner argued that ‘the European Union cannot ignore minority-related issues on its own turf.’ While recognizing the importance of the Copenhagen criteria for ensuring respect for and protection of minorities in accession countries, he said that the standards were less clear for EU members: Surely the standards on which the Copenhagen criteria are based should be universally applicable within and throughout the EU, in which case they should be equally – and consistently – applied to all Member States. Otherwise, the relationship between the existing and aspiring EU Members States would be unbalanced in terms of applicable standards. I believe such an imbalance would be inconsistent with declared EU values and raise serious doubts about the normative foundations of the EU itself.17 e HCNM went on to urge that a ‘clear and complete’ anti-discrimination provision be included in the new European Charter. In particular, the EC Treaty’s current lack of prohibition of discrimination on the ground of language must be addressed. He argued that 16 17
See, e.g., Daan Everts, ‘Ten Years …’. Rolf Ekéus, ‘From the Copenhagen Criteria to the Copenhagen Summit: e Protection of National Minorities in an Enlarging Europe’ ( November ), at http://www.osce.org/hcnm/documents/ speeches//index.php.
Matthew E. Draper EU law must be brought into line with international standards as well as ‘emphatically assert the equal protection of EU law’ to persons belonging to minorities. C. Kin-State Minority Protection e HCNM has found that interstate tensions may arise when a so-called kin-state unilaterally acts to grant benefits to its ethnic kin in other states. Kin-states sometimes conclude that they need to extend aid for ethnically/culturally/linguistically related communities in other states to maintain their distinct linguistic and cultural identities, especially where they are in the position of minorities. e most prominent example of this in recent years is Hungary’s efforts to provide various forms of aid to ethnic Hungarians in its neighbouring states. e Hungarian Government’s adoption on June of the Act on Hungarians Living in Neighbouring Countries (known as the ‘Status Law’ or the ‘Preference Law’) gave rise to tensions between Hungary and her neighbours, especially Romania and Slovakia. Not surprisingly, the Status Law was one of the subjects of greatest concern to the HCNM during and .18 e original version of the Status Law extended economic, cultural and other benefits to ethnic Hungarians residing in some neighbouring countries and who are not Hungarian citizens. While some of these benefits are to be afforded within Hungary, others (relating to education as well as support for organizations operating abroad) are to be afforded in the neighbouring countries. is raises concerns under the principles of public international law with regard to the extent of jurisdiction of the kin-state. On October , the HCNM issued a general statement on such kin-state acts, stressing, inter alia, that ‘responsibility for the protection of minorities lies with the State where minorities live’.19 e Status Law also raises questions in terms of equal treatment of persons belonging to other ethnic groups in the states where ethnic Hungarian minorities live, as well as vis-à-vis Hungarians living in states not stipulated by the Law. e HCNM’s position over the past two years has been that the law should be amended and implemented in such a way that it does not discriminate against non-ethnic Hungarians and that it does not have extraterritorial effects without the other states’ consent. e HCNM has engaged in discreet, and at times intensive, diplomatic efforts to ensure that the Status Law, as implemented, does not violate international standards, harm bilateral relations between Hungary and its neighbours, or exacerbate interethnic relations within those states. e HCNM travelled to Budapest, Bucharest and Bratislava repeatedly over the past year, meeting with governments and minority representatives in an effort to push along negotiations and resolve the dispute. In a visit to Budapest on October See OSCE Newsletter, July-August , ; OSCE Newsletter, October-November , ; and Annual Report on OSCE Activities (), . 19 HCNM Press Statement, ‘Sovereignty, responsibility, and national minorities: statement by OSCE minorities commissioner’, October , Doc. No. HCNM.GAL//, at http://www.osce.org/ news/ generate.pf.php?news_id=. 18
e Activities of the OSCE High Commissioner on National Minorities , the HCNM stressed the need for amending the Status Law as soon as possible. He noted that neighbouring states and the international community had shown great patience regarding the amendment process. e HCNM has made a series of recommendations to the Hungarian government on ways to limit the law’s discriminatory and extraterritorial effects. In early November , the HCNM provided the Foreign Minister with some observations on draft amendments and on the process of resolving outstanding differences with neighbouring states. On February , he met again with the Hungarian Foreign Minister Lazslo Kovacs and members of parliament. In early March , he travelled to Slovakia and met with Prime Minister Mikulas Dzurinda and other top government officials. During the same period, the HCNM’s legal and political advisers also met several times with governmental and minority representatives and maintained close contacts with Council of Europe and European Commission representatives who shared similar concerns. While the differences between the various sides were narrowing, some issues, such as support for education, remained unresolved. On March , the HCNM told the OSCE Permanent Council that ‘[w]e are almost at a point where compromises can be reached without compromising basic principles and minimum standards.’20 e Hungarian Parliament eventually amended the Status Law on June . e following day, in a press statement entitled ‘High Commissioner warns of Hungarian ‘Status Law’ precedent,’ the HCNM concluded that ‘the scope of the amended law seems to be limited to support for education and culture, and intended benefits appear not to be restricted to ethnic Hungarians.’ He further noted that ‘implementation of the Act will depend in large part on secondary legislation. Any elements of this legislation that have effects in neighbouring States will need the support of the State concerned.’21 III. T P I R In addition to his involvement in advising on legislative provisions, the HCNM has continued to encourage the promotion of interethnic relations in OSCE states through the ongoing monitoring and analysis of situations which have the potential to erupt into interethnic violence. He also provides support for a variety of tension-reducing projects. A. Integration e challenge of social integration, i.e. between majorities and minorities, is a matter that cuts across almost all of the work of the HCNM. e HCNM has found that key elements for integration in multiethnic States include the participation of minorities in public life, education, language and cultural policy.22 At root, the HCNM has found () OSCE Newsletter (), . HCNM Press Statement, ‘High Commissioner warns of Hungarian ‘Status Law’ precedent’, June , at http://www.osce.org/news/generate.pf.php?news_id=. 22 See HCNM Speech to the OSCE Human Dimension Implementation Review Meeting (Warsaw, September ), , at http://www.osce.org/documents/hcnm///_en.pdf. 20 21
Matthew E. Draper that unless persons belonging to minorities as well as those belonging to majorities are integrated into the same broad social fabric of the state − with their essential needs and interests accommodated in a generally perceived just arrangement − there will not be the necessary confidence and stability for the state to manage its interethnic affairs in a durable way. As such, states need social integration policies and strategies which are appropriate to their specific situations. Latvia and Estonia are two examples of countries that have adopted integration strategies. In a visit to Latvia in December , the HCNM was briefed on the government’s efforts to promote social integration. Following up on this, in February he commissioned an expert study that will investigate Latvia and Estonia’s current policies on integration and seek new ways to promote it. e HCNM’s goal is to give additional impetus and ideas to the social integration processes in Estonia and Latvia. e HCNM has significantly expanded his activities in Central Asia in recent years, with a particular focus on promoting integration. e HCNM warns that the weak or absent democratic institutions in the region, combined with, inter alia, unresolved minority issues, drug trafficking, and rising fundamentalism, has created a ‘powder keg’ threatening to explode.23 In the HCNM’s engagement with Kyrgystan, for example, he has stressed the importance of efforts to integrate ethnic groups. In October , the HCNM visited Kyrgyzstan to discuss constitutional reform efforts, as well as educational and linguistic issues. He returned in April and focused particularly on promoting multilingual education and the integration of ethnic minorities into law enforcement agencies. In meetings with officials, he argued that efforts on both fronts would do much to promote integration.24 e HCNM has taken a similar approach in Uzbekistan, which he also visited in October . He met with local representatives of national minorities in the Ferghana Valley (stradling the Kyrgyz and Uzbek border) to gain a better understanding of the integration challenges there. In Ukraine, the HCNM has urged the further integration of Crimean Tatar returnees into the Autonomous Republic of Crimea (ARC). e Crimean Tatars constitute the largest autochthonous ethnic group located on the Crimean peninsula. In , the Tatars and several other smaller groups were deported en mass to Uzbekistan by the Stalinist regime. e Tatars started to return in the s and by the late s about , Crimean Tatars had returned to the Crimean peninsula, representing about % of the population. A variety of challenges slow the integration of the Crimean Tatars, including inadequate distribution of land to returnees, unresolved Tatar demands for recognition as an ‘indigenous people’, unsatisfied guarantees for representation of the Tatars in the regional parliament, and existing religious questions. e HCNM visited Ukraine in June and discussed these matters with officials in both Kyiv and in Simferopol, the capital of the ARC. While applauding efforts to assist in the naturalization of Tatars, improve their socioeconomic situation and participation in government, the HCNM said more 23
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Speech of the HCNM, Muller Lecture on ‘Preventive Diplomacy’, January , . OSCE HCNM Press Release, ‘OSCE High Commissioner on National Minorities visits Kyrgyszstan’, April , at http://www.osce.org/news/generate.pf.php?news_id=.
e Activities of the OSCE High Commissioner on National Minorities needed to be done to resolve property issues and ensure the Tatar’s greater participation in public life.25 e HCNM is active in Georgia in a variety of ways aimed to promote integration. First, he is providing ongoing legal assistance to Georgian authorities as they draw up a national strategy on integration. e HCNM hopes that Georgian legislators, as they design the process by which their country’s strategy will be devised, can learn from the Latvian experience. To this end, the Office of the HCNM facilitated a study visit by the Chairman of the Committee on Civil Integration of the Georgian Parliament (together with a committee expert) to Latvia on - June . Second, the HCNM has most emphasized integration in the past year in a particularly isolated region of Georgia: Samtskhe-Javakheti. Samtskhe-Javakheti is in the south of Georgia, bordering both Turkey and Armenia. With an overwhelmingly ethnicallyArmenian and Christian population, it is the site of a Russian military base which is slated to be shut down in coming years. In addition, Meshketian (and Muslim) Turks, deported by Stalin in to Central Asia – primarily Uzbekistan – are due to be repatriated to the region.26 e Armenian population has little knowledge of the Georgian language and is largely dependent economically on the Russian base. e HCNM has singled out the region of Samtskhe-Javakheti for immediate attention because several destabilizing factors are present there: weak central government control, an ethnic minority in a compact area on the borders of its kin-state (Armenia), and cultural and physical isolation from the rest of the country. Added to this is the presence of Russian troops, towards which the local community is favourably inclined, but which the Tbilisi Government wants removed. Each of these factors could, if not addressed properly, have the capacity to precipitate a violent conflict. e closure of the Russian military base, or the expected return of Meskhetians to the region, could trigger such unrest. In November the HCNM and the United Nations Development Programme (UNDP) hosted a conference in Tblisi that aimed at promoting the deeper integration of Samtskhe-Javakheti into Georgian society. In his speech, the HCNM stated: As experience in other parts of the OSCE shows, the failure to integrate a region in the rest of the country, if not addressed properly, has the capacity to generate disaffection among the population giving rise to extremism and even to conflict.27 e HCNM unveiled at the conference a slate of projects aimed at promoting integration and development. e projects seek to: expand language training; improve the informaOSCE Newsletter, July-August , . e repatriation and integration of the Meshketian Turks was a condition of Georgia’s membership in the Council of Europe. See Council of Europe, Parliamentary Assembly, ‘Georgia’s application for membership of the Council of Europe,’ opinion no. () adopted January (th Sitting), at http: //portal.coe.ge/index.php?lan=en&id=geoeu&sub=. 27 Speech of the HCNM, Joint OSCE-HCNM-UNDP Conference ‘Promoting Integration and Development in the Samtskhe-Javakheti Region of Georgia’, November , at http://www.osce.org/ documents/hcnm///_en.pdf. 25
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Matthew E. Draper tion flows between Tbilisi and Samtskhe-Javakheti; further develop the legal framework for the protection of minority rights; and other efforts designed to alleviate the region’s physical, political, and informational isolation. As funding was received, several projects began in the first half of . e HCNM’s several language projects are aimed at alleviating Samtskhe-Javakheti’s linguistic isolation, in the hopes that its residents can participate more in Georgia’s civil and political life. In keeping with the HCNM’s standard approach to promoting integration – as developed in countries like Estonia, Latvia, Macedonia and Moldova – efforts to improve the fluency of persons belonging to national minorities in the state language are coupled with provisions to promote the minority languages as well. Projects include: teaching the Georgian language to local civil servants; improving the instruction of Georgian as a second language in local schools; and providing high school graduates with Georgian language training so they may attend Georgian universities. At the same time, the HCNM is supporting a project to rebroadcast news programmes from the Georgian capital in the Armenian language. e HCNM also seeks to provide the inhabitants of Samtskhe-Javakheti with the information they need to be active Georgian citizens. For example, in an attempt to improve the quality of media reports from and about the region, another HCNM project offers training to journalists working in and reporting on Samtskhe-Javakheti. e programme seeks to develop the professional skills of the journalists and sensitize them to issues of ethnicity and conflict. e HCNM is also supporting the creation of several legal information and consultation centres in Samtskhe-Javakheti. Reports indicate that the local population’s knowledge of their legal rights is currently low or non-existent. Finally, drawing on the HCNM’s successful experience in Kyrgyzstan, he is supporting a project in Georgia aimed at better educating civil servants on how to govern in a multiethnic society and to improve their interactions with representatives of ethnic minority groups. B. Capacity Building e HCNM attaches great importance to strengthening the capacity of national, regional and local governments to deal with interethnic relations. Nowhere is this needed more than in Central Asia. e HCNM over the past year has sought to enhance his engagement with the countries of Central Asia in order to assist them in the effective management of interethnic relations. e HCNM believes that these countries’ efforts at managing interethnic relations will have important consequences for peace and security both between and within states. In recent visits to Kazakhstan, Kyrgystan and Uzbekistan, the HCNM has discussed with government officials ways in which ethnic tensions within and between their countries can be reduced. In addition, he visited Turkmenistan for the first time in November in an effort to initiate dialogue with the government. e HCNM also undertook a visit to Kazakhstan in May during which he met a number of officials to discuss issues of education, the media and legislation affecting national minorities.
e Activities of the OSCE High Commissioner on National Minorities e HCNM provides ongoing support for a project – conducted with the Academy of Management under the President of Kyrgyzstan – to help to train Kyrgyzstani Government officials in the management of interethnic relations and minority issues. e HCNM also has continued his engagement with the Assembly of the People of Kyrgyzstan; he provides funds to assist with the publication of its journal Ethnic World and the development of a website. In some countries, the HCNM has focused on the further development of mechanisms for early warning and early preventive action. His efforts in Kazakhstan, Kyrgystan and Ukraine are noteworthy in this respect. e HCNM provides ongoing support for projects to monitor interethnic relations in Kazakhstan as well as in the Ferghana Valley of Kyrgyzstan. e monitoring programme provides the governments and the HCNM with a regular flow of detailed information and analysis of the state of interethnic relations. From June to December , the HCNM conducted a project with similar goals in Ukraine. e project sought to boost the capabilities of Ukraine’s National Ombudsman to monitor and address the rights of persons belonging to national minorities in six regions of that country. Under the supervision of the ombudsman, experts compiled a report on the observance of the rights of national minorities. e final report was completed in December and presented to the Parliament of Ukraine in early . It is to be used by the Office of the Ombudsman to improve its ability to address the problems faced by national minorities in Ukraine. e HCNM also acts to support available legal recourses for the settlement of problems relating especially to minorities. Specifically, in Croatia the HCNM has provided for the past several years ongoing support to legal aid offices in the regions of Eastern Slavonia and Knin which assist mainly ethnic Serbs in their efforts to regain their legal rights and property. As mentioned above, the HCNM plans to implement a similar legal aid project in Samtskhe-Javakheti, Georgia. e HCNM has assisted in capacity-building in the fYRoM in a unique way. Since the adoption of the Framework Agreement in Ohrid on August , the HCNM has sought to ensure that a proper census would be conducted. e Office of the HCNM was involved in the census, which took place in November , through active participation in the Steering Committee that oversaw it. e census occurred without any serious incident or problem, according to international monitors.28 It represented an important step forward since Ohrid Agreement commitments regarding the use of language, minority participation in government, and decentralization, all depend on the reliability and popularly – perceived legitimacy of the data collected. In a March visit to Skopje and Tetovo, the HCNM urged the government to publish the results quickly so the Ohrid Agreement could be fully implemented.
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Annual Report on OSCE Activities (), .
Matthew E. Draper IV. C I A. Language e issue of language is a recurrent theme in the HCNM’s work and has dominated his engagement in a number of states. Language is often considered a principal indicator of identity and represents a crucial factor in the politics of interethnic relations where language is a key element of belonging. Perhaps paradoxically, the general approach of the HCNM has been to encourage and support positive measures to strengthen the state (usually majority) languages while seeking to ensure respect for the linguistic rights of persons belonging to minorities. is is especially so in several post-Soviet states where their leaders regard the newly revived state languages as still ‘fragile’ compared with the previously dominant Russian language. While appreciating such fragility, the HCNM stresses that adopted measures should not diminish the freedom and opportunity to use the languages of persons belonging to minorities.29 In the past year, the HCNM has pursued this approach in the following situations.30 e HCNM has long been engaged in Latvia’s efforts to reassert the Latvian language as the state language since independence from the Soviet Union. Latvia has adopted a variety of laws and implementing decrees regulating the use of the state language and other languages on its territory. Over the years, the HCNM commented upon Latvian legislation (both adopted and drafted), in particular the State Language Law. e Latvian State Language Inspectorate is charged with enforcing the Language Law, which is to be implemented in a manner consistent with the legitimate public interest. To assist the inspectors in applying the Language Law, in early the HCNM – in cooperation with Latvia’s State Language Centre – has engaged a Latvian and an international expert to develop a practice manual for use by the inspectors. Separately, the Latvian Government adopted regulations on the language of instruction in minority schools on May . e new regulations state that % of the curriculum of minority schools must be taught in Latvian, although each school may determine which classes will be in Latvian and which in the minority language. e HCNM, who visited Latvia on and May, stated he had no objection to Latvia’s plan and said he hoped it would make graduates more competitive in the job market.31
For more on this issue, see Sally Holt and John Packer, ‘OSCE Developments and Linguistic Minorities’, () Unesco MOST Electronic Journal on Multicultural Societies (), at http://www.unesco.org/most/ vlnpacker.htm. 30 For an overview of the HCNM’s work in this field, see John Packer, ‘e Practitioner’s Perspective: Minority Languages and Linguistic Minorities in the Work of the OSCE High Commissioner on National Minorities’ in Gabrielle Hogan-Brun and Stefan Wolff (eds.), Minority Languages in Europe: Status – Frameworks – Prospects (London, forthcoming). 31 RFE/RL Newsline Vol. , No. , Part II ( May ).
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e Activities of the OSCE High Commissioner on National Minorities In Georgia, as noted above, the Office of the HCNM has since provided several comments on the Draft Law on the State Language. e HCNM sees the State Language Law as an important element in social integration in Georgia, and has called on the government to follow it up with ‘a comprehensive programme to promote the knowledge and use of the State language throughout the country.’32 During his visit to Georgia in March , the HCNM met with officials of the Autonomous Republic of Abkhazia. Of particular concern was the Abkhaz educational policy, dating from , which requires instruction in the Russian language in all schools, including those in the Gali district where ethnic-Georgian students predominate. e HCNM met with officials in Tiblisi and in Sukhumi, the capital of Abkhazia. e HCNM emphasized to the Abkhaz officials with whom he met that international norms and standards require that any authorities controlling territory and people, even if not recognized by the international community, must respect the human rights of everyone, including those of children who choose to study in their mother tongue. B. Education Education is a key issue for persons belonging to national minorities, both in terms of opportunities for the learning of or in minority languages as well as of opportunities to learn the state language in order to gain employment or access other opportunities within the state. e HCNM provides ongoing support for the Transition Year Programme in the fYRoM, which seeks to increase the number of Albanians being admitted to university by providing intensive examination preparation courses in the Macedonian language for Albanian students in the fourth year of secondary school. At present the programme is active in all seven Albanian-language gymnasia, co-taught by ethnic Albanian and ethnic Macedonian instructors. In the fYRoM, the previous HCNM, Mr. Max van der Stoel, was instrumental in establishing a new private higher educational institution, the South Eastern Europe University (SEE University), in Tetevo in November . Mr. Ekeús, who is a member of the university’s international advisory board, visited the SEE University in September to attend its annual board meeting. e SEE University is open to all students regardless of their ethnic backgrounds and offers a curriculum mainly in the Albanian language, but with important elements in the English and Macedonian languages as appropriate. During the / academic year the university greatly expanded its enrollment to , students, about % of whom were non-Albanian. Many countries lack qualified teachers of the state language as a second language for minorities. Moldova faced this problem more acutely than most, leading the HCNM to provide support for teacher training. e Office of the HCNM initiated a project in October in cooperation with the OSCE Mission to Moldova, the Moldovan Gov32
See, e.g., Speech of the HCNM, Joint OSCE-HCNM-UNDP Conference ‘Promoting Integration …’.
Matthew E. Draper ernment, and a local NGO. State-language instruction in minority-language schools use a newly-developed teaching methodology for children in the fifth through ninth grades with the aim of enhancing their proficiency in the state language − and thereby improving their opportunities for employment, social mobility and political participation throughout the state. e three-year project is nearing completion, with the final training session for teachers taking place in the first half of . In addition, the HCNM, in conjunction with the Federal Ministry of National and Ethnic Minorities in Serbia and Montenegro, supports a group of experts who are assisting in reforming school curriculum in order to make it relevant to students who belong to all ethnic groups. C. Media e subject of minorities and the media is of considerable interest to the HCNM. In general, issues often arise in terms of opportunities for persons belonging to national minorities to establish their own media and/or to access television and radio programming provided in their own language and addressing their specific interests and needs. Among the HCNM’s efforts in Samtskhe-Javakheti, as mentioned above, is to rebroadcast Georgian-language news programmes in the Armenian language in order to make the information more accessible to the region’s inhabitants. One issue of particular interest to the HCNM is the use of minority languages as a vehicle of communication in the broadcast media. A number of states have taken steps to limit this use, most commonly through the adoption of legislation prescribing quotas for broadcasting time in the state language – a practice which has generated negative reactions among minorities in a number of countries. In response to these concerns, the HCNM has undertaken two parallel processes focusing on the use of language as a means of communication in the media and aimed at clarifying, on the one hand, state practice on this issue, and, on the other hand, the scope and content of applicable international standards. With a view to cataloguing the breadth of state practice across the OSCE region, the HCNM commissioned the Programme in Comparative Media Law and Policy of Oxford University’s Wolfson College to carry out a survey; the report with its findings is to be published in August . As for clarifying international standards, a set of guidelines on the use of minority languages in the broadcast media is also being prepared through a process of consultations with a small group of independent experts. e findings of both processes will be presented at an intergovernmental conference to be convened by the HCNM in the autumn of . D. Citizenship Experience has demonstrated to the HCNM the recurrent problems relating to citizenship and the enjoyment by persons belonging to national minorities of rights and privileges on the basis of equality with other persons within various states. In recent years the Office of the HCNM facilitated consultations of internationally-recognized independent
e Activities of the OSCE High Commissioner on National Minorities experts on the subject of citizenship, and particularly the implications of citizenship for the enjoyment of minority rights. is process could result in a series of recommendations for OSCE participating States (and others) along the lines of other sets of recommendations elaborated under the auspices of the HCNM. V. C As urged by the participants in the th anniversary gathering in February , the HCNM has followed much of what was done in the first decade of the institution’s existence. Perhaps the most striking development in the past year for the future direction of the HCNM is the shifting of attention to Central Asia, an area that had previously been rarely visited by the HCNM. While the societies of Central Asia are quite different from those in which the HCNM was previously most active, the region could benefit from the HCNM’s long experience in reducing ethnic tensions. Also of broad interest and use may be the HCNM’s continuing attention to thematic issues. Not only have previously well-received general recommendations on education, language use and effective participation in public life been translated into additional languages and disseminated on an on-going basis, but the HCNM has pursued analysis and invited expert guidance with regard to the use of minority languages in the broadcast media and the relevance of citizenship for the enjoyment of minority rights. ese and other issues are at play in a wide variety of interethnic situations across the OSCE region and beyond. Indeed, as populations evolve through migration and national demographic changes, so will there likely arise new challenges for which the HCNM’s general recommendations and guidelines (along with accumulated experience) may prove useful.
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Rianne Letschert *
Review of the 8th Session of the United Nations Working Group on Minorities
I. I is practice report deals with the th session of the United Nations Working Group on Minorities (UNWG), which was held in Geneva from to May . e report first addresses the aim and mandate of the UNWG in general. Subsequently, the main agenda items of the th session are discussed. e emphasis is, however, on two proposals: first, the drafting of a Code of Conduct on the Implementation of the Declaration on Persons belonging to National or Ethnic, Religious and Linguistic Minorities (hereinafter ‘Code of Conduct’), and, second, the establishment of a United Nations Special Representative on Minority Issues. Finally, the last part of this report focuses on the recommendations made concerning the future role of the Working Group. II. A M U N W G e adoption of the Declaration on the Rights of Persons belonging to National or Ethnic, Religious, and Linguistic Minorities1 (hereinafter ‘Minority Declaration’) in created a normative framework for the United Nations (UN) approach to minority issues. In addition, the Sub-Commission on the Promotion and Protection of Human Rights established a Working Group on Minorities in , which is authorized to examine ways
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Researcher/Lecturer international law (Ph.D.: International Monitoring Mechanisms On the Protection of National Minorities: An Analysis of Aims, Strengths and Weaknesses) at the Department of European and International Public Law, Tilburg University, e Netherlands and the T.M.C. Asser Institute, e Hague, e Netherlands, member of the Netherlands School of Human Rights Research. e Declaration was approved by consensus in UN Resolution / of December .
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Rianne Letschert and means to effectively promote and protect the rights of minorities as set out in the Minority Declaration.2 Each year the Working Group organizes a one-week meeting in which non-governmental organizations (NGOs), academics, governments, and international agencies discuss issues of concern and seek solutions to problems involving minorities.3 At these meetings, NGOs or minority associations can make oral statements4 or otherwise submit information about the situation of minorities in a specific country.5 Subsequently, government observers are given the opportunity to respond or provide additional information. Usually, governments tend to make statements about their efforts in terms of constitutional arrangements, national legislation and other measures for protecting and accommodating minorities. However, as discussed later, the overall approach in the Working Group has thus far been thematic rather than country oriented. Members of the Working Group have played an active role in deliberations by seeking clarifications, concrete proposals and responses from speakers at the successive meetings. In this way – rather unusual for a UN meeting – they have sought to promote fruitful exchanges and actual dialogue between the participants in accordance with the mandate. is makes the Working Group a forum for dialogue, aiming to achieve the following goals: – achieve greater awareness of the differing perspectives on minority issues and, consequently, to increase understanding and mutual tolerance between minorities and majorities, and between minorities and governments. – act as a mechanism for arriving at peaceful and constructive solutions to problems involving minorities and for the elucidation and elaboration of the principles contained in the Minority Declaration. e work of the Working Group, however, goes beyond organizing an annual meeting in Geneva. roughout the year, the Working Group members organize as well as attend 2
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UNWG is a subsidiary organ of the Sub-Commission on the Promotion and Protection of Human Rights from which it draws its five expert members. e five expert members represent the five geographic regions the UN uses to distribute seats on UN bodies. e current members of the Working Group are: Mr. Asbjørn Eide (Chair, Norway), Mr. José Bengoa (Chile), Mr. Vladimir Kartashkin (Russian Federation), Mr. Soli Sorabjee (India) and Ms. Leïla Zerrougui (Algeria). Since 1995, the Working Group has convened annually for one week in Geneva. See the United Nations Guide for Minorities, ‘e UN Working Group on Minorities’, Pamphlet No. , published by the Office of the High Commissioner for Human Rights (), at http://www.unhchr.ch/ html/racism/-minoritiesguide.html. e guide contains a series of pamphlets that provide information on how minorities might make use of human rights procedures existing within the UN system and those established by regional mechanisms in Africa, the Americas and Europe. Each year Minority Rights Group International invites several representatives of NGOs to participate, a week before the UNWG session, in a one-week course in which lessons on minority rights, as well as on preparing presentations, are organized. Also because of this training, the quality of the interventions is very high. Minority groups, their representatives, NGOs and scholars can participate in UNWG meetings without the consultative status granted by the UN Economic and Social Council.
Review of the th Session of the United Nations Working Group on Minorities conferences.6 Moreover, the Working Group may conduct country visits, although only after invitation of governments, which makes this possibility rather illusory. So far, the government of Mauritius has been the only country that invited the Working Group.7 Since the Working Group cannot hear complaints, members of minorities depend on the various monitoring procedures in place for many of the human rights instruments. e Working Group has discussed how best to employ the multiple international mechanisms for furthering respect for minority rights, such as petitions or complaints procedures (including the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, and the so-called ‘ procedure’); state reports; fact-finding and investigative special procedures (including thematic and country-oriented Special Rapporteurs and Working Groups of the UN Human Rights Commission). In addition, in giving attention to the promotion of minority rights, the Working Group has made reference to the activities of the UN High Commissioner for Human Rights and technical assistance projects undertaken by the latter’s office, the UN specialized agencies, other UN bodies and NGOs. However, since the mandate of these instruments is broader than ‘just’ minority issues, their engagement with minority matters is limited.8 e same applies to their impact on providing specific solutions to minority problems. Given this lack of a ‘minority supervisory body’, the Working Group on Minorities has become the most important UN minorities’ forum.9 Even though the UNWG might not be a true supervisory mechanism since it has been established as a framework for discussion rather than as a strict control mechanism, ‘it nevertheless performs de facto an important supervisory work by regularly inviting independent experts but also governments, international agencies and minority representatives to offer their perspectives on minority issues’.10
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Seminars have been organized on the issues of intercultural and multicultural education and the role of the media in protecting minorities, see Pamphlet No. of the UN Guide on Minorities, at . Last year a regional seminar for and about minorities in South East Asia was held in Chiang Mai (ailand) from to December, . e report of this seminar will be presented at the th session. e visit was made - September ; for the report, see E/CN./Sub./AC//, April . Independent experts appointed by the Commission on Human Rights often address issues concerning minority rights. For example, in , the report of the independent expert on the situation of human rights in Somalia and the report of the Special Rapporteur on the right to education both included sections on the rights of minorities. See Simon Chesterman, ‘Minority Protection, Conflict Prevention and the UN System’, revised version of a paper presented at a meeting convened by the Rockefeller Foundation and the Neelan Tiruchelvam Trust, October , -, at , available at www.ipacademy.org. See Minority Rights Group Briefing Series, Minorities and Conflict Prevention: the Case for a Special Representative, March , . MRG Briefings are available online at www.minorityrights.org. See Gaetano Pentassuglia, Minorities in International Law: An Introductory Study, Minorities Issues Handbook series (Council of Europe Publishing ), .
Rianne Letschert III. T 8 As mentioned previously, the Working Group’s core mandate is to examine ways and means to promote and protect the rights of persons belonging to minorities as set out in the Minority Declaration. More particularly, the three official tasks are:11 a) To review the promotion and practical realization of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities; (b) To examine possible solutions to problems involving minorities, including the promotion of mutual understanding between and among minorities and Governments; (c) To recommend further measures, as appropriate, for the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities. In accordance with its mandate, these three tasks are discussed during the annual Working Group’s sessions. Another major agenda item concerns the future role of the Working Group. During the th session, the Working Group held nine public meetings and one closed meeting. e closed meeting is scheduled to give the Working Group members the opportunity to discuss the final recommendations and conclusions to be adopted. e session was attended by observers from states, NGOs, UN organizations and specialized agencies, international governmental organization and universities and other institutions.12 e following section gives an overview of the discussions held regarding the tasks listed above and the issues discussed relating to the future role of the Working Group. A. Reviewing the Promotion and Practical Realization of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities Under this agenda item representatives of NGOs take the opportunity to put forward their perspectives on the level of minority protection in their home countries. Subsequently, government observers are given the opportunity to respond or provide additional information. For example, a number of NGOs, such as the Indian Muslim Federation (UK), the Centre for Study of Society and Secularism and the World Muslim Congress, expressed See Commission on Human Rights Resolution /, para. , in which the Commission on Human Rights authorizes the Sub-Commission to establish the UNWG and subsequently enumerates these tasks. 12 For the list of participants, see annex of the final report of the th session: E/CN./Sub.//, June . e final report gives a thorough overview of all interventions made and discussions held. 11
Review of the th Session of the United Nations Working Group on Minorities their concern regarding the violence in the Indian state of Gujarat since February . ey reported mass violations against the Muslim minority in that region and claimed that the government of India had failed to bring the perpetrators to justice. e observer for India responded that the situation in Gujarat, where both sides had committed violence, had brought severe suffering to the entire Indian population. He referred to India’s long tradition of harmony between people of different religions and asserted that the current violence would not affect this tradition. He mentioned that the government had made great efforts to normalize the situation; persons suspected of having participated in atrocities had been detained and rehabilitation programmes had been initiated for the victims.13 Another intervention, made by the observer for the Kurdistan Bar Association and the observer for the Turcoman Movement in Iraq, focused on the absence of state measures to protect non-Arab minorities in Iraq. ey asserted that the government of Iraq denied rights to the Kurdish minority who had been removed from their lands in oil-producing areas. e observer for Iraq stated that Article of the Constitution ensures equal rights for all, including the Kurdish people. ere was no discrimination on the basis of religion, and autonomy and the Kurdish language were promoted. He continued by mentioning that Iraq was striving to solve the Kurdish issue and that there was no attempt to displace the Kurdish population from oil-producing regions.14 Approximately observers representing NGOs from all over the world presented their views on the situations in their respective home countries.15 However, only six government observers responded.16 Since one of the goals of the UNWG is to promote further dialogue between minorities and their governments, it is imperative that government observers take their responsibility by reacting to the interventions. Moreover, it is extremely discouraging for representatives of NGOs, who have worked hard on their interventions, when they are left without a reaction.
See the final report, E/CN./Sub.//, June , at . Ibid. 15 Unfortunately, it is not possible to summarize all interventions made. I have chosen to mention these two interventions explicitly because in these cases the government observers responded. For an overview of all interventions made, I refer to the final report of the th session. 16 In addition to Iraq and India, the observer for the UK reacted to a statement made by an NGO concerning the situation of the Welsh-speaking minority of Wales in the UK; the observer for Sri Lanka referred to the dangers of promoting group identity; the Greek observer reacted to the intervention of an NGO relating to the alleged discrimination of Greek members of the Turkish Muslim minority; the observer for Yugoslavia drew attention to a recently adopted law on the protection of rights and freedoms of national minorities in Yugoslavia. 13 14
Rianne Letschert B. Examining Possible Solutions to Problems Involving Minorities, Including the Promotion of Mutual Understanding between and among Minorities and Governments Discussions under item B have thus far included the role of national human rights institutions,17 the role of the media in protecting minorities, and the benefits of autonomy and integrative arrangements for encouraging greater respect for minority rights.18 e th session focused in particular on autonomy and integration19 and development issues and minorities.20 Several NGOs made general comments about autonomy and stressed the need for action owing to ongoing violations of minority rights. Since the issue of autonomy remains controversial, Mr. Bengoa (member of the UNWG) stressed the need for further legal analysis and a code of conduct on autonomy. Discussion on development issues and minorities had already started at the Working Group’s th session. At the th session a representative of Minority Rights Group International summarized a working paper on minority rights and development drafted by this organization.21 She referred to three key challenges: First, she stated that the concept of development should be continually challenged. Second, she focused on the need to mainstream minority rights into development. Finally, she noted that government recognition of minorities was vital as exclusion is often a major cause of poverty.22 e chairperson concluded that the Working Group’s next session would provide more opportunity for discussion in order to determine the best methodology to solve these problems. He reminded the Working Group of the need ‘to increase awareness that development can actually increase poverty if initiatives are implemented without meaningful consultations with concerned communities’.23 Other issues discussed under item B include reports of the regional seminar on Afro-descendents,24 the Conference on the Rights of Minorities of African Descent in the Americas,25 and the third regional workshop on multiculturalism in Africa.26 At the 17
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At the th session (- May ) this issue was again discussed. Representatives of the Office of the High Commissioner on Human Rights gave a presentation on the progress of a fact sheet they are preparing regarding Minorities and National Human Rights Institutions. See Pamphlet No. of the United Nations Guide on Minorities, and . Reference was made to the report of the International Seminar on Autonomist and Integrative Approaches to Minority Protection, held on and April in Copenhagen at the invitation of the Danish Centre for Human Rights. For the report, see E/CN./Sub./AC.//WP.. Two working papers were available: the report of the International Seminar on Cooperation for the Better Protection of the Rights of Minorities (E/CN.//), held in Durban during the World Conference, and a working paper by Minority Rights Group on ‘Minority Rights and Development: Overcoming Exclusion, Discrimination and Poverty’ (E/CN./Sub./AC.//WP.). See note . See the final report, . Ibid. La Ceiba, to March , see E/CN./Sub./AC.//. Montreal, to December , see E/CN./Sub./AC.//WP.. Gabarone, to February, see E/CN./Sub./AC.//.
Review of the th Session of the United Nations Working Group on Minorities beginning of the th session, the Chairperson had already stressed the need to further discuss the concepts of minority and indigenous people as they applied in Asia and Africa.27 Elaborate discussions were also held on policies by so-called ‘kin-states’ regarding ethnic or linguistic minorities in neighbouring states. A recently adopted law in Hungary concerning the treatment of ethnic Hungarian groups abroad was taken as an example. e observer for Romania stated that not only Romania, but also international bodies such as the Venice Commission and the High Commissioner for National Minorities were concerned about the Hungarian law. e main concern of the Romanian government was ‘that the law had extraterritorial effects and granted economic and social benefits, not simply cultural rights’.28 She also noted, however, that the concluded memorandum of understanding (an undertaking to modify the law) between Hungary and Romania had significantly reduced the problem. In addition, she encouraged regional or international development of more detailed guidelines on the issue. e observer for Hungary responded that ‘while the [Venice] Commission found that the main responsibility for minority protection lay with the home state, the home state could contribute to the protection of kin-minorities’.29 Since the issue of protection of kin-minorities is relevant to many countries, the chairman concluded that it was necessary to draft guidelines. As the issue particularly concerns Europe, he recommended the office of the High Commissioner for National Minorities of the Organization for Security and Co-operation in Europe (OSCE) take the initiative in drafting such guidelines.30 C. Recommending Further Measures, as Appropriate, for the Promotion and Protection of the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities Item C gives participants the opportunity to recommend further measures for the promotion and protection of the rights of minorities. Many of the recommendations proposed by participants are included in the Working Group’s annual report to the Sub-Commission. e Sub-Commission may then forward the recommendations to the Commission on Human Rights and the Economic and Social Council. Working Group member Kartashkin stressed the need for the Working Group to develop principles and guidelines for states and minorities. He also suggested that a special session be held in December to celebrate the tenth anniversary of the Minority Declaration and that the year or be designated as ‘international year for minorities’. Working Group member Sorabjee stated that ‘while the resolution of the Sub-Commission referred to State obligations in regard to minority rights, rights without remedies would be of no use. In this connection, it was important for States to take all See the final report, . See the final report, . 29 Ibid., . 30 Ibid. 27
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Rianne Letschert necessary legal measures to promote the rights contained in the Declaration.’31 He also recommended setting up minority courts at national level to provide better protection for minorities. Working Group member Zerrougui referred to the rights of non-nationals since she thought ‘the rights of those people, including migrants, were being eroded, particularly in the context of globalization’.32 Two recommendations were extensively discussed at the th session and are therefore more thoroughly analyzed in this report. e first one refers to the drafting of a Code of Conduct on the implementation of the Minority Declaration. e second one concerns the establishment of a UN Special Representative on Minority Issues. 1. e Drafting of a Code of Conduct In , the tenth anniversary of the Minority Declaration was celebrated. It revived the discussion of the need to draft a legally binding document on the protection of persons belonging to minorities. However, most participants who intervened agreed that drafting a formal convention would likely raise substantial difficulties and delays in reaching an agreement. e observer for Finland, for example, noted that it would be important to have a legally binding instrument to provide specific protection for minorities.33 However, she also considered it necessary first to analyze existing standards to determine the usefulness of a specific convention on minority rights.34 It seems that there is a certain fatigue when it comes to the creation of norms in the field of minority rights, not unsurprising since numerous norms exist.35 However, what is often lacking is the political will to apply them. e development of new legal instruments would therefore not appear a priori to be the answer to the problem; moreover, the proliferation of new rules might weaken existing law. Most participants therefore agreed that rather than developing new instruments, the international community should focus its efforts on promoting the Minority Declaration. Consequently, several suggestions were made to further promote the Minority Declaration. One participant argued that the Working Group should collect a comprehensive review of best practices in majority-minority relations. is could lead to a Guide to Best Practices in Minority-Majority Relations, an informal Code of Conduct.36 Another par31
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Ibid., . Ibid. See also the statement made by the observer for Switzerland who stressed the importance of devising legally binding instruments in relation to minority rights, see the final report, . Ibid. See in this context G. Pentassuglia, ‘Far from showing a lack of applicable standards, the current international scenario witnesses a proliferation of provisions relating to the protection of minorities, couched in a plurality of forms and reflecting varying degrees of legal significance’, ‘On the Models of Minority Rights Supervision in Europe and How ey Affect a Changing Concept of Sovereignty’, European Yearbook on Minority Issues, / (), -, at . Statement made by Marc Weller of the European Centre for Minority Issues (ECMI). ECMI is currently engaged in a project advancing the interpretation of the European Framework Convention through an analysis of implementation practice and through the means of a scholarly commentary based on this analysis.
Review of the th Session of the United Nations Working Group on Minorities ticipant recommended the Working Group focus its work ‘on the development of flexible ‘Principles and Guidelines of Best Practice’ in the implementation of agreed international standards for the recognition and accommodation of minorities through autonomous and integrative structures rather than the formulation of new prescriptive legal rules. ese might in due course, however, form the basis for a new convention.’37 In a similar spirit, a representative of the International Centre for Ethnic Studies (ISEC) referred to the Guiding Principles on Internal Displacement38 and the lessons that could be learned from these principles.39 e UNWG acknowledged these suggestions and concluded that one of the main tasks during the next sessions would be the drafting of a Code of Conduct on the implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.40 e proposed Code of Conduct should however neither modify nor replace existing law nor should it become ‘just’ another addition to already existing instruments. Principle , paragraph of the Guiding Principles on Internal Displacement exemplifies this approach: ese Principles shall not be interpreted as restricting, modifying or impairing the provisions of any international human rights or international humanitarian law instrument or rights granted to persons under domestic law. Although the Guiding Principles can thus be viewed as falling within the province of soft law, they contain numerous rules that form part of treaty law and that are therefore legally binding. e Code would thus merely serve as an additional tool for states on best practices on the implementation of the Minority Declaration. When the Declaration had just been Statement made by Tom Hadden of the Human Rights Centre at Queen’s University, Belfast. is recommendation was drawn from discussions held during the International Seminar on Autonomist and Integrative Approaches to Minority Protection, held in Copenhagen on and April . According to Hadden, the development of the proposed Guidelines of Best Practice could be realized by appointing a small drafting group led by the Chairman of the Working Group with a mandate to produce an initial draft for the th Session in , drawing on the work of the various regional seminars and the example of the Hague, Oslo and Lund Recommendations. 38 e Guiding Principles contain provisions of existing international and humanitarian law and were drafted by Francis Deng (Special Representative on Internally Displaced Persons) and a team of legal experts. e Principles have been presented to the UN Commission on Human Rights in , but have not been formally endorsed by the Commission. However, they have ‘acquired widespread international standing, moral authority and acceptance’. From the statement made by Cecilia ompson of ISEC. 39 ‘First, the Guiding Principles provide a framework for understanding the problem of internal displacement. Second, the Guiding Principles are a tool for empowerment of internally displaced persons. ird, the Guiding Principles are a monitoring tool for measuring conditions of internal displacement at the national level and the situation of Internally Displaced Persons. Fourth, the Guiding Principles can serve as an advocacy tool, and fifth, they provide a framework for developing protection strategies at national and local levels.’ [From the statement by Cecilia ompson] 40 See Conclusion of the final report. Another task mentioned in this conclusion is ‘to study in greater depth the development and minority issue’. 37
Rianne Letschert drafted, a representative of Austria in the ird Committee of the UN General Assembly remarked: ‘Once this Declaration is adopted ... it should then not be filed and forgotten, but implemented and filled with life, so as to contribute to overcome situations of tension relating to minorities.’41 A Code of Conduct could further support the realization of this Declaration. Another added value of a Code of Conduct lies in the possible emergence of customary rules. As mentioned before, the Minority Declaration was approved by consensus as it enjoyed wide support from states. ‘As a soft law instrument, its provisions might be ‘hardened’ through the incorporation in treaties (see for example the Treaty on Good-Neighbourly Relations and Friendly Cooperation between Slovakia and Hungary), or … through the emergence of customary rules through state practice and opinio juris.’42 A Code of Conduct on the implementation of the Declaration could help to prove the existence of state practice and opinio juris regarding provisions of the Declaration. As Pentassuglia argues: Overall, the ‘maturing’ of the [minority] declaration into customary law basically depends on whether, and to what extent, states will respond to the … expectation of compliance which the adoption of this type of instrument normally carries with it, bridging a recurrent gap between proclaimed principles and their actualisation within domestic systems. Consequently, a Code of Conduct could help ‘harden’ the provisions of the Declaration, strengthening the possibilities for minorities to invoke them. 2. e Establishment of a Special Representative on Minority Issues Besides the discussions on a possible new convention or a Code of Conduct, several participants emphasized the need for the elaboration of mechanisms, since the implementation and supervision of minority rights remain inferior to the expansion of the normative framework.43 In this regard it was proposed to establish the instrument of a Special Representative under the Secretary-General on Minority Issues, based on the model of the OSCE High Commissioner on National Minorities (HCNM).44 Forty-seventh session of the General Assembly, agenda items (b) and (c), November , . See Pentassuglia, Minorities in International Law…, . 43 See also G. Alfredsson and A. de Zayas: ‘e value and effectiveness of international standards … depends on the supervisory mechanisms set up to monitor state performance’ (‘Minority Rights Protection by the United Nations’, (-) Human Rights Law Journal [], -, at ). And: ‘… the international standards are fairly well advanced. ey provide for equality and dignity, non-discrimination and affirmative action. ey may need further elaboration in certain instances, but the greatest opportunities lie in more frequent and more effective use of existing implementation procedures’ (Ibid., at ). 44 See, for example, the statement made by Zelim Skurbaty of the Danish Center for Human Rights in which he recommends ‘to create a post of the Special Representative on Minority Issues within the UN system, which would be a global counterpart of the OSCE High Commissioner for Minority Rights’, May , Geneva. Subsequently, see the statement made by the ECMI Director, Marc Weller, who also ‘supports the 41
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Review of the th Session of the United Nations Working Group on Minorities Minority Rights Group International (MRG) for example argued that ‘there is a clear need to introduce an effective minority-oriented conflict prevention mechanism into the UN human rights system. e appointment of a UN Special Representative of the Secretary-General on Minorities would provide the best institutional response to existing or potential situations involving minorities.’45 In similar terms, a report of the International Peace Academy states that ‘while it [the OSCE High Commissioner’s approach] has emerged from a particular historical context of regional integration, the similarity of challenges around the world posed by the necessity to reconcile the competing needs, aspirations and interests of various ethnic groups, involving complex and sensitive minority-majority relations, means that its practices may be of use elsewhere.’46 Ultimately, the UNWG restates in recommendation of its final report that ‘the Commission on Human Rights, through the Sub-Commission, should explore in due time the possibilities of establishing a special procedure mechanism on the rights of persons belonging to minorities such as a Special Rapporteur or special representative, with similar tasks as the OSCE’s High Commissioner on National Minorities.’47 It seems logical to establish an instrument similar to the HCNM on a global level, given the enormous accomplishments of Max van der Stoel, the first OSCE High Commissioner. However, some questions need to be raised. In the first place, would it be possible to establish such an intrusive instrument in a UN context, given the existing reluctance of states to recognize minorities and, for that matter, minority rights? Second, would it be possible for such an instrument to operate on a global level, considering the number of countries this Special Representative would have to deal with? Finally, what mandate should this instrument have? Should the mandate of the ‘global’ Special Representative be based on the mandate that was given to Max van der Stoel in , or should a different mandate be developed, in view of the fact that the mandate given to van der Stoel was interpreted and elaborated by him during his many years in office?48 initiative in favour of a Special Representative of the UN Secretary General on Minority Issues’, whereby he makes a comparison with the highly relevant work of the Special Representative on Internal Displacement and, again, the OSCE HCNM. Statements of similar wording were made by Tom Hadden of the Human Rights Centre at Queen’s University Belfast, Cecilia ompson of the ICES, Colombo, Sri Lanka and representatives of NGOs (MRG presented a joint statement on behalf of NGOs in which the same proposal was made, see E/CN./Sub./AC.//WP.. 45 MRG Briefing, . 46 IPA, ‘Sharing Best Practices on Conflict Prevention: e UN, Regional and Subregional Organizations, National and Local Actors’, Workshop Report, - April , Alexandria, rapporteur: S.J. Lodge, . 47 ‘Re-states’ since it was already recommended at the th session, see ‘Report of the Working Group on Minorities on its seventh session’, E/CN./Sub.//, para. and Recommendation , which states that the Commission on Human Rights should ‘consider the possibility of recommending the appointment of a Special Representative on Minorities’. 48 It goes beyond the scope of this article to discuss these issues here. For more information, see R.M. Letschert, ‘Towards the establishment of a UN Special Representative on Minority Issues – Drawing upon the experiences of the OSCE High Commissioner on National Minorities’, () Helsinki Monitor (), - and Chesterman, ‘Minority Protection …, -.
Rianne Letschert When this issue was discussed at the th session, several government observers intervened, and the reactions were not too positive. Subsequently, neither the Sub-Commission (in its session) nor the Commission on Human Rights (in its session) endorsed the recommendation made by the UNWG to establish a new special procedure for minorities. A possible reason could be that in recent reports on the reform of the UN human rights system, it has been suggested to improve existing mechanisms rather than to create new ones. However, NGOs are still strongly advocating the idea of establishing a new special mechanism addressing minority issues.49 D. e Future Role of the Working Group e last agenda item addressed at Working Group meetings concerns the role it should play in the future. Each year, scholars, NGOs and government representatives present recommendations on how to improve the activities of the Working Group. Subsequently, the Working Group draws the final conclusions and recommendations for its future work. Previous recommendations include the creation of a database on information pertaining to minorities and the development of potential links between the Working Group and other institutions, such as the committees that supervise implementation of international human rights treaties. e recommendations and conclusions of the th session focus on various issues, some of which have already been discussed in this report (the drafting of a Code of Conduct, the establishment of a UN Special Mechanism on Minority Issues, and a greater emphasis on the study of the ‘minorities and development’ issue) Another conclusion drawn touches upon the further development of the Working Group’s contacts with national human rights institutions with a view to extend their attention to minority rights issues in their work. is could help further promote the Minority Declaration, aiming at a better implementation in domestic systems. e Working Group will also continue to increase its cooperation with regional mechanisms and institutions, including joint initiatives.50 In Conclusion the UNWG expresses its concern over the situation of the Roma. It first acknowledges and appreciates the work done by the Council of Europe and the OSCE, but concludes that it ‘will continue its own consideration on ways to prevent discrimination and protect minority rights of the Roma’. Hopefully this will not lead to a duplication of efforts but to a furtherance of their rights. In the future, the UNWG will remain available to conduct country visits, based on general or specific invitations by governments.51 Up until now, this possibility has been MRG has formed a coalition of NGOs to call for the UN to create a special mechanism on minorities. e coalition at present is made up of Minority Rights Group International, e International Federation of Human Rights Leagues, the International Movement Against All Forms of Discrimination and Racism, and Bahá’ì International Community. For more information, see the MRG website at http: //www.minorityrights.org/. 50 See Conclusions and of the Report of the Working Group on Minorities on its Eighth Session, E/ CN./Sub.// and Corr., para. , page , at http://www.unhchr.ch/Huridocda/Huridoca. nsf// fcdababaeaaccc/$FILE/G.pdf. 51 Ibid., Conclusion .
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Review of the th Session of the United Nations Working Group on Minorities rather theoretical. Preferably, the Working Group should have more power in deciding when to visit a particular country.52 IV. C e Working Group is still working on the preparation of a Code of Conduct. It needs to gather more information on practice at the regional and subregional levels before proceeding to the actual drafting stage. e Working Group has commissioned some case study papers which experts are working on with a view to presenting a working document at the th session.53 At this stage it is not possible to discuss the prospects of adoption at the th session since the content of the Code is still unclear. Hopefully the Code of Conduct, when adopted, could serve as an additional tool for states on best practices on the implementation of the Minority Declaration. Discussions on the possible establishment of a UN Special Representative on Minority Issues will have to be taken up further. Given the enormous number of countries that are dealing with minority issues, it would not be a bad idea if the entered into the field and assumed some responsibility in this sensitive area.54 However, time will tell when the international community is ready to establish such an instrument. Although one might argue that the sooner, the better, this might not be realistic. e fact that the Working Group’s sessions attract less and less attention each year – not of NGO representatives, but of government observers and observers for international and regional organizations dealing directly or indirectly with minority issues – gives the impression that the international community has thrown ‘the minority issue’ off its agenda. Consequently, the establishment of a special mechanism on minority issues does not seem to have high priority. e Working Group should try its best to regain the attention of government observers and international and regional organizations. A forum for dialogue can only achieve its aims if all parties to the debate actively engage in it. Of course this is not only the responsibility of the Working Group but a responsibility shared with all those who might benefit from it. Hopefully, governments will soon realize that one of the ways to solve minority issues is to enter into dialogue with the minority concerned, in the hope of reaching
is will however be difficult to realize. When the issue of country visits was discussed at the th session, some government observers emphasized that country visits should not become monitoring activities because the Working Group has no formal authorization for monitoring, see the final report, . 53 Information obtained from the Working Group’s Secretariat. See also conclusion of the final report. e th session will be held in Geneva from to May. 54 Like John Packer mentions ‘there would seem to be scope to at least attempt to adapt this experience [of the HCNM] and approach elsewhere in the world to the benefit of many’, J. Packer, ‘e Role and Work of the OSCE High Commissioner on National Minorities as an Instrument of Conflict Prevention’, in IPA, ‘Sharing Best Practices on Conflict Prevention: e , Regional and Subregional Organizations, National and Local Actors’, Policy Paper, , at http://www.ipacademy.org/Search/Search.htm. 52
Rianne Letschert mutual understanding. e United Nations Working Group on Minorities provides the framework in which this dialogue could take place.55
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By now, the Working Group has held its th session from to May . e discussions focused especially on the preparation of a Code of Conduct or regional guidelines and the future role of the Working Group. e outcome of these discussions will be discussed in the next issue of the Yearbook.
Hannah McGlue *
e Jurisprudence of the United Nations Human Rights Committee and Other Treaty Monitoring Bodies
I. I Issues affecting minorities are addressed within the UN system in two broad ways: through charter-based bodies1 and treaty-based mechanisms established according to multilateral treaties. is article focuses on the treaty-based bodies, looking at developments from autumn to end . Each of the six legally binding international human rights treaties within the UN human rights system has a Committee established under the respective treaty2 providing a means of monitoring state party compliance with the obligations *
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B.A. Hons (University of Oxford), L.L.M. (University of Nottingham). e different UN bodies derive competence to consider human rights issues from either multilateral treaties or from the constitutional authority of the UN. Various mechanisms called charter-based bodies deal with minority issues, e.g. the Commission on Human Rights and its subsidiary, the Sub-commission on the Promotion and Protection of Human Rights. ese bodies set standards and discuss issues. e Subcommission has a mandate to identify, initiate, carry out and debate studies on human rights topics. It has a number of working groups, including one on minorities which issues a report on minorities each year to the Sub-commission. e Working-Group on Minorities, the only UN organ exclusively devoted to minority questions, was created subsequent to adoption of the UN Declaration of the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the UN General Assembly on December , GA Res. /. It provides a forum for discussion between non-governmental organizations (NGOs), members of minorities, academics and governments. Charter-based bodies have a broader mandate than treaty-based bodies, which can deal solely with the provisions of the relevant treaty. Further, decision-making is generally based on majority votes as opposed to consensus required by treaty bodies. For further reading on the charter-based system of the UN, see P.Alston and F.Megret (eds.), e United Nations and Human Rights: A Critical Appraisal (Oxford, st ed. , nd ed. forthcoming May ). Human Rights Committee (HRC) established by Article of the CCPR Committee against Torture (CAT/C) under Article CAT; Committee on the Elimination of Racial Discrimination (CERD/C) under Article CERD; Committee on the Rights of the Child (CRC/C) established under Article of the CRC; Committee on the Elimination of Discrimination against Women (CEDAW/C), established under Article of CEDAW; Committee on Economic, Social and Cultural Rights (CESCR/C) established by the Economic and Social Council in to monitor the CESCR. Each Committee is composed of varying numbers of independent experts.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Hannah McGlue outlined. All treaties oblige states parties to submit regular reports at specified intervals regarding their implementation of treaty provisions. e respective Committee then analyzes the reports and issues concluding observations, in most cases together with recommendations. In addition, many of the bodies adopt non–state-specific General Comments or Recommendations.3 Monitoring is also effectuated under certain treaty mechanisms by the possibility of individual petition procedures. Provided the state party concerned has accepted the Committee’s competence, individuals or groups of individuals can bring a case to the Committees regarding violation by the state party of treaty obligations. us far the CCPR, CERD, CAT and CEDAW are the only treaties that offer this additional means of gauging compliance.4 Although ratification in general has been good,5 Committees have suffered from reports not being submitted at all, or being delayed and/or incomplete. In addition, the individual petitions system is weakened by states parties’ failure to respond during the procedure and/or more frequently, failure to comply with the Committees’ non-legally binding ‘views’. e in camera nature of hearings based solely on written evidence prove an additional constraint.6 ese shortcomings are in evidence in the analysis of the cases cited here. e HRC in particular has attempted to strengthen the system. Since , a Special Rapporteur has been engaged in follow-up work to individual communications.7 In its th session, the HRC adopted a General Comment on reporting obligations of
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T. Buergenthal, ’e Human Rights Committee’, in P.Alston and H.Steiner (eds.), International Human Rights Law in Context, (Oxford, ), . Buergenthal argues that the General Comments made by the HRC have developed from being initially related directly to the reporting procedure, to becoming over time a ‘distinct juridical instrument enabling the Committee to announce its interpretations of different provisions of the Covenant in a form that bears some resemblance to the advisory opinion practice of international tribunes.’ ese are then relied upon in examining state compliance in reports and individual communications. A similar development in the use of General Comments has also been taken up by other Committees. Article First Optional Protocol to the International Covenant on Civil and Political Rights (CCPR Opt.Prot.), adopted on December , entered into force on March , UNTS ; Article CERD; Article CAT. e Optional Protocol to CEDAW, adopted on October , entered into force on December , GA Res. /, provides for an individual complaints mechanism in Article similar to that under the CCPR Opt.Prot. In its th session ( May ), CEDAW/C adopted its draft model communication form but to date has not yet dealt with actual communications. ‘…[W]ith the majority of States ratifying the majority of Treaties’. Cf. P.Alston and H. Steiner (eds.), International Human Rights …, . See also table of Status of Ratifications of the Principle Human Rights Treaties: http://.../pdf/report.pdf . Note unlike the CCPR and CERD, the CAT provides for the hearing of witnesses in Article (). In its th session (th meeting, April ), the HRC heard the annual progress report of its Special Rapporteur on the follow-up to Committee views. e Special Rapporteur’s task is to meet with state representatives and ensure follow-up replies from states. He highlighted that only % of the Recommendations had been implemented and that there was a need for more publicity. Other members of the Committee emphasized the need for a mechanism so that the HRC could see exactly how and when states parties put Recommendations and judgments into effect, although no consensus was reached as to what form this could take.
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies states parties,8 allowing for non-reporting states to be reviewed by the Committee and establishing a follow-up Rapporteur to concluding observations.9 Persons belonging to minorities are bearers of all rights under all human rights treaties, provided the state is party to the relevant treaty. In addition, certain specific rights are of particular interest to minorities. CCPR Articles (right to self-determination), and (freestanding and accessory provisions respectively on non-discrimination and equality before the law), (political participation), (right to a fair trial) and (liberty and security of person). Moreover, Article CCPR10 is particularly significant as it is the only provision in a global human rights treaty that explicitly refers to minority rights. e CERD establishes a general prohibition against discrimination based, inter alia, on ‘national or ethnic origin’ and descent, thus covering minorities, and includes a mandate for special measures to benefit groups under, e.g., Article ().11 By January , the CCPR had states parties and states had recognized the competence of the HRC under the CCPR Opt. Prot.12 Between its rd and th sessions (the period covered in the present report), the HRC issued decisions on individual communications.13 Since October , these have included four cases dealing specifically with minorities or issues of potential interest to minority groups within the state: Äärelä v. Finland, Jonassen et al. v. Norway, Mátyus v. Slovakia and Gillot et al. v. France.14 8
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HRC, General Comment No. () Reporting Obligations of States Parties under Article of the Covenant, adopted on July (th meeting), CCPR/C//rev./Add.. is procedure was applied with respect to Gambia, considered by the Committee in its th session without a report and in absence of a delegation from that state party. In its st session (March ), the HRC revised its rules regarding follow-up to concluding observations, placing a -month limit on states parties to provide information on the implementation of certain Recommendations. In its st meeting, the Committee however noted that provision of information is scarce and designated a Special Rapporteur to examine follow-up information. ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language.’ e CERD provides an important complement to the CCPR with strong provisions encompassing promotion, protection and affirmative action. Article CERD in particular provides protection from discrimination in the enjoyment of additional rights to the CCPR. One additional ratification of the CCPR in by Eritrea. Cf. Office of the High Commissioner for Human Rights (OHCHR) status of ratification table at http://.../pdf/report.pdf . Unofficial figures HRC Sessions: rd ( October– November ), th ( March– April ), th ( July ), th ( October– November ). As of November , there were cases pending. e HRC’s th session proved particularly productive dealing with communications. HRC, Communication No. /, Anni Äärelä and Jouni Näkkäläjärvi v. Finland, views of October , CCPR/C//D/; HRC, Communication No. /, Jarle Jonassen et al. v Norway, decision on the admissibility of October , CCPR/C//D//; HRC, Communication No. /, István Mátyus v. Slovakia, views of July , CCPR/C//D//; HRC, Communication No. /, Marie-Hélène Gillot et al. v. France, views of July , CCPR/C//D//. Note also HRC, Communication No. /, Zébié Aka Bi v. Ivory Coast, decision on the admissibility of July , CCPR/C//D// and HRC, Communication No./, Kenneth Riley et al. v. Canada, decision on admissibility of March , CCPR/C//D//. e latter was declared inadmissible because the authors had failed to show that they were ‘victims’. e case was brought by two
Hannah McGlue II. O C A M e two cases below dealing with the rights of the Sami community in the Nordic countries show the prudent balancing approach taken by the HRC to date. Whilst the Committee has acknowledged that economic and social activities ‘which are an essential element of the culture of an ethnic community’ fall within the ambit of Article ,15 when state intervention affecting or interfering with the minority’s culturally significant economic activities is at issue, the Committee has ruled that certain limitations may be permitted. A two-fold test has been used to ascertain whether there is a breach or not. ‘Measures that have a certain limited impact on the way of life … will not necessarily amount to a denial of the right under Article ’,16 provided, first, that persons belonging to the minority have had the opportunity to participate in the decision-making process in relation to these limitations and are considered in the process; and, second, that they will continue to benefit from their traditional economy.17 In Äärelä, an issue was whether logging within a Sami reindeer-herding district met the Committee’s two-fold test under Article . e HRC found that the complainants had been consulted but that it did not have sufficient information to be able to draw independent conclusions on the factual retired members of the Royal Canadian Mounted Police (RCMP). ey argued that an amendment to the RCMP regulations allowing a Khalsa Sikh officer to wear a turban in place of the RCMP uniform was unconstitutional. e authors claimed, inter alia, a violation by the state party of Article CCPR for permitting the display of bias within the police force, violation of Article for introducing a ‘denominational face to the most visible State agency’ when protection of rights under Article entails the retention of a secular state, Article , paras. and , as RCMP affiliation with the religious beliefs of the Khalsa Sikh order which practice arranged marriages reflects state endorsement of this practice; and violation of Arts. and () for advancement of the Khalsa Sikh religion by allowing special status, thereby creating a distinction on the basis of religion, contrary to the aforementioned articles as it is denied to other groups. 15 HRC, Communication No. /, Ominayak Chief of Lubicon Lake Band v. Canada, views of March , UN Doc.A//, para. ., where the HRC considered culture to include the traditional activities of hunting, fishing and trapping of the North American Indians. HRC, Communication No. /, Kitok v. Sweden, views of July , UN Doc. Supp. No. (A//), at (), para. (), where the HRC recognized the economic activity of reindeer husbandry as an integral part of the cultural life of the Sami. 16 HRC, Communication No. /, Ilmari Länsman et al. v. Finland, views of October , CCPR// D//, para .. 17 Cf. HRC, Communication No. /, Jouni E. Länsman et al. v. Finland, views of October , CCPR/C//D//; HRC, Communication No. /, Apirana Mahuika et al. v. New Zealand, views of October , CCPR/C//D//; HRC, Communication No. /, Kitok v. Sweden; HRC, Communication No. /, Ominayak, Chief of Lubicon Lake Band v. Canada; HRC, Communication No. /, J.G.A. Diergaardt (late Captain of the Rehoboth Community) et al v. Namibia, views of July , CCPR/C//D//, and reference to HRC General Comment (th session, ) on Article () where the Committee stresses the importance of participation in the decision-making process: Regarding the enjoyment of cultural rights, ‘which may include such traditional activities as fishing or hunting … [enjoyment] may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them’ (emphasis added). Although positive obligations are also noted here, the nature and scope are not elaborated upon (bar that they must respect Arts. () and ). Cf. P. ornberry, ‘e UN Declaration’ in A. Phillips and A. Rosas (eds.), Universal Minority Rights (Turku, ), , for a discussion on positive obligations and the conceptual problem of group rights.
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies importance of the area to husbandry and the long-term impacts on the sustainability of husbandry. us, a violation of Article by the state could not be upheld.18 e HRC did however find a breach of Article (), because the state party imposed a substantial award of costs at the appellate level on the losing party without taking into consideration the specific circumstances of the group, with a consequent effect on access to courts for similarly situated groups bringing cases of violations of Article .19 e Jonassen case concerns Sami ownership rights in respect of land used for reindeer husbandry. Allegations of violation of Article in conjunction with Article for failure to protect their right to let their herds graze on traditional grounds by systematically denying access to grazing lands were declared inadmissible by the HRC due to the non-exhaustion of domestic remedies – expropriation proceedings had been initiated and were still pending. e refusal to hear the case on the merits was questioned by the dissenting Committee members, who argued that the remedy was ineffective and unduly prolonged.20 Mátyus does not deal directly with a minority group but is of potential future relevance to minorities. e HRC ruled that the right to political participation (Article (a) and (c)) in a Slovak town council election had been violated due to a failure to comply with the electoral law requiring voting districts to be established proportionately to the number of inhabitants. Gillot deals with the issue as to how far restrictions can be placed on eligibility to vote in local referenda within the framework of a self-determination process. e Committee found that the restrictions, allowing only those ‘concerned’ with the future of New Caledonia and able to fulfil certain criteria proving sufficiently strong ties to the territory were proportional in the context of a self-determination process.21 Although the criteria did include ethnicity, the HRC noted that these were not exclusive and that the identification of voters was not based solely on birth and family ties. It may be argued here that the limitations of the in camera nature of the procedure based on only written evidence places the Committee in a weak position and hence the inability here to decide on the Article claim. e HRC (Para. ()) did note that the Sami had been consulted and as a result some courses of action had been altered. 19 Whilst Finland, in , introduced an amendment to the law governing judicial proceedings allowing courts discretion to decide on a case-by-case basis, the complainants did not fall under this new regulation. 20 e arguments presented by the claimants in this case also touch on the issue as to how far the state is obliged under Article to take positive measures to protect the culture of the minority/indigenous community, through, e.g., allocation of land or altering property rights. In the Lubicon Lake Band case the HRC found a violation of Article referring to historical inequities and recent developments (private oil and gas exploitation), although the decision is very brief and does not elaborate exactly what these are. e HRC did not need to develop on the point of positive obligations as Canada had already proposed a remedy to the situation by providing land reserve structures, which it endorsed as being ‘appropriate’. 21 Whilst Article CCPR concerning self-determination cannot be considered under the Optional Protocol procedure, the Committee took it into account in its interpretation of Article . In the Lubicon Lake Band case, para. .., the HRC maintained that Article is not an individual right and thus not subject to individual petition under the CCPR Opt. Prot. 18
Hannah McGlue In its th session (- November ), the Committee Against Torture ruled upon the case of Dzemajl et al. v. Yugoslavia22 involving the destruction of a Roma settlement. e individual petition mechanism under the CAT, a ‘specialized’ treaty, has remained relatively underused primarily due to the fact that its substantive provisions are covered by the CCPR whose procedures are more familiar to potential complainants and NGOs.23 Cases under the CAT generally deal with the concept of non-refoulement (Article ()). e CAT has, unlike the CCPR, in Article a definition of what constitutes torture: It must be ‘severe pain or suffering’ intentionally inflicted by/at the instigation of/with the consent or acquiescence of a public official or other person acting in official capacity. States parties are also under the general obligation to prevent cruel, inhuman or degrading treatment or punishment (Article ), but not all other provisions of the Convention are explicitly linked to this article.24 e Yugoslav case outlined below is important both on a general level and particularly in its implicit acknowledgment of the specific circumstances of the Roma minority as victims in what is a widespread problem across Eastern Europe. In the Dzemajl case, a Roma settlement was burnt to the ground as reprisal for the alleged rape of a non-Roma girl by two Roma. e burning and destruction of the settlement was aggravated by the fact that some Roma were still within the buildings when they were set alight. e ‘significant level of racial motivation’25 and the particular vulnerability CAT/C, Communication No./, Hajrizi Dzemajl et al. v. Yugoslavia , views of November , CAT/C//D//. 23 e same applies to individual communications under Article CERD. e CAT/C had registered communications as of December as compared to registered by the HRC. e CAT had states parties on December , with acceptance of the Committee’s competence under Article totalling states parties. In , the CAT entered into force in Costa Rica, Azerbaijan, Ireland, Mexico, Monaco, Paraguay and Peru. 24 e CAT provides a complement to the CCPR and adds to the customary international law prohibition on torture, by requiring states parties to facilitate the punishment of torture through their municipal law. Whilst the CCPR also prohibits torture and cruel, inhuman or degrading treatment or punishment under Article , there is no definition of either concept. In fact, the HRC has developed a ‘working definition’ cf. HRC, General Comment (). Whilst the CAT Committee made a move in recognizing other actors in the perpetration of torture within the meaning of the Convention, cf. CAT/C Communication No. /, Elmi v. Australia, views of May , CAT/C//D//, CAT expressly limits the perpetrator to those acting for or with acquiescence of the state. e HRC has taken a more flexible approach regarding violations by private persons, cf. General Comment (), underscoring that state obligations include the protection of all against acts of torture and inhuman … treatment also committed by private individuals. Failure to investigate in such a case also gives rise to liability. In the above case, the recognition of private acts perpetrated by the acquiescence of officials as a violation under the CAT and the need to remedy this suggests a move to an equally flexible approach. e CAT also provides, unlike other UN instruments, for a confidential inquiry mechanism – an instrument that can be operated on receipt by the Committee of ‘any reliable information’’ which appears to it to contain well-founded indications that torture is being ‘systematically practiced’ (Article CAT). States parties can however make an ‘opt-out’ declaration regarding visiting procedures. e Optional Protocol to the CAT, adopted by the General Assembly during its th plenary session ( December ), which establishes a system of regular independent inspection visits to places of detention, has significant potential to complement the CAT. 25 Dzemajl et al. v. Yugoslavia, views of the Committee, para. .. 22
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies of the victims constituted in the Committee’s view inhuman and degrading treatment within the meaning of Article . e Committee particularly found that even though the acts were committed by private individuals, evidence that police and municipal authorities had stood by and watched the event without resorting to action violated Article , thus applying the article in the sense of positive obligations on state representation. e Committee notes in particular the circumstances of ‘such groups’ and refers to earlier concluding observations voicing concern at police inaction in similar situations.26 On a more general level, the Committee found that victims of ill-treatment under Article should be compensated even though this requirement is not expressly provided for within the CAT. Questions affecting the Roma minority have been an important feature of periodic reporting in the last year, which has resulted in a number of recommendations being made to states as regards the Roma minority.27 In addition, the CERD/C in its st session (- August ) adopted General Recommendation on Descent-based Discrimination following a thematic discussion on the topic. is followed from the Committee’s first ever thematic discussion on discrimination against the Roma, one form of descent-based discrimination.28
Para. .. with reference to CAT/C, Concluding Observations: Slovakia, (initial report), para. ; CAT/C, Concluding Observations: Czech Republic (nd periodic report), para.; CAT, Concluding Observations: Georgia (second periodic report), para. , all A// (). 27 HRC, Concluding Observations: Hungary (th periodic report), CCPR/CO//HUN, dated April , para. which states that the Committee is ‘deeply concerned at the situation of the Roma people who, despite various steps taken by the State Party remain disadvantaged in almost all aspects of life covered by the Covenant’; HRC, Concluding Observations: initial report of Moldova, CCPR/CO//MDA, dated July , para. ; CERD/C Concluding Observations in general highlight more varied and detailed issues than those of the HRC. CERD/C, Concluding Observations: Hungary (th,th,, th and th periodic reports), A/, paras. - (in particular paras -); CERD/C, Concluding Observations: Moldova (initial, nd, rdand thperiodic reports), CERD/C//CO/, paras. -; CERD/C, Concluding Observations: Croatia (th and th periodic reports), CERD/C//CO/, in particular para. . In all three, CERD/C particularly recommends states to take into account the Durban Declaration and Programme of Action when implementing the Convention in the domestic legal order (the latter was adopted at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance of August to September and includes a section on Roma and minorities in general, in particular paras. - in its programme of action). For further reading on the ‘good and worthwhile initiatives [taken by CERD/C], which expressly extend to minority situations’ with particular reference to the early warning mechanisms procedure developed by the Committee since , see Alfredsson, ‘Minority Rights: A Summary of Existing Practice’, in Phillips (ed.), Universal Minority Rights …, . 28 ematic discussions provide another means of airing specific issues, also preceded by informal meetings with concerned NGOs, governments and other UN human rights mechanisms e CERD/C thematic discussion on Roma was held from to August (th session) and resulted in CERD/C General Recommendation on Discrimination against Roma, th session. is recommends adoption by states parties of a number of measures of a general and more specific nature. 26
Hannah McGlue Human Rights Committee Communication No. / Anni Äärelä and Jouni Näkkäläjärvi v. Finland Views of October 29 Summary of the Facts and the Parties’ Submissions e authors of the communication are Anni Äärelä and Jouni Näkkäläjärvi, Finnish nationals. ey are reindeer breeders of Sami ethnic origin and members of the Sallivaara Reindeer Herding Co., which has , hectares of state-owned land available for reindeer husbandry. On March , the Committee declared a previous communication, brought by the authors among others, alleging that logging and road-construction activities in certain reindeer husbandry areas violated Article CCPR, inadmissible for nonexhaustion of domestic remedies.30 ereafter, the authors brought a suit in the Lappi District Court of first instance against the National Forestry and Park Service (Forestry Service). e suit sought the enjoinder, on the basis, inter alia, of Article CCPR, of any logging or road-construction in the Mirhaminmaa-Kariselkä area. is area is said to be amongst the best winter-herding lands of the Sallivaara Co-operative. On August , the district court decided to prohibit logging or road construction in the hectare Kariselkä area, but to allow it in the Mirhaminmaa area. e test used was ‘whether the harmful effects of felling are so great that they can be deemed to deny to the Sami a possibility of reindeer herding that is part of their culture, is adapted to modern developments, and is profitable and rational’. Logging in the Mirhaminmaa area was found to be of long-term benefit to reindeer-herding in the area and convergent with those interests. Differing environmental conditions in the Kariselkä meant that there would be a considerable long-term decrease in lichen reserves. e court relied, inter alia, on HRC case law31 and found that these effects of logging, combined with the fact that the area was an emergency feeding ground, would prevent reindeer-herding in that area. On appeal, the Forestry Board sought the exceptional measure of oral hearings and expert witnesses were heard. e authors’ request for an on-site investigation by the appellate court was rejected. e appeal court reversed the first instance decision, permitting logging also in the Kariselkä area and awarded costs of FIM , against the authors. e court concluded that it had not been shown that there would be adverse affects on reindeer in the long run, basing its decision on evidence that the small logging area proposed would have minimal effects on the quantities of arboreal lichen and over time increase ground lichen and that CCPR/C//D//. HRC, Communication No. /, Sara et al. v. Finland, decision on admissibility March , CCPR/C//D//. e Committee considered that the state party had shown that Article could be invoked in the relevant domestic proceedings. is should have been used by the authors prior to CCPR Opt. Prot. proceedings. 31 HRC, Communications Nos. /, Sara et al. v. Finland; /, Kitok v. Sweden; /, Ominayak v. Canada; /, Ilmari Länsman v. Finland, and, moreover, the Committee’s General Comment ().
29
30
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies the area was not a main winter pasture and in recent years had not been used as a back-up. e authors submit that they were not made aware during proceedings by either the Court of Appeal or the Forestry Service of a brief submitted by the latter presenting allegedly distorted arguments based on HRC jurisprudence. e Supreme Court decided in its discretion and without giving reasons, not to grant leave to appeal. On June , a Ministry of Agriculture and Forestry decision came into effect reducing the permissible size of the Sallivaara herd by . In November , the Forestry Service required of the authors the total of FIM , to meet costs of the judgment. e authors allege a violation of Article based on the appeal court’s decision to allow logging and road construction in the Kariselkä area, comprising the best winter lands of the author’s herding cooperative. Logging in the herding lands and the reduction at the same time of the permissible number of reindeer, amounts to a denial of their right to enjoy their culture, in community with other Sami, for which the survival of reindeerherding is essential. e authors also contend that the award of costs against them at the appellate level (having succeeded at first instance) represents bias and effectively prevents other Sami from invoking CPR rights to defend their culture and livelihood. ere is no state assistance available to impecunious litigants to satisfy the imposition of costs.32 e state party argues with reference to HRC case law that not every interference which in some limited way alters the previous conditions can be regarded as a denial of rights under Article . Further, it points out that two courts considered the authors claim explicitly in light of Article , hearing expert witnesses, examining extensive documentary material and conducting on-site inspections before an evaluation of the facts. e authors also effectively participated in the decisions affecting them – the Forestry Service plans were developed in consultation with reindeer owners and the former is under legal obligations to sustainably manage and protect natural resources, including the requirements of the Sami reindeer-herding culture. Accordingly, the different interests of reindeer husbandry and forestry have been properly weighed. Further, the state party refers to the Länsman 33 case where for planned economic activities to be consistent with Article the authors had to be able to continue to benefit from reindeer husbandry. Here the measures contemplated also assist and are compatible with this activity by stabilizing lichen reserves.
e authors also claim violation of Article paras. and due to alleged partiality of the Appeal Court, which prejudged the outcome of the case and violated the principle of equality of arms, in (i) allowing oral hearings while denying an on-site inspection and (ii) taking into account biased material information without providing an opportunity to the other party to comment. 33 HRC, Communication No. /, Ilmari Länsman et al v. Finland. 32
Hannah McGlue Issues and Proceedings before the Committee … . As to the authors’ argument that the imposition of a substantial award of costs against them at the appellate level violated their rights under article , paragraph , to equal access to the courts, the Committee considers that a rigid duty under law to award costs to a winning party may have a deterrent effect on the ability of persons who allege their rights under the Covenant have been violated to pursue a remedy before the courts. In the particular case, the Committee notes that the authors were private individuals bringing a case alleging breaches of their rights under article of the Covenant. In the circumstances, the Committee considers that the imposition by the Court of Appeal of substantial costs award, without the discretion to consider its implications for the particular authors, or its effect on access to court of other similarly situated claimants, constitutes a violation of the authors’ rights under article , paragraph , in conjunction with article of the Covenant. e Committee notes that, in the light of the relevant amendments to the law governing judicial procedure in , the State party’s courts now possess the discretion to consider these elements on a case-by-case basis.34 … . Turning to the claim of a violation of article in that logging was permitted in the Kariselkä area, the Committee notes that it is undisputed that the authors are members of a minority culture and that reindeer husbandry is an essential element of their culture. e Committee’s approach in the past has been to inquire whether interference by the State party in that husbandry is so substantial that it has failed to properly protect the authors’ right to enjoy their culture. e question therefore before the Committee is whether the logging of the hectares of the Kariselkä area rises to such a threshold. . e Committee notes that the authors, and other key stakeholder groups, were consulted in the evolution of the logging plans drawn up by the Forestry Service, and that the plans were partially altered in response to criticisms from those quarters. e district court’s evaluation of the partly conflicting expert evidence, coupled with an on-site inspection, determined that the Kariselkä area was necessary for the authors to enjoy their cultural rights under article of the Covenant. e appellate court finding took a different view of the evidence, finding also from the point of view of article , that the proposed logging would partially contribute to the long-term sustainability of reindeer husbandry by allowing regeneration of 34
[Regarding the authors’ claim under Article of an unfair procedure, the HRC found that the authors had not shown that the decisions (to hold an oral hearing not to inspect the site) had injected unfairness into the proceedings or altered the outcome. Regarding the complaint that equality of arms had been violated, the HRC regarded that it as the fundamental duty of courts to ensure this principle and this involves providing ‘full opportunity to each party to challenge the submissions of the other’. e circumstances of the case disclose a violation of this principle. Paras. () and ().]
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies ground lichen in particular, and moreover that the area in question was of secondary importance to husbandry in the overall context of the collective’s lands. e Committee, basing itself on the submissions before it from both the authors and the State party, considers that it does not have sufficient information before it in order to be able to draw independent conclusions on the factual importance of the area to husbandry and the long-term impacts on the sustainability of husbandry, and the consequences under article of the Covenant. erefore, the Committee is unable to conclude that the logging of hectares, in these circumstances, amounts to a failure on the part of the State party to properly protect the authors’ right to enjoy Sami culture, in violation of article of the Covenant. Communication No. / Jarle Jonassen and Members of the Riast/Hylling Reindeer Herding District v. Norway Decision on the Admissibility of October 35 Summary of the Facts and the Parties’ Submissions e authors of the communication are the herdsmen of the Riast/Hylling reindeer-herding district, Norwegian citizens, of Sami ethnic origin. e Samis are an indigenous people constituting an ethnic minority in Norway, and reindeer breeding is recognized as an essential part of Sami culture. is activity constitutes the main material precondition for settlement in Sami areas. In Norway there are six different reindeer-herding areas divided into smaller units called reindeer-herding districts, in which one or several groups of Sami are entitled to let their herds graze. e authors belong to the district of Riast/Hylling. For winter-herding, the authors use the Femund and Essand herding districts. eses three districts constitute with the boundary of Elgaa, the Soer-Troendelag/ Hedmark herding area. Pursuant to the Norwegian Reindeer Husbandry Act of June , Sami herdsmen are entitled to engage in reindeer husbandry within their designated districts. Following a decision of the Norwegian Supreme Court on November , the Korssjoell case, however, Sami herdsmen are only entitled to let their reindeer graze within the district if they have acquired a right to use the specific area in question according to Norwegian law. If a dispute with a landowner arises, the herdsmen must prove they have acquired the rights by use since time immemorial. e Korssjoell case concerned a large part of the Femund herding district and the court decided that the authors were not entitled to let their reindeer graze in the area. Equally, on October in the Aursunden Case , the Supreme Court concluded that the authors were not entitled to reindeer-herding on privately owned parts of the Riast/Hylling district. e authors allege violations of Article in conjunction with Article of the Covenant for failure of the state party to recognize and protect their right to let their herds graze on their traditional grazing grounds. ey recall that the Committee has recognized that Article imposes an obligation on states parties, not only to protect immaterial 35
CCPR/C//D//.
Hannah McGlue aspects of indigenous culture, but also to offer legal protection for the material foundation of such culture.36 Subsequently, for the interpretation of Article , the authors refer to Article () which requires that all peoples must be able to freely dispose of their natural wealth and resources, and that they may not be deprived of their own means of subsistence.37 Moreover, due to the integrated nature of the area disputed in Aursunden and the denial of access to the area, the authors have practically no access to attached areas, thus running the risk of having to close down their entire reindeer husbandry. e authors submit that in Aursunden, the Supreme Court attached substantial importance to a previous judgment of July concerning rights in the western part of the area in dispute. e ruling in turn used a study on the Sami population, which purported a new theory implying that Sami had migrated from the North to the Roros area and were intruders. By attaching importance to these assessments made at a time characterized by discrimination and forced integration of the Sami, the state party and the Supreme court have failed in general to protect the material foundation of the southern Sami culture. In addition, an appeal in the case was dismissed without discussing the authors’ rights under Article . e authors also argue that Norwegian law regarding acquisition of rights by use since time immemorial as it has been interpreted and practiced by the courts in itself constitutes a violation of Article . By failing to recognize Sami culture and perception of law, and by setting the same requirements for the acquisition of the right to herd reindeer as it sets in other matters of property law, Norwegian courts have, in effect, made it impossible for the authors and Sami people in many areas, due to their nomadic lifestyle, to acquire legal grazing rights and thereby to enjoy their own culture. e authors also allege a violation of Article because the Norwegian Supreme Court in Aursunden failed to protect the authors from discrimination by basing its considerations on establishment of facts made in the nineteenth century when the Samis where discriminated against and the Norwegian landowners’ claim for private property rights were favoured. e state party contests the admissibility of the claims under Arts. and for lack of substantiation and contests the admissibility of the claim under Article for nonexhaustion of domestic remedies and because the authors cannot be deemed victims within the meaning of Article Opt. Prot.38
HRC, Communication No. /, Jouni Länsman et al. v. Finland, views of October , CCPR/C/ /D//; HRC, Communication No. /, Ilmari Länsman et al v. Finland, views of October , CCPR/C//D//. 37 e authors point out differences between the above two cases where the HRC did not find a violation and theirs – the state interference in those cases was an isolated action and activities were only disturbed in the areas. In the present case the authors contend that the current system of justice violates their rights and they are deprived of actual herding areas. 38 e state party contends that the applicant’s main argument involves an actio popularis, that Norwegian law and how it has been implemented in itself constitutes a violation of Article . is cannot be addressed by the Committee. 36
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies Regarding the authors’ allegations that the state party has failed to fulfil its positive obligations imposed by Article , in particular by setting the same requirements for the acquisition of rights to the use of land by the Samis as it would in other matters of property law, the state party argues that the Samis’ interests are instead safeguarded through the institute of expropriation if sufficient grazing rights have not been established previously within the reindeer-herding areas.39 In this case the right to petition, which constitutes an available and effective remedy, has not been exhausted. On April , the authors filed claims for expropriation concerning the Aursunden Case , and on April , concerning the Korssjoell Case. According to the Expropriation Act of , parties shall be encouraged to try and reach an amicable settlement before expropriation proceedings commence. A negotiation committee for the Aursunden case was set up by the Ministry of Agriculture in November which heard the authors. An agreement was proposed on February but the authors maintained their petition. In response to the state party’s submissions, the authors provided a government letter showing that that the recommended agreement has only been accepted by % of landowners and thus negotiations have so far failed. e petition was filed over three years ago and is still pending. Further they argue that their actual usage of the land has been affected: While awaiting the outcome of their petitions for expropriation, the authors on August , were subjected to a criminal charge for illegal use of the land north of Aursunden, and they fear being subjected to further charges for illegal use of the disputed areas in question. Issues and Proceedings before the Committee Considerations of Admissibility . In respect of articles and , the Committee notes the authors’ arguments that the Supreme Court in the ‘Aursunden Case ’ attached importance to the Supreme Court decision in , and that the latter decision was based upon discriminatory views of the Samis. However, the authors have not provided information which would call into doubt the finding of the Supreme Court in the ‘Aursunden Case ’ that the Supreme Court in was not biased against the Samis. It is not for the Committee to re-evaluate the facts that have been considered by the Supreme Court in the ‘Aursunden Case ’. e Committee is of the opinion that the authors have failed to substantiate this part of their claim. . … the Committee finds that the authors’ claim relates to denial of their reindeer herding rights in specific areas [not to an actio popularis] … . Regarding the State party’s allegation of [non-exhaustion of domestic remedies] … the State party has argued that the authors have not exhausted the remedy of claiming expropriation to the administrative authorities. [e Committee notes 39
In , following the Korssjoell case the Reindeer Husbandry Act was amended to extend the Sami users’ rights with the herding areas by allowing for expropriation of land.
Hannah McGlue that] although the authors have pursued the domestic judicial remedies in their disputes with the landowners in the ‘Tamnes Case’, the ‘Aursunden Case ’ and the ‘Korssjoell Case’, their petitions for expropriation in the two latter cases are still pending, whereas the authors have not petitioned for expropriation in the former case. e application for expropriation, a remedy provided by the law, is still pending. … therefore … domestic remedies have not been exhausted. . However, the question is whether the application of these remedies has been unreasonably prolonged …. . e Committee considers that the period of time it has taken for the authors to obtain a remedy, may not be gauged from the time the Samis have litigated grazing rights [i.e. over a century], but from the time the authors themselves have sought a remedy. e Committee notes that the authors brought their claims for expropriation on April in the ‘Aursunden Case’ and on April in the ‘Korssjoell Case’. As part of the process, a negotiation was established which recommended an agreement in February , but this agreement was rejected in May . is forced the authorities to reopen the expropriation procedure. . e Committee considers that the amendment of the Reindeer Husbandry Act and the subsequent negotiations aiming at providing a remedy for the authors, provide a reasonable explanation for the length of the examination of the authors’ claim. It cannot conclude that the Norwegian legislation, obliging the authors to follow the procedure of settling their claims with the landowners before bringing a claim of expropriation, is unreasonable. e Committee also notes that while the authors have been subjected to one case of a criminal charge for illegal use of the disputed land for which they have been acquitted, they have been able to continue their reindeer herding to the same extent as before the relevant Supreme Court judgements. e Committee therefore cannot conclude that the application of domestic remedies has been unduly prolonged. e authors’ claim under article is inadmissible for the non-exhaustion of domestic remedies, under article , paragraph (b) of the Optional Protocol. . e Committee is of the opinion that given the new remedy provided by the law, the claim must be considered inadmissible. Nevertheless, the State party is urged to complete all proceedings regarding the authors’ herding rights expeditiously. Individual opinion by Committee members Mr. Louis Henkin, Mr. Martin Scheinin and Mr. Solari Yrigoyen (dissenting) We are of the view that the communication should have been heard on its merits. e main ground on which the majority bases its inadmissibility decision is article , paragraph (b), of the Optional Protocol, i.e., non-exhaustion of domestic remedies … in our view this conclusion is erroneous. First and foremost, we do not agree that petitioning the administrative authorities of the State party, for the purpose that they institute expropriation proceedings
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies to secure the reindeer herding rights of the authors, is at all an effective remedy within the meaning of article () (b) of the Optional Protocol. e authors have already exhausted one line of judicial remedies by having their case adjudicated up to the Supreme Court. e authors are not even a party in the expropriation proceedings … which, therefore, cannot be taken as constituting an effective domestic remedy to be pursued by the authors. At most, the authors have exhausted their additional remedy related to expropriation simply by filing the petition in a manner that allows the initiation of the expropriation proceedings. What results from those expropriation proceedings, and within which time frame, would be a matter for the consideration of merits when the Committee addresses the State party’s measures aimed at giving effect to the article rights of the authors. Secondly, even assuming that the actual expropriation proceedings constitute a remedy that needs to be exhausted by the authors, those proceedings are already unreasonably prolonged within the meaning of the last sentence of article , paragraph , of the Optional Protocol. After losing the Aursunden case in the Supreme Court – which process itself required some time – the authors filed their petition for expropriation on April . Almost three years later, on March , the proposed settlement was rejected by the landowners. Although the State party has since then made a submission to the Committee on March , it has not even informed the Committee of any later developments, given any explanation for the delay of four and a half years since the authors filed their petition, or presented any prospect of the time frame within which the matter will be decided. In the circumstances, the Committee should conclude that the remedy is unreasonably prolonged. irdly, it appears that the article rights of the authors are being affected by the Supreme Court rulings against them. Herding in areas previously used by them has become illegal, and the authors are subject to the risk of further legal proceedings and legal sanctions if they continue to herd their reindeer in those areas. It has not even been argued that the outcome of the expropriation proceedings would be relevant as a remedy for this part of the authors’ claim under article … Communication No. / István Mátyus v. Slovakia Views of July 40 Summary of Facts and Complaints e author of the communication is István Mátyus, a Slovakian citizen, residing in Slovakia at the time of submission of the communication. e case concerns the effect of the introduction of Resolution / passed by RoñÁava Town Council on November . is resolution establishes five voting districts in the region with a total of representatives, for the elections to RoñÁava Town Council on and of December . 40
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Hannah McGlue e numbers of representatives per voting district varied: District number one and two were to have five representatives, district number three seven and district number four and five two representatives each. In accordance with paragraph section of Law no. / Coll. on elections to municipal bodies, in every town multi-mandate voting districts shall be established in which representatives shall be elected to the village or town council proportional to the number of inhabitants in the town, and at most representatives in one electoral district. e author submits that the number of representatives in each district was not proportional to the number of inhabitants therein, providing figures.41 He further submits that he employed a number of administrative and judicial means to seek redress, all of which failed. e author claims that the rights of the citizens of RoñÁava, under Article (a) and (c) of the Covenant, were violated as they were not given an equal opportunity to influence the results of the elections, in exercising their right to take part in the conduct of public affairs, through the election of representatives. In addition, the author states that their rights were violated as they were not given an equal opportunity to exercise their right to be elected to posts in the town council. Further, he contends that his rights, under Article (a) and (c), were violated, as he would have needed substantially more votes to be elected to the town council than candidates in other districts, due to the fact that the number of representatives in each district was not proportional to the number of inhabitants therein. e author claims that this resulted in his loss of the election. e state party argues the communication inadmissible on grounds of non-exhaustion of domestic remedies. It contends that the Constitutional Court is the only instance empowered to decide upon the constitutionality of a resolution, which is alleged to violate any article of the Slovak Republic’s Constitution. Although the author petitioned the Constitutional Court, this was not done sufficiently early on [42], thus his complaint was dismissed. Petitioning should have been immediately after the adoption of the regulation by RoñÁava Town Council on November , and prior to the holding of the election itself. A decision subsequent to this declaring the invalidity of the elections would have significantly interfered with the rights acquired in good faith by third parties.43
41
42 43
One representative per , residents in district number one; one per residents in district number two; one per , residents in district number three; one per residents in district number four; and one per residents in district number five. e State party argues that all other administrative and judicial avenues used by the author prior to petitioning the Constitutional Court were inappropriate. In response to the state party’s submissions on admissibility, the author rejects both the contention that the Constitutional Court is the sole court to decide upon constitutionality and legality of decisions by regional self-governing bodies. He further rejects that a filed complaint should have been immediate subsequent to the adoption of the resolution.
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies e Committee declared the case admissible referring to the fact that the Constitutional Court did review the matters raised (finding a violation of the authors’ constitutional rights as well as law / Coll.) despite dismissing it. In addition, it would have been unreasonable for the author to have anticipated prior to the Court’s determination on the question of delay in bringing the application.[44] Views of the Committee … .. As regards the question whether article of the Covenant was violated, the Committee notes that the Constitutional Court of the State party held that by drawing election districts for the same municipal council with substantial differences between the number of inhabitants per elected representative, despite the election law which required those voting districts to be proportional to the number of inhabitants, the equality of election rights required by the State party’s constitution was violated. In the light of this pronouncement, based on a constitutional clause similar to the requirement of equality in article of the Covenant, and in the absence of any reference by the State party to factors that might explain the differences in the number of inhabitants or registered voters per elected representative in different parts of RoñÁava, the Committee is of the opinion that the State party violated the author’s rights under article of the Covenant. … . e Committee acknowledges that cancelling elections after they have already taken place may not always be the appropriate remedy in the case of an inequality in the elections, especially when the inequality was inherent in the laws and regulations laid down before the elections, rather than irregularities in the elections themselves. Furthermore, in the specific circumstances of the case, given the time lapse since the elections in December , the Committee is of the opinion that its finding of a violation is of itself a sufficient remedy. e State party is under an obligation to prevent similar violations in the future. Communication No. / Marie-Hélène Gillot et al. v. France Views of July 45 Summary of the Facts and the Parties’ Submissions e authors are French citizens, resident in New Caledonia, a French overseas community. On May , two political organizations in New Caledonia, the Front de 44
45
[e Committee also noted that the state party had failed to substantiate that such a case could be entertained by any administrative or judicial instance other than the Constitutional Court within a statutory period of time.] CCPR/C//D//.
Hannah McGlue Libération Nationale Kanak Socialiste (FLNKS) and the Rassemblement pour la Calédonie dans la République (RPCR), together with the government of France, signed the socalled Noumea Accord. e Accord, which forms part of a process of self-determination, established the framework for the institutional development of New Caledonia over the next years. Implementation of the Noumea Accord led to a constitutional amendment as it involved derogations from certain constitutional principles, such as equality of political rights (restricted electorate in local ballots). e authors contest the way in which the electorates for the initial referendum and future referendums, as established under the Noumea Accord and implemented by the French government, were determined, as this resulted in their exclusion from the electorates. For the first referendum on November (regarding approval of the Noumea Accord), the electorate was determined as those ‘registered on the electoral rolls for the territory on that date and resident in New Caledonia since November ’. For future referendums, the electorate was determined as those registered on the electoral roll on the date of the referendum and fulfilling one of the following conditions (a) eligibility to participate in the referendum of November ; (b) not registered on the electoral roll for the referendum of November , but fulfilling the residence requirement for that referendum; (c) not registered on the electoral roll for the November referendum owing to non-fulfilment of the residence requirement, but able to prove that absence was due to family, professional or medical reasons; (d) enjoying customary civil status or, having been born in New Caledonia, have their main moral and material interests in the territory; (e) those with one parent born in New Caledonia must have their main moral and material interests in the territory; (f ) able to prove years’ continuous residence in New Caledonia on the date of the referendum or by December at the latest; (g) born before January must have been resident in New Caledonia from to ; (h) born on or after January must have reached voting age on the date of the referendum and have one parent who fulfilled the conditions for participation in the November referendum. Periods spent outside New Caledonia for national service, study, training, or for family, professional or medical reasons will, ‘in the case of persons previously domiciled in the territory, be included in the periods taken into consideration in order to determine domicile’.46 e authors’ application to be included on the electoral role for the November referendum was refused both by Noumea court of first instance and on appeal by the Court of Cassation due to the authors’ failure to meet the criteria. 46
Gillot et al. v. France , para. .. referring to Article of the Organic Law of New Caledonia (No.-) of March (reflecting Article () of the Noumea Accord).
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies e authors contend that denial of their right to vote constitutes discrimination against them neither justified, reasonable nor objective. ey contest the criteria established to determine the electorates for the referenda on the grounds of the derogations from French electoral provisions and the consequent violations of the CCPR (Articles , , ). e authors point out the following discriminatory elements in the criteria established: – Discrimination affecting only French citizens in New Caledonia precisely because of their residence on the territory. e criteria regarding length of residence established for the referenda represent departures from the electoral code applicable to all French citizens, irrespective of place of residence. – Discrimination between French citizens resident in New Caledonia according to the nature of the ballot in question. (National elections encompass all residents, local ballots only a certain number). – Discrimination on the basis of ethnic origin or national extraction of French citizens resident in New Caledonia. e French authorities have established an ad hoc electorate for local ballots, so as to favour Kanaks and Caldoches presented as being of Caledonian stock, whose political representatives signed the Noumea Accord. Residents who originate in metropolitan France as well as Polynesians, Wallisians, Futunians and Asians, are prejudiced against and represent a significant proportion of the . per cent of Caledonian electors deprived of the right to vote. – Establishment of a restricted electorate on the basis of birth amounts to discrimination between citizens who are nationals of a single state, namely France. – Criterion relating to the parental connection and transmission of the right to vote by descent, resulting from the criterion of parental link. e period of residence criteria is also excessive for both referenda. e authors again assert that the French authorities are seeking to establish an electorate of Kanaks and Caldoches for whom, moreover, the right to vote is maintained even in the event of lengthy absences from New Caledonia. e state party develops arguments on the merits of the part of the communication it considers admissible, namely the Article complaint. It recalls that in General Comment , the HRC admits that the right of citizens to vote in elections and referenda may be subject to restrictions, provided they are based on reasonable criteria and do not include discriminatory criteria such as those prohibited in Article (). e state party explains that the referenda form part of a process of selfdetermination by the people of this territory. e considerations which led to the adoption of Article of the Constitution, which provides that ‘no cession … of territory is valid without the consent of the population concerned’, are therefore valid for such referenda. For this reason, it is in their nature that they should be limited to eliciting the opinion of not the whole of the national population, but the persons ‘concerned’ with the future of a limited territory who prove that they possess certain specific characteristics. e state party looks at the compatibility of the restrictions imposed on the electorate with the provisions of Article CCPR. It observes that the contested legislative instru
Hannah McGlue ment merely incorporates the choices freely made by the representative local political organizations, which negotiated the Accords, thereby guaranteeing the free choice of political status. e criteria imposed are not discriminatory as there is in fact an objective difference in situation with regard to the referenda in dispute between the persons authorized to vote and those not authorized to vote. e state party recalls that the restrictions imposed on the electorate are dictated by the very purpose of the referenda, thus the rights of those who are not concerned are restricted: It is natural to consider that persons ‘concerned’ in votes held in the context of a self-determination process are those who prove that they have particular ties to the territory whose fate is in question, ties which legitimize their participation in the vote. e criteria enable those ties to be assessed in the light of several alternative, non-cumulative elements. ese are objective criteria, which have no connection with ethnic origin or political choices and which incontrovertibly establish the strength of the ties of the persons concerned with the territory. us they have the effect of treating differently persons in objectively different situations as regards their links with the territory.47 As regards the length of required residence, this is not excessive as it meets the concern of the representatives of the local population during negotiation of the Accord that the referenda would reflect the will of the population ‘concerned’ and results would not be undermined by votes of those who have recently arrived in the territory. Views of the Committee . … the Committee recalls its decisions in relation to article of the Covenant, namely that the right to vote is not an absolute right and that restrictions may be imposed on it provided they are not discriminatory or unreasonable.48 … . In order to determine the discriminatory or non-discriminatory character of the criteria in dispute, in conformity with its above-mentioned decisions, … evaluation of any restrictions must be effected on a case-by-case basis, having regard in particular to the purpose of such restrictions and the principle of proportionality. . In the present case … local ballots were conducted in the context of a process of self-determination of the population of New Caledonia. In this connection, it has taken into consideration the State party’s argument that these referendums … by virtue of their purpose, provide means of determining the opinion of, not the whole of the national population, but the persons ‘concerned’ by the future of New Caledonia. e state party continues by arguing that even if the criteria amounted to positive discrimination, this would not be contrary to Article , which allows for temporary preferential treatment, as long as it does not have the effect of maintaining different rights for separate racial groups. is is not so in the current case. 48 HRC, Communication No. /, J. Debreczeny v. Netherlands, views of April , UN Doc. Supp. No. (A/) (): HRC, Communication No. /, Alba Pietraroia on behalf of Rosario Pietraroia Zapala v. Uruguay; views of March , UN Doc. Supp. No. (A//) at (). General Comment No. relating to Article (fifty-seventh session, ), paras. , , and . 47
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies . Although the Committee does not have the competence under the Optional Protocol to consider a communication alleging violation of the right to self-determination protected in article of the Covenant, it may interpret article , when this is relevant, in determining whether rights protected in parts II and III of the Covenant have been violated. e Committee is of the view, therefore, that, in this case, it may take article into account in interpretation of article of the Covenant. . … the Committee observes … that the criteria governing the right to vote in the referendums have the effect of establishing a restricted electorate and hence a differentiation between (a) persons deprived of the right to vote, including the author(s) in the ballot in question, and (b) persons permitted to exercise this right, owing to their sufficiently strong links with the territory whose institutional development is at issue… the Committee must decide … whether this differentiation is compatible with article .... e Committee recalls that not all differentiation constitutes discrimination if it is based on objective and reasonable criteria and the purpose sought is legitimate under the Covenant. . e Committee has, first of all, to consider whether the criteria used to determine the restricted electorates are objective. . e Committee observes that, in conformity with the issue in each ballot, apart from the requirement of inclusion on the electoral rolls, the criteria used are: (a) for the referendum relating to the continuation or non-continuation of the process of self-determination, the condition of length of residence in New Caledonia; and (b) for the purpose of future referendums directly relating to the option of independence, additional conditions relating to possession of customary civil status, the presence in the territory of moral and material interests, combined with birth of the person concerned or his parents in the territory. It accordingly follows, as the date for a decision on self-determination approaches, that the criteria are more numerous and take into account the specific factors attesting to the strength of the links to the territory. To the length of residence condition (as opposed to the cut-off points for length of residence) for determining a general link with the territory are added more specific links. . e Committee considers that the above-mentioned criteria are based on objective elements for differentiating between residents as regards their relationship with New Caledonia, namely the different forms of ties to the territory, whether specific or general – in conformity with the purpose and nature of each ballot. e question of the discriminatory or non-discriminatory effects of these criteria nevertheless arises. . With regard to the authors’ complaint of discrimination in the referendum on the basis of their ethnic origin or national extraction, the Committee takes note of their argument that residents of New Caledonia from metropolitan France (including the authors), Polynesians, Wallisians, Futunians, West Indians and Reunion Islanders accounted for a significant proportion of the . per cent of Caledonian voters excluded from that referendum …
Hannah McGlue . … the Committee considers that the criterion used for the referendum establishes a differentiation between residents as regards their relationship to the territory, on the basis of the length of ‘residence’ requirement (as distinct from the question of cut-off points for length of residence), whatever their ethnic origin or national extraction. e Committee also considers that the authors’ arguments lack details concerning the numbers of the above-mentioned groups – whether or not they represent a majority – within the . per cent of voters deprived of their right to vote. . e Committee therefore considers that the criterion used for the referendum did not have the purpose or effect of establishing different rights for different ethnic groups or groups distinguished by their national extraction. . Concerning the authors’ complaints of discrimination on the basis of birth, family ties and the transmission of the right to vote by descent (the latter violation deriving, according to the authors, from the criteria on family ties), and hence resulting from the criteria established for referendums from onwards, the Committee considers, first, that residents meeting these criteria are in a situation that is objectively different from that of the authors whose link to the territory is based on length of residence. Secondly, the Committee notes (a) that length of residence is taken into account in the criteria established for future ballots, and (b) that these criteria may be used alternatively. Hence the identification of voters from among the French residents of New Caledonia is based not solely on particular ties to the territory (such as birth and family ties) but also, in their absence, on length of residence. Consequently, every specific or general link to the territory – identified by means of the criteria on ties to New Caledonia – was applied to French residents. . Finally the Committee considers that in the present case the criteria for the determination of restricted electorates make it possible to treat differently persons in objectively different situations as regards their ties to New Caledonia. . e Committee also has to examine whether the differentiation resulting from the above-mentioned criteria is reasonable and whether the purpose sought is lawful vis-à-vis the Covenant. . e Committee has taken note of the authors’ argument that such criteria … not only represented a departure from national electoral rules, but were also unlawful vis-à-vis the Covenant. . e Committee recalls that, in the present case, article of the Covenant must be considered in conjunction with article . It therefore considers that the criteria established are reasonable to the extent that they are applied strictly and solely to ballots held in the framework of a self-determination process. Such criteria, therefore, can be justified only in relation to article of the Covenant, which the State party does. Without expressing a view on the definition of the concept of ‘peoples’ as referred to in article , the Committee considers that, in the present case, it would not be unreasonable to limit participation in local referendums to persons ‘concerned’ by the future of New Caledonia who have proven, sufficiently
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies strong ties to that territory. e Committee notes, in particular, the conclusions of the Senior Advocate-General of the Court of Cassation, to the effect that in every self-determination process limitations of the electorate are legitimized by the need to ensure a sufficient definition of identity. e Committee also takes into consideration the fact that the Noumea Accord and the Organic Law of March recognize a New Caledonian citizenship (not excluding French citizenship but linked to it), reflecting the common destiny chosen and providing the basis for the restrictions on the electorate, in particular for the purpose of the final referendum. . Furthermore, in the Committee’s view, the restrictions on the electorate resulting from the criteria used for the referendum of and referendums from onwards respect the criterion of proportionality to the extent that they are strictly limited ratione loci to local ballots on self-determination and therefore have no consequences for participation in general elections, whether legislative, presidential, European or municipal, or other referendums. . Consequently, the Committee considers that the criteria for the determination of the electorates for the referendums of and or thereafter are not discriminatory, but are based on objective grounds for differentiation that are reasonable and compatible with the provisions of the Covenant. … . Lastly, the authors argue that the cut-off points set for the length of residence requirement, and years respectively for the referendums in question, are excessive and affect their right to vote. . e Committee considers that it is not in a position to determine the length of residence requirements. It may, however, express its view on whether or not these requirements are excessive. In the present case, the Committee has to decide whether the requirements have the purpose or effect of restricting in a disproportionate manner, given the nature and purpose of the referendums in question, the participation of the ‘concerned’ population of New Caledonia. . In addition to the State party’s position that the criteria used for the determination of the electorates favour long-term residents over recent arrivals owing to actual differences in concern with regard to New Caledonia, the Committee notes, in particular, that the cut-off points for length of residence are designed, according to the State party, to ensure that the referendums reflect the will of the population ‘concerned’ and that their results cannot be undermined by a massive vote by people who have recently arrived in the territory and have no proven, strong ties to it. . e Committee notes that the authors were excluded from the referendum because they did not meet the years’ continuous residence requirement. It also notes that one author will not be able to participate in the next referendum because of the years’ continuous residence requirement, whereas the other authors do, as things stand, have the right to vote in that referendum - authors on the basis of the residence criterion and others on the strength of having been
Hannah McGlue born in New Caledonia, their ethnic origin and national extraction being of no consequence in this respect. . e Committee considers, first, that the cut-off points adopted do not have a disproportionate effect, given the nature and purpose of the referendums in question, on the authors’ situation, particularly since their non-participation in the first referendum manifestly has no consequences for nearly all of them as regards the final referendum. . e Committee further considers that each cut-off point should provide a means of evaluating the strength of the link to the territory, in order that those residents able to prove a sufficiently strong tie are able to participate in each referendum. e Committee considers that, in the present case, the difference in the cut-off points for each ballot is linked to the issue being decided in each vote: the -year cut-off point – rather than years as for the first ballot – is justified by the time frame for self-determination, it being made clear that other ties are also taken into account for the final referendum. . Noting that the length of residence criterion is not discriminatory, the Committee considers that, in the present case, the cut-off points set for the referendum of and referendums from onwards are not excessive inasmuch as they are in keeping with the nature and purpose of these ballots, namely a self-determination process involving the participation of persons able to prove sufficiently strong ties to the territory whose future is being decided. is being the case, these cut-off points do not appear to be disproportionate with respect to a decolonization process involving the participation of residents who, over and above their ethnic origin or political affiliation, have helped, and continue to help, build New Caledonia through their sufficiently strong ties to the territory. Committee Against Torture and Inhuman or Degrading Treatment or Punishment Communication No. / Hajrizi Dzemajl et al. v. Yugoslavia Views of November 49 Summary of Facts and Complaints as Presented by the Complainants e complainants are persons, all of Romani origin and nationals of the (then) Federal Republic of Yugoslavia. On April , in response to a report indicating that two Romani minors had raped a minor ethnic Montenegrin girl, the Danilovgrad Police Department searched houses in the Bozova Glavica Roma settlement and brought into custody all young male Romani men present there. e same day, two hundred ethnic Montenegrins assembled in front of the police station and publicly demanded that the Municipal Assembly adopt a decision expelling all Roma from Danilovgrad. ey shouted slogans threatening to ‘burn down’ the Roma houses. On April, all detainees 49
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e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies were released except for two who confessed under duress. e police warned them to leave Danilovgrad immediately with their families because they would be at risk of being lynched by their non-Roma neighbours and told the Romani residents of the settlement that they must evacuate immediately as no one could guarantee their safety. Later a group of non-Roma entered the settlement and broke windows of houses owned by the complainants. e few Roma who had still not left the settlement eventually managed to flee. Subsequently, a large crowd gathered shouting abuse and began demolishing the settlement, thereafter setting it on fire. is endured unhindered for hours. e complainants contend that throughout the course of this attack, police officers present failed to act in accordance with their legal obligations. Shortly after it began, rather than intervening to halt the violence, these officers simply moved their police car, which had been patrolling the deserted settlement, to a safe distance and reported to their superior officer. As the violence and destruction unfolded, police officers did no more than feebly seek to persuade some of the attackers to calm down. e outcome was the levelling of the whole settlement and all properties belonging to its Roma residents burnt or completely destroyed. e police and the investigating magistrate of the ‘Basic Court’ in Danilovgrad subsequently drew up an on-site investigation report regarding the damage caused by those who took part in the attack. Official police documents, as well as witness statements, given both before the court and in the initial stage of the investigation, indicated a number of named non-Roma residents participating in the destruction. ere was also evidence that named police officers were present as the violence unfolded and did nothing or not enough to protect the Roma or their property. On April , the Podgorica Police Department filed a criminal complaint with the Basic Public Prosecutor’s Office in Podgorica, alleging unknown perpetrators had committed the criminal offence of causing public danger under Article of the Montenegrin Criminal Code. Police brought in individuals for questioning and one, Popovic, was remanded into custody, the Public Prosecutor then instituted proceedings against him. roughout the investigation, the investigating magistrate of the Basic Court of Danilovgrad heard a number of witnesses all of whom stated that they had been present as the violence unfolded but were unable to identify a single perpetrator. On June , police officer Dragas was heard, who contrary to the official memorandum he had personally drawn up on April, now stated that he had not seen anyone throwing an inflammable device, nor could he identify any of the individuals involved. e Podgorica Basic Public Prosecutor requested that the investigating magistrate of the Basic Court of Danilovgrad undertake an additional investigation proposing that new witnesses be heard, including officers from the Police Department entrusted with protecting the settlement. is ensued and all additional witness stated that they had seen none of the individuals who had caused the fire. Due to the ‘lack of evidence’, the Basic Public Prosecutor dropped all charges against Popovic on January . On February , the investigating magistrate of the Basic Court of Danilovgrad issued a decision to discontinue the investigation. From February up to and including the date of filing
Hannah McGlue of this complaint, the authorities took no further steps to identify and/or punish those individuals responsible for the incident at issue – civilians and police officers alike. In violation of domestic legislation, the complainants were not served with the court decision of February to discontinue the investigation, thus prevented from assuming the capacity of a private prosecutor and to continue with the prosecution of the case. In addition, prior to the closing of the proceedings, on and September , the investigating magistrate while hearing witnesses failed to advise them of their right to assume the prosecution of the case in the event that the Public Prosecutor should decide to drop the charges. On September , all complainants filed a civil claim for damages, pecuniary and non-pecuniary, with the first instance court in Podgorica. More than five years after the submission, the civil proceedings for damages are still pending.50 e complainants submit that with regard to the admissibility of the complaint, and more particularly the exhaustion of local remedies, given the level of wrongs suffered, and alongside jurisprudence of the European Court of Human Rights (ECtHR),51 only a criminal remedy would be effective in the instant case. e complainants note further that the authorities had the obligation to investigate, or at least to continue their investigation if they considered the available evidence insufficient. Moreover, even though they acknowledge that they have never filed a criminal complaint against individuals responsible for the pogrom, they contend that both the police and the prosecuting authorities were sufficiently aware of the facts to initiate and conduct the investigation ex officio. ey therefore conclude that there is no effective remedy. Referring to excerpts from NGO and governmental sources, the complainants first request that the complaint be considered taking into account the situation of the Roma in Yugoslavia as victims of systematic police brutality and a dire human rights situation in general. e complainants allege that Yugoslav authorities have violated the CAT under either Article () read in conjunction with Article or under Article (), because, during the events described previously, the police stood by and watched as the events unfolded. e complainants consider that the particularly vulnerable character of the Roma minority has to be taken into account in assessing the level of ill-treatment that has been committed. ey suggest that ‘a given level of physical abuse is more likely to constitute ‘degrading or inhuman treatment or punishment’ when motivated by racial animus’.52 In addition, on August , eight of the Roma filed a law suit requesting that the court order their return to work as they had been dismissed by their employers for failing to report to work. ey argued that a return to work was impossible so soon after the incident as they feared their lives would have been endangered. A retrial was still pending at the time of the communication. 51 e complainants refer to Assenov v. Bulgaria, judgment of October , paras. , ; Aksoy v. Turkey, judgement of December ; Aydin v. Turkey, judgment of September ; X and Y v. e Netherlands, EHRR (), paras. -. 52 In the complainants’ additional comments on the merits, they refer to case law under the European Convention on Human Rights and Fundamental Freedoms (ECHR) to analyze the scope of application of Arts. () and () CAT, noting that Article ECHR also covers infliction of mental suffering. 50
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies With regard to the fact that the acts have mostly been committed by non-state actors, the complainants rely on a review of international jurisprudence on the principle of ‘due diligence’ and remind the current state of international law with regard to ‘positive’ obligations that are incumbent on states. ey submit that the purpose of the provisions of the Convention is not limited to negative obligations for states parties but include positive steps that have to be taken in order to avoid that torture and other related acts are committed by private persons. e complainants further contend that the acts of violence occurred with the ‘consent or acquiescence’ of the police whose duty under the law was to secure their safety and afford them protection. e complainants allege violation of Article read alone or taken together with Article () because the authorities failed to conduct a prompt, impartial, and comprehensive investigation capable of leading to the identification and punishment of those responsible. Considering the jurisprudence of the Committee against Torture, it is submitted that the state party had the obligation to conduct ‘not just any investigation’ but a proper investigation, even in the absence of the formal submission of a complaint, since they were in possession of abundant evidence. e impartiality of the same investigation depends on the level of independence of the body conducting it. In this case, it is alleged that the level of independence of the investigative magistrate was not sufficient. e complainants also allege violation of Article read alone or taken together with Article (), because ‘their right to complain and to have [their] case promptly and impartially examined by [the] competent authorities’ was violated and violation of Article read alone or taken together with Article (), because of the absence of redress and of fair and adequate compensation. Issues and Proceedings before the Committee [. … in the absence of any submission from the State party following the Committee’s decision on admissibility, the Committee relies on the detailed submissions made by the complainants …] . As to the legal qualification of the facts that have occurred on April , as they were described by the complainants, the Committee first considers that the burning and destruction of houses constitute, in the circumstances, acts of cruel, inhuman or degrading treatment or punishment. e nature of these acts is further aggravated by the fact that some of the complainants were still hidden in the settlement when the houses were burnt and destroyed, the particular vulnerability of the alleged victims and the fact that the acts were committed with a significant level of racial motivation. Moreover, the Committee considers that the complainants have sufficiently demonstrated that the police (public officials), although they had been informed of the immediate risk that the complainants were facing and had been present at the scene of the events, did not take any appropriate steps in order to protect the complainants, thus implying ‘acquiescence’ in the sense of article of the Convention. In this respect, the Committee has reiterated on many instances its concerns about ‘inaction by police and law-enforcement officials who fail to
Hannah McGlue provide adequate protection against racially motivated attacks when such groups have been threatened’ (Concluding Observations on the initial report of Slovakia, CAT A// (), paragraph ; see also Concluding Observations on the second periodic report of the Czech Republic, CAT A// (), paragraph and Concluding Observations on the second periodic report of Georgia, CAT A// (), paragraph ). Although the acts referred to by the complainants were not committed by public officials themselves, the Committee considers that they were committed with their acquiescence and constitute therefore a violation of article , paragraph , of the Convention by the State party. . Having considered that the facts described by the complainants constitute acts within the meaning of article , paragraph of the Convention, the Committee will analyse other alleged violations in the light of that finding . Concerning the alleged violation of article of the Convention, the Committee, as it has underlined in previous cases, is of the opinion that a criminal investigation must seek both to determine the nature and circumstances of the alleged acts and to establish the identity of any person who might have been involved therein. In the present case, the Committee notes that, despite the participation of at least several hundred non-Roma in the events of April and the presence of a number of police officers both at the time and at the scene of those events, no person nor any member of the police forces has been tried by the courts of the State party. In these circumstances, the Committee is of the view that the investigation conducted by the authorities of the State party did not satisfy the requirements of article of the Convention. . Concerning the alleged violation of article of the Convention, the Committee considers that the absence of an investigation as described in the previous paragraph also constitutes a violation of article of the Convention. Moreover, … the State party’s failure to inform the complainants of the results of the investigation by, inter alia, not serving on them the decision to discontinue the investigation, effectively prevented them from assuming ‘private prosecution’ of their case. In these circumstances, the Committee finds that this constitutes a further violation of article of the Convention. . Concerning the alleged violation of article of the Convention, the Committee notes that the scope of application of the said provision only refers to torture in the sense of article of the Convention and does not cover other forms of illtreatment. Moreover, article , paragraph , of the Convention while specifically referring to articles , , , and , does not mention article of the Convention. Nevertheless, article of the Convention does not mean that the State party is not obliged to grant redress and fair and adequate compensation to the victim of an act in breach of article of the Convention. e positive obligations that flow from the first sentence of article of the Convention include an obligation to
e Jurisprudence of the UN Human Rights Committee and other Treaty Monitoring Bodies grant redress and compensate the victims of an act in breach of that provision. e Committee is therefore of the view that the State party has failed to observe its obligations under article of the Convention by failing to enable the complainants to obtain redress and to provide them with fair and adequate compensation. Individual opinion by Mr. Fernando Mariño and Mr. Alejandro González Poblete We are issuing this opinion to emphasize that, in our judgment, the illegal incidents for which the Yugoslav State is responsible constitute ‘torture’ within the meaning of article , paragraph , of the Convention, not merely ‘cruel, inhuman or degrading treatment’ as covered by article . e failure of the State authorities to react to violent evictions, forced displacement and the destruction of homes and property by individuals amounts to unlawful acquiescence in our judgement, violates article , paragraph , particularly when read in conjunction with article , paragraph , of the Convention. … the suffering visited upon the victims was severe enough to qualify as ‘torture’, because: (a) e inhabitants of the Bozova Glavica settlement were forced to abandon their homes in haste given the risk of severe personal and material harm; (b) eir settlement and homes were completely destroyed. Basic necessities were also destroyed; (c) Not only did the resulting forced displacement prevent them from returning to their original settlement, but many members of the group were forced to live poorly, without jobs or fixed places of abode; (d) us displaced and wronged, these Yugoslav nationals have still not received any compensation, seven years after the fact, although they have approached the domestic authorities; (e) All the inhabitants who were violently displaced belong to the Romani ethnic group, which is known to be especially vulnerable in many parts of Europe. In view of this, States must afford them greater protection; e above amounts to a presumption of ‘severe suffering’, certainly ‘mental’ but also inescapably ‘physical’ in nature even if the victims were not subjected to direct physical aggression. We thus consider that the incidents at issue should have been categorized as ‘torture’.
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Alexander H.E. Morawa*
e Jurisprudence of the American and African Regional Human Rights Bodies
I. I e Inter-American human rights system, founded within the framework of the Organization of American States (OAS), is based primarily on two normative instruments, the American Declaration (Am. Decl.)1 and the American Convention on Human Rights (ACHR).2 e Inter-American Commission3 and Court4 are the two independent * 1
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Mag.iur. (University of Salzburg, Austria), LL.M., S.J.D. (George Washington University), Senior Research Associate, European Centre for Minority Issues (ECMI), Flensburg, Germany. See omas Buergenthal, ‘e American Human Rights Declaration’, in Kay Hailbronner, Georg Ress and Torsten Stein (eds.), Staat und Völkerrechtsordnung. Festschrift für Karl Doehring (Berlin and Heidelberg, ), -, and Grace Nacimiento, Die Amerikanische Deklaration der Rechte und Pflichten des Menschen. Zum Prozeß der Rechtserzeugung durch Resolutionen internationaler Organisationen (Berlin and Heidelberg, ). For a comprehensive review of the Inter-American system see , amongst many others, David J. Harris and Stephen Livingstone (eds.), Inter-American System of Human Rights (Oxford, ), Tomas Buergenthal and Dinah Shelton, Protecting Human Rights in the Americas: Cases and Materials (Kehl am Rhein, Strasbourg, Arlington, th ed. ), omas Buergenthal, ‘e Inter-American System for the Protection of Human Rights’, in eodor Meron (ed.), Human Rights and International Law: Legal and Political Issues (Oxford, ), Vol. II, -, Juliane Kokott, Das interamerikanische System zum Schutz der Menschenrechte (Berlin and Heidelberg, ), and Jochen Abr. Frowein, ‘e American and European Conventions on Human Rights: A Comparison’, HRLJ (), . See, e.g., D.J. Padilla, ‘e Inter-American Commission on Human Rights in the Organization of American States: A Case Study’, American University J. Int’l Law and Policy (), . See also Inter-AmCtHR, Certain Attributes of the Inter-American Commission on Human Rights, advisory opinion OC-/ dated July , Series A, No. . See, e.g., Antônio Augusto Cancado Trindade, ‘e Operation of the Inter-American Court of Human Rights’, in: Harris and Livingstone (eds.), Inter-American System of Human Rights (Oxford, ), -, Scott Davidson, e Inter-American Court of Human Rights (Aldershot et al., ), omas Buergenthal, ‘e InterAmerican Court of Human Rights’, AJIL () , and Hector Gros Espiell, ‘Contentious Proceedings before the Inter-American Court of Human Rights’, Emory J. Int’l Dispute Resolution () .
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Alexander H.E. Morawa bodies safeguarding compliance with these instruments5 as well as, by virtue of Article ACHR, which establishes the Court’s competence to render advisory opinions, ‘any provision dealing with the protection of human rights set forth in any international treaty applicable in the American States, regardless of whether it be bilateral or multilateral, whatever be the principal purpose of such a treaty, and whether or not non-Member States of the inter-American system are or have the right to become parties thereto’.6 e Commission’s tasks (unlike, for instance, the former European Commission of Human Rights) also include the preparation of future regional instruments, and it made use of this specific competence in by adopting, after undertaking comprehensive research into relevant international standards in other systems,7 the Proposed American Declaration on the Rights of Indigenous Peoples.8 In October , the Commission published its report on ‘e Human Rights Situation of the Indigenous People in the Americas’9 which reviews the practice (both legislative and judicial) of the various OAS bodies in the field. at practice reveals that the Organization of American States has established, as an action of priority for the member states, the preservation and strengthening of the cultural heritage of … ethnic groups and the struggle against the discrimination that invalidates their members’ potential as human beings through the destruction of their cultural identity and individuality as indigenous peoples.10 e case law of the Commission – which has dealt with some cases so far11 – and Court has focused on the following rights of indigenous peoples: life, liberty and humane treatment (including several cases of massacres allegedly targeting indigenous populations12); property, See omas Buergenthal, ‘Implementation in the Inter-American Human Rights System’, in: Rudolf Bernhardt and John Anthony Jolowicz (eds.), International Enforcement of Human Rights (Berlin and Heidelberg, ), -, and id., ‘Interim Measures in the Inter-American Court of Human Rights’, in Rudolf Bernhardt (ed.), Interim Measures Indicated by International Courts (Berlin and Heidelberg, ), . 6 Inter-AmCtHR, Other Treaties Subject to the Consultative Jurisdiction of the Court (Article American Convention on Human Rights), advisory opinion OC-/ of September , Series A, No. , operative para. . 7 Inter-AmCommHR (prepared by the Indian Law Resources Center), Authorities and Precedents in International and Domestic Law for the Proposed American Declaration on the Rights of Indigenous Peoples, Doc. OEA/Ser.L/V/II. dated March , available at http://www.cidh.oas.org/ Indigenas/ Indigenas.en./index.htm and http://www.indianlaw.org/briefing_book.htm. 8 Proposed American Declaration on the Rights of Indigenous Peoples, Approved by the Inter-American Commission on Human Rights on February , at its rd Session, th Regular Session. 9 Inter-AmCommHR, e Human Rights Situation of the Indigenous People in the Americas, report of October , OEA/Ser.L/V/II. Doc. . 10 Inter-AmCommHR, Case No. , e Yanomami Indians (Brazil), resolution no. / of March , recommendations, para. . 11 See Inter-AmCommHR, Press Release No. /, dated September . 12 See, for instance, Inter-AmCommHR, Case No. ., Plan de Sánchez Massacre (Guatemala), report no. / of March (concerning the killing of members of the Maya-Achi people, which consti5
e Jurisprudence of the American and African Regional Human Rights Bodies in particular land rights;13 family; discriminatory military recruitment of indigenous men; judicial protection, and the question of collective rights of indigenous populations.14 e leading case in the period in question is the Court’s ruling in e Case of the Mayagna (Sumo) Awas Tingni Community15 which deals with land claims, and the lack of judicial protection, of a Nicaraguan indigenous community. Land claims have been addressed by the Commission before, which has developed a fairly interesting jurisprudence. In the Yanomami Indians case against Brazil, for instance, the complaint of some , Indians related to the non-implementation of decisions to establish the ‘Yanomami Indian Park’ (a protected area of several million hectares) and the construction of a major highway through the area inhabited by them. ey alleged, in particular, that ‘the massive penetration of outsiders into the area has had devastating physical and psychological consequences for the Indians; it has caused the break-up of their age-old social organization; it has introduced prostitution among the women, something that was unknown; and it has resulted in many deaths, caused by epidemics of influenza, tuberculosis, measles, venereal diseases, and others’, and added that ‘[t]he process of integration of the Indians, as it is established in the legislation and as it is applied by the responsible authorities, tends toward the disintegration and destruction of the Indian communities, instead of contributing to their economic and social well-being.’16 e Commission, noting that indigenous peoples were ‘victims … for whom the effective exercise of the means of defense established by the laws … is particularly difficult’17 established breaches of the Indians’ rights to life, liberty and personal security, residence and movement, and to the preservation of health and well-being.18 Among the measures recommended by the Commission to remedy the situation was that the respondent state ‘proceed to set and demarcate the boundaries of the Yanomami Park.’19 In the Enxet-Lamenxay and Kayleyphapopyet case,20 the Commission accepted a friendly settlement in which Paraguay
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tuted the entire population of the Plan de Sánchez Village, in the course of a military operation aiming at the suppression of an insurgent movement); Case No. ., Village of Moiwana (Suriname), report no. / of March (where some villagers belonging to the Ndjuka maroons were allegedly executed and the village burnt down because most of the supporters of the leader of an armed opposition group belonged to that people) and Case No. ., ‘Caloto’ Massacre (Columbia), reports nos. / of September and / of April (concerning the murder of alleged leaders of the Paez indigenous community committed by private landowners with the participation of the police). See also the preliminary working paper submitted to the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities (th session) by Erica-Irene Daes on ‘Indigenous People and eir Relationship to Land’ dated June , E/CN./Sub.//. See Inter-AmCommHR, e Human Rights Situation …, Chapter III, and Partick ornberry, Indigenous Peoples and Human Rights (Manchester, ), -. Judgment of August , Series A, No. . e Yanomami Indians case, para. (a) and (d). Ibid., para. . Articles I, VIII and XI of the Am. Decl. e Yanomami Indians case, recommendation (b). Inter-AmCommHR, Case No. , Enxet-Lamenxay and Kayleyphapopyet (Riachito) Indigenous Communities (Paraguay), report (friendly settlement) no. /.
Alexander H.E. Morawa agreed to purchase and transfer ownership of a , hectare tract of land to the applicant indigenous community and, inter alia, to provide necessary social assistance (food, medicine, tools, means of transportation and education).21 Also presented in this report will be the request for an advisory opinion, No. OC-, submitted by the government of Mexico in May and currently pending before the Inter-American Court, which deals with the rights of migrant workers. e African Charter on Human and Peoples’ Rights (AfrCh), adopted in , was modelled in many ways on the United Nations Covenant on Civil and Political Rights and the European and American Conventions on Human Rights but takes into account the unique characteristics of the legal systems of the African continent22 and the overall philosophy that emphasizes group membership rather than individualism.23 us, it incorporates rights not contained in the parallel conventions, such as the right to development,24 as well as ‘duties’ of the individual towards, inter alia, society and the family and certain economic, social and cultural rights.25 At the same time, the Charter does not mention certain rights provided for in other human rights treaties which have no firm roots in African lifestyles, among them the rights to the privacy of the individual and to a nationality.26 As the title suggests, the Charter in Articles - – but not in a specific section, ‘in order to record how closely they are interwoven with the traditional human rights’27 – safeguards certain rights to be exercised by peoples. ese are, as commentators stress, an expression of the progressive development of international human rights law and should be seen as a category of rights of equal value, not as a tool to limit the scope of individual rights.28 e Charter so far has also limited its international supervisory machinery29 to mechanisms traditionally preferred on the continent, namely ‘conciliation rather than judicial 21
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See ibid., paras. - and . See U. O. Umozurike, ‘e African Charter on Human and Peoples’ Rights’, AJIL () -, at . See Richard N. Kiwanuka, ‘e Meaning of ‘People’ in the African Charter on Human and Peoples’ Rights’, AJIL (), -, and Olusola Ojo, ‘Understanding Human Rights in Africa’, in: Jan Barting et al. (eds.), Human Rights in a Pluralist World (Westport, London, ) -, -. Article () AfrCh. See Philip Kunig, ‘e Protection of Human Rights by International Law in Africa’, GYIL (), -, -, for a discussion of the drafting process. e inclusion of duties, in particular towards the community, has been said to be ‘firmly ingrained in African tradition and … therefore consistent with historical traditions and values of African civilization’ but also motivated by the desire to accommodate the wishes of the socialist states at the time of the adoption of the Charter (Richard Gittleman, ‘e African Charter on Human and Peoples’ Rights: A Legal Analysis’, Virginia J. Int’l L. () -, -. But see Kunig, ‘e Protection …’, , who submits that it would be a ‘mistake’ to attribute the inclusion of duties ‘primarily’ to the preferences of socialist states). For a discussion of ‘political expediency’ as one of the factors influencing the scope of human rights in Africa see Ojo, ‘Understanding Human Rights in Africa’, -. See Kunig, ‘e Protection …’, et seq. Ibid., p. . See Kiwanuka, ‘e Meaning of ‘People’ …’, . See e Danish Centre for Human Rights, Evaluation. e African Commission on Human and Peoples’ Rights (Copenhagen, ).
e Jurisprudence of the American and African Regional Human Rights Bodies settlement of disputes’.30 e African Commission on Human and Peoples’ Rights thus has primarily promotional functions which include a state reporting procedure,31 accompanied by protective functions by means of consideration of interstate and individual complaints.32 Despite obvious procedural shortcomings, such as the non-binding nature of its decisions, and initial mistakes – such as an insistence on confidentiality of the complaints proceedings by the Commission – the Charter’s implementation processes have improved since the mid-s and have particularly benefited from the role nongovernmental organizations (NGOs) have played in channelling complaints on behalf of individuals, in particular in light of a less-developed public awareness of the procedure.33 Only recently have plans to establish a court with competencies corresponding to its European and American counterparts34 succeeded with the adoption of the Protocol to the AfrCh. With this instrument, a court with powers resembling those of the European and American tribunals is being created. It is, however, not likely that states will be particularly enthusiastic about ratifying the Protocol and accepting the competency of the Court to deal with optional individual communications pursuant to its Article ().35 e question of indigenous communities has also attracted the attention of the African human rights bodies,36 as is evidenced in the Resolution on the Rights of Indigenous People(s)/Communities in Africa37 where the Commission listed the rights to equality (Articles and AfrCh), dignity (Article ), protection against domination (Article ), self-determination (Article ), and the promotion of cultural development and identity (Article ) as being of paramount importance in the given context.38 Among the rights protected, Article is remarkable in the given context in that it guarantees the protection of Charter rights without distinction based on membership in an ‘ethnic group’. Commentators have noted at the time of the adoption of the Charter that ‘the situation where leaders demonstrate excessive favoritism to members of their own ethnic group is the rule rather than the exception in Africa’.39 Prominent among the articles protecting peoples’ rights is Article () which guarantees ‘the right to their economic, social and 30 31
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Umozurike, ‘e African Charter …’, at . Since the Commission has been formally entrusted with receiving and evaluating state reports pursuant to Article AfrCh. See AfrCommHPR, State Reporting Procedure (Information Sheet No. ). See Article AfrCh; AfrCommHRP, Establishment (Information Sheet No. ) and Communication Procedure (Information Sheet No. ) and, generally, Evelyn A. Ankumah, e African Commission on Human and Peoples’ Rights (e Hague, ). See IRIN-West Africa, ‘A Human Rights Court for Africa: Background and Issues’, Special Brief .., dated June , http://www.sas.upenn.edu/African_Studies/Newsletters/irinw_.html, at II. For a comparative table showing the basic features of the African, European and American courts see: Association for the Prevention of Torture (APT), ‘e African Court on Human and Peoples’ Rights’, Occasional Paper, Geneva, January , Annex I. See ibid., at I.A. For a review of the limited practice so far, see ornberry, Indigenous Peoples and Human Rights, -. AfrCommHPR, resolution of November , th ordinary session. Ibid., para. (b). Gittleman, ‘e African Charter …’, .
Alexander H.E. Morawa cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.’ e African Commission’s October opinion on e Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria,40 reported below, may be called a milestone in international human rights jurisprudence concerning state responsibility for sacrificing human and minority rights for exploiting natural resources. II. T R C L A A H R B Inter-American Court of Human Rights e Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua Judgment of August Series A, No. Awas Tingni is the first case dealing with the rights of indigenous peoples to proceed to the Inter-American Court and has been described as ‘the test case to challenge vague or non-existent rules that have stalled efforts to establish clear land rights for the community and Nicaragua’s Atlantic Coast Region in general.’41 e case was brought by the Commission42 against Nicaragua and concerns alleged violations of Articles (obligation to respect rights), (domestic legal effects), (right to property), and (right to judicial protection) of the American Convention. e Commission alleged that Nicaragua has not demarcated the communal lands of the Awas Tingni Community, nor has the State adopted effective measures to ensure the property rights of the Community to its ancestral lands and natural resources, and … it granted a concession on community lands without the assent of the Community, and the State did not ensure an effective remedy in response to the Community’s protests regarding its property rights.43 e Awas Tingni Community is a small indigenous community composed of little more than people of the Mayagna or Sumo ethnic group, located in the Northern Atlantic Autonomous Region (RAAN) of the Atlantic Coast of Nicaragua. e Court established that
Communication No. /, decision on the merits of October . eodore Macdonald, ‘Internationalizing Indigenous Community Land Rights: Nicaragua and the InterAmerican Court of Human Rights’, at: http://www.wcfia.harvard.edu/ponsacs/DOCS/nicaragua. htm. 42 For a full text of the complaint see http://www.indianlaw.org/Complaint_English.pdf. 43 Judgment, para. , and report no. / of the Commission, dated March , paras. et seq. 40 41
e Jurisprudence of the American and African Regional Human Rights Bodies the members of the Community subsist on the basis of family farming and communal agriculture, fruit gathering and medicinal plants, hunting and fishing. ese activities, as well as the use and enjoyment of the land they inhabit, are carried out within a territorial space in accordance with a traditional collective form of organization; there are ‘overlaps’ or superpositions of communal lands claimed by the indigenous communities of the Atlantic Coast. Some communities allege rights over the same lands claimed by the Awas Tingni Community; furthermore, the State maintains that part of the lands claimed by the Awas Tingni Community belongs to the State; the Community has no real property title deed to the lands it claims.44 In May , the Community, MADENSA (a Nicaraguan-Dominican lumber company) and the Nicaraguan Ministry of the Environment and Natural Resources (MARENA) agreed on a ‘community-based natural forest management project than was economically beneficial, environmentally sound, and respectful of human rights.’45 Subsequently, however, another lumber concession was granted by the government to SOLCARSA, a Korean company, and the Regional Council of the RAAN approved a forest management plan based on that concession. On February ( Judgment No. ), the Constitutional Panel of the Supreme Court of Justice declared the concession granted to SOLCARSA to be unconstitutional because it had not been approved by the plenary of the Regional Council of the RAAN; this procedural defect was repaired in October by the RAAN. Apart from intervening in the administrative proceedings, the Awas Tingni Community filed several amparo 46 petitions with Nicaraguan courts. ey all failed; only the one by the RAAN directed against the concession issued in favour of SOLCARSA succeeded when the Constitutional Panel rendered Judgment No. , but that judgment was not implemented until February , and even then merely resulted in a formal letter by the MARENA minister to the chairman of SOLCARSA ‘that he should order ‘the suspension of all actions’ pertaining to the logging concession contract, since that contract had become ‘devoid of any effect or value’.’47 On September , the Community approached the Appellate Court of Matagalpa against MARENA officials asking that
Judgment, para. . eodore Macdonald, ‘Internationalizing Indigenous Community Land Rights …’. 46 Reding defines amparo as ‘a uniquely Latin American legal instrument that includes what we know as habeas corpus but extends such ‘protections’ of the court – the literal meaning in Spanish – to all other rights. As such, it is an amplified form of the U.S. concept of ‘due process’ with application to, among other things, political rights, economic rights, and ‘every action or omission of any functionary, authority, or agent of the same, that violates or attempts to violate the rights and guarantees consecrated in this constitution.’ ’ Andrew Reding, ‘Nicaragua’s New Constitution. A Close Reading’, () World Policy Journal (), at http: //www.worldpolicy.org/globalrights/nicaragua/-spring-WPJ-Nicaragua.html, with reference to Article of the Nicaraguan Constitution. 47 Judgment, para. , q.vi. 44 45
Alexander H.E. Morawa (a) the … officials be ordered to abstain from granting the concession to SOLCARSA; that the agents of SOLCARSA be ordered to leave the communal lands of Awas Tingni, where ‘they [had been] carrying out works directed toward initiating the lumber operation’ and that they begin a process of dialogue and negotiation with the Community, in case the SOLCARSA corporation continued to have ‘an interest in utilization of timber on Community lands’; (b) any other remedies be adopted that the Supreme Court of Justice deemed just; and (c) an order be issued to suspend the process of granting the concession requested from MARENA by SOLCARSA. Furthermore, when they referred to the Constitutional provisions breached, the applicants stated that the disputed actions and omissions ‘[were] violations of articles , , and of the Nicaraguan Constitution, which together ensure the property and use rights of the indigenous communities to their communal lands’ and that, even though ‘[t]he Community lacks a real title deed […], the rights to its communal lands have solid foundations in a traditional land tenure system linked to communitarian organization and cultural practices.’48 at petition was dismissed by the Appellate and Supreme Courts because it had allegedly been filed with delay, which was construed as a ‘tacit consent’. Another amparo appeal filed on November in the Civil Court of the Appellate Court of the Sixth Region of Matagalpa against MARENA and RAAN officials and requesting that: ‘(a) the concession to SOLCARSA be declared null, because it was granted and ratified setting aside the Constitutional rights and guarantees of the Awas Tingni Community; … [and] (c) an order be issued for ‘the officials of MARENA to refrain from furthering a concession to utilize [n]atural [r]esources in the area of the concession to SOLCARSA, until land tenure in that area has been defined or an agreement has been reached with Awas Tingni and any other Community which has a justified claim to communal lands within that area’… ’49 was rejected by the Supreme Court of Justice as being time-barred.50 [O]n October , , the President of Nicaragua submitted to the National Assembly the draft bill ‘Organic Law Regulating the Communal Property System of the Indigenous Communities of the Atlantic Coast …’, which sought to ‘implement the provisions of Articles , , , and of the Constitution’ because such provisions ‘require the existence of a legal instrument which specifically regulates delimitation and titling of indigenous community lands, to give concrete expression to the principles embodied in them’. At the time this Judgment is issued, the aforementioned draft bill has not yet been adopted as law in Nicaragua.51 48 49
50 51
Ibid., para. , p.i. Ibid., para. , r.i. See ibid., para. , r.iii. Ibid., para. , t.
e Jurisprudence of the American and African Regional Human Rights Bodies Domestic Legal Provisions52 Article of the Constitution of Nicaragua stipulates: … e State recognizes the existence of the indigenous peoples, who have the rights, duties and guarantees set forth in the Constitution, and especially those of maintaining and developing their identity and culture, having their own forms of social organization and managing their local affairs, as well as maintaining communal forms of ownership of their lands, and also the use and enjoyment of those lands, in accordance with the law. An autonomous regime is established in the ... Constitution for the communities of the Atlantic Coast. e various forms of property: public, private, associative, cooperative, and communitarian, must be guaranteed and promoted with no discrimination, to produce wealth, and all of them while functioning freely must carry out a social function. Article of the Constitution further states: e Communities of the Atlantic Coast are an inseparable part of the Nicaraguan people, and as such they have the same rights and the same obligations. e Communities of the Atlantic Coast have the right to maintain and develop their cultural identity within national unity; to have their own forms of social organization and to manage their local affairs according to their traditions. e State recognizes the communal forms of land ownership of the Community of the Atlantic Coast. It also recognizes the use and enjoyment of the waters and forests on their communal lands. Article of said Constitution states: e Communities of the Atlantic Coast have the right to live and develop under the forms of social organization which correspond to their historical and cultural traditions. e State guarantees these communities the enjoyment of their natural resources, the effectiveness of their communal forms of property … . It also guarantees preservation of their cultures and languages, religions and customs. Law No. of October regulated the Autonomy Statute of the Regions of the Atlantic Coast of Nicaragua. In this connection, it established: Art. . e Regions inhabited by the Communities of the Atlantic Coast enjoy, within the unity of the Nicaraguan State, an Autonomous Regime which guaran52
Ibid., paras. -.
Alexander H.E. Morawa tees effective exercise of their historical and other rights, set forth in the Constitution. … Art. . Rational use of the mining, forestry, fishing, and other natural resources of the Autonomous Regions will recognize the property rights to their communal lands, and must benefit their inhabitants in a just proportion through agreements between the Regional Government and the Central Government.53 Violation of Article 25 ACHR, Right to Judicial Protection Arguments of the Parties e Commission54 criticized primarily the lack of recognition of the rights of the Awas Tingni community by Nicaragua and the ineffectiveness of the procedures to make those rights of the indigenous communities effective, as well as the lack of demarcation of the lands possessed by that community. Official recognition of the communal property has never been attained, and furthermore it has been prejudiced by a logging concession granted to SOLCARSA on communal lands. e respondent state55 argued that the community’s possessions were not ancestral, that it was requesting title to lands that have been claimed by other indigenous communities, and that it has never made a formal titling request before the competent authorities. Nicaragua also maintained that there was a legal framework which regulates the procedure of land titling for indigenous communities under the authority of the Nicaraguan Agrarian Reform Institute (INRA). As regards the logging concession granted to SOLCARSA, the state pointed out that the Awas Tingni community suffered no prejudice, as that concession was not executed but rather was declared unconstitutional. Considerations of the Court e Court initially noted that Article ACHR obligates states to offer, to all persons under their jurisdiction, an effective legal remedy against acts that violate their fundamental rights provided for by the Convention and by national law and that it guarantees a right of every person to a simple, rapid, and effective remedy. It added that, for such a remedy to exist e Court furthermore referred to Decree No. - of August , pertaining to the creation of the National Commission for the Demarcation of the Lands of the Indigenous Communities of the Atlantic Coast, which ‘… entrusts that national commission, among other functions, with that of identifying the lands which the various indigenous communities have traditionally occupied, to conduct a geographical analysis process to determine the communal areas and those belonging to the State, to prepare a demarcation project and to seek funding for this project’; and to Law No. of January which sets out in Article : e State will provide the necessary lands for the Miskito, Sumo, Rama, and other ethnic communities of the Atlantic of Nicaragua, so as to improve their standard of living and contribute to the social and economic development of the Nation. 54 Judgment, para. . 55 Ibid., para. . 53
e Jurisprudence of the American and African Regional Human Rights Bodies it is not enough that it is established in the Constitution or in the law or that it should be formally admissible, but it must be truly appropriate to establish whether there has been a violation of human rights and to provide everything necessary to remedy it.56 e Court firstly, taking the various domestic norms in Nicaragua into account, concluded that while the right of indigenous communities to have their property protected was recognized in principle, ‘there is no effective procedure in Nicaragua for delimitation, demarcation, and titling of indigenous communal lands’,57 and then proceeded to assess ‘whether the amparo remedies submitted by members of the Community were decided in accordance with article .’58 Assessing the available procedures, the Court concluded ‘that the procedure for titling of lands occupied by indigenous groups has not been clearly regulated in Nicaraguan legislation.’ While agrarian reform legislation, inter alia, ‘establishes the procedures to guarantee property to land for all those who work productively and efficiently’, it ‘does not establish a specific procedure for demarcation and titling of lands held by indigenous communities, taking into account their specific characteristics.’59 Experts heard by the Court had stated ‘that in Nicaragua there is a general lack of knowledge, an uncertainty as to what must be done and to whom should a request for demarcation and titling be submitted.’60 Since , no title deeds have been issued to indigenous communities. Analyzing the various amparo proceedings, the Court found that they did not ‘respect the principle of a reasonable term protected by the American Convention. According to the criteria of this Court, amparo remedies will be illusory and ineffective if there is unjustified delay in reaching a decision on them.’61 Furthermore, ‘[t]he general duty under article of the American Convention involves adopting protective measures in two directions. On the one hand, suppressing norms and practices of any type that carry with them the violation of guarantees set forth in the convention. On the other hand, issuing norms and developing practices which are conducive to effective respect for such guarantees.’62 .e Court believes it necessary to make the rights recognized by the Nicaraguan Constitution and legislation effective, in accordance with the American 56 57
58 59
60 61
62
Ibid., paras. -, with further references. Ibid., para. . Ibid., para. , and also para. . Ibid., para. and, for additional evidence, para. . Ibid., para. . Ibid., para. , with reference to the Ivcher Bronstein case, judgment of February , Series C, No. , para. , the Case of the Constitutional Court, decision of January , Series C, No. , para. ; and Judicial Guarantees in States of Emergency (Articles (), and American Convention on Human Rights), advisory opinion No. OC-/ dated October , para. . Judgment, para. , with reference to the Baena Ricardo et al. case, judgment of February , Series C, No. , para. ; and the Cantoral Benavides case, judgment of August , Series C, No. , para. .
Alexander H.E. Morawa Convention. erefore, pursuant to article …, the State must adopt in its domestic law the necessary legislative, administrative, or other measures to create an effective mechanism for delimitation and titling of the property of the members of the Awas Tingni Mayagna Community, in accordance with the customary law, values, customs and mores of that Community. .From all the above, the Court concludes that the State violated article of the American Convention, to the detriment of the members of the Mayagna (Sumo) Awas Tingni Community, in connection with articles () and of the Convention. Violation of Article 21, Right to Private Property Arguments of the Commission63 With respect to the reach of the right to property under Article ACHR, the Commission reasoned that ‘traditional patterns of use and occupation of territory by the indigenous communities of the Atlantic Coast of Nicaragua generate customary law property systems, they are property rights created by indigenous customary law norms and practices which must be protected, and they qualify as property rights protected by article of the Convention.’ Nicaraguan law as well as the Convention and ‘an international customary international law norm’ recognize such property rights. ‘[T]he life of the members of the Community fundamentally depends on agriculture, hunting and fishing in areas near their villages. e Community’s relations to its land and resources are protected by other rights …, such as the right to life, honor, and dignity, freedom of conscience and religion, freedom of association, rights of the family, and freedom of movement and residence.’ Irrespective of that, ‘the State has neither demarcated nor titled the indigenous lands of the Awas Tingni Community nor has it taken other effective measures to ensure the property rights of the Community to its ancestral lands and natural resources.’ e Commission concluded that ‘the State breached article of the Convention by granting the SOLCARSA corporation a logging concession on land which is traditionally occupied by the Community, a concession which endangered the enjoyment of the rights of the indigenous communities, and by considering all lands not registered under formal title deed to be State lands.’ Arguments of the Respondent State 64 e government claimed in particular that the Awas Tingni Community was ‘a small group of indigenous people which resulted from a communal separation and successive geographic shifts; their presence in the region has not been sufficiently documented; they possess lands which are not ancestral’ or disputed by other indigenous communities. ‘Land claims by various ethnic groups have led to the existence of complex conflicting interests, which require careful analysis by national authorities and a delicate process of solution 63
64
Judgment, para. . Ibid., para. .
e Jurisprudence of the American and African Regional Human Rights Bodies of those conflicts to generate legal certainty. …’; that the community ‘has not made any request to the competent governmental authorities for demarcation and titling’ and, on the other hand, has ‘recognized on different occasions that it received title to the land’; the government adds that the process of indigenous titling of the communities of the Atlantic Coast is characterized by being complex, due to the following circumstances: (a) the phenomenon of proliferation of indigenous communities, as a consequence of the dismemberment of groups of these; (b) the phenomenon of grouping and regrouping of indigenous communities with and without title; (c) the phenomenon of migration of indigenous communities to occupy lands that are not ancestral; …65 Considerations of the Court Considering in particular that in the course of drafting the Convention it was decided to extend the protection of Article to the ‘use and enjoyment of his property’ instead of ‘private property’, as stipulated in the initial drafts, and that ‘human rights treaties are live instruments whose interpretation must adapt to the evolution of the times and, specifically, to current living conditions’66 the Court concluded: . … it is the opinion of this Court that [Article ] protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua. .Given the characteristics of the instant case, some specifications are required on the concept of property in indigenous communities. Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations. e government continues by stating that the Awas Tingni Community is claiming an ‘area of land [that] is disproportionate to the number of members of the Community’ and that it has increased its claims in the course of the various domestic proceedings. Furthermore, in the government’s opinion, the Community has claimed land that is considered ‘national land’. 66 Judgment, para. , with reference to Inter-AmCtHR, e Right to Information on Consular Assisstance in the Framework of Guarantees for Due Legal Process, advisory opinion OC-/ of October , Series A, No. , para. . 65
Alexander H.E. Morawa … . Indigenous peoples’ customary law must be especially taken into account for the purpose of this analysis. As a result of customary practices, possession of the land should suffice for indigenous communities lacking real title to property of the land to obtain official recognition of that property, and for consequent registration. .As has been pointed out, Nicaragua recognizes communal property of indigenous peoples, but has not regulated the specific procedure to materialize that recognition, and therefore no such title deeds have been granted since . Furthermore, in the instant case the State has not objected to the claim of the Awas Tingni Community to be declared owner, even though the extent of the area claimed is disputed. . It is the opinion of the Court that, pursuant to article of the Constitution of Nicaragua, the members of the Awas Tingni Community have a communal property right to the lands they currently inhabit, without detriment to the rights of other indigenous communities. Nevertheless, the Court notes that the limits of the territory on which that property right exists have not been effectively delimited and demarcated by the State. is situation has created a climate of constant uncertainty among the members of the Awas Tingni Community, insofar as they do not know for certain how far their communal property extends geographically and, therefore, they do not know until where they can freely use and enjoy their respective property. Based on this understanding, the Court considers that the members of the Awas Tingni Community have the right that the State a) carry out the delimitation, demarcation, and titling of the territory belonging to the Community; and b) abstain from carrying out, until the delimitation, demarcation, and titling have been done, actions that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographical area where the members of the Community live and carry out their activities. Based on the above, … the Court believes that … the State has violated the right of the members of the Mayagna Awas Tingni Community to the use and enjoyment of their property, and that it has granted concessions to third parties to utilize the property and resources located in an area which could correspond, fully or in part, to the lands which must be delimited, demarcated, and titled.
e Jurisprudence of the American and African Regional Human Rights Bodies Application of Article 63(1), Remedies67 e Commission68 requested that the Court declare that the State must: . Establish a juridical procedure, in accordance with relevant international and national legal norms, which will lead to prompt and specific official recognition and demarcation of the rights of the Awas Tingni Community to its communal natural resources and rights; . Abstain from granting or considering any concessions to utilize natural resources in the lands used and occupied by Awas Tingni, until the issue of land tenure affecting Awas Tingni has been resolved, or until a specific agreement has been reached on this matter between the State and the Community; . Pay equitable compensation for the monetary and moral damage suffered by the Community due to lack of specific official recognition of its rights to natural resources and lands and due to the concession to SOLCARSA, [and] . Pay the Indigenous Community for the costs it incurred [in the domestic and international proceedings]. Considerations of the Court .… [e] Court considers that the State must adopt the legislative, administrative, and any other measures required to create an effective mechanism for delimitation, demarcation, and titling of the property of indigenous communities, in accordance with their customary law, values, customs and mores. Furthermore, … the Court rules that the State must carry out the delimitation, demarcation, and titling of the corresponding lands of the members of the Awas Tingni Community, within a maximum term of months, with full participation by the Community and taking into account its customary law, values, customs and mores. Until the delimitation, demarcation, and titling of the lands of the members of the Community has been carried out, Nicaragua must abstain from acts which might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographic area where the members of the Awas Tingni Community live and carry out their activities.
Art. () ACHR reads as follows: ‘If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.’ 68 Judgment, para. . 67
Alexander H.E. Morawa In the absence of material damages, the Court concluded ‘that this Judgment is, in and of itself, a form of reparation to the members of the Awas Tingni Community’69 and proceeded to say: .… [D]ue to the situation in which the members of the Awas Tingni Community find themselves due to lack of delimitation, demarcation, and titling of their communal property, the immaterial damage caused must also be repaired, by way of substitution, through a monetary compensation. Under the circumstances of the case it is necessary to resort to this type of compensation, setting it in accordance with equity and based on a prudent estimate of the immaterial damage, which is not susceptible of precise valuation. … Due to the above and taking into account the circumstances of the case and what has been decided in similar cases, the Court considers that the State must invest, as reparation for the immaterial damages, in the course of months, the total sum of US$ , … in works or services of collective interest for the benefit of the Awas Tingni Community, by common agreement with the Community and under the supervision of the Inter-American Commission. … Operative Paragraphs . erefore, the Court, . finds that the State violated the right to judicial protection enshrined in article of the American Convention on Human Rights, to the detriment of the members of the Mayagna (Sumo) Awas Tingni Community, … . finds that the State violated the right to property protected by article … to the detriment of the members of the Mayagna (Sumo) Awas Tingni Community …70 . decides that the State must adopt in its domestic law, pursuant to article … the legislative, administrative, and any other measures necessary to create an effective mechanism for delimitation, demarcation, and titling of the property of indigenous communities, in accordance with their customary law, values, customs and mores, pursuant to what was set forth in paragraphs and of this Judgment. . decides that the State must carry out the delimitation, demarcation, and titling of the corresponding lands of the members of the Mayagna (Sumo) Awas Tingni Community and, until that delimitation, demarcation and titling has been done, it must abstain from any acts that might lead the 69
70
Ibid., paras. -. By seven votes to one.
e Jurisprudence of the American and African Regional Human Rights Bodies
. .
.
. .
agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographic area where the members of the Mayagna (Sumo) Awas Tingni Community live and carry out their activities … . finds that this Judgment constitutes, in an of itself, a form of reparation for the members of the Mayagna (Sumo) Awas Tingni Community.71 finds that, in equity, the State must invest, as reparation for immaterial damages, in the course of months, the total sum of US $ , … in works or services of collective interest for the benefit of the Mayagna (Sumo) Awas Tingni Community, by common agreement with the Community and under supervision by the Inter-American Commission of Human Rights, ... finds that, in equity, the State must pay the members of the Mayagna (Sumo) Awas Tingni Community, through the Inter-American Commission of Human Rights, the total sum of US $ , … for expenses and costs incurred by the members of that Community and their representatives, both those caused in domestic proceedings and in the international proceedings before the inter-American system of protection ...72 finds that the State must submit a report on measures taken to comply with this Judgment to the Inter-American Court of Human Rights every six months … . decides to oversee compliance with this Judgment and that this case will be concluded once the State has fully carried out the provisions set forth in this Judgment.73
Under the supervision of the Inter-American Commission, the community and the state in April established two joint commissions to (a) agree on how to carry out the US$ , investment and, (b) to plan the ‘distinct phases for the process of delimitation, demarcation and titling of the Community’s territory’.74 While the first commission has made significant progress (the construction of a school boarding house for community children, for instance, is underway), the land titling process was significantly delayed, in part by the absence of domestic procedures already criticized by the Court, and had not yet begun in February . On September , the Court heeded a request75 and ordered further provisional measures in favour of the community, requiring Nicaragua to adopt without delay the measures necessary to protect the use and enjoyment of the land 71
72 73 74
75
Unanimously. By seven votes to one. Unanimously. Indian Law Resource Center, ‘e Awas Tigni Case – Fifteen Months Later. e Challenges to the Implementation of the Decision of the Inter-American Court of Human Rights’, press release dated January , at . Dated July , in Spanish at http://www.indianlaw.org/Final_Medidas_Provisionales_ .pdf.
Alexander H.E. Morawa by the community and to provide a remedy against the delay, including sanctions against those responsible.76 In January the community filed a suit against the president of Nicaragua and other officials in a domestic appeals court alleging that ‘these individuals, in their official capacity, have failed to implement the court’s ruling and in doing so, have violated the Nicaraguan Constitution and the country’s international legal obligations.’77 In its report of December in the Dann v. the United States of America case,78 the Inter-American Commission found breaches of the American Declaration in how the land claims of members of the Western Shoshone tribe in Nevada were dealt with domestically. e Commission here spelled out several general principles pertaining to human rights, and land claims in particular, of indigenous peoples: . Central to these norms and principles is a recognition that ensuring the full and effective enjoyment of human rights by indigenous peoples requires consideration of their particular historical, cultural, social and economic situation and experience. In most instances, this has included identification of the need for special measures by states to compensate for the exploitation and discrimination to which these societies have been subjected at the hands of the nonindigenous. … . Perhaps most fundamentally, the Commission and other international authorities have recognized the collective aspect of indigenous rights, in the sense of rights that are realized in part or in whole through their guarantee to groups or organizations of people. … And this recognition has extended to the acknowledgement of a particular connection between communities of indigenous peoples and the lands and resources that they have traditionally occupied and used, the preservation of which is fundamental to the effective realization of the human rights of indigenous peoples more generally and therefore warrants special measures of protection. e Commission has observed, for example, that continued utilization of traditional collective systems for the control and In Spanish at http://www.indianlaw.org/PM_Resolucion_de_la_Corte_.pdf. e relevant operative provisions read as follows: . Requerir al Estado que adopte, sin dilación, cuantas medidas sean necesarias para proteger el uso y disfrute de la propiedad de las tierras pertenecientes a la Comunidad Mayagna Awas Tingni y de los recursos naturales existentes en ellas, específicamente aquéllas tendientes a evitar daños inmediatos e irreparables resultantes de las actividades de terceros que se han asentado en el territorio de la Comunidad o que exploten los recursos naturales existentes en el mismo, hasta tanto no se produzca la delimitación, demarcación y titulación definitivas ordenadas por la Corte. … . Requerir al Estado que investigue los hechos denunciados que dieron origen a las presentes medidas con la finalidad de descubrir a los responsables y sancionarlos. 77 Indian Law Resource Center, ‘Indigenous Community Sues the President of Nicaragua for Failure to Implement Decision of International Tribunal’, press release dated January , at . 78 Inter-AmCommHR, Case No. ., Mary and Carrie Dunn (United States), report no. /, dated December . 76
e Jurisprudence of the American and African Regional Human Rights Bodies use of territory are in many instances essential to the individual and collective well-being, and indeed the survival of, indigenous peoples and that control over the land refers to both its capacity for providing the resources which sustain life, and to the geographic space necessary for the cultural and social reproduction of the group. … e Inter-American Court of Human Rights has similarly recognized that for indigenous communities the relation with the land is not merely a question of possession and production but has a material and spiritual element that must be fully enjoyed to preserve their cultural legacy and pass it on to future generations. … .e development of these principles in the inter-American system has culminated in the drafting of Article XVIII of the Draft American Declaration on the Rights of Indigenous Peoples, which provides for the protection of traditional forms of ownership and cultural survival and rights to land, territories and resources. While this provision, like the remainder of the Draft Declaration, has not yet been approved by the OAS General Assembly and therefore does not in itself have the effect of a final Declaration, the Commission considers that the basic principles reflected in many of the provisions of the Declaration, including aspects of Article XVIII, reflect general international legal principles developing out of and applicable inside and outside of the inter-American system and to this extent are properly considered in interpreting and applying the provisions of the American Declaration in the context of indigenous peoples. . Of particular relevance to the present case, the Commission considers that general international legal principles applicable in the context of indigenous human rights to include [sic]: – the right of indigenous peoples to legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property; – the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied; and – where property and user rights of indigenous peoples arise from rights existing prior to the creation of a state, recognition by that state of the permanent and inalienable title of indigenous peoples relative thereto and to have such title changed only by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property. … is also implies the right to fair compensation in the event that such property and user rights are irrevocably lost. … . Based upon the foregoing analysis, the Commission is of the view that the provisions of the American Declaration should be interpreted and applied in the context of indigenous petitioners with due regard to the particular principles of international human rights law governing the individual and collective
Alexander H.E. Morawa interests of indigenous peoples. … As outlined above, this approach includes the taking of special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources, and their right not to be deprived of this interest except with fully informed consent, under conditions of equality, and with fair compensation. e Commission wishes to emphasize that by interpreting the American Declaration so as to safeguard the integrity, livelihood and culture of indigenous peoples through the effective protection of their individual and collective human rights, the Commission is respecting the very purposes underlying the Declaration which, as expressed in its Preamble, include recognition that ‘[s]ince culture is the highest social and historical expression of that spiritual development, it is the duty of man to preserve, practice and foster culture by every means within his power.’ Another case declared admissible in also deals with land claims and related issues: In Yakye Axa Indigenous Community of the Enxet-Lengua People v. Paraguay79 the applicant community, which currently resides on publicly-owned land, claims that the government failed ‘to provide it with comprehensive assistance during the processing of its claim over traditional territories, … to conclude the administrative processing of its bid to recover those lands, and [prevented] it from conducting its traditional subsistence economic activities – hunting, fishing, and gathering.’80 Much like the Awas Tingni people, the community claims that the proceedings to have their right to their ancestral land recognized were not dealt with properly by the state’s administrative and judicial authorities; it alleges that the families making up the community are now living alongside a highway under circumstances that are detrimental to their well-being; furthermore, the state has prevented it from hunting and fishing on the land it claims.81 Both the petitioners and the respondent state point out that the government has recognized the precarious situation of the community by declaring a state of emergency and ordering the provision of medical and nutritional assistance.82 In September , and in the midst of friendly settlement negotiations, the Commission adopted precautionary measures when it was informed that the community’s houses were about to be removed. Referring to the Court’s Awas Tingni judgment, the Commission declared the petition admissible.83
79 80 81
82
83
Inter-AmCommHR, Case No. ., Yakye Axa Indigenous Community of the Enxet-Lengua People (Paraguay), report no. / dated February . Ibid., para. . See ibid., paras. et seq. See ibid., in particular para. . See ibid., in particular para. .
e Jurisprudence of the American and African Regional Human Rights Bodies African Commission on Human and Peoples’ Rights Communication No. / e Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria Decision on the Merits of October Complaints . e Communication [, filed in ,84] alleges that the military government of Nigeria[85] has been directly involved in oil production through the State oil company, the Nigerian National Petroleum Company (NNPC), the majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC), and that these operations have caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni People. . e Communication alleges that the oil consortium has exploited oil reserves in Ogoniland with no regard for the health or environment of the local communities, disposing toxic wastes into the environment and local waterways in violation of applicable international environmental standards. e consortium also neglected and/or failed to maintain its facilities causing numerous avoidable spills in the proximity of villages. e resulting contamination of water, soil and air has had serious short and long-term health impacts, including skin infections, gastrointestinal and respiratory ailments, and increased risk of cancers, and neurological and reproductive problems. . e Communication alleges that the Nigerian Government has condoned and facilitated these violations by placing the legal and military powers of the State at the disposal of the oil companies. e Communication contains a memo from the Rivers State Internal Security Task Force, calling for ‘ruthless military operations’. . e Communication alleges that the Government has neither monitored operations of the oil companies nor required safety measures that are standard procedure within the industry. e Government has withheld from Ogoni Communities information on the dangers created by oil activities. Ogoni Communities have not been involved in the decisions affecting the development of Ogoniland. e case was filed shortly after the execution of nine leaders of the ‘Movement for the Survival of the Ogoni People’ (MOSOP) in November . See Jim Lobe, ‘People versus Big Oil: Rights of Nigerian Indigenous People Recognized’, Foreign Policy Focus, July , at http://www.fpif.org/. For a short description of the history and background of the events at issue in the present case see Legborsi Saro Pyagbara, ‘e Ogoni of Nigeria: Oil and Exploitation’, MRG/MOSOP micro study, at http://www.minorityrights.org/admin/ Download/pdf/NigeriaMicro.pdf. 85 Unlike the previous military regime (until ), the new civilian government of Nigeria did cooperate with the Commission. For a discussion of the present case and parallel legal steps taken on behalf of the Ogoni community before US courts see: Dinah Shelton, ‘Case Note’, AJIL () -, -. 84
Alexander H.E. Morawa . e Government has not required oil companies or its own agencies to produce basic health and environmental impact studies regarding hazardous operations and materials relating to oil production, despite the obvious health and environmental crisis in Ogoniland. e government has even refused to permit scientists and environmental organisations from entering Ogoniland to undertake such studies. e government has also ignored the concerns of Ogoni Communities regarding oil development, and has responded to protests with massive violence and executions of Ogoni leaders. . e Communication alleges that the Nigerian government does not require oil companies to consult communities before beginning operations, even if the operations pose direct threats to community or individual lands. . e Communication alleges that in the course of the last three years, Nigerian security forces have attacked, burned and destroyed several Ogoni villages and homes under the pretext of dislodging officials and supporters of the Movement of the Survival of Ogoni People (MOSOP). ese attacks have come in response to MOSOP’s non-violent campaign in opposition to the destruction of their environment by oil companies. Some of the attacks have involved uniformed combined forces of the police, the army, the air-force, and the navy, armed with armoured tanks and other sophisticated weapons. In other instances, the attacks have been conducted by unidentified gunmen, mostly at night. e military-type methods and the calibre of weapons used in such attacks strongly suggest the involvement of the Nigerian security forces. e complete failure of the Government of Nigeria to investigate these attacks, let alone punish the perpetrators, further implicates the Nigerian authorities.86 … . e Communication alleges that the Nigerian government has destroyed and threatened Ogoni food sources through a variety of means. e government has participated in irresponsible oil development that has poisoned much of the soil and water upon which Ogoni farming and fishing depended. In their raids on villages, Nigerian security forces have destroyed crops and killed farm animals. e security forces have created a state of terror and insecurity that has made it impossible for many Ogoni villagers to return to their fields and animals. e destruction of farmlands, rivers, crops and animals has created malnutrition and starvation among certain Ogoni Communities. . e communication alleges violations of Articles , , , , (), , and of the African Charter. 86
e complainants add that the army ‘has admitted its role in the ruthless operations which have left thousands of villagers homeless. e admission is recorded in several memos exchanged between officials of the SPDC and the Rivers State Internal Security Task Force, which has devoted itself to the suppression of the Ogoni campaign. One such memo calls for ‘ruthless military operations’ and ‘wasting operations coupled with psychological tactics of displacement’.’ A video submitted with the communication contains statements of an army officer that his unit was involved in various attacks against the Ogoni. Para. .
e Jurisprudence of the American and African Regional Human Rights Bodies Government’s Observations . [During] the th Ordinary Session of the Commission [October/November ], ... the Respondent State submitted a note verbale stating the actions taken by the Government. ... [It] admitted the gravamen of the complaints but went on to state the remedial measures being taken by the new civilian administration and they included: – Establishing for the first time in the history of Nigeria, a Federal Ministry of Environment with adequate resources to address environmental related issues prevalent in Nigeria and as a matter of priority in the Niger delta area, – Enacting into law the establishment of the Niger Delta Development Commission (NDDC) with adequate funding to address the environmental and socially-related problems of the Niger delta area and other oil producing areas of Nigeria, – Inaugurating the Judicial Commission of Inquiry to investigate the issues of human rights violations. In addition, the representatives of the Ogoni people have submitted petitions to the Commission of Inquiry on these issues and these are presently being reviewed in Nigeria as a top priority matter. Decision on the Merits . ... Before we venture into the inquiry whether the Government of Nigeria has violated the ... rights as alleged in the Complaint, it would be proper to establish what is generally expected of governments under the Charter and more specifically vis-à-vis the rights themselves. . Internationally accepted ideas of the various obligations engendered by human rights indicate that all rights – both civil and political rights and social and economic – generate at least four levels of duties for a State that undertakes to adhere to a rights regime, namely the duty to respect, protect, promote, and fulfil these rights. ese obligations universally apply to all rights and entail a combination of negative and positive duties. As a human rights instrument, the African Charter is not alien to these concepts and the order in which they are dealt with here is chosen as a matter of convenience and in no way should it imply the priority accorded to them. Each layer of obligation is equally relevant to the rights in question. . At a primary level, the obligation to respect entails that the State should refrain from interfering in the enjoyment of all fundamental rights; it should respect right-holders, their freedoms, autonomy, resources, and liberty of their action. With respect to socio economic rights, this means that the State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others, including the household or the
Alexander H.E. Morawa family, for the purpose of rights-related needs. And with regard to a collective group, the resources belonging to it should be respected, as it has to use the same resources to satisfy its needs. . At a secondary level, the State is obliged to protect right-holders against other subjects by legislation and provision of effective remedies. is obligation requires the State to take measures to protect beneficiaries of the protected rights against political, economic and social interferences. Protection generally entails the creation and maintenance of an atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely realize their rights and freedoms. is is very much intertwined with the tertiary obligation of the State to promote the enjoyment of all human rights. e State should make sure that individuals are able to exercise their rights and freedoms, for example, by promoting tolerance, raising awareness, and even building infrastructures. . e last layer of obligation requires the State to fulfil the rights and freedoms it freely undertook under the various human rights regimes. It is more of a positive expectation on the part of the State to move its machinery towards the actual realisation of the rights. is is also very much intertwined with the duty to promote mentioned in the preceding paragraph. … . us States are generally burdened with the above set of duties when they commit themselves under human rights instruments. ... Depending on the type of rights under consideration, the level of emphasis in the application of these duties varies. But sometimes, the need to meaningfully enjoy some of the rights demands a concerted action from the State in terms of more than one of the said duties. ... . ... It is a matter of regret that the only written response from the government of Nigeria is an admission of the gravamen of the complaints … . In the circumstances, the Commission is compelled to proceed with the examination of the matter on the basis of the uncontested allegations of the Complainants, which are consequently accepted by the Commission. . e Complainants allege that the Nigerian government violated the right to health and the right to clean environment as recognized under Articles 87 and 88 of the African Charter by failing to fulfil the minimum duties required by these rights. is, the Complainants allege, the government has done by: – Directly participating in the contamination of air, water and soil and thereby harming the health of the Ogoni population, Article AfrCh reads: ‘() Every individual shall have the right to enjoy the best attainable state of physical and mental health. () States Parties ... shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.’ 88 Article AfrCh reads: ‘All peoples shall have the right to a general satisfactory environment favourable to their development.’ 87
e Jurisprudence of the American and African Regional Human Rights Bodies – failing to protect the Ogoni population from the harm caused by the NNPC Shell Consortium but instead using its security forces to facilitate the damage, [and by] – failing to provide or permit studies of potential or actual environmental and health risks caused by the oil operations. . ese rights recognise the importance of a clean and safe environment that is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual. ... . e right to a general satisfactory environment [Article () AfrCh] ... therefore imposes clear obligations upon a government. It requires the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources.[89] [Articles () and () AfrCh] obligate governments to desist from directly threatening the health and environment of their citizens. ... [T]his entails largely non-interventionist conduct from the State, for example, not … carrying out, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual. . Government compliance with the spirit of Articles and ... must also include ordering or at least permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities. . … Undoubtedly and admittedly, the government of Nigeria, through NNPC has the right to produce oil, the income from which will be used to fulfil the economic and social rights of Nigerians. But the care that should have been taken as outlined in the preceding paragraph and which would have protected the rights of the victims of the violations complained of was not taken. To exacerbate the situation, the security forces of the government engaged in conduct in violation of the rights of the Ogonis by attacking, burning and destroying several Ogoni villages and homes. . e Complainants also allege a violation of Article 90 of the African Charter by the government of Nigeria. e[y] … allege that the Military government 89
90
Reference is made to Article CESCR. Article AfrCh reads: ‘() All peoples shall freely dispose of their wealth and natural resources. is right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. () In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation. () e free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic co-operation based on mutual respect, equitable exchange and the principles of international law. () States parties ... shall individually and col-
Alexander H.E. Morawa of Nigeria was involved in oil production and thus did not monitor or regulate the operations of the oil companies and in so doing paved a way for the Oil Consortiums to exploit oil reserves in Ogoniland. Furthermore, in all their dealings with the Oil Consortiums, the government did not involve the Ogoni Communities in the decisions that affected the development of Ogoniland. e destructive and selfish role played by oil development in Ogoniland, closely tied with repressive tactics of the Nigerian Government, and the lack of material benefits accruing to the local population, may well be said to constitute a violation of Article . . e origin of this provision may be traced to colonialism, during which the human and material resources of Africa were largely exploited for the benefit of outside powers, creating tragedy for Africans themselves, depriving them of their birthright and alienating them from the land. e aftermath of colonial exploitation has left Africa’s precious resources and people still vulnerable to foreign misappropriation. e drafters of the Charter obviously wanted to remind African governments of the continent’s painful legacy and restore cooperative economic development to its traditional place at the heart of African Society. . Governments have a duty to protect their citizens, not only through appropriate legislation and effective enforcement but also by protecting them from damaging acts that may be perpetrated by private parties.91 is duty calls for positive action on part of governments in fulfilling their obligation under human rights instruments. e practice before other tribunals also enhances this requirement as is evidenced in the case Velàsquez Rodríguez v. Honduras.92 In this landmark judgment, the Inter-American Court of Human Rights held that when a State allows private persons or groups to act freely and with impunity to the detriment of the rights recognised, it would be in clear violation of its obligations to protect the human rights of its citizens. Similarly, this obligation of the State is further emphasised in the practice of the European Court of Human Rights, in X and Y v. Netherlands.93 In that case, the Court pronounced that there was an obligation on authorities to take steps to make sure that the enjoyment of the rights is not interfered with by any other private person. . e Commission notes that in the present case, despite its obligation to protect persons against interferences in the enjoyment of their rights, the Governlectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity. () States Parties ... shall undertake to eliminate all forms of foreign economic exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.’ 91 Reference is made to Communication /, Union des Jeunes Avocats v. Chad. 92 Judgment of July, , Series C, No. . 93 Judgment of March , Series A, No. .
e Jurisprudence of the American and African Regional Human Rights Bodies ment of Nigeria facilitated the destruction of the Ogoniland. Contrary to its Charter obligations and despite such internationally established principles, the Nigerian Government has given the green light to private actors, and the oil Companies in particular, to devastatingly affect the well-being of the Ogonis. By any measure of standards, its practice falls short of the minimum conduct expected of governments, and therefore, is in violation of Article of the African Charter. . e Complainants also assert that the Military government of Nigeria massively and systematically violated the right to adequate housing of members of the Ogoni community under Article 94 and implicitly recognised by Articles and ()95 of the African Charter. . Although the right to housing or shelter is not explicitly provided for under the African Charter, the corollary of the combination of the provisions protecting the right to enjoy the best attainable state of mental and physical health, cited under Article above, the right to property, and the protection accorded to the family forbids the wanton destruction of shelter because when housing is destroyed, property, health, and family life are adversely affected. It is thus noted that the combined effect of Articles , and () reads into the Charter a right to shelter or housing which the Nigerian Government has apparently violated. . At a very minimum, the right to shelter obliges the Nigerian government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes. e State’s obligation to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they find most appropriate to satisfy individual, family, household or community housing needs. It’s obligations to protect obliges it to prevent the violation of any individual’s right to housing by any other individual or non-state actors like landlords, property developers, and land owners, and where such infringements occur, it should act to preclude further deprivations as well as guaranteeing access to legal remedies. e right to shelter even goes further than a roof over ones head. It extends to embody the individual’s right to be let alone and to live in peace – whether under a roof or not. . e protection of the rights guaranteed in Articles , and () leads to the same conclusion. ... e government has destroyed Ogoni houses and vil94
95
Article AfrCh reads: ‘e right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.’ Article () AfrCh reads: ‘e family shall be the natural unit and basis of society. It shall be protected by the State ...’.
Alexander H.E. Morawa lages and then, through its security forces, obstructed, harassed, beaten and, in some cases, shot and killed innocent citizens who have attempted to return to rebuild their ruined homes. ese actions constitute massive violations of the right to shelter, in violation of Articles , , and () of the African Charter.96 ... . e government’s treatment of the Ogonis has violated all three minimum duties of the right to food. e government has destroyed food sources through its security forces and State Oil Company; has allowed private oil companies to destroy food sources; and, through terror, has created significant obstacles to Ogoni communities trying to feed themselves. ... . e Complainants also allege that the Nigerian Government has violated Article of the Charter which guarantees the inviolability of human beings and everyone’s right to life and integrity of the person respected. Given the wide spread violations perpetrated by the Government of Nigeria and by private actors (be it following its clear blessing or not), the most fundamental of all human rights, the right to life has been violated. e Security forces were given the green light to decisively deal with the Ogonis, which was illustrated by the wide spread terrorisations and killings. e pollution and environmental degradation to a level humanly unacceptable has made it [sic] living in the Ogoni land a nightmare. e survival of the Ogonis depended on their land and farms that were destroyed by the direct involvement of the Government. ese and similar brutalities not only persecuted individuals in Ogoniland but also the ... Ogoni Community as a whole. ey affected the life of the Ogoni Society as a whole.97 … . e uniqueness of the African situation and the special qualities of the African Charter ... impose upon the African Commission an important task. International law and human rights must be responsive to African circumstances. Clearly, collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa. e African Commission will apply any of the diverse rights contained in the African Charter. It welcomes this opportunity to make clear that there is no right in the African Charter that cannot be made effective. As indicated in the preceding paragraphs, however, the Nigerian Government did not live up to the minimum expectations of the African Charter. . e Commission does not wish to fault governments that are labouring under difficult circumstances to improve the lives of their people. e situation of
e Commission then adds that Nigeria also violated the right to be protected against forced evictions, which it calls a ‘right enjoyed by the Ogonis as a collective right’. Para. . 97 e Commission conducted a mission to Nigeria from to March and witnessed first hand the deplorable situation in Ogoni land, including the environmental degradation. 96
e Jurisprudence of the American and African Regional Human Rights Bodies the people of Ogoniland, however, requires, in the view of the Commission, a reconsideration of the Government’s attitude to the allegations contained in the instant communication. e intervention of multinational corporations may be a potentially positive force for development if the State and the people concerned are ever mindful of the common good and the sacred rights of individuals and communities. e Commission however takes note of the efforts of the present civilian administration to redress the atrocities that were committed by the previous military administration ... . For the above reasons, the Commission, Finds the Federal Republic of Nigeria in violation of Articles , , , , (), and of the African Charter on Human and Peoples’ Rights; Appeals to the government of the Federal Republic of Nigeria to ensure protection of the environment, health and livelihood of the people of Ogoniland by: – Stopping all attacks on Ogoni communities and leaders by the Rivers State Internal Securities Task Force and permitting citizens and independent investigators free access to the territory; – Conducting an investigation into the human rights violations described above and prosecuting officials of the security forces, NNPC and relevant agencies involved in human rights violations; – Ensuring adequate compensation to victims of the human rights violations, including relief and resettlement assistance to victims of government sponsored raids, and undertaking a comprehensive cleanup of lands and rivers damaged by oil operations; – Ensuring that appropriate environmental and social impact assessments are prepared for any future oil development and that the safe operation of any further oil development is guaranteed through effective and independent oversight bodies for the petroleum industry; and – Providing information on health and environmental risks and meaningful access to regulatory and decision-making bodies to communities likely to be affected by oil operations. Urges the government of the Federal Republic of Nigeria to keep the African Commission informed of the outcome of the work of: – e Federal Ministry of Environment which was established to address environmental and environment related issues prevalent in Nigeria, and as a matter of priority, in the Niger Delta area including the Ogoni land; – e Niger Delta Development Commission (NDDC) [which was] enacted into law to address the environmental and other social related problems in the Niger Delta area and other oil producing areas of Nigeria; and – e Judicial Commission of Inquiry [which was] inaugurated to investigate the issues of human rights violations.
Alexander H.E. Morawa III. C P B A A H R B Inter-American Court of Human Rights Request for Advisory Opinion No. OC- Submitted by Mexico on May and amended on November is request for an advisory opinion was filed by the government of Mexico (hereinafter ‘the government’) on May 98 and is currently under consideration by the Court.99 e government states initially that … [c]oncern about the increasing violation of the human rights of migrants in general, and of migrant workers in particular, has generated attention worldwide. e international community has recognized the need to direct its efforts towards the promotion and protection of the human rights of this group of persons, in particular, because they are especially vulnerable, owing to their migratory status.100 Object and Purpose of the Request, and the Applicable Law e government explains the object of its request as follows: Migrant workers, like all other persons, must be ensured the enjoyment and exercise of human rights in the States where they reside. However, their vulnerability makes them an easy target for violations of their human rights, based, above all, on criteria of discrimination and, consequently, places them in a situation of inequality before the law as regards the effective enjoyment and exercise of these rights. e government considers migrant workers to form a particularly vulnerable group in need of special protection and refers to a variety of international texts and reports in this respect which suggest that there is an increase of acts of racial discrimination against Inter-AmCtHR, Press Release CDH-CP-/. An initial deadline of February for written observations by the parties was fixed by the President of the Court (letters of the Registrar to the author dated November , CDH-OC-/, and January , CDH-OC-/) and subsequently extended to March ; public hearings in the case were scheduled for February (Order of the President of the Court of January , operative paras. and ) and June in Santiago, Chile (Order of the President of the Court of April , operative para. ). Observations totaling several hundred pages by OAS member states and amici have been filed with the Court and communicated to the parties by the time of writing. 100 e government refers to the appointment of a Special Rapporteur for the human rights of migrants by resolution E/CN.// of the United Nations Commission on Human Rights and of a similar Special Rapporteur of the Inter-American Commission on Human Rights in : see Verbal Report by Juan E. Méndez, Special Rapporteur on Migrant Workers and Members of their Families, made during the working session of the OAS Committee on Legal and Political Matters, Washington, D.C., April, , quoted in the request. 98
99
e Jurisprudence of the American and African Regional Human Rights Bodies them.101 Considering that the UN and the OAS have attached particular importance to the status of migrants in an ‘irregular’ situation and to undocumented migrants, the government submits that [t]he [UN] Special Rapporteur also sees cause for concern in the fact that ‘in many countries there are laws and practices that discriminate against foreigners seeking work in a country that is not their own,’ as well as the fact that ‘[t]he granting of visas on the basis of the applicant’s country or continent of origin and labour market regulations based on discriminatory criteria, together with xenophobia in the name of national security, nationalism or national preferences, are some of the most common realities that migrant workers have to live with.’102 e protection of the human rights of migrant workers is also a matter of particular interest for the Government of Mexico because there are approximately ,, Mexican workers outside the national territory. Of these, it is estimated that ,, are undocumented migrant workers … In less than five months (from January to May , ), the Government of Mexico had to intervene, through its consular representatives, in the defence of the human rights of Mexican nationals in approximately cases, in order to protect migrant workers with regard to work-related discrimination, unpaid wages, and compensation for occupational illnesses and accidents, among others matters. … Although States are sovereign in the definition and execution of domestic legislation and policies, when acceding to or ratifying international human rights instruments, the States of the region commit themselves to ensuring to all individuals within their territory the enjoyment and exercise of the rights recognized in those international instruments.103 In this context, the Government of Mexico is profoundly concerned by the incompatibility with the OAS human rights system of the interpretations, practices and enactment of laws by some States in the region. e Government of Mexico considers that such interpretations, practices and laws imply the negation of labour rights based, inter alia, on discriminatory criteria derived from the migratory status of un-documented workers. is could encourage employers to use those laws or interpretations to justify a progressive loss of other labour rights; for example: payment of overtime, seniority, outstanding wages and maternity leave, thus abusing the vulnerable status of undocumented migrant workers. In this context, violations of the international instruments that protect the human rights of migrant workers in the region are a real threat to the exercise of the rights protected by such instruments. … 101 For instance the Vienna Declaration and Programme of Action of the World Conference on Human
Rights, dated July , UN Doc. A/CONF./, Part I, para. , and, in particular, the Report of the UN Special Rapporteur dated January , UN Doc. E/CN.//. 102 UN Doc. E/CN.//, para. . 103 Cf. Article () CCPR and Article () ACHR.
Alexander H.E. Morawa e Government of Mexico considers that the application of laws and their interpretation in a manner which subordinated the international obligations of the American States to the purposes of national migratory policy considerably increases the possibility of exploitation in the workplace and the violation of the rights of all the undocumented migrant workers of the American States, in contravention of the principles of equality before the law and equal protection of the law without discrimination. Failure to observe these principles is incompatible with the various human rights instruments which are the subject of interpretation in this request, and whose object and purpose, as the Inter-American Court itself has stated, ‘are the protection of the fundamental rights of individual human beings, irrespective of their nationality, both before their own State and all other contracting States.’104 e purpose of the request is, accordingly, to obtain an authoritative opinion ‘as to whether it is legally permissible for the American States … to deem a specific migratory status to be a necessary condition for the enjoyment and exercise of those rights, and whether such practices, when applied, constitute a violation of the principles of equality before the law and of non-discrimination.’ e government of Mexico has asked the Court to apply the following provisions, pursuant to Article () ACHR and Articles and of the Court’s Rules of Procedure: Articles (l), according to which ‘[t]he American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed or sex’, and of the OAS Charter, which provides: ‘Each State has the right to develop its cultural, political and economic life freely and naturally. In this free development, the State shall respect the rights of the individual and the principles of universal morality.’ Article II of the American Declaration, providing as follows: ‘All persons are equal before the law and have the rights and duties established in this Declaration without distinction as to race, sex, language, creed or any other factor.’ And, most importantly, Articles (), , and ACHR.105 e government also relies on Article of the Universal Declaration on Human Rights (‘All human beings are born free and equal in dignity and rights…[.]’), Article (), 104 Inter-AmCtHR, Restrictions to the Death Penalty (Articles () and () American Convention on Human
Rights), advisory opinion OC-/ dated September , Series A, No. , para. .
105 ‘e States Parties to this Convention undertake to respect the rights and freedoms recognized herein and
to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.’ ‘Where the exercise of any of the rights or freedoms referred to in Article is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.’ ‘All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.’
e Jurisprudence of the American and African Regional Human Rights Bodies which contains a standard intra-treaty non-discrimination clause, and Article , providing that ‘[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.’ e government further relies on Articles () and (), (), and of the International Covenant on Civil and Political Rights (CCPR). e Specific Questions . Can an American State establish in its labor legislation a distinct treatment from that accorded legal residents or citizens that puts undocumented migrant workers at a disadvantage in the enjoyment of their labor rights, so that the migratory status of the workers impedes per se the enjoyment of such rights? Referring to the Court’s jurisprudence affirming that ‘[...it is] irreconcilable with [the] notion [of equality] to characterize a group as inferior and treat it with hostility or otherwise subject it to discrimination in the enjoyment of rights which are accorded to others not so classified. It is impermissible to subject human beings to differences in treatment that are inconsistent with their unique and congenerous character’,106 the government submits that ‘any measure that promotes a prejudicially distinct treatment between persons or groups of persons who are in the territory of an American State and subject to its jurisdiction is contrary to the recognition of equality before the law that prohibits any discriminatory treatment of a legal nature.’ It adds that it has observed that ‘owing to their irregular migratory status, undocumented workers are subject to hostile treatment and, consequently, considered as an inferior group in relation to the legal residents or national workers of the respective State, creating differences in treatment between human beings.’ Where [a state organ] so interprets its domestic legislation as to authorize a different treatment of the enjoyment of a work-related right solely on the basis of the migratory status of a worker, this runs counter to the principle of equality before the law …, particularly when this interpretation creates a precedent and may eventually influence the decisions of other State organs. In this respect, it is important to emphasize that the competence of the organs of a State is not unlimited, because, as the Court itself has recognized in one case ‘[i]n any area, including labor and administrative matters, the administration’s discretionality has limits that it may not exceed and one of these is respect for human rights. It is important that the administration’s conduct should be regulated and the administration may not invoke public order to reduce discretionally the rights of those it administers.’107 Similarly, since the principle of equality before the law is a human right, the State has a corresponding obligation to ensure the condi106 Inter-AmCtHR, Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica,
advisory opinion OC-/ of January , Series A, No. , para. .
107 Inter-AmCtHR, Baena Ricardo et al. case, judgment of February , Series C, No. , para. .
Alexander H.E. Morawa tions for its effective enjoyment and exercise, pursuant to [Article () CCPR and Article ACHR]. Moreover, an interpretation that makes a distinction about the exercise of labor rights on the basis of the migratory status of a worker can serve as justification for employers to dismiss undocumented workers, owing to a pre-established criterion that denies to undocumented workers, owing to their irregular migratory status, certain labor rights which are enjoyed by other workers subject to the jurisdiction of a State. [is situation] is aggravated by the fact that, precisely because of their irregular situation, undocumented workers are afraid to have recourse to the Government bodies charged with supervising compliance with labor legislation. is results in a failure to punish employers who use such practices as well as those who, protected by interpretations such as those mentioned above, find it financially more advantageous to layoff irregular workers, knowing that they will not be obliged to remedy or compensate such dismissals, as would be the case if they dismissed workers who are nationals or legal residents. is amounts to a clear breach of the principle of equality before the law. Furthermore, the right to equality before the law is applicable … to any right recognized by domestic legislation, and thus includes a much broader range of rights than the fundamental rights and freedoms embodied in international law. In this context, the Human Rights Committee has noted that, by virtue of the principle of equality before the law embodied in Article [CCPR], not only discrimination in the enjoyment of the rights embodied therein, but also discrimination in the enjoyment of the civil, political, economic and social rights recognized by domestic law is incompatible with that provision. … [T]he Human Rights Committee has examined complaints of discrimination relating to rights that do not appear expressly in the [Covenant], rejecting the argument that it lacked competence to examine complaints concerning discrimination in the enjoyment of the rights embodied in the International Covenant on Economic, Social and Cultural Rights.108 .. Should Article [()] of the Universal Declaration, Article II of the American Declaration, Articles and of the Covenant, and Articles and of the American Convention be interpreted in the sense that an individual’s legal residence in the territory of an American State is a necessary condition for that State to respect and ensure the rights and freedoms recognized in these provisions to those persons subject to its jurisdiction? .. [C]an it be considered that the denial of one or more labor right, based on the undocumented status of a migrant worker, is compatible with the obligations of an American State to ensure
108 e government refers to Communications Nos. /, Aumeeruddy-Cziffra et al. v. Mauritius, views of
April , CCPR/C//D//, and (oblique) , S.W.M. Broeks v. the Netherlands, views of April , CCPR/C//D//.
e Jurisprudence of the American and African Regional Human Rights Bodies non-discrimination and the equal, effective protection of the law imposed by the above-mentioned provisions? Referring to the Court’s case law stating that ‘[t]he obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a legal system designed to make it possible to comply with this obligation – it also requires the Government to conduct itself so as to effectively ensure the free and full exercise of human rights’,109 the government suggests that the fulfilment of human rights obligations should mean ‘that the conduct of all the State organs [must lead] to genuine compliance with and exercise of the human rights guaranteed in international instruments’ or, in other words, to compliance in practice.110 . What would be the validity of an interpretation by any American State which, in any way, subordinates or conditions the observance of fundamental human rights, including the right to equality before the law and to the equal and effective protection of the law without discrimination, to achieving migration policy goals contained in its laws, notwithstanding the ranking that domestic law attributes to such laws in relation to the international obligations arising from the International Covenant on Civil and Political Rights and other obligations of international human rights law that have an erga omnes character? 111 Referring to the Court’s jurisprudence,112 the government argues ‘that, not even in the name of public order, which is the ultimate goal of any rule of law, is it acceptable to restrict the enjoyment and exercise of a right, and it would be much less acceptable to try and do so by invoking domestic policy goals contrary to general welfare as the Court has defined it.’ It continues by saying: Even though the Government of Mexico recognizes that an American State may restrict or condition the enjoyment of a specific right in some cases and in very specific conditions, in the hypothesis addressed to the Court on the question that concerns us, the requirements for this conditionality are not fulfilled.
109 Inter-AmCtHR, Velásquez Rodríguez case, judgment of July , Series C, No. , para. , and Godínez
Cruz case, judgment of January , Series C, No. , para. .
110 e government quotes from the separate opinion of Judge Rodolfo E. Piza Escalante in Enforceability
of the Right to Reply or Correction (Articles (), () and of the American Convention on Human Rights), advisory opinion OC-/ of August , Series A, No. , para. , who states, inter alia: ‘… e very notion of protection on the international plane, although only as complementary or subsidiary to that of domestic law, requires that the States immediately commit themselves to respect and ensure those rights as an international obligation over and above the vicissitudes of their domestic legal system.’ 111 e government bases this question on Articles () and () and () CCPR. 112 In particular Inter-AmCtHR, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles and American Convention on Human Rights), advisory opinion OC-/ of November , Series A, No. , para. , where the Court stressed ‘that ‘public order’ or ‘general welfare’ may under no circumstances be invoked as a means of denying a right guaranteed ... or to impair it or deprive it of its true content.’
Alexander H.E. Morawa From Article () CCPR113 the government derives the principle of ‘the primacy of the law that is most favourable to the victim, which makes it compulsory to seek, in the corpus iuris gentium, the law that favours achieving whatever will benefit the individual as primary titleholder of the rights protected in international human rights law. In this respect, the consistent interpretation of human rights treaties and instruments goes far beyond determining treaty-based relations based on the mere reciprocity of rights and obligations between contracting Parties, to place itself decidedly on the side of the utmost and best protection inherent in the dignity of the individual.’114 It then proceeds to discuss, on the basis of the case law of the International Court of Justice relating to the right to self-determination and the Genocide Convention, ‘the legal effects of obligations erga omnes’ which, it argues, impose ‘… the obligation, for other States – whether or not they are Parties to the instrument in question – to ensure their fulfilment’, and concludes: Nevertheless, international case law, with the exception of that relating to war crimes …, has not fully clarified the legal regime applicable to obligations erga omnes or, at best, it has done so with caution and perhaps a certain timidity. e Inter-American Court of Human Rights is called upon here to play an essential role in establishing the applicable law … . . In view of the progressive development of international human rights law and its codification, ... [w]hat is the nature today of the principle of non-discrimination and the right to equal and effective protection of the law in the hierarchy of norms established by general international law and, in this context, can they be considered to be the expression of norms of ius cogens? If the answer to the second question is affirmative, what are the legal effects for the OAS Member States, individually and collectively, in the context of the general obligation to respect and ensure, pursuant to Article [()] of the Covenant, compliance with the human rights referred to in Articles (l) and of the OAS Charter?… Admissibility of the Request e government emphasizes that the request ‘directly concerns the protection of human rights in the hemisphere and the principal purpose of the request is to determine the scope of the obligations entered into by OAS member States pursuant to international law, thus contributing to ensuring compliance with them to the benefit of the titleholders of the human rights protected by such obligations.’ It adds: Neither is the Court being asked to interpret the domestic law of any State or to exercise its advisory competence ‘for purely academic speculation, without a 113 ‘ere shall be no restriction upon or derogation from any of the fundamental human rights recognized or
existing in any State Party to the present Convention pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.’ 114 e government also relies on ‘translating into international human rights law, toutes proportions gardées, the so-called Martens clause.’
e Jurisprudence of the American and African Regional Human Rights Bodies foreseeable application to concrete situations justifying the need for an Advisory Opinion.’115 As shown by the considerations that give rise to the consultation, this is a situation in which non-compliance with international commitments can seriously affect the enjoyment of rights protected by the treaties and instruments invoked in this request. e government then points out that it does neither request a ‘theoretical pronouncement’ from the Court nor seek ‘to undermine the protective system to the detriment of any individual, but to obtain an opinion stemming from a consultative process ‘designed to assist States and organs comply with and apply human rights treaties without subjecting them to the formalism and the sanctions associated with the contentious judicial process’.’116 e Government of Mexico considers that the authoritative opinion of the Court would have considerable relevance for the protection of the labour rights of undocumented migrant workers, notwithstanding their nationality, and for effective compliance with the international obligations of the authorities of States that receive these migrants, by clarifying the scope of these obligations. e Court’s authoritative opinion would also be very useful for the States of which the workers are nationals, by contributing elements of judgment that support the work of protecting the rights of its nationals abroad. Similarly, the Court’s opinion on this submission would make an invaluable contribution to the international bodies that protect human rights, … . As regards the interaction of the human rights treaties and instruments, the Court must endeavor to make a consistent interpretation of the provisions of the American Convention, the Covenant and also of the American Declaration and the Universal Declaration invoked in this request, considering that, as Judge Antonio A. Cançado Trindade has stated, ‘when there are normative developments in a specific human rights treaty, such developments effectively have a direct impact on the interpretation and application of other human rights treaties, in the sense that they expand or strengthen the obligations of the States parties and ensure a greater degree of protection for the alleged victims.’117 …
115 Inter-AmCtHR, Judicial Guarantees in States of Emergency (Articles (), and of the American Conven-
tion on Human Rights), advisory opinion OC-/ of October , Series A, No. , para. ; see also e Right to Information on Consular Assistance within the Framework of the Guarantees of Due Legal Process, advisory opinion OC-/ of October , Series A, No., para. . 116 Inter-AmCtHR, Restrictions to the Death Penalty …, advisory opinion OC-/, para. . 117 A.A. Cancado Trindade, El Derecho Internacional de los Derechos Humanos en el Siglo XXI, Editorial Jurídica de Chile (Santiago, ) (emphasis added).
Alexander H.E. Morawa Supplementary Submissions by the Government of Mexico e government of Mexico supplemented its request on November , following receipt of a formal opinion of the International Labour Office dated November ‘on the scope and content of the [ILO] Convention on migrations in abusive conditions and the promotion of equal opportunities and treatment of migrant workers (No. ) and the Migrant Workers Recommendation (No. ) … .’ Concerning question , the government ‘underscores that a State may accord a distinct treatment between documented and undocumented migrant workers, or between nationals of that State and foreigners. For instance, this is the case concerning political rights recognized only for nationals.’ However, ‘there cannot be any justification for a detrimentally distinct treatment in the application of fundamental labor rights.’ e government proceeds to identify these fundamental labour rights: For instance, the International Convention on the Protection of the Rights of All Migrant Workers and their Families,118 provides in … Article ... a treatment for all migrant workers that is ‘not less favorable than that which applies to nationals of the State of employment’ concerning remuneration, working conditions (overtime, hours of work, weekly rest, paid vacation time, safety, health, termination of the employment relationship) and other conditions of work (minimum age of employment, restriction on home work). Moreover, Article of the Convention recognizes the right to participate in trade union meetings and activities and the right to freely join a union. Among the further fundamental rights identified by the government on the basis of the ILO opinion are equal treatment with respect to benefits arising out of past employment, such as remuneration, social security and other benefits (Article () of ILO Convention No. ) and payment of remuneration due when a migrant worker leaves the state of employment (paragraph of ILO Recommendation No. ). e government adds that the ILO opinion included () freedom of association and the effective recognition of the right of collective bargaining; () the elimination of all forms of forced labour; () the effective abolition of child labour, and () the elimination of discrimination in employment amongst the further fundamental labour rights. In conclusion, the first question by the Government of Mexico is focused on specifying the existence of fundamental labor rights all workers must enjoy, which are internationally recognized in several instruments and to determine whether to deny these rights to the workers, based on their migratory status, would mean to provide them with a detrimental treatment, contrary to the principles of equality before the law and non-discrimination.
118 UN General Assembly resolution /, dated December .
e Jurisprudence of the American and African Regional Human Rights Bodies Regarding question , the government states that ‘although it is possible to identify … fundamental labor rights, this concept it subject to evolution. As new regulations arise and become a part of fundamental labor rights, these must benefit all workers, regardless of their migratory status. is way, a harmonious interpretation of the set of human rights instruments must prevail in order to apply the regulation which best protects individuals.’ Other Cases Pending A number of cases currently pending before the African Commission concern complaints that are of interest in the given context, particularly matters involving discrimination. Some of these cases relate to breaches of the rights of individuals, others charge states with large-scale premeditated acts of violence against people on account of their ethnic or national origin. In Simbarakiye v. Congo,119 for instance, a Burundi national and recognized political refugee had lived in Congo (formerly Zaire) since and was employed by the government as an engineer. In , and as a consequence of the hostilities between Congo and Burundi, Uganda, and Rwanda, he claims that he was dismissed from his post and ultimately had to leave the country solely because of his Burundi nationality. e Sierra Leone Refugee Case 120 originates in ‘Guinean President Lansana Conté proclaim[ing] over national radio that Sierra Leonean refugees in Guinea should be arrested, searched and confined to refugee camps. His speech incited soldiers and civilians alike to engage in mass discrimination against Sierra Leonean refugees …’. As a consequence, the applicants claim, Guineans began looting the homes of refugees, extorted money from them at checkpoints, refugees were attacked and many killed or injured, arbitrarily detained when ‘identified’ without a cause as ‘rebels’, women from Sierra Leone were subjected to rape and sexual abuse by soldiers and refugees were forced to return to their home country contrary to international obligations.121 Doebbler v. Sudan 122 concerns a group of students at Ahlia University in Khartoum who held a picnic at a public place and were sentenced to flogging because, as they state, they were ‘kissing, wearing trousers, dancing with men, crossing legs with men, sitting with boys and talking with boys’.123 e complainant states that this grossly disproportionate punishment was inhuman and degrading contrary to Article AfrCh. Mouvement Ivoirien des Droits Humains v. Ivory Coast 124 alleges in very general terms that the constitutional referendum ‘contains some discriminatory provisions, which prevent some citizens of Côte d’Ivoire from exercising certain political functions ...’. Finally, in Zimbabwe Human Rights NGO Forum v. 119 Communication No. /, Jean Simbarakiye v. the Democratic Republic of Congo, submitted on April
.
120 Communication No. /, African Institute for Human Rights and Development (on behalf of Sierra
Leonean Refugees in Guinea) v. Republic of Guinea, submitted on April .
121 See ibid., paras. -.
122 Communication No. /, Dr. Curt Francis Doebbler v. Sudan, submitted on March . 123 Ibid., para. .
124 Communication No. /, Mouvement Ivoirien des Droits Humains (MIDH) v. Ivory Coast, submitted
on February .
Alexander H.E. Morawa Zimbabwe 125 the complainant organization alleges massive and widespread human rights abuses prior to and during a constitutional referendum and the parliamentary elections in the first half of , allegedly tolerated or encouraged by government officials and the police. e political violence targeted in particular opposition activists and supporters, but also white farmers and their black farm workers. ese cases are currently pending at the admissibility stage. During the st session, the African Commission on Human and Peoples’ Rights declared Communication No. /, Democratic Republic of Congo v. Burundi, Rwanda, and Uganda admissible. is is the first interstate complaint under the AfrCh. e case was filed on March by the Democratic Republic of Congo (D.R. Congo) against the governments of Burundi, Rwanda and Uganda and alleges ‘serious and massive violations of human and people’s rights committed in the Congolese provinces affected by the aggression’ due to the fact that ‘since August … Congo has been attacked by the regular armies of Rwanda and Uganda and, of late, of Burundi.’126 Among the violations alleged are ‘massacres and deportations of the populations’ in and , including ‘massacres of indigenous populations, including intellectuals and other able bodied people.’ D. R. Congo also claims that ‘since the beginning of the war in eastern Congo, civilians have been deported by the Rwandan and Ugandan armies into what it calls ‘concentration camps’ found in Rwanda’ and that ‘more people are simply massacred and their bodies incinerated in crematory furnaces (especially in Bugesera). e aim of these operations is said to be to remove the indigenous populations from these regions and create thus what the Complainant State calls a ‘Tutsiland’.’ e government of the Congo adds that on ‘ August , the Rwandan and Ugandan armies that were in D. R. Congo besieged for several weeks [a] hydroelectric dam …, which is a strictly civilian structure. It is claimed that the presence of these armies disturbed the lives of millions of people and the economic fabric of D. R. Congo. It is also alleged that this caused the death of many sick people and newly born babies in hospitals due to the paralysis of operating units and non supply of electricity to incubators and other respiratory equipment.’127 A further complaint is ‘systematic rape of girls and women’. According to the government of the Congo, ‘the Rwandan and Ugandan armies engage in the spread of sexually transmitted diseases and rape. us, almost two thousand Ugandan soldiers suffering from AIDS or who are HIV positive are alleged to have been sent to the front in the eastern provinces of Congo with the mission of raping girls and women so as to spread the AIDS epidemic in the local population and, therefore, eliminate them.’128 e final complaint concerns the ‘[l]ooting of D.R. Congo’s natural resources’ in that Rwanda and Uganda have allegedly ‘engag[ed] in the systematic looting of the underground wealth of the provinces controlled by their armies: gold, diamonds, coltan, wolfram, and that properties of the civilian popu125 Communication No. /, Zimbabwe Human Rights NGO Forum v. Zimbabwe, submitted on January
.
126 Decision, para. .
127 Decision, para ..
128 Decision, para. .. e applicant state has submitted detailed reports of acts of rape.
e Jurisprudence of the American and African Regional Human Rights Bodies lation are taken to Burundi, Rwanda and Uganda, thus causing losses and loss of revenue to the Congolese economy.’129 D.R. Congo also alleges, inter alia, that ‘it has been attacked by the armies of Burundi, Rwanda and Uganda, and that this aggression is a violation of the fundamental principles that govern the friendly relations between States as stipulated by the Charters of the United Nations … and the Organisation of African Unity (OAU). ese are the principles of non-use of force in international relations, peaceful settlement of disputes, respect of sovereignty and territorial integrity of States and non interference in the internal affairs of States. … [T]he massacres and other violations of human and peoples’ rights which it attributes to Burundi, Rwanda and Uganda are a violation of the provisions of Articles , , , , , , , , , and of the African Charter on Human and People’s Rights.’130 After rejecting procedural objections by the respondent states, the Commission summarized their responses as follows: . In its reply, the Government of Uganda rejects the accusation of aggression and explains that its troops were invited by the late President Laurent Desire Kabila to help him overthrow the regime of the late President Mobutu, and that the said troops remained on the Congolese territory due to the dangers created by the new cycle of civil war that broke up the anti-Mobutu coalition. . On its part, the Government of Rwanda explains that its army is in D. R. Congo because of the risks of rearmament of the perpetrators of the genocide, the former Rwandese army and Interahamwe, which forced Rwanda to commit militarily its troops in the east of D. R. Congo so as to protect its own borders and its citizens. In the light of the foregoing, the Commission declares the communication admissible. One of several interesting cases pending before the Inter-American Commission is YATAMA v. Nicaragua.131 An indigenous regional political party132 had attempted to register for municipal elections, initially jointly with two other parties, then alone, but its candidates were not admitted for technical reasons. e complaint alleges, inter alia, breaches of YATAMA’s political rights. e case of Aucan Huilcaman Paillama et al. v. Chile,133 admitted by the Commission in February , concerns alleged procedural irregularities 129 Decision, para. ..
130 Decision, para. . D. R. Congo also refers to the CCPR and to norms of international humanitarian law in
its complaint.
131 Inter-AmCommHR, Case No. ., Yabti Tasba Masraka Nanih Asia Takanka (YATAMA) (Nicaragua),
declared admissible on December in report /.
132 e name ‘YATAMA’ means ‘organization of the children of mother earth’ in Miskito.
133 Inter-AmCommHR, Case No. ., Aucan Huilcaman Paillama et al. (Chile), report no. / dated
February .
Alexander H.E. Morawa in the course of the prosecution of several members of an organization of an indigenous people called Council of All Lands for what is called ‘land grabbing’, that is the occupation of properties adjacent to their communities to demonstrate against the taking of their land following the arrival of the Spanish in the American hemisphere. Also mentioned should be Simone André Diniz v. Brazil,134 declared admissible in October , where the petitioner, a black woman, alleges violations of her rights to equality before the law and to a fair trial/judicial protection (which she bases on both the ACHR and CERD) in that the state failed to provide her with a remedy against being rejected as a job applicant because of her race.135
134 Inter-AmCommHR, Case No. ., Simone André Diniz (Brazil), report no. / dated October
.
135 For an interesting case, which cannot be addressed in the given context, concerning gender discrimination
and the implementation of quotas in the election process, see Inter-AmCommHR, Case No. ., Janet Espinoza Feria et al. (Peru), report no. / dated October .
Emma Lantschner*
Protection of National Minorities through Bilateral Agreements
In the course of the last year quite a number of countries in Southeastern Europe and especially in the western Balkans started negotiations on bilateral agreements on mutual minorities. e trend is going in the direction whereby countries conclude agreements dealing with the issue of minority protection only, rather than bilateral treaties on good neighbourliness, which include some provisions on their mutual minorities. On November Romania concluded an agreement on cooperation in the field of protection of national minorities with the (then)1 Federal Republic of Yugoslavia (FRY).2 On December a similar agreement was initialled by the Yugoslav Minister for Minority Issues and the Hungarian State Secretary of the Prime Minister’s Office.3 In the first part of this article these two agreements are analyzed. e second part aims to give an overview of currently ongoing negotiations which might lead to the conclusion of new agreements on minorities. * 1
2
3
Researcher at the European Academy Bozen/Bolzano, Minorities and Autonomies, currently doctoral candidate in Law at the University of Graz. On the basis of the Proceeding Points for the Restructuring of Relations between Serbia and Montenegro of March , the former Federal Republic of Yugoslavia has been transformed into the State Union of Serbia and Montenegro with a new Constitution, adopted by the three parliaments (the federal, the Serb and the Montenegrin) in March . See also Vojislav Stanovcic, ‘Legal Status and Rights of Minorities in Serbia and Montenegro’, in this volume. In this report the previous name Federal Republic of Yugoslavia (FRY) will be used with regard to agreements concluded or initiated before the entry into force of the new Constitution. Agreement between the Federal Government of the Federal Republic of Yugoslavia and the Government of Romania on cooperation in the Field of Protection of National Minorities, signed in Belgrade, November . See annex to this article for full text of the agreement. Agreement between Serbia and Montenegro and the Republic of Hungary on the Protection of Rights of the Hungarian Minority Living in the Federal Republic of Yugoslavia and the Serbian Minority Living in the Republic of Hungary. On October the agreement was signed by the two Prime Ministers. As on that occasion some changes in the wording were introduced, the full text of the agreement in the annex has been adapted as much as possible.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Emma Lantschner I. C A A. e Agreement between the Federal Republic of Yugoslavia and Romania ree rounds of negotiations were sufficient to negotiate the agreement between the Federal Republic of Yugoslavia and Romania (hereinafter ‘the Yugoslav-Romanian agreement’).4 Signing this agreement was an important step for FRY as it proved its determination to continue moving in the direction of closer integration into European structures. Romania considers the agreement to sufficiently cover the interests of all speakers of the Romanian language in FRY.5 At the time of writing, the agreement had not yet been ratified by the two parliaments. As the negotiation process has proved to be quite smooth and marked by the interest of both sides in reaching an agreement quickly, it is not very likely that ratification could be problematic in either country. A finalization of the process is expected by the end of the year . e preamble of the Yugoslav-Romanian agreement makes reference to Article of the Treaty on Friendly Relations, Good Neighbourliness and Cooperation signed between the two countries in .6 In this article the parties … assure, on their national territory, the protection and the respect for the rights of the members of Serb national minority from Romania and of the members of the Romanian national minority from Yugoslavia, according to the documents of the C.S.C.E., to the international agreements ratified by the contracting Parties and generally accepted standards of the international law. Similar to the agreement between Croatia and Hungary on the protection of their mutual minorities,7 which finds its basis in the Basic Treaty previously signed between the two states,8 the Yugoslav-Romanian agreement on their respective minorities follows the Basic Treaty in time.9 4 5 6 7
8 9
e first round of negotiations took place in Bucharest, November , the second in Belgrade, February , the last in Timisoara, October . Interview conducted by the author with Irina Donciu, Ministry of Foreign Affairs, Romania, January . Treaty on Friendly Relations, Good Neighbourliness and Cooperation ( May ). Article can be found at http://dev.eurac.edu:/mugs/do/blob.html?type=html&serial=. Convention between the Republic of Croatia and the Republic of Hungary on the Protection of the Hungarian Minority in the Republic of Croatia and the Croatian Minority in the Republic of Hungary ( April ). Treaty Regarding the Friendship and Co-Operation Relations between Romania and Croatia ( February ). On the other hand there are examples where the Basic Treaty was signed after an agreement on mutual minorities, as was the case of the Hungarian-Slovenian friendship treaty, which referred to the Convention on Providing Special Rights for the Slovenian Minority Living in Hungary and for the Hungarian Minority living in Slovenia ( November ).
Protection of National Minorities through Bilateral Agreements Article of the Basic Treaty refers to ‘the members of Serb national minority from Romania’ and to ‘the members of the Romanian national minority from Yugoslavia’. Article of the bilateral agreement defines the scope of application of the agreement more clearly. e aforementioned groups consist of ‘persons under their jurisdiction who share the same ethnic origin, language and traditions with the majority of the population of the other Contracting Party’. With this wording the parties found a compromise on the most controversial issue during negotiations: the personal scope of application of the agreement. e Yugoslav side insisted on restricting the scope of application of the agreement to the Romanian and Serb minorities, whereas the Romanian side wanted the agreement to cover also the Vlachs living in FRY. According to the last census, carried out only on the territory of the Republic of Serbia, there were only , Romanians living in Serbia (corresponding to .% of the population of Serbia). e associations of Romanians in Serbia, including Vlachs, estimate that the number of their community reaches almost , persons (corresponding to % of the population of Serbia).10 e compromise reached in the agreement, which implicitly also covers the Vlachs in FRY, could be reached with the involvement of the OSCE High Commissioner on National Minorities (HCNM). With regard to the international instruments used as texts of reference for the agreements, both the Basic Treaty and the agreement in the field of minorities refer to international standards. e Basic Treaty quotes the documents of the Conference on Security and Co-operation in Europe (CSCE) whereas the agreement makes reference to the Framework Convention for the Protection of National Minorities (FCNM). In both cases these documents have not been clearly declared as ‘legal obligation’ – which would be especially interesting for the otherwise solely political documents of the OSCE – but only seem to be a source of inspiration for the drafting of both documents. When it comes to the substantive rights included in the agreement, it becomes clear that the Framework Convention was at the basis of its drafting. Nearly all the principles enshrined in the FCNM can be found in the agreement. In some cases there are literal quotations from the text of the FCNM, sometimes the agreement gives the frame for a provision of the Convention, but leaves the implementation to ‘adequate legislative measures’ or ‘national legislation’, in some other cases the rights granted by the agreement go beyond the provisions of the Convention. An example of a literal quotation from the FCNM (Article ) is Article of the agreement where it is stipulated that belonging to a national minority is based on free personal choice and ‘no disadvantage shall result from this choice or from the exercise of the rights that are connected to that choice’. 10
See ‘Ethnic Romanians in Serbia ask for Education in their Mother Tongue’, Divers – Reporting Ethnic Diversity, No. , ( May ), at http://www.divers.ro/english/diversno.htm. For more information about the Vlachs, their language, their history and their current situation see ‘Report. e Vlachs’, () Greek Monitor of Human & Minority Rights (May-June ), at http://www.greekhelsinki.gr/english/reports/ vlachs.html. According to the last census carried out in Romania , Serbs live in Romania, corresponding to .% of the total population.
Emma Lantschner Similar to Article () and Article () and () of the Framework Convention, Article of the agreement recognizes the right of persons belonging to national minorities to use their mother tongue orally and in writing, in public and in private life as well as the right to use names and forenames in their mother tongue. e contracting parties allow moreover the use of the ‘mother tongue in local administration and in front of administrative and judicial authorities’. On the one hand this provision goes beyond the principles enshrined in the Framework Convention, which does not foresee any right to use one’s mother tongue in front of judicial authorities. On the other hand the wording of this provision is quite vague, as it only foresees, that the parties ‘allow’ this use – this does not create any direct obligation for the contracting parties to provide for the necessary measures to enable persons belonging to minorities to make use of this permission – and that they do so ‘in conformity with their international obligations and with the national legislation’. In practice, it is left to national legislation to bring this article to life. In , Romania passed a Law of Local Public Administration11 which provides for the use of the mother tongue in public administration. ‘In the territorial-administrative units in which the citizens belonging to the national minorities have a share of over % of the number of the inhabitants, the local public administration authorities shall ensure, in the relations with them, also the use of the mother tongue […]’ (Article ). Article of the Romanian Penal Procedure Code, after establishing in paragraph that the language used in the court during a trial is the Romanian language, stipulates in paragraph that ‘[i]n the territorial-administrative units inhabited by population of other nationality than Romanian, … the use of the mother tongue of that population in front of judicial authorities’ shall be ensured. is happens through making use of the service of a translator. In FRY the recent law on national minorities12 provides in its Article for ‘equal official use within their respective territories of the local self-government units’ traditionally inhabited by persons belonging to national minorities or where the minority population reaches % of the total population or where the minority language was already in use before the issuance of the law. e phrase ‘official use’ of the minority language does not only mean the use of that language in communication with administrative bodies but also its use in administrative and court procedures.13 e second part of Article () of the Romanian-Yugoslav agreement deals with the use of topographical inscriptions and allows them, ‘where applicable, in the language and script of the national minority’.14 No further explanation about the applicability is given Law of Local Public Administration No. /, published in the Official Gazette, Part I, no. of April, , at http://dev.eurac.edu:/mugs/do/browseDoc?serial=. See also Governmental Decision no. / on the adoption of application guidelines for the provisions concerning the right of citizens belonging to national minority to use the mother tongue in local public administration, as stipulated in the Law of Local Public Administration No. /, at http://dev.eurac.edu:/mugs/ do/blob.html?type=html&serial=. 12 Law on Protection of Rights and Freedoms of National Minorities, Official Gazette of FRY No. of February . 13 Ibid. Article (). 14 Emphasis added. 11
Protection of National Minorities through Bilateral Agreements in the text of the agreement which might lead to differences in interpretations of the text between the contracting parties.15 A comparably vague wording can be found in the next article of the agreement, where the ‘institutionalized possibility to learn or to be educated in their mother tongue at all levels of education, where appropriate’16 is laid down (Article ()). Again, difficulties in the interpretation of the agreement might arise from this wording. Moreover, this possibility has to be ensured by the contracting parties ‘by adequate legislative measures’. Either national legislation fills this legislative gap or the parties conclude a further agreement in the area of culture and education,17 which could include the right of ethnic Romanians living in Serbia to be educated in their mother tongue.18 Until then, as was also underlined by the Romanian president Ion Iliescu, they can only be supported by providing manuals, books, and other publications in their native language and by financing schools and churches.19 e bilateral agreement envisions moreover the promotion of the exchange of educational experience, by teacher training, the grant of scholarships and other facilities for all levels of education. e shortage of minority-language textbooks and qualified teachers, especially for smaller minorities such as the Serbs, were one point of criticism by the Advisory Committee on the Framework Convention (ACFC),20 reiterated in the Resolution of the Committee of Ministers of the Council of Europe on the implementation of the FCNM by Romania.21 e Yugoslav-Romanian agreement could be a step in the direction towards mitigating this shortcoming. It is also interesting to note that the provision concerning the possibility of being taught the mother tongue or in it is not accompanied, as is the case in other bilateral agreements22 and the FCNM (Article ()),23 by a clause providing that this shall happen without prejudice to the learning of the official language or the teaching in this language. 15 16 17
18
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20 21
22 23
An interesting detail when it comes to the question of interpretation of the agreement is that ‘in case of difference of interpretation, the English text will prevail’, the Serbian and Romanian being equally authentic. Emphasis added. It is in fact foreseen by Article of the agreement, that ‘for the purpose of implementation of this Agreement, the Contracting Parties will conclude inter-governmental or/and interdepartmental agreements and programs’. e Serb authorities used to consider the Vlachs as an ‘ethnic group’, without a kin-state, such as is the case for the Roma and, consequently, they had no right to speak in their mother language, no right for own school, particular religious service, press or cultural institution; in ‘Ethnic Romanians …’. See Mercator Legislation Newsletter, no. (November ) Advisory Committee on the Framework Convention for the Protection of National Minorities, opinion on Romania, adopted on April , para . Resolution ResCMN () on the implementation of the Framework Convention for the Protection of National Minorities by Romania, adopted by the Committee of Ministers on March at the th meeting of the Ministers’ Deputies. E.g. Article ()(g) of the agreement between Hungary and Slovakia. e explanatory report on the provisions of the FCNM states that ‘knowledge of the official language is a factor of social cohesion and integration’.
Emma Lantschner e principles of equality and non-discrimination are laid down in Article () of the Yugoslav-Romanian agreement. e corresponding article in the Framework Convention (Article ) continues in its second paragraph with a provision calling for ‘full and effective equality’ of persons belonging to a national minority ‘in all areas of economic, social, political and cultural life’. Article of the bilateral agreement does not impose on the states any obligation for affirmative action. Such a request could be identified in Article of the agreement, where the contracting parties are requested to ‘take the necessary measures’ in order to allow the persons belonging to national minorities to ‘express and develop their ethnic, cultural, linguistic or religious identity’. Article of the Yugoslav-Romanian agreement contains provisions regarding the promotion and support by the contracting parties for the establishment and functioning of organizations and the right of persons belonging to national minorities to maintain free and direct contacts to their co-ethnics from the other contracting party. Beyond these provisions, which are also enshrined in the FCNM, the bilateral agreement encourages the organization of cultural manifestations and promotes the preservation of cultural heritage, a provision which is rarely found in bilateral agreements between other countries. e Lund Recommendations underline that ‘[e]ffective participation of national minorities in public life is an essential component of a peaceful and democratic society. Experience in Europe and elsewhere has shown that, in order to promote such participation, governments often need to establish specific arrangements for national minorities.’24 Article of the Framework Convention foresees that ‘[t]he Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.’ is effective participation in decision-making can be displayed at various degrees: It can consist in the informal or formal consultation and the establishment of advisory or consultative bodies.25 States could adopt measures to promote the participation of national minorities at the regional and local levels. Effective participation can also entail the opportunity to have an effective voice at the level of the central government or to the right to be represented in parliament.26 Article of the Yugoslav-Romanian agreement provides for the right of persons belonging to national minorities, ‘in accordance with the national legislation, to participate in the decision-making process pertaining to matters which are at the state, regional or local level, significant for the respective national minority’. According to this wording, only the second part of the provision of the FCNM is respected. In Romania however, Serbs are recognized as a national minority and therefore, even if their percentage of the national population is only .%, they have a constitutionally guaranteed seat in parliament. us far, this is not the case for Romanians in Serbia and it is not clear whether the implementation of the provision enshrined in the bilateral Recommendation , e Lund Recommendations on the Effective Participation of National Minorities in Public Life, September (OSCE HCNM), emphasis added. 25 For such an example see: e Federal (Article ) and the National (Article ) Councils of National Minorities in the Yugoslav Law on Protection of Rights and Freedoms of National Minorities. 26 See in this respect Recommendations - of the Lund Recommendations. 24
Protection of National Minorities through Bilateral Agreements agreement could go as far as the designation of a representative in the federal parliament.27 Effective participation at the regional and local levels, as set forth in the bilateral agreement, can be much more promising in terms of results, as compared to a sometimes symbolic representation at a national level.28 According to Article of the bilateral agreement, the parties ‘will take measures to encourage cross-border co-operation, including within euro-regions, taking into account the bridging role of national minorities’. e inclusion of a provision on cross-border cooperation is an indicator for a new trend in the relations between the neighbouring countries: First, minorities are more and more considered as a bridging element instead of a potentially threatening and separating one and, second, economic cooperation, also at the regional level, is becoming stronger and more important than historic resentments. Another illustration of this development is Article of the bilateral agreement, in which the parties commit themselves to ‘adopt, as appropriate, measures in order to promote economic development in regions inhabited by national minorities’, which are in many cases, and also in this specific one, border regions. As in most of the bilateral agreements concluded over the past decade, the YugoslavRomanian agreement provides also for an implementation mechanism: an Intergovernmental Joint Commission. Article of the agreement defines its composition, mandate and meeting procedures. It has to be positively underlined that the participation in the work of this Joint Commission of members of both minority groups is foreseen by this article. ese members have to be part of ‘associations of persons belonging to national minorities’. e agreement also introduces a second mechanism for its implementation: the conclusion of intergovernmental or/and interdepartmental agreements and programmes. is is a quite innovative approach and promises to be successful as it delegates the implementation to the smaller entities directly dealing with the relevant issues. e fact that no minority representatives were involved in the negotiation of the agreement can be considered as a drawback, however. Nonetheless, the provisions contained in the agreement provide for a quite extensive protection of the mutual minorities. Moreover, minority representatives have the opportunity to influence the implementation of the agreement as their participation in the Intergovernmental Joint Commission is prescribed by the agreement. B. e Agreement between the Federal Republic of Yugoslavia and Hungary Although there is a considerable number of Hungarians living mainly in the Serb province of Vojvodina,29 the negotiation process for the agreement between Yugoslavia and As was also stated by (then) Yugoslav president Vojislav Kostunica, see Mediafax, November , . Francesco Palermo and Jens Woelk, ‘No Representation without Recognition. e Right to the Political Participation of (National) Minorities’ () Journal of European Integration (). 29 In Hungary the number of Serbs is ,, which corresponds to , % of the total population. In Serbia (the last census took place only there) around , (% of the total population of Serbia) declared themselves as belonging to the Hungarian minority. is group is mainly concentrated in Vojvodina, where the Hungarians represent %. 27
28
Emma Lantschner Hungary (hereinafter ‘the Yugoslav-Hungarian agreement’) was also provisionally concluded after only one year of consultations. In line with – in particular – Hungary’s efforts to take care of its kin-ethnics abroad, the contracting parties emphasize in the preamble of the agreement ‘that the endeavour on the part of a mother country to support national minorities within the limits of international law is legitimate’. ese limits have been outlined by the Venice Commission in its report on preferential treatment of national minorities by their kin-state,30 requested by Hungary and Romania after the adoption of the so-called ‘Status Law’.31 Whereas the Yugoslav-Romanian agreement makes a much more general reference to ‘international standards’ mentioning explicitly only the FCNM and the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the Yugoslav-Hungarian agreement enlists nearly every document at the regional and universal level that can be referred to in connection with the protection of minorities.32 Article of the Yugoslav-Romanian agreement contains a collection of provisions taken from the Framework Convention: the principles of free and personal choice of whether to belong to a national minority or not (Article () FCNM), of nondiscrimination, of formal and material equality (Article FCNM), of the prohibition of assimilation (Article () FCNM) and of the alteration of proportions of the populations in areas inhabited by persons belong to national minorities (Article FCNM). An interesting – and in the context of a bilateral agreement unusual – provision is contained in Article () of the Yugoslav-Hungarian agreement. It says that the size of a minority may be decisive when it comes to actual implementation of a provision enshrined in the 30
31 32
Report of the Venice Commission on the preferential treatment of national minorities by their kin-State, adopted by the Venice Commission at its th Plenary Meeting, (Venice, - October ), CDL-INF () . Act LXII of on Hungarians Living in Neighbouring Countries, entered into force on January . Charter of the United Nations, Universal Declaration of Human Rights; UNESCO Convention against Discrimination in Education; International Convention on the Elimination of All Forms of Racial Discrimination; International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; UN Convention on the Rights of the Child; UN General Assembly Declaration on the Rights of Persons belonging to national or ethnic, religious and linguistic minorities; Declarations, positions and recommendations expressed within the framework of CSCE/OSCE, such as: the Document of the Copenhagen Meeting of the Conference of the Human Dimension of the CSCE (Copenhagen, ); the Helsinki Document of the CSCE (); and the OSCE Charter for European Security (Istanbul, ); the European Convention for the Protection of Human Rights and Fundamental Freedoms; the European Charter for Regional or Minority Languages, and; the Framework Convention for the Protection of National Minorities. Only recommendation () of the Parliamentary Assembly of the Council of Europe on an additional protocol on the rights of national minorities to the ECHR, is not mentioned. Article of this recommendation provides: ‘In the regions where they are in a majority the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching the specific historical and territorial situation and in accordance with the domestic legislation of the state’. For an interpretation of this article see opinion of the Venice Commission, CDL-INF () . Recommendation () was included in Hungary’s Basic Treaties concluded with Romania and Slovakia, both of which denied to have recognized the principle of collective rights for the minorities and to have admitted the creation of autonomous structures on (the) ethnic principle.
Protection of National Minorities through Bilateral Agreements agreement. But what can be affected is only the ‘manner of the exercise of these rights’. e essence of these rights may not be restricted. e right to identity is extensively dealt with in Article of the Yugoslav-Hungarian agreement. It not only expresses the right for national minorities, ‘both individually and in community with other members of their group’, to freely express, preserve and develop their ethnic, cultural linguistic and religious identity (Article () FCNM). It also provides for cooperation of the two parties in the protection of historical edifices and cultural heritage. But what is most important is that it sets forth that the parties ‘shall provide conditions necessary for the functioning of minority self-governments’ and other minority institutions and organizations, including minority educational, information and cultural centres. Article of the agreement, which goes in the same direction, calls on the parties, ‘in keeping with their national legislation ... [to] guarantee to persons belonging to the national minorities appropriate forms of minority self-government, i.e., the cultural and personal autonomy.’ Except in the special agreement concluded by Hungary with Croatia,33 the parties have never accepted any autonomy provision, as such an inclusion might have nourished the fear of secessionism and border changes. Even though the inclusion of a provision on autonomy in the bilateral agreement might seem revolutionary, it does request the establishment of bodies which did not already exist. Since the adoption of the Hungarian Law on Minorities in ,34 the concept of minority self-government is a quite common notion in Hungary. According to this law, minority groups have the possibility to set up minority self-governments at the local as well as the national level with comprehensive rights to participation in the fields of education, press and electronic media and culture. In some cases the consent of the affected minority country self-government is requested.35 According to Article of the Law on Minorities of FRY, persons belonging to national minorities may elect national councils with the purpose of exercising rights of self-government, regarding the use of language and script, education, information and culture. e Yugoslav-Hungarian agreement requires that the parties support the activities of the Country Self-Government of the Serbs in Hungary and the Hungarian National Council in (what was then) the Federal Republic of Yugoslavia. Convention between the Republic of Hungary and the Republic of Croatia on the protection of the Hungarian minority in the Republic of Croatia and the Croatian minority in the Republic of Hungary ( April ). Article (): ‘e Republic of Hungary shall confirm to ensure the material conditions for the establishment and effective operation of the Croatian minority self-governments in Hungary within the framework of current regulations and the appointed date.’ Article (): ‘e Republic of Croatia shall confirm to ensure, in accordance with its domestic legislation, the right of the Hungarian minority to cultural autonomy ....’ 34 Law No. LXXVII/. 35 Jenö Kaltenbach, ‘Die Rechtsstellung der Minderheiten in Ungarn’, in Georg Brunner and Boris Meissner (eds.), Das Recht der nationalen Minderheiten in Osteuropa (Berlin, ), -; József Petrétei, ‘Die verfassungsrechtliche und einfachrechtliche Ausgestaltung des Minderheitenschutzes in Ungarn’, in Gerrit Manssen and Boguslaw Banaszak (eds.), Minderheitenschutz in Mittel- und Osteuropa (Frankfurt am Main, ), -; Dirk Stahlberg, Minderheitenschutz durch Personal- und Territorialautonomie. Ein Vergleich (München, ), -. 33
Emma Lantschner e functioning of these structures is a precondition for the effective implementation of Article and Article of the Yugoslav-Hungarian agreement, both of which deal with the effective participation of the national minorities in public life. Article calls upon the parties to involve representatives of minority organizations in the preparation of bilateral agreements and in international activities related to their status and rights. Article asks for ‘effective participation’ in decision making, especially in cases affecting them, which is guaranteed if the local and national self-governments work properly. e article also requires ‘appropriate representation’ of persons belonging to national minorities in public service. e provision does not call for the employment of a proportion or members belonging to a minority equal to the numerical strength of that minority in a certain area,36 even though it says that the ethnic composition should be taken into consideration. It underlines the importance of the ‘knowledge of the language spoken in the area where the body or agency concerned is working’, which does not necessarily mean that the person has to belong to the minority group. is is linked with the provisions enshrined in Article of the agreement. Repeating the wording of the Framework Convention, this article contains the right of persons belonging to national minorities, ‘in places they inhabit traditionally or in substantial numbers’ to use their mother tongue in their relations with administrative and judicial authorities, receiving information also in their mother tongue, if necessary with the free assistance of an interpreter. e aforementioned bodies of minority self-government are also entitled to conduct their business in their mother tongue. Other provisions concerning the use of language (the use of the mother tongue in oral and written communication, in private and public life, the use of first and family names in the mother tongue and the use of topographical indications) reflect the respective provisions of the Framework Convention. In the field of education the Framework Convention calls upon the state parties to: foster knowledge of culture, history, language and religion of both the minorities and the majority; to provide adequate opportunities for teacher training and access to text books and facilitate contacts of students and teachers of different communities; to promote equal opportunities for access to education at all levels for persons belonging to national minorities and; to ensure adequate opportunities for being taught the minority language or for receiving instruction in this language. Moreover the parties shall recognize the right to set up and to manage their own private educational and training establishments. (Articles and FCNM) e Hague Recommendations regarding the Educational Rights of National Minorities37 emphazise the importance for children of being taught in their mother tongue. e number of subjects taught in the state language should gradually increase from the end of is is the case in the Autonomous Province of Bolzano/Südtirol (Italy) where all public posts are distributed among Italians and the German and Ladin minorities according to their numerical strength in the overall population in the province. In this region the German-speakers constitute the majority with % of the population, whereas the Italians hold % and the Ladins %. 37 e Hague Recommendations regarding the Educational Rights of National Minorities, October (OSCE HCNM). 36
Protection of National Minorities through Bilateral Agreements the primary school throughout the period of the secondary school. Under certain circumstances, vocational training and tertiary level education in the minority language should be made accessible. e general compulsory curriculum should include the teaching of the histories, cultures and traditions of the respective minorities and be developed with the participation of bodies representing these minorities. ese two texts are both referred to in the preamble of the Yugoslav-Hungarian agreement and fully integrated in the text of that agreement (Article ). Paragraph is worth mentioning: For the purpose of securing institutionalized education in their respective mother tongues, the parties shall enable the operation of institutions ‘in which instruction can be organised entirely in the mother tongue, as bilingual instruction or as fostering the mother tongue.’ Another interesting provision is laid down in paragraph , which states that the parties ‘shall enable the recruitment of teaching staff from the mother country in case there are not enough lecturers in the mother tongues of the national minorities.’ Some other provisions that go beyond the principles enshrined in the Framework Convention regard the reception and broadcasting of radio and television programmes from the kin-state (Article of the agreement), and research of the past and present status of national minorities with the involvement of the national minorities. Other topics are not dealt with in the Framework Convention but were included in the bilateral agreement. Worth mentioning in this respect is Article which focuses on the involvement of minority interests in economic development planning. e parties agree to take measures, according to their abilities, to secure the economic and social development of areas inhabited by minorities. e parties shall furthermore support all forms of transfrontier and regional cooperation, especially in the economic and cultural field. To that end the parties shall establish new border crossing posts and take measures to improve transportation links between their countries. Transfrontier cooperation contributes to strengthening mutual understanding and confidence between the people living in border areas, thus enhancing democratic stability in the region. e inclusion of economic provisions in the Yugoslav-Hungarian agreement has to be welcomed as it holds the potential to enhance the overall situation of minorities settled in border regions and to function as an important link between the two countries. e agreement indeed states that the parties shall endeavour to make use of the intermediary role of their national minorities in that area. e fact that the border of Hungary, upon its accession to the European Union in May , becomes an external border of the Schengen space might render the implementation of this provision difficult, especially when it comes to the opening of new border crossings. e Intergovernmental Joint Commission on National Minorities established by Article has the mandate to monitor the implementation of the agreement by discussing current issues relevant to the two minorities, evaluating the implementation of the agreement and by making recommendations to the governments concerning the implementation and, in case of necessity, the modification of the agreement. e participation of representatives of the national minorities is mandatory. e representative of the Hungarian minority in Serbia is appointed at the proposal of the Hungarian National Council. e representative of the Serbian minority in Hungary is appointed at the proposal of the
Emma Lantschner Country Self-Government of the Serbs. e Commission is supposed to hold its meetings at least once a year. C. Comparative and Conclusive Remarks Like most of the bilateral agreements concluded in the field of minorities, also in the aforementioned agreements between FRY and Romania and FRY and Hungary respectively, the only beneficiaries are the members belonging to one of the mutual minorities. Members of other minority groups are therefore excluded from the scope of application of the agreements. is is quite a common shortcoming of bilateral agreements. While bilateral agreements, compared to more general regional or international instruments, have the advantage of having the possibility to adapt these more general instruments to the needs of their minorities, the examined agreements have in many cases only repeated the wording of the Framework Convention, leaving it again to the national legislation to define the details. It has of course to be supported, that the Framework Convention has been taken as a basis for the drafting of the agreements but nothing new is added to the existing rights of the respective national minorities. Romania, Hungary and the (then) Federal Republic of Yugoslavia have ratified the FCNM and in these countries it is therefore already a legally binding document. e inclusion of the provisions enshrined in the FCNM within the bilateral agreements does not render the rights more easily enforceable, as the monitoring mechanism, the Joint Intergovernmental Commission, is quite weak. is is of course not true for all the provisions of the discussed bilateral agreements. e field of education, for example, is dealt with extensively in the Yugoslav-Hungarian agreement, whereas the fostering of the cultural identity was regulated in much detail by the Yugoslav-Romanian agreement. As mentioned earlier, there are also provisions contained in both agreements which were not inspired by the FCNM. Overall, if effectively implemented, the provisions contained in the agreement provide for a quite extensive protection of their mutual minorities. It remains to be seen how efficiently the Joint Intergovernmental Commissions will work. A positive aspect, common to both agreements, is the fact, that the participation of minority representatives in the work of the Commission is mandatory. Its functioning will very much depend on the political goodwill of the parties.38 II. A N I T In the following section a brief overview of other activities is given: Serbia and Montenegro has started negotiations on a bilateral agreement for the protection of minorities with Croatia and the ‘former Yugoslav Republic of Macedonia’. 38
For further reference concerning the implementation of bilateral agreements see Emma Lantschner, ‘Bilateral agreements and their Implementation’, in Alexander Morawa (ed.) Mechanisms for the Implementation of Minority Rights (Strasbourg, forthcoming).
Protection of National Minorities through Bilateral Agreements With Croatia the negotiations started already in but were interrupted because of the discussion in both countries of their laws on the protection of minorities and the internal constitutional changes that took place in the Federal Republic of Yugoslavia. At the time of writing the signing of this agreement was not foreseeable. In May Serbia and Montenegro and the ‘former Yugoslav Republic of Macedonia’ agreed to start the procedure of signing a bilateral agreement on the protection of minorities, which should include the establishment of a National Council of Macedonians in Serbia and Montenegro.39 Furthermore, cities of Serbia, the ‘former Yugoslav Republic of Macedonia’ and Bulgaria have taken an initiative to set up a Euroregion, with the scope of contributing to the development of democracy and the improvement of human rights in the region.40 Between Serbia and Montenegro and Albania only initial contact has been established, in which the willingness of the parties to start negotiations on a bilateral agreement on the protection of minorities was expressed. Albania is in negotiation over a bilateral agreement also with the ‘former Yugoslav Republic of Macedonia’. is agreement will be focussing on economic aspects but ethnic problems render its negotiation difficult.41 In , the Foreign Ministers of Moldova and Romania initialled a Basic Treaty between the two countries but it has not yet been signed by the two countries’ Prime Ministers. In January the Moldovan Prime Minister said that one of his government’s priorities for is the signing of the Basic Treaty with Romania.42 He further said that his cabinet strives for ‘pragmatic relations with Romania, primarily in the economic realm’. Romanian officials, on the other hand, commenting on the Moldovan Prime Minister’s statement said that ‘two neighbouring countries that have a Romanian population cannot focus only on economic interests’ when bilateral relations are on the agenda. ‘Political aspects [of the relationship] also need to be clarified.’43 Romania will ‘never accept’ mention of the ‘Moldovan language’ in the treaty. Only within a united Europe will a suitable solution to the historical problems between Romania and Moldova be found.44
Dnevnik, Utrinski Vesnik, May ; MIA, A TV, May . RFE/RL October . 41 RFE/RL January . 42 RFE/RL January . 43 RFE/RL January . 44 RFE/RL December . 39
40
Emma Lantschner A F G F R Y G R C- F P N M e Contracting Parties, Bearing in mind art. of the Treaty on the relations of friendship, good-neighborliness and cooperation between Federal Republic of Yugoslavia and Romania, signed in Belgrade, on May , , Determined to ensure within their territories the effective protection of the cultural, linguistic and religious identity of persons belonging to national minorities, in accordance with the international standards, as established mainly in the Framework Convention on the Protection of National Minorities and the Declaration of the UN General Assembly on the rights of persons belonging to national or ethnic, religious and linguistic minorities, Mindful that the identity of national minorities and the exercise of the fundamental rights and freedoms of their members are values which are to be preserved and developed, Taking into consideration that the preservation of the identity of the persons belonging to national minorities in Federal Republic of Yugoslavia and, respectively, in Romania may enrich cultural life and strengthen co-operation between their countries, Determined to ensure within their respective territories the protection of the cultural, linguistic and religious identity of persons belonging to national minorities, Emphasizing their common goal of creating a democratic society that will ensure for their citizen’s full exercise of human rights and fundamental freedoms as well as the free expression of their legitimate interests and aspirations, Noting that co-operation in the field of protection of national minorities is contributing to the strengthening of good neighborly relations, mutual understanding, friendship and co-operation among states, Considering that national minorities form an organic part of their societies and that persons belonging to national minorities have equal rights and duties as the majority of theirs populations, Have agreed on the following: Article 1 For the purposes of this Agreement, it is understood that the Serbian national minority in Romania and, respectively, the Romanian national minority in the Federal Republic of Yugoslavia consist of the persons under their jurisdiction who share the same ethnic origin, language and traditions with the majority of the population of the other Contracting Party.
Protection of National Minorities through Bilateral Agreements Article 2 Belonging to national minorities is based on free personal choice. No disadvantage shall result from this choice or from the exercise of the rights that are connected to that choice. Persons belonging to national minorities shall enjoy equal treatment before the law and legal protection. All discrimination on grounds of belonging to the national minority is prohibited. Article 3 e Contracting Parties recognize to persons belonging to national minorities the right to use orally and in writing, their mother tongue in public and in private life, and the right to have their names and forenames inscribed in identity papers and official documents in mother tongue. In conformity with their international obligations and with the national legislation, the Contracting Parties will allow the use by members of national minorities of mother tongue, in local administration and in front of administrative and judicial authorities, as well as the display of topographical inscriptions, names of the settlements, streets and public institutions, where applicable, in the language and script of the national minority. Article 4 e Contracting Parties will ensure, by adequate legislative measures for the persons belonging to national minorities, the institutionalized possibility to learn or to be educated in their mother tongue at all levels of education, where appropriate. e Contracting Parties will promote the exchange of educational experience, by creating conditions for teachers from a Contracting Party to participate in professional training organized on the territory of the other Contracting Party and will grant scholarships and other facilities for all levels of education. Article 5 Persons belonging to national minorities shall have the right individually or in common with other members of their group, to express and develop their ethnic, cultural, linguistic or religious identity and the Contracting Parties will stimulate and take the necessary measures for that purpose. e Contracting Parties will promote and support the establishment and functioning of organizations, associations, educational and cultural institutions representing the interests of the persons belonging to national minorities. e Contracting Parties will encourage the maintenance of free and direct contacts between the persons belonging to national minorities and persons from the other Contracting Party, as well as with non-governmental organizations, both national and international. e Contracting Parties will encourage the organization of cultural manifestations (annual programs, periodic cultural meetings, cultural camps, contests, guest plays of professional
Emma Lantschner and amateur artistic groups) as well as the performing of cultural and artistic events which promote identity and culture of national minorities. e Contracting Parties will create all the necessary conditions for the preservation of cultural heritage, architectural and other monuments and sites that are representative for history and tradition of national minorities. Article 6 e Contracting Parties will respect the right of the persons belonging to national minorities to freely receive and impart information, in their mother tongue. ey will adopt legislative measures providing the possibility and the modalities for persons belonging to national minorities to create and administrate their own mass media. Each Contracting Party recognizes the right for the persons belonging to the respective national minority to receive information through radio and television broadcasts from the stations on the territory of the other Contracting Party. In accordance with their internal legislation, the Contracting Parties will ensure regular broadcasting of radio and TV programs in the mother tongue of national minorities, for the appropriate duration. Each Contracting Party will stimulate the extending of broadcasting in mother tongue of the respective national minority, as well as the access to T.V. and radio programs from the other Contracting Party. Article 7 Persons belonging to national minorities shall have the right, in accordance with the national legislation, to participate in the decision-making process pertaining to matters which are at the state, regional or local level, significant for the respective national minority. Article 8 e Contracting Parties will encourage and support on their territories the scientific research and studies on the history and present situation of the national minority. ey will support the participation of the persons belonging to the national minority in such research. With respect to the provisions of paragraph , the Contracting Parties will facilitate the access to available archives, concerning the history and culture of national minorities. Article 9 e Contracting Parties will take appropriate measures to ensure equal participation of persons belonging to national minorities in social and economic life. ey will adopt, as appropriate, measures in order to promote economic development in regions inhabited by national minorities. e Contracting Parties shall refrain from measures that could change the ethnic composition of population in the regions inhabited by national minorities, and which are aimed at restricting rights and freedoms of persons belonging to national minorities.
Protection of National Minorities through Bilateral Agreements Article 10 e Contracting Parties will take measures to encourage cross-border co-operation, including within euro-regions, taking into account the bridging role of national minorities. Article 11 e Contracting Parties shall create an Intergovernmental Joint Commission in order to promote the implementation of this Agreement. e Commission shall be composed of representatives of the Contracting Parties on a parity basis and shall also include representatives of associations of persons belonging to national minorities. e Commission may give recommendations on measures necessary for the exercise of rights of the members of national minorities and the protection of their identity. e Commission shall meet at least once a year alternatively on the territories of the Contracting Parties. e first meeting of the Commission will take place within months of the entry into force of the Agreement. Article 12 No Article of this Agreement shall be interpreted or implemented as to limit any of the rights already granted by the Contracting Parties to persons belonging to national minorities. Article 13 None of the provisions of this Agreement shall be interpreted as implying any right to engage in any activity or perform any act contrary to the fundamental principles of international law, in particular the principles of sovereign equality, territorial integrity and political independence of states and good-neighborliness. Article 14 For the purposes of implementation of this Agreement, the Contracting Parties will conclude intergovernmental or/and interdepartmental agreements and programs. Article 15 is Agreement shall be subject to approval, in conformity with the domestic procedure of each Contracting Party. It shall enter into force at the date of the receipt of the last note by which one of the Contracting Parties notifies, through diplomatic channels, that legal procedures for its entry into force, as foreseen by its domestic legislation, have been completed. Article 16 e Agreement shall be concluded for years and its validity shall thereafter be extended on every year period of time, unless any of the Contracting Parties notifies in writing, six months before the expiration of the respective validity period, its wish not to reconduct it.
Emma Lantschner
Done in …………………, on ………………… , in two originals, each of them in the Serbian, Romanian and English languages, both of them being equally authentic. In case of difference of interpretation, the English text will prevail. For the Federal Government of the Federal Republic of Yugoslavia
For the Government of Romania
Protection of National Minorities through Bilateral Agreements A S M R H P R H M L S M S M L R H Serbia and Montenegro and the Republic of Hungary (hereinafter the Contracting Parties), – recognizing that national minorities constitute an integral part of society and the State they live in and that they enrich their material and spiritual culture, – emphasizing that the protection of national minorities and the rights of persons belonging to them constitutes an essential component of both the international protection of human rights and international cooperation, and that the endeavor on the part of a mother country to support national minorities within the limits of international law is legitimate, – convinced that full social integration of national minorities is possible only through the preservation of the ethnic, linguistic, cultural and religious identity of their communities, – guided by the intention to secure the highest level of legal protection for the Hungarian minority living in the state union of Serbia and Montenegro and the Serbian minority living in the Republic of Hungary and to create circumstances conducive to the preservation and development of their national identity, – aware that their cooperation in the field of the protection of minority rights and the promotion of the status of minorities contributes to the strengthening of good neighborliness, mutual understanding, friendly relations and trust, and thus to the consolidation of international security and stability, – respecting the principles and provisions of international instruments on human rights and on the protection of minorities, with special reference to the following: – Charter of the United Nations – Universal Declaration of Human Rights; – UNESCO Convention against Discrimination in Education; – International Convention on the Elimination of All Forms of Racial Discrimination; – International Covenant on Civil and Political Rights; – International Covenant on Economic, Social and Cultural Rights; – United Nations Convention on the Rights of the Child; – UN General Assembly Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief; – UN General Assembly Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities; – Declarations, positions and recommendations adopted within the framework of the CSCE process and the OSCE, including the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (Copenha
Emma Lantschner gen, ), the Helsinki Document of the CSCE () and the OSCE Charter for European Security (Istanbul, ); – European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights); – European Charter for Regional or Minority Languages of the Council of Europe; – Framework Convention for the Protection of National Minorities of the Council of Europe Have agreed as follows: Article 1 () e Contracting Parties agree to secure for the Hungarian national minority living in the Federal Republic of Yugoslavia and for the Serbian minority living in the Republic of Hungary (hereinafter: the national minorities) the preservation and development of their national, linguistic, cultural and religious identity pursuant to the principles and provisions enshrined in the cited OUN, CSCE/OSCE and Council of Europe instruments. Article 2 () Belonging to a national minority is a matter of free personal choice. No one may suffer negative consequences of this choice or of his/her exercise of the rights pertaining to him/her on that basis. All forms of discrimination based on national grounds shall be prohibited. () e Contracting Parties shall guarantee to persons belonging to the national minorities equality before the law and the equal legal protection. () e Contracting Parties shall take appropriate measures in the fields of economic, social, political and cultural life, in order to ensure equal opportunities to persons belonging to the national minorities. ey shall pay special attention in doing so to specific needs of the national minorities. Such measures may not be considered to be discriminatory against other citizens. () e rights set out in this Agreement shall equally belong to both national minorities. e Contracting Parties recognize that the manner of the exercise of these rights may depend on the size of the minority concerned, but the essence of these rights may not be restricted. () e Contracting Parties shall refrain from the policies and measures aimed at assimilation of persons belonging to the national minorities and protect such persons from any act aimed at such assimilation. ey shall refrain from measures which may change the proportions of the populations in the areas inhabited by persons belonging to the national minorities, and which restrict the exercise of rights of persons belonging to the national minorities.
Protection of National Minorities through Bilateral Agreements () e Contracting Parties shall undertake not to change administrative units and electoral precincts at the levels of the State and local self-government with a view to putting the national minorities in a disadvantaged position. Article 3 () Persons belonging to the national minorities shall have the right, both individually and in community with other members of their group, to freely express, preserve and develop their ethnic, cultural, linguistic and religious identity. () e Contracting Parties shall pay special attention to the meeting of educational, cultural, information and religious needs of the national minorities. ey shall provide conditions necessary for the functioning of minority self-governments and other minority institutions, organizations and foundations, encourage as well the establishment of minority educational, information and cultural centers. e Contracting Parties shall provide assistance in supplying to such minority self-governments, foundations and associations of citizens, on a non-commercial basis, books, magazines, artistic publications, audio-visual materials, exempt from customs duties and other charges, aid an independent publishing industry of the national minorities, guest performances of their professional and amateur ensembles and organization of all cultural and artistic events aimed at enriching the culture and identity of the national minorities. () e Contracting Parties shall cooperate in the protection of historical monuments and cultural heritage related to the culture and history of the national minorities. e Contracting Parties shall create conditions necessary for the national minorities to preserve their material and architectural monuments and other works of art that are part of their cultural heritage and tradition. Representatives of minority self-governments and other minority organizations shall take part in the development of programs for the protection and preservation of the cultural heritage of the minorities. () e Contracting Parties shall recognize the right of persons belonging to the national minorities to manifest and exercise their religion and to that end they shall allow the acquisition, possession and use of religious materials and establishment of religious institutions, organizations and associations. e Contracting Parties shall respect the right of the national minorities to exercise their religion and pursue activities of religious instruction in their mother tongues and shall lend support for that. In accordance with their national legislation and on an equal footing with the legal status of other churches operating in their territories, the Contracting Parties shall settle the legal status of church communities of the national minorities. ey shall make it possible for the church communities of the national minorities to send and receive priests. Article 4 () e Contracting Parties shall ensure to persons belonging to the national minorities institutionalized education in their mother tongues and the teaching of the mother tongues of the national minorities at all levels of education. e Contracting Par
Emma Lantschner
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ties shall ensure the operation of pre-school establishments, primary and secondary schools and institutions of higher education which teach in the mother tongues of the national minorities and support the setting up of such institutions. e exercise of these rights shall be governed by the national legislation of the Contracting Parties. For the purpose of accomplishing the objectives set forth in paragraph () of this Article, the Contracting Parties shall enable and encourage the operation of state, religious and private educational institutions in which instruction can be organized entirely in the mother tongue, as bilingual instruction or as fostering the mother tongue of the national minority. e Contracting Parties shall support initiatives of minority organizations, religious communities and parents, whose objective is education in one’s mother tongue. e Contracting Parties shall lend support to the operation of faculties and language departments where the mother tongues of the national minorities are taught. e Contracting Parties shall support the employment of teachers from among the national minorities in educational institutions where classes are conducted in the mother tongue of the national minority. e Parties shall enable the minorities to make use of state scholarships and fellowships of foundations for education, professional training and post-graduate studies, and in particular for the education of teachers and theologians. ey shall enable the organization of courses for professional training of teaching staff of the national minorities in both countries. e Contracting Parties shall support mutual exchanges of students and lecturers and secure conditions for their professional training, i.e. post-graduate studies. e Contracting Parties shall enable the recruitment of teaching staff from the mother country in case there are not enough lecturers in the mother tongues of the national minorities. e terms of their engagement shall be jointly determined by the Contracting Parties. e Contracting Parties shall support, at all levels of minority education, the instruction of the language, culture and history of the national minority and its mother country and help in procuring books and teaching aids for these purposes. e Contracting Parties shall encourage the dissemination and teaching of knowledge and teaching of the history and culture of the national minorities among the majority population.
Article 5 () Persons belonging to the national minorities shall be entitled, both individually and in community with other members of their group, to freely, without any restrictions, use their mother tongue in oral and in written communication, in private and public life. () e Contracting Parties shall commit themselves to recognizing in their national legislation the right of persons belonging to the national minorities to use their first and family names in their mother tongues and scripts in their personal identification documents, official records and personal databases. e issuance of personal documents to persons belonging to the national minorities in their mother tongues shall be governed by the regulations of the Contracting Parties.
Protection of National Minorities through Bilateral Agreements () Persons belonging to the national minorities shall be entitled, in keeping with the national legislation and in places they inhabit traditionally or in substantial numbers, to the use of their mother tongues in proceedings before the official bodies – including proceedings before public administration bodies and before courts of law. In these proceedings, persons belonging to the national minorities shall be entitled to obtain information in their mother tongues in the shortest possible period of time and, if necessary, with the free assistance of an interpreter. () e bodies of the minority self-government shall be entitled to conduct their business also in their mother tongue. () In areas inhabited by persons belonging to the national minorities in substantial numbers or of a particular cultural significance to them, the Contracting Parties shall, in conformity with their national legislation, enable the display of the names of towns, streets and other public places, as well as topographical indications, inscriptions and information in public places, in the mother tongues of the national minorities and according to their orthography. Persons belonging to the national minorities shall be entitled to publicly display signs with the nameboards of enterprises, inscriptions and other information of a private nature in their mother tongues. Article 6 () e Contracting Parties shall recognize the right of the national minorities to access to the media and to the creation and management of their own media outlets. () e Contracting Parties shall recognize the right of the national minorities to have access to information in their mother tongues in the press, on the radio, television and other electronic means of publication. () In keeping with their respective national legislation, the Contracting Parties shall: – enable to produce and regularly broadcast programs in the mother tongue on radio or television in an appropriate length and at appropriate times, while taking into account the territorial distribution of the national minorities, – facilitate the reception and broadcasting of radio and television programs from the mother country, and – support information activities of the national minorities. Article 7 () e Contracting Parties shall support scientific research and studying of the past and of the present status of the national minorities. e Contracting Parties shall encourage the involvement of the national minorities in those scientific-research activities and aid the establishment, work and cooperation of their scientific institutions. e Contracting Parties shall enable research on the minorities in their territories and, in keeping with national legislation, allow access to archives and other relevant documents.
Emma Lantschner Article 8 () e Contracting Parties, in conformity with their national legislation, shall recognize the right of the national minorities to participation in public life and, in that context, by taking adequate measures, they shall ensure: – effective participation of persons belonging to the national minorities in public affairs, particularly in the process of taking decisions affecting them, – appropriate representation of persons belonging to the national minorities in public services at the local, regional and state levels, while taking account in employment of the ethnic composition and the knowledge of the language spoken in the area where the body or agency concerned is competent to act, and – material and other conditions necessary for the work of representatives of minority organizations in representative bodies, as well as for their election to such bodies at all levels. Article 9 () e Contracting Parties, in keeping with their national legislation, shall enable the national minorities to set up minority self-governments, organizations and association and support their activities. e Contracting Parties, in keeping with their national legislation which governs the status, freedoms and rights of national minorities, shall guarantee to persons belonging to the national minorities appropriate forms of minority self-government, i.e., the cultural and personal autonomy. e Contracting Parties shall further pay particular attention to support the activities of the Hungarian National Council in Serbia and Montenegro and the Country Self-Government of the Serbs in the Republic of Hungary. Article 10 () Government agencies, organisations of public and private law, as well as citizens of the Contracting Parties may, for the purpose of realising the objectives specified in this Agreement and within the framework set by international law, grant assistance to organisations of the national minorities living on the territory of the other Contracting Party, and to persons belonging to these national minorities, and these organisations and persons shall be entitled to receive such assistance. () e Contracting Parties shall ensure the possibility for their national minorities to maintain intensive, free and direct contacts with communities having the same language and culture, but living in other states, as well as with their institutions and organizations. Article 11 () e Contracting Parties shall assume the obligation to take into account the interests of the minorities in their plans for economic development and to take measures, according to their abilities, in order to secure economic and social development of areas inhabited by the minorities, thus offering fair and equal opportunities to the minorities in the economic sphere. To that end, the Contracting Parties shall support
Protection of National Minorities through Bilateral Agreements the activities of the economic development which may eliminate the causes for migrations of minorities and prevent alteration of the ethnic composition of the population. () In the interest of their national minorities, the Contracting Parties shall support all forms of cross border and regional cooperation, in particular the economic and trade development and the development of rural areas, as well as cultural cooperation, and shall endeavor to make use of the intermediary role of their national minorities in that area. () e Contracting Parties shall endeavor to enhance the permeability of their borders. To that effect, they shall, in line with their abilities, introduce new border crossings and take measures to improve transportation links between their countries. Article 12 () e Contracting Parties shall make a maximum effort to restore to the minority communities, or the church communities of the national minorities and their organizations, their property, assets, real estate, documentation and archives which were confiscated or seized by other measures in the past. Article 13 () e Contracting Parties shall assume the obligation to take into account their commitments arising from this Agreement in their mutual negotiations over the conclusion of bilateral agreements and other forms of cooperation. () e Contracting Parties shall endeavor to secure the involvement of representatives of minority organization in the preparation of bilateral agreements and in international activities related to their status and rights. Article 14 () e Contracting Parties shall secure appropriate financial and other assets for the honoring of their commitments arising from this Agreement. Article 15 () No provision of this Agreement shall be interpreted or implemented in the manner which diminishes the extent of the already provided and exercised rights. () No provision of this Agreement shall be interpreted or implemented in the manner which would be in contravention of international legal obligations and generally recognized international principles with regard to the respect for national sovereignty and territorial integrity. Article 16 () e Contracting Parties shall set up and operate a special Intergovernmental Joint Commission on National Minorities (hereinafter: the Commission), which shall monitor the implementation of the provisions of this Agreement. e Governments of the Contracting Parties shall appoint equal numbers of Commission members,
Emma Lantschner with the mandatory participation of representatives of the national minorities. e members of the Commission who are representatives of the Hungarian national minority in Serbia and Montenegro shall be appointed at the proposal of the Hungarian National Council of Serbia and Montenegro, and representatives of the Serbian minority in Hungary at the proposal of the Country Self-Government of the Serbs in the Republic of Hungary. () e Commission shall hold its meetings on the territory of Serbia and Montenegro and the Republic of Hungary alternately, as appropriate, but not less than once a year. () e Commission shall be responsible for: – discussing current issues related to the two minorities, – reviewing and evaluating the realisation of the commitments arising from this Agreement, and – submitting recommendations to the Governments of the Contracting Parties with respect to the implementation and, if necessary, amendment of the Agreement. () e Commission shall take decisions by consensus of the two sides. Article 17 () is Agreement shall enter into force on the day on which the Contracting Parties inform each other, through diplomatic channels, that the conditions prescribed by their national legislation for the entry into force of the Agreement have been met. Article 18 () is Agreement shall remain in force for the period of five years. If neither of the Contracting Parties informs the other Party, not less than six months before the expiry of the term of the Agreement, of its intention to denounce this Agreement in writing, the Agreement shall be automatically renewed for another five-year period. () e Contracting Parties shall register this Agreement pursuant to Article of the Charter of the United Nations. Done in Budapest, on October , in two original copies, in the Serbian, English and Hungarian languages, each original copy being equally authentic. In case of a dispute, the English text shall prevail. For Serbia and Montenegro
For the Republic of Hungary
Part B NATIONAL DEVELOPMENTS
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Antonija Petričušić *
Constitutional Law on the Rights of National Minorities in the Republic of Croatia
I. I is article explores the disposition of the new Croatian Constitutional Law on the Rights of National Minorities (hereinafter ‘the Constitutional Law’ or ‘the Law’)1 adopted on December . e legislation previously governing the protection of minority rights was politically an extremely controversial and much-discussed law, and was amended and suspended quite a number of times in its existence of just over ten years. e adoption of the Constitutional Law was one of Croatia’s international obligations upon entry into the Council of Europe (CoE),2 as well as an imperative for implementation of the European Union Association and Stabilization Agreement.3 Even at the Law’s drafting phase, the European Commission for Democracy through Law (hereinafter ‘the Venice Commission’) concluded that it constituted ‘an important step forward in the protection of national minorities in Croatia. It provides a comprehensive and coherent framework for further legislative and regulatory action in the field of minorities’ protection’.4 e Law was drafted on the blueprint of the Framework Convention for the Protection of National Minorities (FCNM), and therefore applies the most generally accepted standards in minority protection. * 1 2 3
4
Researcher at the European Academy of Bolzano/Bozen, Italy. e author wishes to thank her colleagues Emma Lantschner, Francesco Palermo and Jens Woelk for their useful comments to a draft of this article. Constitutional Law on the Rights of National Minorities in the Republic of Croatia in Croatian language can be found in the Narodne Novine (hereinafter ‘Official Gazette’) 155/2002. e Republic of Croatia joined the CoE on 6 November 1996. For the text of the Law, see the Minority Rights Information System (MIRIS) at http://www.eurac.edu/miris. Croatia signed the Stabilization and Association Agreement (SAA) with the European Union on 29 October 2000. is policy combines the development of privileged political and economic relations with the countries in the region, supported by substantial financial assistance. Report adopted by the Venice Commission at its 47th Plenary Meeting (Venice, 6-7 July 2001) CDL-INF (2001) 14, at http://www.venice.coe.int/.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Antonija Petričušić e objectives of the present article are: first, to introduce briefly some background as to the need for minority protection in the Republic of Croatia and, second, to comment on the provisions of the new Constitutional Law. In this light, the article sets out to analyze the normative provisions of the Law, identifying the improvements of the new Constitutional Law that endow Croatian minorities with better conditions for participation in public life, both on the local and regional levels. e conclusion reached is that the new Law indeed has created new institutions for minority participation, but since among the majority population the need for minority protection in Croatia is still not perceived as a necessity, its implementation will most probably fall short when it comes to realization of the prescribed rights. Finally, the article points out the shortcomings and possible inconsistencies in the Law. Applying predominantly a descriptive method, it analyzes certain provisions of the Constitutional Law and points towards the provisions of related by-laws that prescribe minority protection. At the same time this article takes into consideration the obligations that the government has undertaken to apply in the implementation of minority rights granted by the Law, noting that some deadlines set in the new Constitutional Law have not yet been met. II. C F M P C In when independence from the Socialistic Federal Republic Yugoslavia was declared, Croatia had a noteworthy minority population, comprising % Serbs, .% Bosniaks, .% Hungarians, .% Italians, .% Slovenes, .% Czechs and several other numerically smaller ethnic groups. Even though the historically troublesome Italian minority inhabiting the western coastal part of the country manifested no separatist attempts in the newly established state, Serbs making up the majority in Krajina, the southeastern region of the country, found the country’s declaration of independence and sovereignty threatening to their existence. Armed by the federal military, Serbs established the breakaway state Republika Srpska Krajina (RSK) inside Croatia and took control of about one-third of the country. RSK comprised of the region surrounding the city of Knin in which Serbs constituted a majority, but also the region of Eastern Slavonia, Baranja, and Western Sirmium, where Serbs were not a numerical majority but gained the dominance over the territory in . Backed by the Yugoslav army, by the end of Serbs controlled almost one-third of Croatia until spring and summer when some parts of the RSK were regained by Croatian authorities through military actions, while the he region of Eastern Slavonia, Baranja, and Western Sirmium was peacefully incorporated into the constitutional and juridical system of the Republic of Croatia. Croatian authorities were accused for the ‘ethnic cleansing’ of approximately , Serbs that left Croatia in following military actions when the Croatian army regained control in Krajina, out of which only approximately , have returned.5 Post-conflict migration of Serb population probably resulted as a fear on the side of Serb minority population after Croatian territory was returned to the state control. Gov5
e official data of the Croatian Government Office for Expellees and Refugees. See http://www.vlada.hr/.
Constitutional Law on the Rights of National Minorities in the Republic of Croatia ernment’s position is that Serbs have left Croatia after being organized by their leaders and before Croatian troops arrived. Nevertheless, the lack of official efforts to stop the expulsion of the Serb population in that time put the burden of responsibility on the Croatian state. Results of the census indicate the sharp drop of the total number of persons belonging to national minorities who constitute .% of the population, half of the total number, while nowadays Serbs constitute ,% in the total population.6 Ethnic minorities in Croatia are primarily entitled to the protection of human rights prescribed by the Constitution. e Constitution7 established the Republic of Croatia as ‘a nation-state of the Croatian people and a state of the members of other nations and minorities who are its citizens: Serbs, Czechs, Slovaks, Italians, Hungarians, Jews, Germans, Austrians, Ukrainians, Ruthenians and others.’ In the preamble of the Constitution, minorities are guaranteed equality with citizens of Croatian nationality plus the realization of their rights as members of national minority groups. Article of the Constitution stipulates that ‘members of all nations and minorities shall have equal rights’ and they ‘shall be guaranteed freedom to express their nationality, freedom to use their language and script, and cultural autonomy.’ All constitutionally prescribed rights (civil and political freedoms along with economic, social and cultural rights) are guaranteed regardless of a citizens ethnic background. Everyone is constitutionally guaranteed the right to freedom of association for the purposes of protection of interests or promotion of social, economic, political, national, cultural and other convictions and objectives.8 e Constitution guarantees the right of every citizen, under equal conditions, to take part in the conduct of public affairs, and to have access to public services.9 e political participation of minorities stipulated in the Constitution, is additionally prescribed by both the new Constitutional Law and more comprehensively by the amendments to the Law on Elections for the Representatives in the Parliament of Republic of Croatia (hereinafter ‘Electoral Law’). e Constitution prescribes the Croatian language and the Latin script as the official ones to be used.10 However, in individual local units, other languages According to the official results of the census, Croatia has a total population of ., representing a % decrease of the total population since . Ethnic Croats represent approximately % of the total population in comparison to % ten years ago. e total number of persons belonging to national minorities was announced at .%, half of the total number. e most drastic reduction in this regard was seen within the Serb minority, which now only represents .% of the total population, representing a two-thirds decline since . Many people of mixed Serbo-Croatian marriages now prefer to register themselves as Croats, which may be another reason for a sharp drop of their numbers since the last census. e results of the census are available on the website of the Croatian Bureau of Statistics, at http://www.dzs.hr/. 7 e Constitution of the Republic of Croatia has been amended on several occasions. Official Gazette 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001. For example, the Constitutional Law on Amendments to the Constitution of the Republic of Croatia (Official Gazette, No. 135/97) acknowledges the existence of ‘autochthonous national minorities’ instead of ‘other nations and minorities’. e latter term was introduced in the first Constitution of the Republic of Croatia (Official Gazette 56/1990). 8 Constitution of the Republic of Croatia, Article 43(1). 9 Ibid. Article 44. 10 Ibid. Article 12. 6
Antonija Petričušić and Cyrillic or other scripts may be introduced into official use along with the Croatian language and the Latin script under conditions stipulated by a special law. Religious freedoms, which are related to minority rights, are prescribed in Article of the Constitution which states the equality of religious communities before the law and the secularity of the state. Religious communities are free, in conformity with the law, to perform religious services publicly, to open schools, educational and other institutions, social and charitable institutions and to manage them, while at the same time are entitled to the protection and assistance of the state. Even though Croatian independence was recognized by the majority of the international community during the first months of , Croatia had to provide assurances on the protection of human rights relating to national minorities, which it subsequently fulfilled when it promulgated the Constitutional Law on Human Rights and Freedoms and the Rights of National and Ethnic Communities or Minorities in the Republic of Croatia (hereinafter ‘the former Constitutional Law on Minorities’).11 Some minority rights and freedoms have been additionally regulated by special by-laws. In the Croatian parliament passed the Charter on the Rights of Serbs and Other Nationalities in the Republic of Croatia,12 guaranteeing that ‘all nationalities in Croatia enjoy legal protection against any and all activities which may endanger their existence, and have the right to respect, self-preservation and cultural autonomy.’ In late September , as a consequence of the military operations that reincorporated parts of the occupied territory,13 parliament ‘temporarily’ suspended provisions of the former Constitutional Law on Minorities relating to the Serb minority while general provisions and provisions relating to political participation of smaller minority communities remained in force. e CoE’s Parliamentary Assembly adopted a resolution in April calling on the government to ‘adopt a Constitutional Law revising the suspended provisions of the Law in compliance with the recommendations made by the Venice Commission and taking into account new realities, by the end of October at the latest.’14 On May , the Croatian parliament amended the former Constitutional Constitutional Law on Human Rights and Freedoms and the Rights of Ethnic and National Communities or Minorities in the Republic of Croatia, Official Gazette 65/1991, 70/1991, 27/1992, 34/1992, 68/1995, 105/2000. e Croatian Constitutional Court ruled in one of its decisions that ‘one of the important auxiliary functions of the Constitutional Law was to incorporate the European Convention on Human Rights into Croatia’s legal system in 1991, six years prior to Croatia’s ratification of the European Convention for Human Rights.’ Decision of the Constitutional Court of the Republic of Croatia, U-I-745/1999, 8 November 2000. 12 Charter on the Rights of Serbs and Other Nationalities in the Republic of Croatia, Official Gazette 31/ 1991. 13 e General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Peace Agreement) signed by Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia on 13 November 1995, brought an end to the conflict in the region and provided for the reestablishing of Croatian sovereignty over the region of Eastern Slavonia that was integrated in . 14 Resolution no. 1185 (1999) honouring of obligations and commitments by Croatia, April 1999, at http://www.coe.int/. For further reference see also ‘Background Report on Constitutional Law on National Minorities of the OSCE Mission to Croatia’, August 2002, at http://www.osce.org/croatia/. 11
Constitutional Law on the Rights of National Minorities in the Republic of Croatia Law on Minorities reintroducing some suspended provisions relating to the proportional representation of the Serb minority, but annulling the vast majority of provisions relating to minority self-government. Nevertheless, renewed government efforts to introduce a draft Constitutional Law into parliament were terminated several times. In late April , parliament considered a revised Constitutional Law, but when its draft was examined by the Venice Commission it found that ‘the draft Constitutional Law, as such, did not seem to offer an adequate response to the political needs of minorities in Croatia.’15 Finally, after several delays, the new Constitutional Law was passed in December .16 III. C C L A. Basic Provisions 1. Non-Discrimination Principle (Articles 1-4) In its very first provision the Constitutional Law reaffirms the country’s commitment to a number of international instruments dealing with human rights and minority protection, undertaking an obligation to respect and protect the rights of national minorities and human rights, the rule of law and all the other highest values of its constitutional and international legal system, with respect to all its citizens. Croatian legislation is mainly in accordance with international standards set for minorities since Croatia has ratified a number of international documents that deal with minority protection. Article contains a non-discrimination clause, following the reiterated intention of the legislator to commit itself to respect for the ratified international documents.17 is provision clarifies the fact that rights prescribed by the Constitutional Law are to be applied equally18 to everyone. In accordance with Article , minority rights and freedoms are an inseparable part of the democratic system of the Republic of Croatia and enjoy necessary support and protection, including positive measures that national minorities should benefit from. Opinion on the Croatian Constitutional Law Amending the Constitutional Law of 1991, adopted by the Venice Commission at its 43rd Plenary Meeting (Venice, 16 June 2000) CDL-INF (2000) 10, at http: //www.venice.coe.int/. 16 ‘e other laws which elaborate the constitutionally-defined human rights and fundamental freedoms, as well as laws that prescribe the electoral system, the organization, authority and operation of government bodies and the organization and authority of local and regional self-government shall be passed by the Croatian Parliament by a simple majority vote of all representatives’. Article 82(2) of the Constitution. 17 is provision derives from Articles 14 and 17(3) of the Constitution of the Republic of Croatia. 18 e Constitutional Court of the Republic of Croatia in one of its rulings decided on the principle of equality related to national minorities in Croatia. Relying on both the Constitution and the FCNM, the Constitutional Court stated that ‘it is evident that the application of the principle of equality does not always provide for sufficient protection. If the principle of equality was immediately applied alone, ... the special characteristics and specific interests of the minority national and ethnic communities in the society would be neglected, which might, in certain cases, lead to discrimination. erefore, the exclusive individual protection, limited to the protection of classic fundamental rights of individuals, is no longer considered 15
Antonija Petričušić According to Article every citizen of the Republic of Croatia is entitled to the right to express freely that s/he is a member of a national minority in the Republic of Croatia; the right to exercise, alone or together with other members of the national minority or with members of other national minorities, the rights and freedoms stipulated by this Constitutional Law and other minority rights and freedoms stipulated by special laws. e Law forbids any discrimination based on affiliation to a national minority. Members of national minorities are guaranteed equal treatment before the law, before the courts and equal legal protection. Furthermore, the preservation of minorities is secured in a way that the Law forbids the undertaking of measures which would change the proportion among the population in the areas inhabited by persons who belong to national minorities and which are directed at hindering the exercise of or restricting the enjoyment of minority rights and freedoms. e Constitutional Law and special laws construct the exercise of certain rights and freedoms depending on the numerical representation of members of national minorities in the Republic of Croatia or in one of its areas. 2. Definition of a National Minority (Article 5) Article aims at defining the persons who have specific ‘constitutional’ rights enshrined in the new Constitutional Law. A ‘national minority’ is, in the sense of this Constitutional Law, a group of Croatian citizens whose members have been traditionally settled in the territory of the Republic of Croatia, and who have ethnic, linguistic, cultural and/or religious characteristics which are different from those of other citizens, and who are guided by the wish for the preservation of those characteristics. According to the definition, the concept of national minority – i.e. benefiting from certain rights endorsed by the Constitutional Law – is restricted to citizens of Croatia. For this reason the definition was criticized by the High Commissioner on National Minorities (HCNM), because it ‘can be particularly problematic when it works in tandem with Croatia’s Law on Citizenship, since the Law imposes stricter eligibility criteria for naturalization of non-Croats than Croats (such as a five-year period of continuous residency).’19 Furthermore, the Law restricts the definition of a national minority to groups that are ‘traditionally settled’ and it is unclear which minorities currently residing in the country should be considered to belong to this category and which should be excluded from the Constitutional Law’s guarantees. e new Constitutional Law on Minorities, contrary to the former one, does not contain a provision stipulating the groups of Croatian citizens which constitute national minorities. Previously, specific national minorities were defined as such by the Constitusufficient. In accordance with that, the application of the principle of positive discrimination contained in Article 15, Paragraph 3 of the Constitution, points at the detachment from the strictly individual concept of the protection of minority members in Croatian society, i.e., at the acceptance of the constitutional and legal concept of minority rights as the collective rights of minority communities.’ Ruling Constitutional Court of the Republic of Croatia, 12 April 2001. U-I-732/1998. 19 See Background Report of the OSCE Mission to Croatia on Implementation of the Constitutional Law on the Rights of National Minorities (CLNM) and Related Legislation, at http://www.osce.org/croatia/.
Constitutional Law on the Rights of National Minorities in the Republic of Croatia tional Law on Amendments to the Constitution of the Republic of Croatia,20 those being Serbs, Czechs, Slovaks, Italians, Hungarians, Jews, Germans, Austrians, Ukrainians, and Ruthenians, while at the same time some minority groups, that were numerically bigger although not considered to be ‘autochthonous national minorities’, were not mentioned in the text of the Constitution (among them Bosniaks, Albanians and Slovenes). e Venice Commission welcomed the abolition of the list of minorities in the new Law, but noticed that a list of minorities is still mentioned in the preamble of the Constitution itself. e Commission warned in some of its remarks on the amendments to the Constitution of Croatia that listing minorities ‘runs contrary to the practice generally advised by both the CoE and the HCNM, as it tends to create legal problems related to the protection of the rights of minorities (in particular, those that may exist in fact but do not appear on the list) that far outweigh the political benefits gained from the recognition of specific minority groups, which may be better accomplished at the moment when minorities seek to claim the exercise of a specific right.’21 3. Bilateral Cooperation and Realization of Minority Rights (Articles 6-8) Prescribing bilateral cooperation, the Law in Article stipulates that the Republic of Croatia may conclude international agreements with other countries whereby it shall regulate the issues of the rights and freedoms of members of national minorities within the Republic of Croatia. Nevertheless, when officials conclude international agreements they should create and promote the conditions necessary for the preservation and development of the culture of members of national minorities, and the preservation of significant components of their identity; i.e., their religion, language, tradition and cultural heritage. So far, Croatia has concluded bilateral agreements on the protection of minorities with Hungary and Italy, while Croatia is in the process of negotiation with Serbia and Montenegro.22 A treaty on friendship and co-operation with Romania contains also a provision on the protection of minorities. e effort of the legislator to preserve the intellectual-cultural heritage of minorities is stipulated in Article guaranteeing that the Republic of Croatia shall ensure the exercise of special rights and freedoms of members of national minorities, enjoyed individually or collectively. All of those rights are more thoroughly discussed in the following articles of the Constitutional Law. Article states that provisions of this Law and the by-laws regulating minority rights have to be interpreted and applied with the purpose of respecting the members of national minorities and the Croatian people, and the development of understanding, solidarity, tolerance and dialogue among both the majority population and the minorities. Later in Article , it is prescribed that the rights of national minorities determined by international agreements, which according to the Constitution are a conSupra note . Draft opinion on the Amendments of November and March to the Constitution of Croatia, adopted by the Venice Commission on 29 June 2001,CDL (2001) 69, at http://www.venice.coe.int/. 22 For more information see Arie Bloed and Peter van Dijk, Protection of Minorities through Bilateral Treaties. e Case of Central and Eastern Europe (e Hague, Boston, London, ). 20 21
Antonija Petričušić stituent part of the internal legal system of the state, may be neither changed nor cancelled when interpreting the provisions of the Constitutional Law. B. Minority Rights and Freedoms 1. Use of Minority Language and Education in Minority Language (Articles 9-11) Members of national minorities are guaranteed, in accordance with Article , the right to use their first name and surname in the language which they use, and to its official recognition for them and their children through its entry into the registers of births, marriages and deaths as well as in other official documents, in compliance with the regulations of the Republic of Croatia.23 ey also have the right to have the form for their personal identification card printed and filled out in the language and script which they use. Article prescribes that members of national minorities are furthermore entitled to the right to freely use their language and script, privately and publicly, including the right to display signs, inscriptions and other information in the language and script which they use, in compliance with the law. Article prescribes the right for minority members to be educated in the language and script of the respective national minority. e education of members of a national minority shall be conducted under the conditions stipulated by a special law on the education in the language and script of national minorities. Special measures adopted by the state to actively implement minority language education rights to the maximum of their available resources are expressed in two special laws, one of them being the Law on the Use of Language and Script of National Minorities24 (hereinafter ‘Minority Language Law’) and the other the Law on the Education in the Language and Script of National Minorities25 (hereinafter ‘Minority Education Law’). ese laws were passed in ,26 prescribing that persons belonging to national minorities, like others, have the right to establish and manage their own private educational institutions. e Constitutional Law foresees the possibility of establishing school institutions with education in the language and script of a national minority for a smaller number of pupils than the number which is stipulated for state school institutions, and in this way promotes education in the minority language. e curriculum in the language and script of a national minority shall contain subjects related to a specific aspect of that national minority (its mother tongue, literature, history, geography and cultural achievements). However, pupils educated in the languages and scripts of national minorities have the obligation to learn the Croatian language and Latin script.27 Teachers conducting education in the language and script of a national minority should originate from members of Law on Registries of Births, Deaths and Marriages, Official Gazette, /, /. Law on the Use of Languages and Scripts of National Minorities, Official Gazette 51/2000. 25 Law on Education in the Language and Script of National Minorities, Official Gazette 51/2000. 26 ese two laws were passed only after moderate political establishment gained power in January . One of the first declarations after the election was the promise that the country will accept the return of ethnicSerb refugees who were driven out of their homes in . 27 Article of the Law on Education in the Language and Script of National Minorities. 23
24
Constitutional Law on the Rights of National Minorities in the Republic of Croatia that national minority and should have an excellent command of its language and script. Teachers that do not originate from the national minority may be allowed to conduct education for minority pupils as long as they have an excellent command of the minority language and script. Universities are encouraged to organize the training of teachers teaching in the minority language and script in subjects relevant to the mother tongue, literature, history, geography and cultural creativity of a given national minority. 2. Use of Minority Language in Administration and Preservation of Identity (Articles 12-16) Article deals with the equal official use of the language and script of national minorities in local self-government units, but only when members of a particular national minority comprise at least one third of the population of a given unit. is is one of the rights whose implementation depends on the results of the census. e equal official use of the minority language and script must be stipulated by the statute of a local or regional self-government unit in compliance with the provisions of the Minority Language Law. e latter law regulates the other conditions and manner of the official use of the language and script used by members of a national minority in representative and executive bodies and in procedures before both administrative bodies of local self-government units and regional self-government units. is by-law also regulates the procedure before the state administration bodies of first instance, the procedure before judicial bodies of first instance; the procedures conducted by the state prosecutor’s office and notaries public, and legal entities having public authorities. e Advisory Committee on the Framework Convention (ACFC) considered that the numerical threshold for the obligatory introduction of minority language in contacts with municipal and town authorities, as stipulated by the Minority Language Law, is high and ‘uncertainties persist since it is unclear whether this obligation applies to municipalities and towns where the persons belonging to a given national minority constitute an absolute majority of the population or whether it is enough that persons belonging to a specific minority constitute a relative majority.’28 Article opens an obligation for self-administration units to take care of the preservation of traditional names and signs and the giving of names of persons and significant events in the history and culture of a national minority in the Republic of Croatia to settlements, streets and squares in the areas traditionally, or to a considerable degree, populated by members of national minorities. e Minority Language Law as well as the Law on Local Self-government Units and the statutes of those units are required to stipulate the measures providing for the preservation of the linguistic elements of minorities, as well as for the safeguarding of their culture and political and cultural figures (Article ). Minorities are allowed to use insignias and symbols of national minorities and to celebrate their national holidays (Article ). e Law on Holidays, Memorial Days and Days off in the Republic of Croatia29 stipulates that national minorities may display See para. of the opinion of the ACFC, adopted on April , at http://www.coe.int/t/e/human_ rights/Minorities/. 29 Article 3 of the Law on holidays, memorial days and days off in Republic of Croatia stipulates that Citizens of Republic of Croatia who celebrate Christmas on January 7, those of Islamic religious affiliation during 28
Antonija Petričušić appropriate signs and symbols of national minorities along with the official use of signs and symbols of the Republic of Croatia. When the national anthem and a solemn song of a national minority are being performed, the national anthem of the Republic of Croatia shall be obligatorily performed beforehand. Local self-government units and regional selfgovernment units shall be obliged to stipulate by the statute the official use and manner of use of the flag and symbols of national minorities. For the purpose of preservation, development, promotion and expression of their own national and cultural identity, members of national minorities may establish associations, endowments and foundations, as well as institutions for the performance of public information activities, cultural, publishing, museum, archival, library and scientific activities. e basis for the aforementioned right can be found in Article of the Constitution which provides for the formation of minority associations, while at the same time the regulations of the Law on Associations30 entitle members of national minorities to establish trading companies, institutions, associations, endowments and foundations, religious communities, political parties in the same manner and under the same conditions stipulated by law to which other Croatian citizens are entitled to those rights. e favourable stipulation of the Constitutional Law is the obligation prescribed for local self-government units and regional self-government units to participate in the financing of activities of the aforementioned minority associations, according to their financial possibilities. is rather vague provision does not actually provide for an appropriate funding of minority associations. Furthermore, since the article does not directly refer to any of the specific laws, it is not very likely that minority associations, endowments, foundations or institutions will benefit from it. Article prescribes the set of rights that facilitates cross-border cooperation of minorities.31 e Constitutional Law encourages minorities to keep in contact with the people of their ethnic homeland and prescribes the right to maintain contacts with kinstates, stipulating that members of national minorities, their associations, national minority councils or representatives shall freely maintain contacts with the nation with which they share the same ethnic, linguistic, cultural and/or religious characteristics and with juridical personality with the seat in the area of the state of that nation that handles the fields of education, science, culture, publishing and humanitarian activities. is kind of cooperation is subjected to certain special treatment, since minority associations, national minority councils and representatives are allowed to receive from the state bodies of the kin-state without paying the custom duties and in a limited number of copies newspapers, the days of Ramazan bayram and Kurban bayram as well as those of Jewish religious affiliation in a days of Rosh Hashanah and Yom Kippur have the right to be absent from work. However, this Law does not prescribe the right to be absent from work for the non-Muslim, and non-Jewish population in Croatia and therefore does not treat equally all minority groups living in Croatia. Law on Holidays, Memorial Days and Days off in Republic of Croatia. Official Gazette 33/1996, 96/2001, 13/2002. 30 Law on Associations, Official Gazette 70/1997, 88/2001. 31 Compare for example similar provisions in Article of the Law on Protection of Rights and Freedoms of National Minorities of the Serbia and Montenegro and Article ()(a) of the Constitution of Bosnia and Herzegovina. Existing norms prescribing the right to interact with compatriots constitute an adequate framework for the maintenance of relations between minorities and kin-states in the region.
Constitutional Law on the Rights of National Minorities in the Republic of Croatia magazines, books, movies, videotapes, recordings which they may use for their needs and which they can distribute to members of a national minority without paying compensation. e associations of members of national minorities may organize guest performances by professional and amateur cultural and artistic groups and may organize other cultural and art performances and exhibitions which contribute to the enrichment of the culture and identity of a national minority. In such cases, foreign persons participating in the conduct of performances and exhibitions shall not need a work permit. 3. e Role of the Media in Promotion of Minority Issues (Articles 17-18) e Constitutional Law foresees that the laws and implementing rules which regulate the activities of public information, the production and broadcasting of radio and television programmes, education, museum, archival and library activity and the protection and preservation of cultural assets, should create conditions for the acquaintance of all citizens of the Republic of Croatia, especially of children and young people, through the content of educational work and through obligatory, as well as optional educational subjects, with the history, culture and religion of national minorities. Radio and television stations at the national, regional and local level have the task to promote understanding for the members of a national minority (Article ). Furthermore, they are obliged to produce and/or broadcast programmes intended for the information of members of national minorities in their specific language.32 It was noted that the recent changes in the Law on Croatian Radio-Television (HRT)33 constituted ‘a clear step forward towards an acceptable legal framework for the transformation of HRT into a genuine public service broadcaster.’34 is recent reform of Croatian media legislation provides the basis for the democratic organization of both a public service and private broadcasting. Nevertheless, a recent study funded by the Organization for Security and Cooperation in Europe (OSCE) pointed out that HRT pays insufficient attention to ‘important post-war issues such as refugee return, treatment of minorities and human rights.’35 Additionally, media enterprises have an important role in the production and broadcast of programmes which stimulate and improve the preservation, development and expression of the cultural and religious identities of national minorities. Members of national minorities should In practice implemented this legislative provision has been implemented by a weekly one-hour information program for national minorities ‘Prizma’, that is broadcast on Sundays in the national television. e program is produced in minority languages with subtitles in Croatian. However, coverage of minority issues still not a regular component of news programmes, as reported recently in a monitoring programme conducted by the Croatian Helsinki Committee for Human Rights (HHO). See ‘Politics in HTV Programming,’ at http://www.hho.hr/english/politicsonhtv.htm. HTV has, recently informed the OSCE Mission in Croatia that it envisions having regional studios broadcast programmes in minority languages by the latter half of . See OSCE Mission to Croatia Background Report Implementation of the Constitutional Law on the Rights of National Minorities (CLNM) and Related Legislation, at http://www.osce.org/croatia/. 33 Law on Croatian Radio-Television, Official Gazette 25/2003. 34 ‘OSCE sees progress in draft law on Croatian Radio-TV’, 18 December 2002, at http://www.osce.org/ croatia/. 35 Ibid. 32
Antonija Petričušić become acquainted with the work of their councils and their political representatives through media. With regard to this, media enterprises (press, radio and television) are obliged to enable the minority associations and institutions to participate in the creation of programmes produced for national minorities. However, this provision does not make clear whether only the state-owned media enterprises are obliged to publish programmes produced for national minorities or if it is the obligation of all of media enterprises. 4. Political Participation of Minorities (Articles 19-22) e political participation of minorities in Croatia36 has been guaranteed as a right since .37 e new Constitutional Law represents the foundation for political participation of national minorities by guaranteeing a certain number of seats in the parliament and in the bodies of local self-government to minorities. e Constitutional Law provides a possibility for minorities to elect a minimum of five and a maximum of eight of their representatives to parliament in the special electoral units. However, the implementation of this right has not been completely prescribed in the Constitutional Law. is has been left to be prescribed by the new electoral law which inter alia regulates the election of minority representatives to the Croatian parliament.38 Members of national minorities, in accordance with Article of the Constitutional Law, constituting more than . % of the total population of the Republic of Croatia are guaranteed a minimum of one and a maximum of three representative seats for the members of that national minority.39 e Serb minority is the only one satisfying the threshold In accordance with the Law on Elections for the Representatives in the Parliament of Republic of Croatia (Official Gazette /) members of national minorities who constituted more than % of the population of the Republic of Croatia on the basis of the census, had the right to be represented in parliament in accordance with their share of the total population. ose rights, together with Serb minority self-government, originally granted by the Electoral Law in the areas where Serbs formed majority of the population (those administrative units were called kotarevi, and there were two of them: Glina and Knin) were annulled in September . Amendments to the Electoral Law made in October provided for a total of eight minority representatives in the parliament. (Official Gazette /). In October amendments to the Electoral Law (Official Gazette /) specified that the five representatives (for minorities constituting less than % of population) would be distributed as follows: Italians, Hungarians, and Serbs each entitled to elect one, Czechs and Slovaks together are entitled to one, and Ukrainians, Ruthenians, Jews, Germans, and Austrians together are entitled to one. is scheme for minority representation was implemented in the parliamentary elections and shaped the current assembly. e Electoral Law reintroduced proportional representation in parliament, government and supreme judicial bodies for minorities that account for more than % of the population. However, the law provided that implementation of this provision would be suspended until after the official results of the census and therefore had neither concrete effects on the formation of the assembly, nor on the formation of other official bodies. 37 Minorities were guaranteed political participation by the former Constitutional Law on Minorities passed in , and by later Electoral Laws. For further information see Snezana Trifunovska (ed.), Minorities in Europe. Croatia, Estonia and Slovakia (e Hague, ), -. 38 e amended law regulating the election of representatives to the Croatian Parliament did include the requirements put forward by the Constitutional Law on Minorities regarding their right to political representation. It was passed on April 2003, published in the Official Gazette 53/2003. 39 e exact reason the extreme rightist parties denied their support to the amended Electoral Law centers around the fact that Serbs are given the right to have three political representatives. e rightist parties 36
Constitutional Law on the Rights of National Minorities in the Republic of Croatia of .% of the population, as reflected in the census, guaranteeing it the political participation stipulated in the Constitutional Law. e other minorities are guaranteed in accordance with the Constitutional Law the right to elect a minimum of four representatives. e amendments of the Electoral Law prescribed five parliamentary seats for this group of minorities, granting them the collective right to elect representatives who in some cases would represent several minority groups. In accordance with this provision, Italian and Hungarian minorities are each guaranteed one seat for their representatives while one representative will represent Austrians, Bulgarians, Germans, Jews, Roma, Ruthenians, Ukrainians and Vlahs, while Czechs and Slovaks together will elect one. Members of Albanian, Bosniak, Montenegrin, Macedonian and Slovenian minorities will elect a common representative.40 Members of national minorities have the right to representation in the representative bodies of local and regional self-government units (Article ).41 If at least one member of a national minority is not directly elected to the representative body of the self-government unit in which the minority forms more than % and less than % of the population, the number of members of the representative body of the self-government unit should be increased by one member, and the member of a national minority who was not elected initially but has gained the most votes will be considered elected. Where a national minority constitutes at least % of the population in the local self-government the Law prescribes proportional representation in the representative body of the unit. In order not to exclude those members of minorities that did not register in the last census (held in ) due to the fact they had left the territory of Croatia as refugees in , the official census results on the number of members of national minorities in a local or regional self-government unit shall take into account possible changes registered in the last confirmed voters’ list of that unit prior to each election that takes place in the regional
claimed that Serbs should be given a right to elect one representative to parliament, while eventually, in accordance with the turnout; they would have a chance to elect additional representatives. If this proposal was accepted, the so called non-fixed quota system would be applied for the election of Serb representatives. e number of additional minority representatives elected would be determined through the following formula: the number of voters of the Serb national minority that participated in the election would be divided by the average number of voters required to elect one member to parliament. 40 Although the earlier versions of the draft of the Constitutional Law contained an option which provided a dual vote for minorities for the election of minority representatives to parliament, the draft submitted by the government to parliamentary procedure in July 2002 eliminated this dual voting option. 41 Units of local and regional self-government have the constitutional right (Article 135 of the Constitution), within the limits provided by law, to regulate autonomously by their statutes the internal organization and jurisdiction of their bodies and accommodate them to local needs and potentials. In performing the affairs within their jurisdiction, units of local and regional self-government are subjected only to the review of their constitutionality and legality by the authorized governmental bodies (Article 136 of the Constitution). e system of regionalization of Croatia is set by the Law on Local and Regional Self-government, Official Gazette /. is law prescribes that cities and municipalities are local self-government units, while counties (županije) are regional self-government units. ere are twenty self-government units and the capital of Croatia is also given the status of one.
Antonija Petričušić self-government units. is adjustment was proposed by the Venice Commission,42 the ACFC43 and advocated by Serb political parties. Article stipulates the possibility of the self-government units, in which members of national minorities do not constitute the majority of the population, to determine by their statutes that members of national minorities should be elected to the representative body of the respective units resulting from their share in the total population of the unit. In Article it is stipulated that minority members are ensured proportional representation in the executive bodies of self-government units. Until the Constitutional Law was passed, providing for the proportional representation of minorities in the representative bodies of self-government units, the Article Law on Election of the Members of Representative Bodies of Local and Regional Self-government Units44 (hereinafter ‘Electoral Law for Self-government Units’) had been prescribing minority participation in the executive bodies of those self-governments. However, this provision has never been applied, even though it is supposed to happen within days after the census results are published.45 e members of national minorities are additionally ensured representation in the state administration and judicial bodies, taking into account acquired rights and the share of members of national minorities to the total population at the level at which the state administration or judicial body is established. Article contains a kind of ‘positive-discrimination’ measure in view of the fact that when there are several candidates with equal qualifications the minority member applicant is to be selected for the vacancy in the state administration’s and self-government unit’s posts. C. Councils and Representatives of National Minorities in Self-Government Units e Constitutional Law has introduced institution of national minority councils, minority self-governments in which each minority represented in the population of the self-government unit is entitled to vote for his/her minority member’s council. ese national minority councils were qualified by the Venice Commission as ‘a significant aspect inspired by See para. of the opinion adopted by the Venice Commission on 6 November 200, CDL-AD (), at http://www.venice.coe.int/. 43 See para. of the opinion of the ACFC, adopted on April , at http://www.coe.int/t/e/human_ rights/Minorities/. 44 Law on Election of the Members of Representative Bodies of Local and Regional Self-government Units, Official Gazette 33/2001. e Constitutional Law has prescribed in article () that the nomination and election of minority members of the representative body of the local and regional self-government units should be done in accordance with this by-law. 45 Consolidated Opinion on the Law on the Election of Members of Local and Regional Self- Government Units of Croatia, adopted by the Venice Commission at its th Plenary Meeting in Venice - March , published on March . ‘A serious failing of this Law is that, while it provides, under Article , that the statutes of local and regional authorities shall determine the number of seats to be held by ‘Croatian citizens, members of ethnic and national communities or minorities, in accordance with the proportional share of their members in the total population of the unit’, there is a remarkable absence of clear provisions governing how such a composition of the relevant bodies is actually to be achieved.’ 42
Constitutional Law on the Rights of National Minorities in the Republic of Croatia the Hungarian model with some territorial aspects as well.’46 e Commission has noted that the institution of minority councils embodies ‘a viable and adequate substitute for the abolished special status regime provided for by the Constitutional law in and never implemented.’47 e right of minority members prescribed in Article to elect their representatives to the national minority councils within self-government units has implications for the improvement, preservation and protection of the place of national minorities in society.48 is right facilitates minority participation in public life and management of local affairs. Elected minority councils can make proposals to local government bodies on how to improve the situation of minorities and can propose candidates for local offices. At the same time, governments at the local and regional levels are obliged to consult these councils with regard to acts affecting the rights of minorities. Article provides the right of national minorities to elect a national minority council for the self government units in which they constitute at least .% of the population. In the self-government units with less than members of national minority inhabitants, a minority representative will be elected instead of the council, and have the latter’s role in the respective self-government unit. e Law furthermore stipulates that groups are entitled to propose candidates as members of these councils and as minority representatives. Elections for the councils are direct and done by secret ballot, while the provisions of the Electoral Law for Self-government Units are appropriately applied in both election procedures and other issues related to the councils elections. Members of the councils each serve a four-year mandate. Article () also contains the adjustment clause which is used in determining of the number of members of a national minority in order for the mandate of the national minority councils to be carried out. e adjusted census results that have registered voters for the election of members of representative bodies of local self-government units are to be applied in the elections. e first elections for minority councils were held on April, for less than half of the councils and representatives to which minority groups were entitled ( councils and representatives respectively). Prior to the elections for minority councils, the government was accused of providing a less-than-adequate level about the importance of these elections as well as less-than-adequate level of support to the minority organizations that were expected to nominate their candidates’ lists. e organizational issues concerning the national minority councils prescribed in Article established councils as non-profit legal persons responsible with their total property for their obligations. Article stipulates the duty of national minority council members to elect a president for each council by secret ballot. Each national minority 46 47
48
See para. of the report adopted by the Venice Commission on July 200,CDL (2001) . Ibid. See also supra note . Similar institutions have been already introduced in the neighbouring countries. For example, self-governing ethnic communities for the members of Italian and Hungarian minorities have been established by the Slovenian Law on Self-governing Ethnic Communities. e National Councils of National Minorities with the purpose of exercising rights of self-government regarding the use of language and script, education, information and culture whose establishment was prescribed by the Law on Protection of Rights and Freedoms of National Minorities of the Serbia and Montenegro (Article ).
Antonija Petričušić council elects in addition a deputy to the president, who replaces him in his absence and in all situations when he is prevented from performing his duties. Article prescribes that all members of the national minority councils should perform their duties voluntarily and wisely. Provisions as contained in Article on the responsibilities of councils functioning in self-government units specify that they are authorized to propose improvements of both the position of a national minority within the state or within the self-government unit itself. Council are empowered to submit proposals of general acts concerning minorities to the legislative bodies of their respective self-government units. e councils furthermore propose minority candidates for posts in state administrative bodies and bodies within self-government units. Moreover, the councils have the right to be informed about minority-protection related issues which the working groups of the representative bodies of self-government units discuss in their sessions. e Councils also provide opinions and proposals regarding programmes on radio and television stations on the local and regional level tailored especially for national minorities or other programmes dealing with minority issues. e bodies of self-government units are obliged to prescribe in their legal acts the deadlines, methods and procedures that put into effect the aforementioned rights of these councils. Article () concerns matters relating to the participation of minorities on a local level through the consultative role of national minority councils. e authorities of selfgovernment units have an obligation to seek opinions from these councils when they draft any law that concerns the rights and freedoms of national minorities. If a national minority council considers a general act by a self-government unit or some of its provisions to be at odds with the Constitution, the Constitutional Law or some of their by-laws, it is obliged to inform the Ministry of Justice and Administration immediately. Concerning the same issue, the councils have a duty to inform the authorities of their respective selfgovernment units as well as the National Minorities’ Committee (Article (-)). Article prescribes the possibility of establishing the co-ordination of the national minority councils founded in the same or different local or regional self-government units. Councils are encouraged to interact for purposes of conformation and promotion of mutual interests. Each of the respective councils can authorize the co-ordination of the national minority councils to undertake the execution of rights belonging to those councils in accordance with Article of the present Constitutional Law. If more than half of the national minority councils of regional self-government units agree on the founding of this co-ordination, these councils are thus considered to have established the co-ordination of national minority councils at the national level. is co-ordination of national minority councils at the national level is entitled to take decisions, with the consent of the National Minorities’ Committee, on the insignias and symbols associated with national minorities and on the manner in which holidays of national minorities are celebrated. e minority representative performs his/her duties using both the Croatian language and Latin script in correspondence, as well as both the language and script used by the national minority that has elected him. Any official communication from the minority representative should contain the emblem of the self-government unit for the area where he was elected. e law also stipulates the responsibilities of the minority representative (Article ).
Constitutional Law on the Rights of National Minorities in the Republic of Croatia D. e National Minorities’ Committee e other institution newly introduced institution by the Constitutional Law is a National Minorities’ Committee49 (hereinafter ‘the Committee’) for the purpose of facilitating the participation of minorities in the public life of the country (Article ). It should discuss, propose, regulate and resolve issues related to the exercise and protection of minority rights. erefore the Committee is expected to co-operate with competent state and self-government units, national minority councils and/or minority representatives, associations of national minorities and nongovernmental organizations dealing with minority rights. It submits opinions and requests to parliament and to the government and co-operates with all government bodies and the bodies of the international community regarding minority protection. is constitutes an improvement since the preceding institution responsible for the same matters was not obliged to include any minority members. e Committee pursues international co-operation in the issues of interest for national minorities in the Republic of Croatia. e Committee fosters cooperation with institutions within Croatia dealing with national minority issues as well as with the competent bodies of kin-states of Croatian national minorities. e National Minorities’ Committee distributes funds provided in the budget for the needs of national minorities.50 e beneficiaries of the funds are asked to submit annual reports to the Committee on their operating costs as subsidized by the state budget. e Committee informs the government and the parliament about the expenditures of the minority organizations. If the Committee fails to pass a decision on the allocation of funds within days of the adoption of the state budget, the government is obliged to pass such a decision. e composition of the Committee shall reflect the identities of all national minorities, their specific qualities, historical values; ethnic, cultural and every other diversity, taking into account the proportion of a particular national minority within the total population of Croatia. Since the Committee does not have legal personhood similar to that provided for local and regional national minority councils and therefore is granted limited competences and given merely a consultative role (Article ())51 its actual power is dubious. In May 1997, the Government agreed with the Venice Commission to establish a Council of Ethnic and National Communities or Minorities in the Republic of Croatia, with the purpose of creating a counselling body in which minority representatives could regularly meet with the government. e first Council was constituted on January 23, 1998. In the first years of its existence it has been very passive in the implementation and promotion of minority rights. e Council for National Minorities can be considered as its successor. 50 Similar competences are conferred in Serbia and Montenegro to the Federal Fund for National Minorities that allocates financing activities from the budget related to the improvement of the status and development of cultural creative work of national minorities. See Law on Protection of Rights and Freedoms of National Minorities of the Serbia and Montenegro, Article (). 51 is lack of governing power of the National Minorities’ Committee was criticized by the OSCE HCNM and the Venice Commission. See OSCE Mission to Croatia Background Report Implementation of the Constitutional Law on the Rights of National Minorities (CLNM) and Related Legislation, at http//: www.osce.org/croatia/. Also see Opinion on the Constitutional Law on the Rights of National Minorities of Croatia, adopted by the Venice Commission at its th Plenary Session (Venice - March ), CDL-AD () , at http://www.venice.coe.int/.
49
Antonija Petričušić e working programme of the Committee, its financial plan and the annual financial statement of its funds must be published in the Official Gazette in order to demonstrate that the Committee allocates appropriately the funds provided in the budget (Article ). e government is in addition obliged to establish the Expert Office of the National Minorities’ Committee,52 which could be treated as a successor to the Office for National Minorities. Until the Expert Office will be established its duties will be carried out by the Government’s Office for National Minorities (Article ()). 53 E. Implementation of Minority Rights e means of implementation of the rights to which minorities are entitled are laid down by Articles -. However, some of the prescribed rights in order to be realized require financial resources from the budget of the state or self-government units. For example, Article () stipulates that the state budget and the budgets of local and regional selfgovernment units shall provide funds for co-financing programmes of radio and television stations which minority groups own and for programmes produced for national minorities, in compliance with their economic possibilities. Financial support will be distributed according to the criteria established by the government, upon the proposal of the National Minorities’ Committee. Article furthermore stipulates the responsibility of the selfgovernment units to provide funds for the work of the minority councils. On a voluntary basis, the self-government units are encouraged to provide the funds necessary to carry out the specific activities proposed in the councils’ working programmes. e article also provides for the possibility that funds may be granted from the state budget for the exercise of specific programs of a particular national minority council. e rights guaranteed in the Constitutional Law are exercised in accordance with bylaws which must be proved compatible with the general provisions as established in the Constitutional Law itself. erefore two special laws regulating both education and the use of minority language and script are directly relevant to the implementation of Articles - of the Constitutional Law. e provisions of Article of the Constitutional Law have been in force since the day on which the Electoral Law came into effect ( April ). e other relevant by-law is the Electoral Law for Self-government Units which must be applied when electing minority councils. Even though the elections for minority councils were finally held almost two months later than the text of the Constitutional Law had foreseen, they constituted the actual 52
53
Decree on the Expert Office of the National Minorities’ Committee. Official Gazette 77/2003. e Office for National Minorities served as a consultative body of the Government of Croatia with the principal role of providing expertise regarding policy undertaken in respect of national minorities. is was established by government decree in December 1990, prior to Croatia’s international recognition as an independent state. It is remarkable that representatives of minorities were not involved in the concrete work of the Office, even though the Office dealt with minority issues. is was corrected in the new Constitutional Law, and although the members are about to be elected, it was prescribed that the president of the National Minorities’ Committee shall also be the Head of the Expert Office. Decree on the Office for National Minorities, Official Gazette /200.
Constitutional Law on the Rights of National Minorities in the Republic of Croatia implementation of the Constitutional Law on the Rights of National Minorities and created a basis for the participation of minorities in political life at local and regional levels. e low turnout of voters for minority councils could negatively impact the legitimacy of their elections. e OSCE Mission has urged the government to organize additional elections in areas where they were not held, warning that the next time minority organizations should be given more time for the preparation of campaign.54 It is prescribed in Article () that the representative bodies of self-government units have to be filled by an appropriate number of members of national minorities within days of the Constitutional Law entering into force in all those self-government units with on-going mandates, and where the right to representation of members of national minorities has not been implemented in accordance with Article of the Constitutional Law. Elections for minority representatives in those self-government units in which minorities are under-represented should happen after such self-government units adjust their respective statutes to prescribe the exact number of minority representatives for each of their units. OSCE’s Report on the Implementation of the Constitutional Law has noted that the clarification by competent government bodies is needed in a manner so that particular guarantees can be implemented, such as minority representation in the state administration and judiciary.55 Article establishes the time framework for the formation of the institutions established by the Constitutional Law. It imposes certain obligations on the government to appoint members of the National Minorities’ Committee, its president and deputies within days of the day on which the Constitutional Law comes into effect. In addition, the Law provides for the possibility that even if elections for the members of national minority councils had not taken place within the days (by March ), the government itself is obliged to appoint five members of the Committee. is was indeed done on March 56 and five members of the Committee appointed by the government together with the five current elected minority representatives in the parliament constitute the current National Minorities’ Committee. Seven additional Committee members have to be nominated by the not yet operational local and regional minority councils. e Committee held its constitutive session on April , . Its members are each expected to serve a four-year mandate. e Committee has a president (Aleksandar Tolnauer) and e OSCE Mission was concerned about low voter turnout at minority elections in Croatia, 19 May 2003, at http://www.osce.org/croatia/. 55 See OSCE Mission to Croatia Background Report Implementation of the Constitutional Law on the Rights of National Minorities (CLNM) and Related Legislation, at http://www.osce.org/croatia/. 56 Minority organizations, religious communities and members of national minorities propose candidates that are distinguished in cultural, scientific, professional or, religious spheres. From this group the government has appointed following individuals, members of respective minorities: Aleksandar Tolnauer ( Jewish), Sinisa Tatalovic (Serb), Zef Mirdita (Albanian), Sead Berberovic (Bosniak), Dragutin Lalovic (Montenegrin). In addition, the Government appointed the following minority representatives in the Parliament as members of the Council: Zdenka Cuhnil (Czech); Milan Djukic (Serb); Borislav Graljuk (Ukrainian), Furio Radin (Italian), Tibor Santo (Hungarian). Pronouncement on the Appointment of the Members of the National Minorities’ Committee. Official Gazette /2003. 54
Antonija Petričušić two deputy presidents. One of deputies must be coming from the Serb minority (Sinisa Tatalovic). e Expert Office of the National Minorities’ Committee has not yet been formed. Until the Expert Office is established, the responsibilities of the expert body serving the Committee shall be performed by the Office for National Minorities of the government of Croatia. It is however expected, according to the information from the Government’s Office for National Minorities, that the Expert Office will start performing its duties at the beginning of the year . According to the head of the Government’s Office, the main reason for this delay is the Expert Office’s lack of financial resources. Articles and lay down the supervision of the implementation of the Constitutional Law. e governmental bodies (meaning competent ministries and the Office for National Minorities) are obliged to supervise the implementation of the minority rights and freedoms. e government co-ordinates the work of governmental bodies in issues related to minority protection and has the obligation to submit to the Croatian parliament an annual report on the implementation of the Constitutional Law and on the expenditure of funds provided for in the state budget for the needs of national minorities. Correspondingly, the Committee is required to submit to parliament or to its working body responsible for the exercise of the rights of national minorities,57 a bi-annual report on the issues which fall within the scope of its activities and a quarterly report on the expenditure of funds provided for in the state budget for the needs of national minorities. e councils and minority representatives in the self-government units are entitled to request the supervision by the competent government bodies of the implementation of the Constitutional Law and special laws regulating minority protection in the self-government units in which they function. e national minority councils and minority representatives, as well as the Committee itself have the right to file a constitutional complaint58 before the constitutional court of the Republic of Croatia if they are of the opinion that the rights and freedoms of national minority members, stipulated by the Constitutional Law and special laws, have been violated. However, the exercise of this right requires an amendment of the Constitutional Law on the Constitutional Court since the current provisions do not provide for the right of non-legal persons (such as the National Committee is) but only legal and physical persons to submit a constitutional complaint.59 Article of the Constitutional Law addresses the redundancy of certain provisions of extant special laws regarding minority protection. As a result, Article () of the Minority e Committee on Human Rights and the Rights of Ethnic and National Communities or Minorities is a parliamentary body that proposes laws concerning human rights issues, monitors the implementation of ratified international legal acts which stipulate the protection of human rights, and promotes the realization of human rights entitled to minorities established by the Constitution and laws. is parliamentary body should propose measures for the realization of minority rights, should assist in signing bilateral and multilateral treaties and programmes of international cultural, educational and other cooperation when this is of special interest to a particular minority. 58 Each constitutional complaint should be submitted in compliance with the provisions of the Constitutional Law on the Constitutional Court of the Republic of Croatia, Official Gazette 99/1999, 29/2002, 49/2002. 59 See OSCE Mission to Croatia Background Report Implementation of the Constitutional Law on the Rights of National Minorities (CLNM) and Related Legislation, at http://www.osce.org/croatia/. 57
Constitutional Law on the Rights of National Minorities in the Republic of Croatia Language Law 60 ceased to be valid the day that the Constitutional Law came into effect. Moreover, the provisions of both Article 61 and Article 62 of the Electoral Law for Selfgovernment Units regarding election of minority representatives to bodies of local and regional self-government units ceased to be applied. IV. C Proper accommodation of minorities has been Croatia’s long-standing commitment to the international community. e Constitutional Law, which was passed in December , contains a number of provisions that guarantee the full respect of the rights of ethnic minorities in Croatia and contributes towards building a comprehensive framework for the protection of national minorities. e Law ensures proportional representation for minorities in the Croatian parliament, in the representative bodies of the local self-government units and in the state administration and judicial bodies. e achievement of minority participation at local level is realized through the establishment of the national minority councils, and the regional and local minority selfgovernments that each minority is entitled to organize. Another achievement of the new Constitutional Law is the National Minorities’ Committee, a specialized consultative body dealing with minority issues. e improvement of the present Constitutional Law is demonstrated in the obligation of the government to take into account the percentage of members of particular national minorities within the total population of the country when appointing new members to the National Minorities’ Committee. e change in the number of national minorities in relation to the total population of Croatia over the last decade has influenced the exercise of the rights of certain national minorities. e census results are relevant for the determination of the number of minority members who are able to participate in political life. Nevertheless, the Constitutional Law prescribed the adjustment of the census data.63 e major critique of the Serb politicians was in the drafting period of the new law when they claimed that many Serb refugees were not given a chance to register in the census, as the census applied the United Nations methodology of census taking, according to which only those citizens who have not e provision that was abolished does not modify any of the acquired rights to use the language of a national minority. It was simply eliminated because it had implication for the previous Constitutional Law on National Minorities that ceased to be valid with the promulgation of the new Constitutional Law, in accordance with the principle lex posterior derogat legi priori. 61 e abolished provision stipulated that the number of members of the representative body from among the ranks of the members of national minorities shall be determined by the statutes of self-government units, in compliance with their proportional share in the total population of the self-government unit. 62 is removed article stipulated the proportional representation of the minority members in the units of self-government units. is provision is laid down in detail by the provisions contained in the new Constitutional Law in the Article . 63 It is still however unclear what methodology will be used and which body will be responsible to adjust the census results to the voters’ lists (citizens and older have passive and active voting right). e amendments to the Local Election Law did not provide any clarification on this issue. 60
Antonija Petričušić been absent from a country for more than one year are listed among the population of the country. It was therefore essential that the Constitutional Law prescribed that the official census results on the number of members of national minorities in a local or regional self-government unit shall conform to the possible changes registered in the voters’ list of the respective units prior to each election for the minority representatives in representative bodies of self-government units and for national minority councils. Realistically, the minority issue in Croatia is linked with the return of the Serb minority population in the Eastern Slavonia and Krajina regions.64 Realizing the need to speed up the refugee return process, Croatian president Stjepan Mesić has decided to encourage the process of return by proposing a trilateral agreement between Bosnia and Herzegovina, Croatia and Serbia and Montenegro. e aim of the trilateral agreement would be the expression of governments’ willingness to foster refugee return. Unfortunately, recent attempts to sign the agreement have not had the desired results since the three presidents have failed to agree on the issue of the abolished tenancy rights of the returnees. However, the presidents have announced that the declaration might be signed after legal experts have been consulted on this disputed issue. In the last couple of years, the ‘improvements in the statements and attitudes of the government vis-a-vis the protection of national minorities’ were acknowledged by the ACFC.65 ose improvements have resulted in ‘certain positive developments in the legislative sphere’66 and the new Constitutional Law definitely follows this line of progress. However, no matter how technically advanced this law might be, it will not have any effects if it is not consistently implemented on all levels of government, particularly in areas where minorities form a significant part of the population. e Constitutional Law provides a comprehensive and coherent framework for supplementary legislative and regulatory action in the field of minority protection which may also explain the absence of detailed mechanisms for the political participation of minorities that was prescribed in the amendments of Electoral Law. As the Constitutional Law is an organic law and therefore requires two thirds of the votes in order to pass, even right-wing votes were necessary to pass the law. Only the extreme right-wing parties opposed the Constitutional Law, casting merely four votes against and two abstentions to the proposed law.
e former High Commissioner on National Minorities Max van der Stoel pointed out that ‘the right of return to one’s place of origin and home, both voluntarily and in conditions of safety, is of fundamental importance. e primary responsibility lies with the state of origin to create and ensure conditions of return. e right of return also has a bearing on regional peace and security since the prolonged displacement of large numbers of persons can be destabilizing. Of course, conditions of return also imply respect for all other human rights in order to integrate societies and avoid the recurrence of displacement.’ Max van der Stoel, ‘Minority Rights, Participation and Bilateral Agreements’, Address to an international seminar on Legal Aspects of Minority Rights: Participation in Decision-Making Processes and Bilateral Agreements on Minority Rights, December, . http://www.osce.org/hcnm/. 65 See para. of the opinion of the ACFC, adopted on April , at http://www.coe.int/t/e/human_rights/ Minorities/. 66 Ibid. 64
Constitutional Law on the Rights of National Minorities in the Republic of Croatia e provisions of the Constitutional Law are reflected in the Electoral Law that was amended in March , ensuring the fair procedure for minority representation in parliament. In accordance with the new Electoral Law, minorities are guaranteed eight places in parliament, as compared to the five seats that minorities were granted under the previous Electoral Law. Amendments to the April Electoral Law constitute an improvement in the manner in which they foresee the right for Albanian, Bosnian and Slovene minorities to vote for their own representatives. ey had not previously been considered to be autochthonous national minorities and thus had not granted minority protection per se, even though they constitute relatively numerous communities in Croatia. However, even the most advanced minority protection foreseen by the legal instruments will not be sufficient without the creation of a climate of mutual respect, tolerance and understanding for the need of supplementary protection of minorities. erefore, the main conclusions of the present commentary can be summed up as follows: e Croatian Constitutional Law on the Rights of National Minorities has established a good legislative framework for the protection of minorities in Croatia, granting them greater political participation on both state and local levels, as compared with prior legal regulations in the same sphere. e elections for the national minority councils held in May are a good example that the provisions of the Law can be implemented, but its law turnout indicates that more information on the rights of minorities would be required. Certainly, the implementation of the existing provisions is the most important aspect of minority protection. However, the country’s pro-western orientation serves as an additional stimulus to fulfilling the realization of minority protection on both legislative and implementation levels.
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Vojislav Stanovcic *
Legal Status and Rights of Minorities in Serbia and Montenegro
I. T N C S U S M e State Union of Serbia and Montenegro (SM)1 is the result of the recent transformation of the former federal state of these two countries. Over the course of February and March , this union was established out of what was the Federal Republic of Yugoslavia (FRY), which itself had been proclaimed a federal state in April , consisting of two equal member republics – the Republic of Serbia and the Republic of Montenegro – of which Serbia comprises two autonomous provinces (APs): AP Vojvodina and AP Kosovo and Metohija. Despite many similarities (before the communist rule they shared perceptions of common origin, religion, language, history, cooperation and friendships, as well as alliances throughout history), and mutual economic interests (the Montenegrin Coast and Serbia’s longing for a sea exit since the early nineteenth century, as well as its significant natural and economic resources and potentials), there are objective difficulties in achieving adequate constitutional arrangements and practical political cooperation. One of the problems is common for all two-member federal states. ey become unstable if the leadership or the political elite of one member wants to secede from the joint state. Equality in practical terms is difficult to achieve, regardless of constitutional provisions, when size and ratio of the two member-states are as different as they are in the case of Serbia and Montenegro respectively. Based on data and the census from the same year, in terms of population Serbia has ,, and Montenegro has , inhabitants, with an economic strength ratio of about :. In terms of geographic territory the ratio is about .:, with Serbia comprising , km² and Montenegro , km². * 1
Vojislav Stanovcic, LL.D. is Professor of Political Science, Head of the team of experts that drafted the Law on the Protection of Rights and Freedoms of National Minorities, Legal Expert of the UNDP. As an acronym for this State Union Serbian media use ‘SCG’, where S stands for Serbia and CG for Crna Gora, i.e. Montenegro. Hereinafter SM will refer to this State Union of Serbia and Montenegro, which is just a convenient English equivalent of ‘SCG’ in Serbian.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Vojislav Stanovcic In the recent past, particularly after (i.e. during the rule of Slobodan Milosevic over both Serbia and the whole of FRY as well)2 the political elites of the two republics were becoming more and more antagonistic towards each other, and Montenegrin leaders undertook attempts to achieve the internationally recognized status of an independent state. In the September elections, Dr. Vojislav Kostunica, as joint candidate of the Democratic Opposition of Serbia (DOS) won the election against Milosevic, who in October of the same year lost his position as the president of FRY. But tensions and misunderstandings between Serbian and Montenegrin leaders continued, and the intentions of Montenegrin leaders to organize a referendum for independence strengthened too. e European Union and the United States started to discourage this orientation, actively mediating in negotiations between representatives of both Serbia and Montenegro. So both sides accepted a need for a joint state union which would be reformed in the spirit of a democratic transition towards joining the Council of Europe (CoE), and later hopefully the EU. e Venice Commission offered some help in drafting the constitutional arrangement for the new State Union of Serbia and Montenegro but its proposals were rejected. In a similar way, an earlier proposal by a group of experts of international reputation was not accepted. e Proceeding Points for the Restructuring of Relations between Serbia and Montenegro were agreed upon on March with mediation and sponsorship by EU representatives who treated the agreement as a precondition for the country to join the CoE. ey were signed by senior representatives of the two republics (three from Serbia and three from Montenegro.) Turning the Proceeding Points into a draft of a Constitutional Charter and the accompanying Law for implementation advanced very slowly, despite frequent warnings from the EU that this could destabilize the region and postpone membership in the CoE. Finally, the Charter on Human and Minority Rights and Fundamental Freedoms, the Constitutional Charter and the Law on the Implementation of the Constitutional Charter of the State Union of Serbia and Montenegro were adopted by the three parliaments (the national assemblies of Montenegro, Serbia and FRY) in March . On the grounds of the Charters and the Law on Implementation, the institutions of the state union were established and gradually started to function, but there has been a lot of criticism of this system by constitutional experts and economists who assume that it cannot be an efficient economic system, and that the future of the arrangement is uncertain in view of the appearance of problems and opposing expectations. Instead of the rule of law, this arrangement relies too heavily on some sort of ‘permanent negotiations’ and bargaining between the ruling elites. Some scholars have already noticed disagreements over interpretations of the reached compromise, as well as built-in possibilities of blackmailing or imposing solutions that could make the joint state union less acceptable for both sides. In any event, even with the very trilateral understanding and agreement (Serbia, Montenegro and the EU), the whole ‘constitutional’ arrangement is just a temporary expedience. After 2
For a recent, informative and good analysis of his role and rule see Lenard J. Cohen, Serpent in the Bossom: e Rise and Fall of Slobodan Milosevic (Bolder, ).
Legal Status and Rights of Minorities in Serbia and Montenegro three years, each member can withdraw from the union and pursue its independence, and some Montenegrin leaders already advocate that option. To understand the importance of this relationship for both the democratic development of the union itself and the position of minorities within it, one has to take into account some facts. First, the population and the political parties in Montenegro are deeply divided over the issue of independence versus closer state union with Serbia, which is seen by many as an appropriate federal frame for equal status and mutually useful cooperation. Neither side inside Montenegro can win a majority which could be taken as significant, lasting and decisive for, or against, secession. Second, both Serbia and Montenegro have almost equally diverse ethnic population compositions. is makes the region very sensitive to any further ruptures and fragmentations. is is perhaps also a matter of concern for representatives of the EU, considering the development of events in Macedonia following its independence, after what seemed like a good beginning, when problems of interethnic relations brought the country to the brink of civil war. It is important to realize that democratic transformation and constitution making, as well as the protection of rights and freedoms of national minorities, all require and represent favorable conditions for peace and stability in the region. Most of the main forces in these countries realize this, as do the representatives of the EU, the CoE, the OSCE, and the UN. However, particular interests of those in the struggle for power can affect people’s judgment. ird, Bosniacs (some still consider themselves to be Muslims) as a large and significant minority live in the territory of historical Sandzak, which is divided between Serbia and Montenegro, and in the case of a split of the state union, this population would also be split. Fourth, this article does not cover the territory and problems of AP Kosovo and Metohija, since international forces are deployed in the province as per UN Security Council resolution no. . is resolution also confirmed the sovereignty of FRY over this province, but de facto, it has no influence. However, the situation in the whole region seems to be burdened with problems that hinder democracy and the rule of law, when one takes into account the effects of the situation in AP Kosovo and Metohija where significant non-Albanian minorities (about , treated as ‘displaced persons’) have no real chance of safe return to their homes. In the event that Montenegro were to leave the state union, the Constitutional Charter of Serbia and Montenegro provides that the successor state of international subjectivity and memberships in different international organizations would remain Serbia and so also would Serbia therefore retain sovereignty over AP Kosovo and Metohija. Albanian organizations from Kosovo and Metohija protested against this provision in the Charter.3
3
Namely, in the Constitutional Charter of Serbia and Montenegro, it is provided that in the event of Montenegro seceding from the State Union of Serbia and Montenegro, Serbia would be automatically a member of the UN, the World Bank, the International Monetary Fund and other international organizations. Among other things, it was agreed that all the rights and duties of FRY on the basis of the UN Security Council Resolution would be transferred to Serbia. Albanians protested against this provision.
Vojislav Stanovcic II. B F M Serbia and Montenegro have a very diverse ethnic composition with almost equal proportion of national minorities in the population. According to the census of , in the population of Serbia and Montenegro approximately every third citizen did not belong to the Serbian or Montenegrin nation, but to one of over twenty minorities, or in absolute figures, minority members amounted to about . million. Below are two tables concerning the number of national minorities, one based on the census taken in all parts of Serbia except the AP Kosovo and Metohija, and the other one based on the census, which was the last census taken in Kosovo and Montenegro. In analyzing and interpreting census figures one also has to take into account the different methodologies used in and . In all persons working abroad and their families were registered as if they were in the country. In accordance with suggestions (instructions) of international statistical organizations, in the census, persons that permanently live abroad were not registered, but foreigners at work in the country were registered. Also, in Muslims were treated as a nationality, while in , depending on how they declare themselves, some of them were registered as Bosniacs, some as Muslims. A recent research on the status and life of Roma (Center for Ethnic Research, Belgrade, ) has discovered that many Roma do not want to declare themselves as such but opt for other alternatives. So the number of Roma is about twice as big as what the census figures show. e decrease of the numbers of Serbian nationality by about three hundred thousand between and , despite the immigration of about seven hundred thousand (most of them Serbs) from other parts of former Yugoslavia demonstrates an enormous emigration to other countries (mostly young and educated people to Western European countries and North America).
Legal Status and Rights of Minorities in Serbia and Montenegro Table . Results of the Census in Serbia (Excluding the Province of Kosovo and Metohija)4 Nationality
Total Serbs Montenegrins Yugoslavs Albanians Bosniacs Bulgarians Bunjevci Croats Czechs Germans Goranins Hungarians Macedonians Muslims Roma Romanians Russians Ruthenians Slovaks Slovenians Ukrainians Vlachs Other Undeclared/ undecided Regional affiliation Unknown
4
Republic of Serbia Serbia total Central Serbia Vojvodina Number % Number % Number % ,, . ,, . ,, . ,, . ,, . ,, . , . , . , . , . , . , . , . , . , . , . , . . , . , . , . , . . , . , . , . , . , . . , . , . . , . , . , . . , . , . , . , . , . , . , . , . , . , . , . , . , . , . , . , . , . . , . . , . , . , . , . , . , . , . , . . , . , . , . . , . , . , . , . , . , . , . , , , . , . , . , .
Publication No. of the Republican Institute of Statistics, Belgrade, ; figures for regions and districts will be published in the near future.
Vojislav Stanovcic Table . Nationality of the Population of FRY According to the Census of 5 Nationality
FRY
Total ,, Serbs ,, Montenegrins , Albanians ,, Yugoslavs , Hungarians , Muslims , Roma , Croats , Slovaks , Macedonians , Romanians , Bulgarians , Bunjevci , Ruthenians , Vlachs , Turks , Other , Undeclared/ undecided , Regional affiliation , Unknown ,
Serbia Central Vojvo- Kosovo and total Serbia dina Metohija ,, ,, ,, ,, ,, ,, ,, , , , , , ,, , , ,, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Montenegro , , , , , , , , , , ,
Concerning the difference of population figures for Serbia (: ,,; and in : ,,) one has to take into account that the figures for include Kosovo and Metohija, while the figures for refer to Serbia without Kosovo and Metohija. However, the demographic trends in Serbia are worrying: ere is a decrease in population in absolute figures despite several thousand refugees from Croatia and Bosnia and Herzegovina, and about a quarter of a million of displaced persons who were expelled from Kosovo and Metohija. III. F V M R L F P T In the course of the s three constitutions were enacted in FRY: the Constitution of Serbia, in September ; the Constitution of FRY in April ; and the Constitution of Montenegro, in October . Many provisions guaranteeing to national minorities 5
Source: National Minorities in FR Yugoslavia, published by the Federal Ministry of National and Ethnic Communities, Belgrade, .
Legal Status and Rights of Minorities in Serbia and Montenegro ‘international law standards and provisions’ were included in these Constitutions. e Constitution of Montenegro was the last one enacted among the three and the Republic of Montenegro found better constitutional solutions for the status of national and ethnic groups than Serbia. e Constitution of Montenegro includes a section on ‘special rights of members of national minorities and ethnic groups’ (Articles -) guaranteeing rights that, according to European standards, minorities are entitled to, as well as provisions covering the proportional representation of these groups in public services, bodies and agencies of state authorities and local administration bodies. e Constitution also established the Council for protection of these groups headed by the president of the republic, although members of that body did not meet for several years. In terms of present-day standards and enactments of documents of the Council of Europe, such as the European Charter on the Regional and Minority Languages (EChRML), the Framework Convention for the Protection of National Minorities (FCNM), and several recommendations concerning education, effective participation and local self-government, Montenegro too is lagging behind. Local self-government that is guaranteed by the Constitution (Article ) is in practice rather restricted in the jurisdiction controlled by the central government (just as in Serbia before the Law on Local SelfGovernment, ). Since the government of Montenegro relied on the electoral support and participation of some representatives of minorities in government, and on the government’s policy of pursuing independence. Unfortunately, in Serbia constitutional provisions in practice have been violated or neglected. e situation has been additionally worsened due to the growth of xenophobia, chauvinism and intolerance, the radicalization of politics, close links between the government and underground criminals and mafia, wrong policy of government and a whole series of regrettable and criminal actions against the minorities. Several minorities, particularly Muslims (later Bosniacs), severely suffered in the Sandzak area,6 and Albanians in Kosovo and Metohija, who also undertook terrorist attacks on a large scale. To a lesser degree, Albanians in the south of Serbia and persons belonging to some minorities in western Vojvodina were also the subjects of law violations by police and paramilitary units. Among other details, due to the reshaping of electoral districts by means of so-called electoral geometry and ‘gerrymandering’, some minorities were deprived of the possibility of representation even at a local level, according to their numbers and homogeneity in respective territorial and political units. In short, the regime was authoritarian, oppressive, and laws and ‘constitutions’ were ‘empty words’. e three above-mentioned constitutions that were enacted in the course of two years, but under different circumstances, used different terms for designating national/ethnic minorities. e Constitution of the Republic of Serbia () uses the term ‘nationali6
Sandzak Committee for the Protection of Human Rights, Testimonies from Sandzak (Belgrade, ). is book (in Serbian) covers the period from - in five local communities inside Serbia, and three inside Montenegro. It describes cases of groups which were kidnapped and later killed, and most of those arrested were maltreated in order to extort confessions that they had rifles or other arms, and accused of being ‘fundamentalists’. ere are other similar reports that cover individual cases or groups.
Vojislav Stanovcic ties’, the Constitution of the Republic Montenegro () speaks of ‘national and ethnic groups’, while the Constitution of the Federal Republic of Yugoslavia () uses the term ‘national minorities’. In view of mentioned practice, terms were of no importance, except as a symbolic sign of overall essential inconsistencies between the constitutions, particularly between those of Serbia and FRY. Provisions of the last one explicitly obliged Serbia to adjust its Constitution to the federal one, but the date of adjustment was postponed several times, each time by special law, and it has never been adjusted. So, the constitutional ‘system’ of FRY was not a system at all. Non-implementation and violation of legal norms was widespread practice. After the victory of the Democratic Opposition of Serbia in the September elections, parallel with the efforts for democratization of society in all spheres of life, special attention was paid to the status and protection of national/ethnic minorities. e new authorities announced a democratic policy that would in many respects make a turning-point in the history of the country, including the status, treatment and protection of minorities. e basic idea of the overall new political orientation and the inspiration in drafting a Law on Minorities was to incorporate minorities into society, into its political, economic, cultural and other forms, and institutions, without assimilating or isolating them in ghettoes. e whole process has been conceived to be realized through cooperation between minorities, and of them with the majority population, based on the principles of the rule of law and democratic society and government. e newly-elected federal government instantly undertook a series of measures on the internal and international plan. Internally the government established a Federal Ministry of National and Ethnic Communities and initiated the drafting and later adopted the federal Law on Protection of Rights and Freedoms of National Minorities (hereinafter ‘the Law’).7 On the international plan the government demonstrated its efforts for the protection of minorities by joining and ratifying the FCNM in , by preparing to join the EChRML and by preparing relevant bilateral agreements with the neighboring countries. Steps were undertaken to develop the legal and (later) constitutional frameworks which would guarantee the preservation and promotion of all the basic elements which are important for the identity of minorities, and for their effective participation in social life, government and administration. e starting rationale was that democracy could not be established if the government were to turn a deaf ear to the rights and expectations of one third of the population. IV. T B P P L e aim of the Law was to secure national minorities’ identity and their rights to participate in the government and administration of public affairs, in accordance with the constitution and laws (the assumption was that all old laws and constitution would be changed and adjusted to democratic principles and institutions). e drafting of the law 7
Law on Protection of Rights and Freedoms of National Minorities, Official Gazette of FRY No. of February .
Legal Status and Rights of Minorities in Serbia and Montenegro took the team of experts about one year and was accompanied by consultations with representatives of the Council of Europe, the OSCE High Commissioner on National Minorities (HCNM) the European Union and the UN, particularly the United Nations Development Programme Office in Belgrade. Drafts were presented at various stages to representatives of minorities, as well as to the media and to many open conferences with minorities in areas where they live. e team of experts as well as the responsible government bodies analyzed some laws (federal and of both member-republics) in order to learn about their consequences for minorities having in view the complaints that several laws are discriminating minorities. e team of experts had widely consulted all acts and documents of the UN, the Council of Europe, the OSCE, and the European Union. ey particularly carefully studied and were inspired by general ideas and provisions of the European Convention for the Protection of Human Rights and Fundamental Freedom, the EChRML, the FCNM and the Hague, the Lund and the Oslo Recommendations of the OSCE. All these documents were carefully studied and many relevant provisions accommodated to local circumstances having in view the policy of the country to join the Council of Europe, and hopefully in the near future the European Union.8 e General Provisions define the scope of the Law and the notion of a national minority in accordance with international and European standards. Article is dedicated to the definition of a national minority: A national minority for the purpose of this Law shall be any group of citizens of the Federal Republic of Yugoslavia numerically sufficiently representative and, although representing a minority in the territory of the Federal Republic of Yugoslavia, belonging to a group of residents having a long term and firm bond with the territory of the Federal Republic of Yugoslavia and possessing characteristics such as language, culture, national or ethnic affiliation, origin or confession, differentiating them from the majority of the population and whose members are distinguished by care to collectively nurture their common identity, including their culture, tradition, language or religion. All groups of citizens termed or determined as peoples, national or ethnic communities, national or ethnic groups, nations and nationalities, and which meet the conditions specified under para. of this Article shall be deemed national minorities for the purpose of this Law. is means that under this Law, the same rights are enjoyed by all national and ethnic communities, which have the freedom to choose how they define their own group (as peoples, national or ethnic communities, national or ethnic groups, nations and nationalities). 8
In the early drafts of the Law, all relevant documents regarding the protection of minorities were mentioned in the preamble of the Law and were published in Serbian and English. Some selections were published in other languages, too. In this way members of the team of experts, as well as a wider audience of lawyers, minority representatives, politicians, deputies in parliament etc. could use these acts during the drafting process of the Law.
Vojislav Stanovcic Independently from the legal terms they will enjoy the rights guaranteed by international, European and Yugoslav (legal) standards to persons belonging to national minorities. In drafting and preparing the Law, and introducing the new democratic policy, the government wanted to give equal rights to all groups regardless of what they call themselves. Each individual, based on the constitutions and this Law, has a right to declare or not to declare him/herself in terms of ‘nationality’. Some groups, like the Jewish community in FRY, explicitly refuse to be treated as a national minority while Roma people are very interested in gaining the status of a ‘national minority’. Albanians (not only in Kosovo and Metohija, but in the south of Serbia and in Montenegro) do not want to be treated as a ‘national minority’ or a ‘nationality’, and there are also some problems concerning nomination with the Muslims or Bosniacs in Montenegro. One of the additional problems while drafting the Law was that the population census should have been carried out in , but Montenegro refused to implement it so it was postponed and carried out only in . Without census figures, experts could not know about the size or even identity of new groups. e Law opens opportunities for groups to be registered, if the population census indicates the emergence of any new group, thereby entitling it to specific rights concerning education, language, etc. e size of the group does not affect its rights, but the exercise of particular rights can depend on the number of members of a minority and on their territorial concentration (e.g. for school classes, official language in local administration). No registers of persons belonging to minorities should be kept, but the list of minorities is open to new groups as such (without registering individuals). e main argument for this was that in the Weimar Republic Jews as individuals were registered in the course of s, and then ten years later those lists served as basis for taking them to concentration camps. Basic principles include equality and a ban on discrimination (except positive discrimination or affirmative action, Articles and ), freedom to declare and express one’s nationality and no obligation to declare the minority one belongs to (Article ), freedom of association, the right to co-operate with compatriots at home and abroad (Article ), the duty to respect the principles of international law, public morality and constitutional order (Article ) as well as the protection of acquired rights (Article ). A separate part of the Law comprises provisions laying down the right of national minorities to preserve their identity, ranging from the right to chose and use personal names (Article ); the right to use one’s mother tongue (Article ); the right to officially use a minority’s mother tongue if the percentage of its members in the total population in a particular territory reaches the legally prescribed level of % (Article ); the right to use national symbols with the parallel use of the symbols of the state (Article ). Article provides for the right to preserve culture and tradition, and Articles - provide for different rights in the field of education: the right to preschool, elementary and secondary education in one’s mother tongue when the conditions are met regarding the number of pupils (here the state seeks, subject to material conditions permitting, to create conditions for the use of this right as well as for the establishment of departments or faculties at colleges and universities so as to provide education for the required teaching staff ) and the
Legal Status and Rights of Minorities in Serbia and Montenegro right to a certain space for minority history, culture and traditions in the curricula, the participation of National Councils or other bodies in developing such curricula; the right to establish private educational institutions based on self-financing. Article of the Law provides for the right of minorities to have media or programmes and cultural institutions in their mother tongue. To ensure an effective participation in decision-making on issues of specific concern for minorities in government and administration, several institutions have been established: the Federal Minority Council (Article ) made up of representatives of minorities and of the government; National Councils (Article ) as self-government bodies for each minority, and elected by electors who themselves are elected from among and by minority members; a Federal Fund for National Minorities (Article ) aimed at supporting social, economic, and cultural development of national minorities. Article calls upon the government bodies at all levels to take care of the national composition of the population and the knowledge of languages spoken on the territory of the authority or service when they elect or employ persons in public offices. All measures which change the portion of the population in areas inhabited by national minorities and which hamper the exercising of rights of national minorities are prohibited (Article ). e creation of the institution of ombudsman was also considered and provisions formulated, but governments (federal and of both republics) agreed to introduce the ombudsman as institution protecting all citizens, with the possibility of a special ombudsman for minorities. V. T P M N C I L A number of problems concerning the implementation of the Law are related to the constitutional situation of the country and the fact that many of the issues regulated by the law fall under the competence of the member-republics. ese republics are very eager to keep full jurisdiction in their power, particularly in the light of discussions and proposals about replacing the federation by two independent states. However, since it was FRY that had undertaken commitments vis-à-vis the international community, the Council of Europe and the OSCE, it was FRY which was required to regulate this area by its law in accordance with international instruments. e FRY Constitution allocated the protection of rights and freedoms of citizens and particularly the rights and freedoms of national minorities to the federation (i.e. federal state). Hence, this Law intended to administer that responsibility of the federation and carry out its duties. e team of experts working on the Law was aware of the impossibility of foreseeing the precise territory where it would be implemented: Representatives of Montenegro did not attend the meeting of experts, and do not feel obliged by this Law. However, deputies in federal parliament from Montenegro voted for the Law. Considering the problems of making new constitutions and implementing the Law, one has to take into account that of the three constitutions neither one was implemented or respected. Hopefully, some of the problems were settled in March by the adoption of the Constitutional Charter with the Law on Implementation, and the Charter on Human
Vojislav Stanovcic and Minority Rights and Fundamental Freedoms. ese two Charters have to serve as the basis for the future constitutional and legal structure of the state union and of both republics, and also eventually of their laws protecting national minorities. e fact that both republics have agreed that the former (established in ) federal Ministry of National and Ethnic Communities remains as one among only five ministries in the Federal Government of the SM State Union (with the new name: Ministry for Human and Minority Rights) proves that the importance of this field is fully realized, as well as the intentions to continue the protection of minorities as provided by the Law and to pay great attention to human rights in general, because this ministry is authorized by the Law on Implementation to cover the problems of human rights and their protection in general. is ministry already established good relations with all minorities and will continue to serve as a tool for their rights to be respected and implemented. Serbia and Montenegro have taken on the obligation to adjust their constitutions to be in line with the quoted Constitutional Charter. It is very good that the Constitutional Charter contains the phrase ‘the international and European standards and provisions’ because that obliges SM to guarantee that such laws will be directly implemented by the courts. Such a clause existed in the former FRY Constitution and courts had the possibility to implement directly clauses of the international Human Rights Covenants9 but there was not one single case that courts relied on those Covenants, despite so many violations of them and of domestic laws and the constitution. e team of experts did not eliminate this phrase from the Constitution and the Charter with an understanding that in this way it obliges the country to apply (also in the future) international or European standards directly or to ratify them as a part of national (domestic) legislation. e change of the constitutions will be a difficult process as the two governments in their respective parliaments do not have a majority, which is required by the earlier constitution. e DOS missed an opportunity when they had more than a two-third majority in to make a democratic Constitution of Serbia. A reasonable and liberal policy (with some institutions of consociational democracy and the principle of subsidiarity) should be initiated for the constitutional/legal status of the two Autonomous Provinces of the Republic of Serbia. As for Vojvodina, in which members of numerous national minorities live, there is a wide consensus for its self-government to be broadened to make autonomy ‘meaningful’. at is partially done through the adoption of the special Law (the so-called Omnibus Law) on Defining of Competences of an Autonomous Province, which the National Assembly of Serbia adopted on February . is Law had transferred more than twenty large subject-matters (like education, culture, urbanism etc.) to the jurisdiction of the AP. Such changes need to be part of the Constitution of Serbia, the making of which was postponed for two and a half years after October without any good reason, creating many negative consequences for democratic transformation. erefore, instead of making a constitution in which the problems of autonomy for the AP Vojvodina and 9
e International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
Legal Status and Rights of Minorities in Serbia and Montenegro perhaps for the AP Kosovo and Metohija (despite uncertainties about the future of this region) could be regulated, the government pushed through the parliament the ‘Omnibus Law’, a kind of ‘patchwork’ of legislation, which rightly returned a part of autonomy of which Vojvodina was deprived by the Milosevic regime. But the previous practice of not respecting the constitutions leave a bad heritage and repetitions can not be excluded. Some further remarks concerning the new/amended constitutions refer to a more appropriate and satisfactory representation of minorities in parliament that could be facilitated by a constitutional or statutory provision prohibiting the inclusion in any election law or relevant decision of a state agency of a clause that could discriminate against minorities in determining the criteria for entering their representatives into the legislative body. e existing lower limit of % for entering the parliament should be eliminated, as it could not be easily achieved by some minorities (which applies also to political and not only ethnic and national minorities). On the other hand, the negative potential of this could be surpassed by coalitions, which is a practice favoured by multinational states and by advocates of the so-called ‘consociational’ democracy or ‘consociation’. Decentralization and development of local and regional self-government, both de facto and de jure, will increase the possibilities offered to minorities. Institutions such as ombudsman, parliamentary interpellations, parliamentary investigating committees, the supervision of the police and the army by working bodies of the parliament, new electoral laws and territorial division into electoral units, and laws on education and the schooling system, on the official language and languages of minorities, those regulating media and information, state symbols, and many other matters outside the scope of the Law, will affect the position and life of minorities. ree levels of legislation (the one of the State Union, of the two republican and of the Autonomous Provinces) imply an increased possibility of lack of harmonization among laws. Some difficulties in putting these basic ideas into effect, including the fundamental principles of the law and its provisions, would certainly be caused by differences between various minorities in terms of their economic position, schooling infrastructure, education level, material and human resources. To these one should add even greater obstacles for the advancement of all minorities found in the widespread corruption, crime and absence of social and moral standards already obvious in the former SFR of Yugoslavia, and particularly expressed during the past decade. e exercise of minority rights guaranteed by the Law and the Charter on Human and Minority Rights may be considerably hampered by the unfavourable economic and social situation in the country, as well as by the situation in Kosovo and Metohija where conditions are not ready for the return of Serbs, Montenegrins, Roma, Bosniacs, Ashkali and other expelled groups. Against the backdrop of this situation it will be difficult to defend certain broad minority rights that the Law and the Charter guarantee. Texts of these valuable documents will remain ‘in force’ but the spirit could disappear in an atmosphere of discontent, tension and intolerance. e orientation of the government to improve relations with neighbours, and particularly with Hungary, Macedonia, Rumania and Croatia, is preparing ground for the
Vojislav Stanovcic implementation of treaties that include the regulation of the position and protection of minorities according to European standards. e prerequisites for settling a whole series of the outstanding problems are: () rule of law; () a reasonable, moderate and liberal constitutional system as well as corresponding institutional arrangements; () a political culture of tolerance and respect for differences, adjustment, compromise and dialogue; () a developed civil society encompassing both the majority and the minority groups. All this may be achieved only by a long-term endeavor in the right direction, coupled with wise policy inspired by valuable principles. In conclusion, one might rightly expect a rational approach and moderation from all those regulating this subject-matter, formulating the policy and implementing the laws, which also includes those voicing, on behalf of minorities, their requests and criticism. As the chorus says in the finale of the great Greek tragedy Antigone: ‘prudence is the hammer by which fortune is forged’. L P R F N M [Official Gazette of FRY No. of February ] P O – G P Subject of the Law Article 1 () is Law shall govern the manner of exercising individual and collective rights of national minorities set forth in the Constitution of the Federal Republic of Yugoslavia and guaranteed by international treaties. () is Law shall further regulate protection of national minorities from any form of discrimination in exercising their rights and freedoms, and instruments shall be established to ensure and protect particular rights of national minorities in respect of selfgovernment, language, information and culture, and institutions shall be established to facilitate participation of minorities in government and public administration. () e Republic and Province regulations may specify, in accordance with the Constitution and law, issues regulated by this Law. Definition of National Minority Article 2 () A national minority for the purpose of this Law shall be any group of citizens of the Federal Republic of Yugoslavia numerically sufficiently representative and, although representing a minority in the territory of the Federal Republic of Yugoslavia, belonging to a group of residents having a long term and firm bond with the territory of the Federal Republic of Yugoslavia and possessing characteristics such as language, culture, national or ethnic affiliation, origin or confession, differentiating them from
Legal Status and Rights of Minorities in Serbia and Montenegro the majority of the population and whose members are distinguished by care to collectively nurture their common identity, including their culture, tradition, language or religion. () All groups of citizens termed or determined as nations, national or ethnic communities, national or ethnic groups, nationalities and nationalities,10 and which meet the conditions specified under para. of this Article shall be deemed national minorities for the purpose of this Law. P – B P Prohibition of Discrimination Article 3 () Any form of discrimination based on national, ethnic, racial, or linguistic basis against persons belonging to national minorities shall be prohibited. () e Federal, Republic, Province, city and municipal authorities may not pass legal acts or undertake measures contrary to para. of this Article. Measures Ensuring Equality Article 4 () e authorities in the Federal Republic of Yugoslavia may, in accordance with the Constitution and law, pass regulations, individual legal acts and undertake measures aimed at ensuring full and effective equality between members of national minorities and members of the majority population. () e authorities shall pass legal acts and undertake measures specified in para. of this Article with the aim of improving the position of persons of the Roma national minority. () Regulations, individual legal acts and measures specified in para. of this Article may not be considered an act of discrimination. Freedom of National Affiliation and Expression Article 5 () In accordance with the freedom of national affiliation and expression set forth in the Constitution of the Federal Republic of Yugoslavia, no one may suffer injustice due to his/her commitment or expression of national affiliation or refraining from doing so. () Any registration of persons belonging to a national minority obliging them to declare their national affiliation against their will shall be prohibited. 10
Translator’s note: in Serbian: narodi, nacionalne i etnicke zajednice, nacionalne i etnicke grupe, nacionalnosti i narodnosti.
Vojislav Stanovcic () Any action or measure of forced assimilation of persons belonging to a national minority shall be prohibited. e Right to Interact with Compatriots at Home and Abroad Article 6 () e persons belonging to national minorities shall be entitled to freely establish and maintain peaceful relations within the Federal Republic of Yugoslavia and outside of its borders with persons legally residing in other countries, particularly those with whom they share a common ethnic, cultural, linguistic and religious identity or common cultural heritage. () e State may envisage relieves directed at facilitating exercise of rights specified in para. of this Article. e Duty to Respect the Constitutional Order, Principles of International Law and Public Morality Article 7 () Every misuse of rights provided under this Law directed at violent subversion of the constitutional order, violation of territorial integrity of the Federal Republic of Yugoslavia or member republic, violation of guaranteed freedoms and rights of man and citizen and instigation of national, racial and religious intolerance and hatred shall be prohibited. () e rights provided under this Law may not be used to further goals that are in contravention with principles of international law or are directed against public safety, morals or health of people. () Exercising of rights guaranteed by this Law may not affect duties and responsibilities deriving from citizenship. e Protection of Acquired Rights Article 8 () is Law shall not change or abolish rights of persons belonging to national minorities acquired pursuant to regulations in force on the day this Law becomes effective, as well as rights acquired pursuant to international conventions to which the Federal Republic of Yugoslavia is a signatory.
Legal Status and Rights of Minorities in Serbia and Montenegro P T – T R P I e Choice and Use of Personal Name Article 9 () e persons belonging to national minorities shall have the right to free choice and use of personal name and the name of their children, and enlisting of the personal names to all public documents, official records and personal data bases in the language and script of the person belonging to the national minority. () e right specified in para. of this Article shall not exclude the corresponding entry of the name in accordance with the Serbian spelling and script. e Right of Use of Mother Tongue Article 10 () e persons belonging to national minorities may freely use their language and script in both private and official use. e Official Use of Language and Script Article 11 () e language and script of national minorities may be in equal official use within their respective territories of the local self-government units traditionally inhabited by persons belonging to national minorities. () A local self-government unit shall equally introduce the official use of the language and script of a national minority where the percentage of the persons belonging to national minorities in comparison to the total number of population on its territory reaches percent in accordance with the results of the last census. () Where a language of national minorities was in official use in a local self-government unit at the moment of issuance of this law, the same shall remain in official use. () e official use of the language of a national minority specified in para. of this Article shall mean: use of the language of national minorities in administrative and court procedures and administrative and court procedure in the language of national minorities, use of the language of national minorities in communication between administrative bodies and residents; issuance of public documents and keeping official records and personal data bases also in the language of national minorities and recognizing the documents written in these languages as valid, use of the language on the ballots and material used in voting, use of the language in the work of the representative bodies. () e names of the administrative bodies, local self-government units, towns and villages, squares and streets and other toponyms shall in the territories referred to in para. be also written in the language of national minorities, in accordance with their tradition and orthography.
Vojislav Stanovcic () e Federal laws and regulations shall also be published in the language of national minorities, in accordance with a special regulation. () e person belonging to national minorities that in their number reach at least percent of the total number of the population of the Federal Republic of Yugoslavia in accordance with the last census, may communicate with the Federal bodies in their own language and shall have the right to get an answer in the same language. () A deputy in the Federal Assembly who is a member of a national minority that in number reaches at least percent of the total number of the population of the Federal Republic of Yugoslavia, in accordance with the last census, shall have the right to speak in his/her native tongue before the Federal Assembly, which shall be more closely regulated through the rules of the Federal Assembly Councils. e Right to Preserve Culture and Tradition Article 12 () e expression, preservation, cherishing, developing, handing down and public demonstration of national and ethnic, cultural, religious and language specificity as a part of the tradition of the residents, national minorities and the persons belonging to national minorities shall be their inalienable individual and collective right. () For the purpose of preservation and development of the national and ethnic specificity, persons belonging to national minorities shall have the right to found separate cultural, artistic and scientific institutions, societies and association in all spheres of cultural and artistic life. () e above-mentioned institutions, societies and associations shall be independent in performance of its activities. e State shall participate in financing of these societies and associations in accordance with its possibilities. () e societies and associations specified in para.. of this Article may form special funds in respect of incitement and support to these institutions. () e museums, archives and institutions for protection of the cultural monuments whose founder is the State, shall ensure presentation and protection of the cultural and historical heritage of the national minorities on its territory. e representatives of the national councils shall have the right to participate in decisions on the manner of presentation of the cultural and historical heritage of the respective community. Education in Mother Tongue Article 13 () e persons belonging to national minorities shall have the right to education in their own language in the institutions of preschool education, elementary and high school education. () If at the moment of issuance of this Law the public education system for national minorities specified in para. of this Article does not include education in the language of national minorities, the State shall create the conditions for organizing
Legal Status and Rights of Minorities in Serbia and Montenegro
()
() () ()
()
()
education in the language of national minorities, and in the meantime shall provide bilingual classes or studying of national minorities language with elements of national history and culture for the persons belonging to national minorities. In order to exercise the rights specified in para. and of this Article, a minimum number of pupils may be prescribed, where the number may be less than the minimum number of pupils prescribed by the law in respect of ensuring the appropriate forms of tuition and education. e education in the language of national minorities shall not exclude the mandatory studying of Serbian language. e educational curricula specified in para. of this Article , in the part which refers to the national content, shall include significant part of the subjects which refer to the history, art and culture of the respective national minority. e national councils of national minorities shall participate in preparing curricula of for the subjects that represent specific character of the national minorities, bilingual classes and studying of languages of national minorities with the elements of the national culture specified in para. of this Article. e curricula in educational institutions for education and schools with tuition in Serbian language should, aiming at promoting tolerance in respect of national minorities, contain the tuition that includes history, culture and position of the national minorities, and other contents that improve mutual tolerance and coexistence. In the territories where the language of national minorities is in official use, the curricula in schools should contain the possibility of studying the language of the respective national minority.
Article 14 () For the purpose of education in the language of national minorities in Article , para. , the departments and faculties shall be established as a part of the higher education where preschool teachers, elementary and junior school teachers11 of the national minority languages may be educated. () e faculty shall, apart from the higher education mentioned in the previous paragraph of this Article, organize instructorship in the languages of national minorities, where students belonging to national minorities may learn the professional terminology also in the language of the respective national minority. () e State shall, apart from the obligations specified in paras. and of this Article, assist in professional training and advanced training in terminology for junior school teachers for the needs of education specified in para. of this Article. () e State shall improve the international co-operation, aiming at enabling the persons belonging to national minorities to study abroad in their mother tongue and recognition of such diplomas in accordance with the law.
11
Translator’s note: in Serbian: vaspitaci, ucitelji i nastavnici.
Vojislav Stanovcic Article 15 () e persons belonging to national minorities shall have the right to found and maintain private institutions for education, schools, or universities, where education shall be organized in languages of national minorities or bilingually, in accordance with the law. () Both the local and foreign organizations, foundations and individual persons may participate in financing of the education in the languages of national minorities in accordance with the law. () In case of financial and other donations mentioned in the previous Article, the State shall provide certain relief and exemption from levies. Use of National Symbols Article 16 () e persons belonging to national minorities shall have the right to choose and use national signs and symbols. () e national signs and symbols may not be identical to the signs and symbols of another state. () e national councils shall propose national signs, symbols and national minorities’ holidays. e Federal Council for National Minorities shall verify the symbols, signs and holidays of national minorities. () e signs and symbols of a national minority may be officially displayed during public holidays and holidays of the national minorities on buildings and in the premises of local bodies and organizations with administrative authority in the territory in which the language of the national minority is in official use. () e signs and symbols of the Federal Republic of Yugoslavia or a member Republic shall be displayed together with the symbols of a national minority officially used as referred to in para. of this Article. Public Information in Languages of National Minorities Article 17 () e persons belonging to national minorities shall be entitled to complete and impartial information in their own language, including the right of expression, receipt, sending and exchange of information and ideas via press and other mass media. () e State shall provide information, cultural and educational content in the language of national minorities in programmes of the public service TV and radio, and may also establish special radio and TV stations to broadcast programmes in the language of national minorities. () e persons belonging to national minorities shall have the right to establish and maintain media in their own language.
Legal Status and Rights of Minorities in Serbia and Montenegro P F E P D-M I R S N M G P A e Federal Council for National Minorities Article 18 () e Federal Government of Yugoslavia shall establish the Federal Council for National Minorities (hereinafter: the Council) for the purpose of preservation, promotion and protection of national, ethnic, religious, linguistic and cultural specificity of the persons belonging to national minorities and exercise of their rights. () e Federal Government shall determine the composition and responsibilities of the Council. () e representatives of the national councils of national minorities shall be members of the Council. e National Councils of National Minorities Article 19 () e persons belonging to national minorities may elect national councils (hereinafter: the council) with the purpose of exercising rights of self-government regarding the use of language and script, education, information and culture. () e council shall be a legal entity. () e council shall have not less than , and not more than members, depending on the total number of the national minority population, who shall be elected for a fouryear period. () e council shall adopt its statute and budget in accordance with the Constitution and law. () e council shall be financed from the budget and donations. () e relevant federal body shall maintain the register of elected councils. () e council shall represent the national minority in respect of official use of language, education, information in the language of the minority, culture, and participate in decision-making or decide on issues in these fields, as well as establish institutions in these fields. () In deciding on issues specified in para. of this Article, the bodies of the government, territorial autonomy or local self-government unit shall request the opinion of the council. () e council may address the authorities mentioned in para. of this Article in respect of all issues affecting the rights and status of the national minority.
Vojislav Stanovcic () A part of the powers in fields specified in para. of this Article may be delegated to the council, and the government shall provide funds necessary for their exercise. () In determining the scope and type of powers from para. of this Article, the requests of the national council shall be taken into account. ()e council shall be established based on the principles of voluntarism, electiveness, proportionality and democracy. () Rules on the election of national councils shall be prescribed by law. e Federal Fund for National Minorities Article 20 () e Federal Fund for the promotion of social, economic, cultural and overall development of national minorities (hereinafter: the Fund) is hereby established. () e Fund shall take part in financing activities and projects from the budget related to the improvement of the status and development of cultural creative work of national minorities. () e Federal Government shall pass more specific regulations defining the Fund’s composition and activities. Participation in Public Life and Equal Employment Opportunities in the Public Sector Article 21 () In respect of employment in public services, including the police, attention shall be paid to the national composition of the population, appropriate representation and competence in the language spoken in the territory of the relevant body or service. P F – P R F M Prohibition of Violation of the Rights of Minorities Article 22 Measures that change the proportion of population in a territory inhabited by national minorities are hereby prohibited, as well as those impeding enjoyment and exercise of the rights of national minorities. Protection of Rights by Courts and Constitutional Court Article 23 () In order to protect their rights, the persons belonging to national minorities and the national councils of national minorities may file a claim for compensation to the competent court. () In accordance with the provisions of the Law on the Federal Constitutional Court, the Federal Ministry for National and Ethnic Communities and the national councils
Legal Status and Rights of Minorities in Serbia and Montenegro of national minorities shall be authorized to file a complaint to the Federal Constitutional Court, should they find that constitutional rights and freedoms of the persons belonging to national minorities have been violated, or should a person belonging to a national minority appeal to them claiming that his/her rights and freedoms have been violated. P S – F T P Article 24 () e national councils of national minorities shall be elected by the assemblies of national minorities’ electors until the Law specified in Article , para. hereof is passed. () e national minorities electors mentioned under para. of this Article may be federal and republican deputies and autonomous province deputies who have been elected as persons belonging to a particular national minority, or who declare themselves as persons belonging to that minority and speak the language of the minority. () e national minorities’ electors from para. of this Article may also be councilors who belong to particular national minority, and have been elected for a local self-government unit where the language of the respective minority is in official use. () An elector may be any resident declaring to belong to the national minority and whose candidacy is supported by at least members of the national minority with voting right, or is nominated by an organization or association of the national minority. () Other issues related to the powers and method of work of the assembly of national minority’s electors shall be regulated by the federal body responsible for minority’s rights within days of entering into force of this Law. Article 25 () is Law shall come into force eight days upon its publication in the ‘Official Gazette of the FRY’.
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Krassimir Kanev *
e New Bulgarian Religious Law: Restrictive and Discriminatory
I. I Religious freedom deteriorated in a number of Eastern European countries after the initial democratic euphoria following the fall of communism. In several of them, attempts were made to pass restrictive and discriminatory laws regulating church – state relations. Among these countries were Russia, Moldova, Macedonia, Hungary, Romania, Belarus and Bulgaria. Not all of these attempts have been successful. In Romania, at the beginning of the government, after national and international pressure, withdrew the discriminatory draft Law on the General Status of Religious Denominations that had been sent to parliament for debate in . In Macedonia, the Constitutional Court invalidated several articles of the discriminatory law on Religious Communities and Religious Groups as from , making it thereby to a great extent inoperative. However, in several other cases the attempts were successful. In September , Russia passed its Law on the Freedom of Conscience and Religious Associations, distinguishing and discriminating between the traditional and the new religious groups. In November , Belarus adopted amendments to its Law on Religious Freedom, Religious Denominations and Religious Organizations, which distinguished and discriminated between religious communities and religious alliances. Religious communities, as opposed to religious alliances, are denied the right to have their own media, to open religious schools and to invite guests from abroad. e law also provides for wide and unfettered discretionary powers of a specialized state administration to deny the registration of religious denominations and to police their activities. Religious denominations in many countries in both Eastern and Western Europe have faced discrimination and unfounded restrictions through arbitrary interpretations and even through the violation of existing legal provisions. *
Dr. Krassimir Kanev is a professor of sociology and human rights at the state universities of Plovdiv and Sofia and Director of the Bulgarian Helsinki Committee.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Krassimir Kanev II. H In December , the Bulgarian parliament passed a new Religious Denominations Act,1 which replaced the Denominations Act of and established a new regime for the incorporation2 of religious associations and governmental control over religious activities. e adoption of a new religious denominations act became the subject of public debate immediately after the fall of communism in Bulgaria. e real attempts at establishing this act however started as late as . Since then several consecutive governments have tried to adopt a new law but all the drafts were rejected by the religious denominations and were not approved by the parliament. Some of them received unfavourable reviews from experts from the Parliamentary Assembly of the Council of Europe (PACE).3 After , the Bulgarian authorities undertook a series of repressive measures against what they called ‘sects’. Some of these measures were challenged both domestically and before the European Commission of Human Rights (ECommHR) and, as a result, the most flagrant of these abuses were halted.4 e Denominations Act of the communist period in Bulgaria allowed for unfettered government interference in the internal affairs of all religious denominations. Religion was the only officially tolerated alternative to the ideological monopoly of the communist party and the communist authorities wanted to make sure that it was under strict control.5 e law allowed the government to remove religious ministers from office, prohibited religious charitable activities and religious education of the young, while establishing control over any type of religious publication. Repressive and discriminatory as it was, the old act was found suitable by politicians during the first years of democratic change in their efforts to establish control over religious denominations, support and promote the faithful within those denominations and use them for political purposes. us, the Bulgarian Orthodox Church was split in through the combined efforts of both an external and an internal factor. e external factor was the first non-socialist government of the Union of Democratic Forces, which took power after the September elections. In March and April 1
2
3 4
5
Adopted on December , State Gazette, No., from December . Incorporation is the process of obtaining juridical person (corporate) status. It is often confused and mixed with registration but these are two different things although in Eastern Europe incorporation usually goes hand in hand with registration. Registration, however, is possible without incorporation. For a summary of the PACE opinion of see Bulgarian Helsinki Committee, Human Rights in Bulgaria in , Annual Report (March, ), available at http://www.bghelsinki.org/frames-reports.htm. See e.g. ECommHR, Appl. No. /, Khristiansko Sdruzhenie ‘Svideteli na Iehova’ (Christian Association Jehovah’s Witnesses) v. Bulgaria, Report of the European Commission of Human Rights of March (friendly settlement). For more on this and on the historical and political background of church-state relations in Bulgaria after see Emil Cohen and Krassimir Kanev, ‘Religious Freedom in Bulgaria’, (-) Journal of Ecumenical Studies (), -. According to the latest census results from March , .% of Bulgarians declared nominal adherence to the Eastern Orthodox Christianity, .% to Islam, .% to Catholicism and .% to Protestantism. See results at http://www.nsi.bg/Census/Religion.htm.
e New Bulgarian Religious Law: Restrictive and Discriminatory it used the Denominations Act to declare illegitimate both the (then) leader of the church, Patriarch Maxim, and several bishops. e internal factor was a faction within the Orthodox Church, headed by Bishop (Mitropolitan) Pimen, known also as ‘the Alternative Synod’, which demanded renewal of church leadership and expulsion of those of its members, including Patriarch Maxim, who had collaborated with the communist regime to the detriment of the church. Similar governmental interference in February affected the split in the second largest religious denomination in Bulgaria, the Muslims. In this case too, the government, acting on advice from its (then) coalition partner, the Movement for Rights and Freedoms (MRF),6 removed the Chief Mufti and replaced him with a government loyalist. Shortly afterwards seven regional muftis were declared ‘illegitimate’ by the government and were ultimately replaced. In June , the Constitutional Court, petitioned by a group of members of parliament and the president, declared governmental interference in the internal affairs of religious communities unconstitutional.7 e Court repealed both the provisions of the old Denominations Act, which had allowed this interference, and several others, which were considered to be restrictive or discriminatory. e Court ruled that the right to freedom of religion or belief can only be restricted on grounds explicitly provided for by the Constitution. No other grounds may be invoked. As a result, the only effective provisions left of the Denominations Act were those establishing the special governmental ‘Religious Denominations’ Office, but with many of its powers cut, and those concerning the regime of incorporation of religious communities, i.e. through recognition by the Council of Ministers or a vice-premier and their obligation to register at the local level with the respective municipal authorities. e Constitutional Court’s decision however could not and did not remedy the splits that had, by June , already occurred between the two biggest religious denominations. Both the Bulgarian Orthodox Church and the Muslim Denomination remained divided during the subsequent years. Both formed rival leaderships trying to use governmental authority to acquire official status with every change of the government. Each of the two factions had juridical person status and was registered by the government under the same name. ey each had control over houses of worship and other property in proportion to the share of believers that stood behind each faction. One of the factions of the Muslim Denomination, led by Mr Fikri Hasan, appealed to the European Court of Human Rights (ECtHR) in Strasbourg against the government of the Bulgarian Socialist Party (BSP), which, after coming to power in , registered Hasan’s rival, whom the government considered loyal to its policy, as a legitimate Chief Mufti. In October , the Court issued its judgment,8 in which it found a violation of 6 7 8
e MRF is the political party supported by the majority of the Bulgarian Turks, plus a number of Bulgarian-speaking Muslims and Roma Muslims. Constitutional Court (Конституционен съд), Decision No. / June on Constitutional Case No./ . ECtHR, Hasan and Chaush v. Bulgaria, judgment of October .
Krassimir Kanev Articles and of the European Convention on Human Rights (ECHR). e Court held that: the interference with the internal organization of the Muslim community and the applicants’ freedom of religion was not ‘prescribed by law’ in that it was arbitrary and was based on legal provisions which allowed an unfettered discretion to the executive and did not meet the required standards of clarity and forseeability.9 e Court also held that: the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the state to determine whether religious beliefs or the means to express such beliefs are legitimate. State action favouring one leader of a divided religious community or undertaken with the purpose of forcing the community to come together under a single leadership against its own wishes would likewise constitute an interference with freedom of religion. In democratic societies the State does not need to take measures to ensure that the religious communities are brought under a unified leadership.10 III. T R D A D 2002 Soon after the new government, a coalition between the National Movement Simeon the Second (NMSS) of the former king of Bulgaria and the MRF, came to power on July , it declared its support for one of the factions of the divided Bulgarian Orthodox Church, that of Patriarch Maxim. So did the new president, Mr Georgi Parvanov, former leader of the BSP, when he was elected in November . roughout and both the president and the prime minister promised Patriarch Maxim they would ‘overcome the split’ inside the Orthodox Church. In April police in the town of Pomorie attacked a church belonging to the Alternative Synod and transferred its property to the Synod of Maxim. e draft law on religious denominations, introduced on July , was the first draft introduced to parliament by a member of the governing coalition. It provided for the reunification of the Bulgarian Orthodox Church through an ex lege recognition of the Synod of Maxim and outlawing the Alternative Synod. Two more, less restrictive drafts were also introduced subsequently and the three passed on the first reading with the instruction that they should be consolidated into one. e work on the consolidated draft was protracted for months but, suddenly, in December , things accelerated and the law was passed on the second reading on December. It entered into force after its official publication on December. 9
10
Ibid., para. . Ibid., para. .
e New Bulgarian Religious Law: Restrictive and Discriminatory e new Religious Denominations Act establishes a regime for the incorporation of Bulgarian religious denominations different from the regime in place under the communist Denominations Act. All denominations other than the Bulgarian Orthodox Church are to be registered by the Sofia City Court (Article ()). e applicant religious denomination must submit to the Court numerous documents, including a statement on its belief system and its worship and observance practices (Article ). As in the previous law, when the religious denominations are registered at a central level, their local branches are to be registered with the municipalities upon application by the central leadership (Article ()). us the law wants to ensure the control of the central leadership over its branches. No such requirement exists for non-religious groups, including non-profit organizations, trade unions and political parties. e process of registration by the Court may be controlled by a special governmental body, established by the law, called the ‘Directorate of Religious Denominations’, which is empowered to give opinions to the Court on any matters related to incorporation (Article () and ). is governmental office also has powers to police religious groups, powers which, according to Article , include: receiving complaints against religious groups by third parties, investigations into ‘unlawful religious activities’ and the imposition of administrative fines or the referral of a matter to the prosecutor’s office. It also gives opinions to the police on whether to issue visas to any guests invited by the religious denominations. No such body is asked for an opinion when non-religious organizations invite their guests. As the main purpose of the new act is to legally reunite the Bulgarian Orthodox Church by force of law, it makes a special provision for its incorporation. Article provides that the Bulgarian Orthodox Church, ‘a member of the United, Holy, Congregational and Apostolic Church’, i.e. of the union of the eastern orthodox churches headed by the Ecumenical Patriarch in Istanbul, is a juridical person ex lege. Paragraph of the transitory and final provisions of the law forbids any person who has split from a religious institution in violation of its statutes to ‘use an identical name and … its property’. As the Ecumenical Patriarch recognizes only the Synod of Maxim, it is clear that it will be recognized as a juridical person ex lege and the Alternative Synod will be banned from using the name of the Orthodox Church and all the property it possesses will be transferred to the Synod of Maxim. In addition, the law, in its Article , envisages fines for anybody who ‘without powers to represent, undertakes activities on behalf of a religious denomination’. us the Alternative Synod becomes effectively outlawed. is provision was passed with the votes of the members of parliament from the NMSS and the BSP. e MRF, coalition partner of the NMSS, voted against this particular provision but supported the other provisions of the law. e new act contains many other restrictive and discriminatory provisions, which are the result of prejudiced views towards minority religions, as well as towards religion per se. ey are also the result of a very poor knowledge of international human rights law as well as of the nature of different religious beliefs. Some of them are simply absurd and are impossible to enforce. us, Article () of the law provides that ‘no rights and freedoms of the persons who are members of a religious community may be restricted by the inter
Krassimir Kanev nal rules, rituals and rites of this community or institution.’ Read literally, the provision prohibits a number of canonic regulations, such as the Adventists’ and the Jews’ ban on working on Saturday or the Muslims’ ban on drinking alcohol. e provision does not say ‘fundamental rights and freedoms’ but just ‘rights and freedoms’ and therefore lends itself to an overly broad interpretation and can become a basis for various abuses. Moreover, it is discriminatory, as no such provision exists for non-religious associations. e new act expands the grounds for restriction of the right to manifest religious beliefs beyond the ones permitted by international law. us, to the legitimate ones11 it adds national security, a ban to use religious beliefs for political purposes12 and a ban on the involvement of minors in any kind of religious activities without the express permission of their parents (Articles (), () and ()). Discrimination goes further with Article () of the act, which envisages punitive measures that may be imposed on religious communities through the Court on a motion by any interested party for the violation of certain legal provisions. ese include: banning the distribution of printed materials; banning any printing activity; restricting public events; revoking the registration of a charitable institution; suspending the activities of the juridical person for up to six months and a permanently revoking the juridical person’s status. Most of these punitive measures cannot be imposed on non-religious organizations. As the Bulgarian Orthodox Church is a juridical person ex lege, it cannot be subject to any of the measures affecting its juridical person status. In fact, the law provides for a double system of punishments. According to Article the Directorate of Religious Denominations may impose administrative fines on individuals or groups for any breach of the law. e act does not prohibit the imposition of two types of punishment (judicial and administrative) for the same offence. Article () of the new act provides that non-profit organizations dedicated to supporting and advocating certain religious beliefs may only be created with the approval of the respective religious institution, which, for its part, should be registered. is provision was introduced to block the incorporation of religious denominations under the cover of non-profit organizations. Such organizations that might use this opportunity at present in Bulgaria are the Unification Church, which has already applied unsuccessfully to obtain the status of a religious denomination and the Church of Scientology, which has never applied for such a status. No such provision exists for non-religious organizations of whatever type.
11
12
Article of the ECHR and Article of the CCPR allow restrictions of the freedom to manifest one’s religion only in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. As the UN Human Rights Committee stated in its General Comment on Article of the CCPR: ‘e Committee observes that paragraph of Article is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security.’ (UN Doc. HRI/GEN//Rev. at , , para.) In fact, these are the grounds for restricting religious freedom provided for by Article () and Article () of the Bulgarian Constitution.
e New Bulgarian Religious Law: Restrictive and Discriminatory IV. R R D C S Most minority religious communities expressed their disapproval of the law even before it was finally passed by parliament. On and December, the Alternative Synod held two demonstrations in front of the parliament building, each attracting about a thousand participants. e rallies were joined by members of a number of Protestant and other denominations as well as by human rights activists. On December, , representatives of Protestant, Muslim, Catholic, Orthodox and Hare Krishna groups petitioned the president of Bulgaria stating that the law was discriminatory and violated a number of provisions of international law.13 ey asked him to veto it if passed. Human rights lawyers and activists also signed the petition. e president did not veto the bill, nor did he even answer the petitioners. With a special statement from December the Chief Mufti of Bulgaria voiced his concern over the privileged status that the law provides the Bulgarian Orthodox Church. After its adoption and subsequent publication in the State Gazette, members of parliament from the opposition United Democratic Forces petitioned the Constitutional Court asking it to declare all provisions regulating the privileged status of the Orthodox Church, plus Article () as unconstitutional. e Court declared the petition admissible and invited all recognized religious denominations as well as a number of human rights groups to file amicus briefs. It had not yet decided on the law’s constitutionality at the time of writing. V. F Even if the Constitutional Court satisfies the request of the petitioners, it would only remedy part of the restrictive and discriminatory provisions of the law. e Bulgarian legal system does not allow for individual petitions or for petitions by interested parties before the Constitutional Court. Further challenges to the law before the Constitutional Court must go through the institutions provided for by the constitution. In addition to one fifth of the members of parliament these include: the president, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court and the Chief Prosecutor. e other alternative is the ECtHR in Strasbourg. ere is no doubt that the Court would find many provisions of the law incompatible with ECHR standards. A successful petition there, however, with a full effect, including a legislative reform, could well take a decade.
13
e text of the petition is available in English at http://free.top.bg/confessions_act/english/english.htm.
Krassimir Kanev R B XXXIX N A L R D* e National Assembly of the Republic of Bulgaria, Confirming the right of each person to freedom of conscience and belief, as well as to equality before the law notwithstanding religious belonging and convictions, Underlining the particular and traditional role of the Bulgarian Orthodox Church for the establishment and development of its spirit and culture, Whereby expressing respect towards Christianity, Islam, Judaism and other religions, Believing in the importance of supporting mutual understanding, tolerance and respect on matters related to the freedom of conscience and belief, Adopts this L C O General Provisions
Article 1 is law provides for the right to profess and practice a religion, its protection, as well as the legal status of the religious communities and institutions and their relations with the state. Article 2 () e right to profess and practice a religion is fundamental, absolute, subjective, personal and inviolable. () e right to profess and practice a religion shall include everybody’s right freely to form his/her religious beliefs and to choose, change, profess and practice freely his/ her religion – individually or collectively, in public or in private, by worship, teaching, practice and observance. Article 3 () Nobody shall be persecuted or limited in his rights because of his/her religious beliefs. No limitations or privileges based on affiliation or rejection of affiliation to a religion are allowed. *
Translation by Dr. Krassimir Kanev, professor of sociology and human rights at the state universities of Plovdiv and Sofia and Director of the Bulgarian Helsinki Committee.
e New Bulgarian Religious Law: Restrictive and Discriminatory () Religious convictions shall not be the basis for a refusal to fulfil obligations established by the Constitution. Article 4 () Religious denominations are free and equal in rights. Religious institutions are separate from the state. () No state interference in the internal organization of the self-administered religious communities and religious institutions shall be allowed. () e state shall provide conditions for free and unhindered exercise of the right to profess and practice a religion, assisting with the maintenance of tolerance and respect between the believers from the different religious denominations and between believers and non-believers. () No discrimination based on religious affiliation shall be allowed. C T Right to Profess and Practice a Religion Article 5 () e right to profess and practice a religion shall be exercised through forming and manifestation of religious belief, establishment or participation in a religious community, organization of a community’s institutions, accomplishment of religious training and education through dissemination of the respective belief orally, in print, by the use of electronic media, in the form of lectures, seminars, courses, programs, etc. () Religious belief may be manifested through worship, observance and practice. () e religious belief is expressed in private when it is accomplished by one member or members of the religious community or in the presence only of persons belonging to the community, and in public – when its expression can become accessible for people not belonging to the respective religious community. Article 6 () e right to profess and practice a religion shall include also the following rights: . To create and maintain religious communities and institutions with structure and manner of representation which are suitable according to the free conviction of their members; . To establish and maintain places of worship or religious meetings; . To establish and maintain appropriate charitable or humanitarian institutions; . To make, acquire and use, to the extent related with the worship aims, the necessary articles and materials related to the rites and the customs of a religion or belief; . To write, publish and disseminate religious publications; . To deliver and receive religious training in a language according to one’s own choice;
Krassimir Kanev . To preach or teach a religion or belief in places appropriate for this purpose according to the communities and institutions, as well as to create and maintain educational establishments that are appropriate according to the organizations, following the requirements of the law; . To solicit and receive voluntary financial and other contributions from individuals and institutions; . To observe days of rest and respect the religious holidays; . To establish and maintain relations in the country and abroad with persons and communities on religion and belief issues. () Parents and legal guardians shall have the right to ensure religious education to their children according to their own convictions. Article 7 () Freedom of religions shall not be directed against national security, public order, public health and the morals or the rights and freedoms of other persons () Religious communities and institutions, as well as religious beliefs cannot be used for political purposes. () e right to profess and practice a religion cannot be restricted on grounds other than those under Article and . () No rights and freedoms of the persons who are members of a religious community may be restricted by the internal rules, rituals and rites of this community or institution. () Religious communities and institutions shall not attract persons under years of age unless there is an express agreement of their parents or guardians. Persons between and years of age may be involved in the activities of religious communities and institutions unless there is an express disagreement of their parents or guardians. Article 8 () e right to profess and practice a religion shall be restricted if the requirements of Article are being violated by: . discontinuing the dissemination of a certain publication; . discontinuing the publishing activity; . restricting public events; . withdrawal of the registration of an educational, health or social establishment; . suppression of the activity of a legal personality for up to months; . withdrawal of the registration of the legal personality of a religious denomination. () e restriction procedure is started upon request of the interested persons or the prosecutor. e case is examined under the litigation procedure before the Sofia City Court. () e decision of Sofia City Court can be appealed according to the general procedure.
e New Bulgarian Religious Law: Restrictive and Discriminatory Article 9 Each of the religious denominations is characterized by its name and the religious convictions of the natural persons composing its religious community. Article 10 () e traditional religion in the Republic of Bulgaria is Eastern Orthodoxy. It plays a historic role in Bulgarian statehood and has actual meaning in the state’s life. Its voice and representative is the self-governing Bulgarian Orthodox Church, which under the name Patriarchy, is the successor of the Bulgarian Exarchate and is a member of the United, Holy, Congregational and Apostolic Church. It is led by the Holy Synod and is represented by the Bulgarian Patriarch who is Mitropolitan of Sofia. () e Bulgarian Orthodox Church is a legal personality. Its structure and management are determined by its statute. () Paragraphs and cannot be the basis for granting privileges or any advantages by a law or administrative act. Article 11 () e relations of the religious institutions with the state are carried out in the official Bulgarian language. () While performing worship or different rituals another language may be used according to the tradition of the religious community. Article 12 () Religious denominations can establish for their needs ritual, prayer or worship houses for public religious rites and services in facilities owned or rented by the religious institution or local branch. Buildings of religions are built observing the Law on Land Use of the Territory and the respective administrative normative acts, taking into account the specific religious symbolism in the architectural shaping. () Religious denominations may organize public activities outside of houses of worship as well. Article 13 e secret of confession is inviolable. No cleric shall be forced to testify or to deliver information about facts and circumstances that he came to know during confession. C T Registration Article 14 Religious communities shall acquire status of a legal personality on the conditions and according to the procedures of this law.
Krassimir Kanev Article 15 () Registration of religious communities as legal personalities shall be accomplished by the Sofia City Court under the procedure of Chapter from the Civil Procedures Code. () It is not permissible that more than one legal personality exists for one religious denomination under the same name and headquarters. Article 16 e Sofia City Court may require expert opinion in relation to the registration of religious communities from the Directorate of Religious Denominations at the Council of Ministers. Article 17 e statute of a religious denomination must include: . name and headquarters of the religious denomination; . explanation of the religious conviction and the worship practice; . structure and bodies of the religious denomination; . the manner of specifying the managing authorities, their powers and the period of their mandate; . persons who have the right to represent the religious denomination and the way of their selection; . manners of taking decisions and procedures for summoning of sittings of the bodies of the religious denomination; . ways of financing and property; . manners of termination and liquidation. Article 18 e Sofia City Court shall maintain a public register of religious denominations who have a statute of a legal personality, in which are listed: . the court decision for registration ; . name and headquarters; . managing bodies and representation; . names of persons, who are representatives of the religious institution. Article 19 () Religious denominationscan have local branches according to their statutes. () Local branches shall be registered by the mayors of the municipalities, according to the place of their headquarters, under the conditions of the notification regime, within a -day term, on the basis of an application by the central leadership of the religious denomination or authorized by its person according to the statute. () e application, according to paragraph. , shall include:
e New Bulgarian Religious Law: Restrictive and Discriminatory . e court decision of the Sofia City Court for the registration of the religious denomination and its central leadership, together with the respective power of attorney to the person authorized by the central leadership. . A certificate from the central leadership for persons, who shall represent the central leadership in the respective municipality, the seat and the address of the local section. () e mayor shall inform the Directorate of Religious Denominations of the performed entry within days after the entry in the register is completed. () e municipal administration shall maintain a register of the local branches of the religious denominations. Article 20 Upon a decision of the central leadership and according to the statute of the respective religion, local branches can register as legal personalities in the district court of their seat. C F Property and Finances Article 21 () Religious denominations and their branches, which have acquired the status of legal personality according to the procedures of this law, shall have the right to own property. () Property of the religious denominations shall include: right of ownership over a property; limited property rights on real estate; fruits from managing of real estate, including rents; profits or dividends from participation in commercial companies or associations of commercial companies; right of ownership of movable property, including securities; copyright law rights; income from state subsidies, donations, testaments and others. () e state and municipalities may lease to religious institutions and their local branches free of charge the right to use state or municipal real estate, as well as to support them with subsidies provided in the governmental or municipal budget. Article 22 Disposal of the properties of the religious denominations shall be regulated in their statutes. Article 23 () To meet their needs registered religious denominations shall have a right to produce and sell goods connected to their religious activities, rituals and rites.
Krassimir Kanev () Activities covered by paragraph shall not be considered as commercial activity under the terms of the Law on Commerce. () Prayer houses, temples, monasteries, objects and persons, connected to worship activity, shall not be used for the purpose of advertising by merchants according to the meaning of the Law on Commerce, without the express agreement of the respective religion. Article 24 Registered religions shall have the right to possess and maintain cemeteries at their own expense. Article 25 () e state shall support and encourage religious denominations registered under this law for their religious, social, educational and health activity through tax, credit and interest rates, customs and other financial and economical exemptions under the terms and conditions specified in the respective special laws. () When religious denominations use preferences according to paragraph , their yearly accounting reports shall go through an obligatory independent financial audit according to the conditions defined for the legal entities with non-profit purpose, carrying out a commonly beneficial activity. () When infringement of the law is detected the Ministry of Finance informs the prosecutor’s offices and of the governmental finance control for execution of checks and activities provided in the law. Article 26 A religious denomination which has acquired a legal personality according to this law, shall be entitled to create and participate in commercial law entities. Article 27 () After a preliminary consent of the respective religious institution, legal personalities with a not-for-profit purpose can be created to support and popularize a specific religion, which has acquired the status of legal personality. () Legal entities with not-for-profit purpose under paragraph shall not have the right to accomplish activities which represent practice of a religion in public. Article 28 Distribution of state subsidy for registered religions is done under the conditions of the Law on the State Budget. Article 29 Labour relations of the clergy and the officers of the religious institutions are arranged according the statute of religious institutions, the labour and social laws.
e New Bulgarian Religious Law: Restrictive and Discriminatory C F
Healthcare, Social and Educational Activities of Religious Denominations
Article 30 () Religious denominations registered in accordance with this law can open healthcare, social and educational establishments. () e healthcare, social and educational establishments of these religious denominations are established and work according to the legislation in force. Article 31 e Ministry of Health, the Ministry of Labour and Social Care, and the Ministry of Education and Science oversee the observance of the governmental requirements during the exercise of the activities of the respective healthcare, social and educational establishments of religious denominations. Article 32 e admission into healthcare or social establishments of a certain religious denomination shall not be put in dependence upon the affiliation with the respective religious community. Article 33 () Registered religious denominations, with the approval of the Minister of Education and Science, can open ecclesiastical schools for their own ritual needs in accordance with the Law on National Education. () e education obtained in the ecclesiastical schools shall be made equal to the education received in a regular school in accordance with the Law on National Education. () Registered religious denominations can open high schools under the procedure and conditions stated in the Law on National Education for private schools. () e admission to the schools under paragraphs , and is carried out upon a written application of the parents or guardians, except when the pupil has reached the age of . () Educational establishments of registered religions cannot hinder the right of receiving obligatory degrees of governmental education stated in the Constitution and the legislation. () Registered religious denominations can open universities in accordance with the procedures and requirements of the Law of Higher Education. () Schools of higher ecclesiastical education can be opened upon a proposal from the leadership of the registered religions with the approval from the Council of Ministers.
Krassimir Kanev C S Directorate of Religious Denominations
Article 34 e Council of Ministers shall carry out the governmental policy in the area of the right to profess and practice a religion. Article 35 () e Directorate of Religious Denominations is a specialized administration in the Council of Ministers, which shall: . Coordinate the relations between the executive power and the religious denominations; . Assist the Council of Ministers during the fulfilment of the governmental policy of sustaining tolerance and respect between the different religious denominations; . Organize and lead the work of the expert consultative committee on religious denominations problems; . Provide expert conclusions and opinions when required by this law; . Provide opinions concerning the request of permitting the stay in the country of foreign religious ministers, who have been invited by the central leadership of registered religious denominations; . Carry out investigations upon information and complaints from citizens for breaking their rights and the rights or freedoms of their relatives by abuses of the right to profess and practice a religion by third persons; . Verify the observance of the religious rights and freedoms by the state officials; . Carry out investigations upon information and complaints for carrying out illegal religious activity, in accordance with Article of this law, and if needed – informs the Prosecutor’s Office; . Make proposals to the Council of Ministers on the distribution of the governmental subsidy directed to the registered religious denominations and ensure accountability. C S Administrative and Penal Provisions Article 36 () Any person carrying out religious activity on behalf of a religious denomination without such authority is penalized with a fine from BGN to BGN . () When the above-mentioned act is repeated, the fine is from BGN to BGN .
e New Bulgarian Religious Law: Restrictive and Discriminatory Article 37 Any person who, notwithstanding the cases provided by this law, violates the freedom of forming and expressing a religious conviction, will be fined from BGN to BGN . Article 38 For breaches of any of the articles of this law, if the act does constitute a criminal offence, the guilty person will be fined from BGN to BGN . If the act is committed by a legal personality, sanctions are from BGN to BGN ,. Article 39 () Violations of this law are established with public warrants issued by the officials of the Directorate of Religious Denominations at the Council of Ministers. () e penal orders for imposing a sanction under this law shall be issued by the director of the Directorate of Religious Denominations at the Council of Ministers. Article 40 Public warrents and penal orders, under this law, will be constituted, issued, and appealed according to the procedures of the Law on Administrative Violations and Sanctions. T F P §1 In the meaning of this law: . ‘Religious denomination’ is a set of religious beliefs and principles, the religious community, and its religious institution. . ‘Religious community’ is a voluntary union of natural persons for the manifestation of a certain religion, performance of worship, religious rituals and ceremonies. . ‘Religious institution’ is a religious community registered in accordance with the Law on Religious Denominations, which has the capacity of legal personality, ruling bodies, and a statute. §2 () Registered religious denominations according to Article of the old Law on Religious Denominations (Repealed with paragraph of this law) preserve their status of legal personalities. () Within one month from the entry into force of this law, the Directorate of Religious Denominations grants to the Sofia City Court the register with the registered religious denominations and their statutes. () e court officially incorporates in the closed-door meeting the registered religious denominations under paragraph , except for the religious denomination under Article , in which case the court cannot refuse registration.
Krassimir Kanev () e registered local sections of the religious denominations, existing prior to the entry into force of this law, which are legal personalities, are being incorporated officially by the respective district court within their headquarters upon application of the central leadership of the religious denomination. e application has to be accompanied with a certificate of registration of the religious denomination by the Sofia City Court, and the respective authorization, issued by the central leadership to the person entitled to represent the local branch. Mayors of the municipalities, within one month from the entry into force of the law, deliver to the regional court the register of the local branches of religions. §3 Persons who have seceded from the registered religious institution in violation of its approved statute, cannot use an identical name and use or manage its property. §4 () Upon a request from a registered religious denomination, the director of the Directorate of Religious Denominations atthe Council of Ministers issues a certificate concerning succession of the religious denominations and existing religious, educational-religious, and social-charitable legal entities before . () e representatives of the respective religious denomination introduce the claim before the Sofia City Court for establishing the succession by submitting the certificate of the Director of Directorate of Religious Denominations under paragraph . () e Court delivers a decision, which is incorporated in the register according to Article . () e decision may be appealed by other registered religious denominations according to the Civil Procedures Code. §5 () e ownership of the religious denominations of properties nationalized, alienated, confiscated or illegally taken is restored on the basis specified in the Law on Restitution of Property on Nationalized Real Estate; the repealed Article of the Law on Religious Denominations; the Law on the Restitution of the Ownership on Some Confiscated Properties Under the Law on the Territorial Regulation, the Law on the Planned Construction of the Dwellings, the Law on the State Properties and the Property Law; the Law on the Ownership and the Use of Agricultural Lands and in the Law on the Restitution of the Ownership on Forests and Forest Lands. e ownership is restored of actually existing properties, up to the extents confiscated, that belong to the state, municipalities, public organizations or their companies or to the commercial companies under Article of the Law on Commerce. () e restitution of property is carried out according to the procedure of the Law on Restitution of the Property on Nationalized Immobility upon entry into force of this law.
e New Bulgarian Religious Law: Restrictive and Discriminatory () As for disputes already started concerning restitution of property of religious denominations, the provisions of this law are to be applied with the respective references to other restitution laws. §6 Article a of the Law on the Persons and the Family is repealed. §7 § , paragraph of the Law on Legal Personalities with Not-for-Profit Purpose is amended by replacing the wording ‘religious activity’ with ‘activity, pertaining to a religion.’ §8 is law repeals the Law on Religious Denominations (State Gazette, No of ). e law is adopted by the XXXIX National Assembly on December and is sealed with the official stamp of the National Assembly.
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Frank Selbmann*
e Drafting of a Law against Discrimination on the Grounds of Racial or Ethnic Origin in Germany: Constraints in Constitutional and European Community Law
I. I In , the European Council adopted two directives, with the aim of combating ‘discrimination on the grounds of racial or ethnic origin’1 and ‘discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation’ respectively.2 e first of the two pieces of legislation, the Race Equality Directive, outlaws, inter alia, direct or indirect discrimination based on racial or ethnic origin in relation to access to employment, including selection criteria, recruitment conditions and promotion; membership in an organization of workers or employers; social protection; education, and access to and supply of goods and services, available to the public.3 European Community (EC) member states now have to adopt laws, regulations and administrative provisions to comply with the directives. Accordingly, in December the German Federal Ministry of Justice introduced the Discussion Draft Law (Diskussionsentwurf) on the Prevention of Discrimination in the Private Sector.4
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Dr. jur., Attorney-at-Law, Leipzig. See Art. Council Directive //EC of June implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Dir /, OJ L , . See Art. Council Directive //EC of November establishing a general framework for equal treatment in employment and occupation, Dir /, OJ L , . Art. Council Directive //EC. For a detailed overview of the scope of the directive, see Rainer Nickel, ‘Handlungsaufträge zur Bekämpfung von ethnischen Diskriminierungen in der neuen Gleichbehandlungsrichtlinie //EG’, Neue Juristische Wochenschrift (hereinafter NJW) (), - and Gabriel N. Toggenburg, ‘e Race Directive: A New Dimension in the Fight against Ethnic Discrimination in Europe’, European Yearbook of Minority Issues (/), -. Bundesministerium der Justiz, ‘Diskussionsentwurf eines Gesetzes zur Verhinderung von Diskriminierung im Zivilrecht’ ( December ). Earlier proposals to adopt special laws against racial discrimination
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Frank Selbmann Although one principal aim of the current German government is the protection of minorities,5 in June a study prepared for the European Monitoring Centre on Racism and Xenophobia came to the conclusion that the compatibility of German laws with the directives should be reviewed in many sectors.6 According to Article of the Race Equality Directive, member states may introduce or maintain legislation, which goes beyond the scope of the directive. To date, in Germany there are no provisions more favourable regarding equal treatment than the minimum requirements of the directives.7 e purpose of this article is to give a brief overview of current German legal provisions against discrimination on the grounds of racial or ethnic origin as well as draft legislation and the compatibility of these norms with constitutional and EC law. e article focuses on rules against discrimination in the private sector and in labour law.8 Owing to the campaigns in the run-up to the parliamentary elections in Germany, the adoption of the Draft Law on the Prevention of Discrimination in the Private Sector was postponed. For this reason, the consequences from an EC law perspective, should Germany (or another EC member state) fail to implement the Race Equality Directive in the period prescribed by the directive, also need to be addressed. II. L D G R E O A. e Basic Law (Grundgesetz) An overview of German regulations against discrimination must take the German Constitution (Basic Law, Grundgesetz) as a starting point. According to Article () of the
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were made in and ; however, neither were adopted, see Peter Rädler, ‘Gesetze gegen Rassendiskriminierung’, Zeitschrift für Rechtspolitik (hereinafter ZRP) (), -, at . See ‘Coalition Agreement for the legislative period -’ ( October ): ‘. Rights of Minorities: e new Federal Government wants to protect minorities and wants to achieve their equal treatment and social participation. No one must be discriminated against on grounds of his disability, origin, colour, ethnic origin or sexual orientation as gay or lesbian’, and ‘Coalition Agreement for the legislative period ’ ( October ): ‘. Promotion of tolerance, respect of rights of minorities and self-determination of human beings are leading principles of our policy. … We plan to extend rights of political participation and civil rights and to eliminate discrimination.’ (author’s translation). Matthias Mahlmann, ‘Anti-Discrimination Legislation in EU Member States – A Comparison of National Anti-Discrimination Legislation on the Grounds of Racial or Ethnic Origin, Religion or Belief with the Council Directives – Germany’, report prepared by Matthias Mahlmann under the guidance of Migration Policy Group, edited by Jan Niessen and Isabelle Chopin on behalf of the European Monitoring Centre on Racism and Xenophobia (Vienna, ), at http://eumc.eu.int/eumc/ material/pub/Art/ART_Germany-en.pdf. Ibid., . For an overview of criminal law provisions against discrimination, their application and effectiveness, see Germany’s ‘irteenth/Fourteenth Periodic Report to the Committee on the Elimination of Racial Discrimination’, CERD/C//Add. ( October ), paras. - and the ‘Fifteenth Periodic Report to the Committee on the Elimination of Racial Discrimination’, CERD /C/Add. ( August ), paras. -, -, -.
e Drafting of a Law against Discrimination on the Grounds of Racial or Ethnic Origin Basic Law, ‘[a]ll human beings are equal before the law’. Article () of the Basic Law prohibits discrimination based on sex, parentage, race, language, homeland and origin, belief, religious or political opinions.9 e primary aim of Article () is to protect individuals against discrimination by public authorities. It is well established that the basic rights in the German Constitution do not apply directly to the private sphere of citizens. In other words, they have no direct horizontal effect (direkte Drittwirkung).10 However, those rights lay down an objective value system, which influences not only legislative, executive and judicial authorities, but also the private law sector.11 erefore, mandatory general provisions such as sections and of the Civil Code (Bürgerliches Gesetzbuch), which constitute part of the ordre public, have to be interpreted in light of the objective value system established by the basic rights contained in the Basic Law.12 Article ()() of the Basic Law entails not only a prohibition for public authorities to discriminate on grounds of race, homeland and origin; it also contains the constitutional mandate to enact regulations against direct racial discrimination.13 e prohibition of racial discrimination can also be inferred from the right to human dignity in Article of the Basic Law.14 B. Other Laws In contrast to many other countries, in Germany there is no act dealing exclusively with non-discrimination. In , the Committee on the Elimination of Racial Discrimination expressed concerns that Germany had failed to adopt comprehensive legislation to comply with Articles ()(d) and (e)(i) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in the private sector and recommended that Germany enact such a law.15 Nevertheless, several laws in the private and public sector outlaw acts of discrimination:16 Section of the Civil Code stipulates the right to compensation for damage 9
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In addition, Art. of the Basic Law protects applicants for a position in the public service against discrimination, see Frank Selbmann, ‘Some oughts about Access to the Public Service and Non-Discrimination’, European Yearbook of Minority Issues (/), -, at -. See Mahlmann, ‘Anti-Discrimination Legislation…’, and Nicola Vennemann, ‘e German Draft Legislation on the Prevention of Discrimination in the Private Sector’, () German Law Journal ( March ), at http://www.germanlawjournal.com/past_issues.php?id=, para. . German Federal Constitutional Court, BVerfGE (), , . Ibid., . Peter Rädler, Verfahrensmodelle zum Schutz vor Rassendiskriminierung: Rechtsvergleichende Untersuchung zum Verfassungsauftrag in Art. Abs. GG (Berlin, Heidelberg and New York, ), -. See ibid., ; Victor Winkler, ‘e Planned German Anti-Discrimination Act: Legal Vandalism? A Response to Karl-Heinz Ladeur’, () German Law Journal ( June ), at http://www.germanlawjournal.com/past_ issues.php?id=, para. and ‘Fifteenth Periodic Report to the CERD…’, para. . ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination, Germany’, CERD/C//Add. ( April ), paras. and . A more detailed overview is given in Mahlmann, ‘Anti-Discrimination Legislation…’, -.
Frank Selbmann suffered from an intentional, immoral injury. In German case law section has already served as a tool for the granting of compensation for discrimination on the grounds of sexual orientation.17 Regulations providing for the right of equal access to public service can be found in the acts relating to public officials at the federal and at the Land level. Section () of the Works Councils Constitution Act (Betriebsverfassungsgesetz) obliges employers and works councils to treat employees equally and to prevent discrimination based on descent, religion, nationality, origin, political or trade union opinion or activity, gender or sexual identity. Unfortunately, section of the act does not apply to the recruitment process.18 Applicants for positions in the private sector therefore remain unprotected against racial discrimination. III. T ‘D D L’ P D P S A. Contents of the Draft 1. General Considerations Section of the Civil Code has not been interpreted consistently in either case law or scholarly writing.19 e Federal Ministry of Justice therefore deemed section insufficient in preventing racial discrimination and prepared a Draft Law on the Prevention of Discrimination in the Private Sector to comply with those provisions of the Race Equality Directive that have a bearing on the law of contracts. e government intended to implement the labour–law-related provisions of Directives / and / in a separate law.20 e Ministry of Justice planned to introduce a new sub-chapter in the Civil Code prohibiting discrimination. It thus followed the traditional German approach to legislative drafting according to which all of the central provisions in private law should also be included in the Civil Code. e core of the Draft Law on the Prevention of Discrimination in the Private Sector consists of five amendments to the Civil Code containing the following elements: 2. Prohibition of Discrimination and Justified Differentiation (Draft Sections 319a and 319d of e Civil Code) Draft Section a()() of the Civil Code prohibits harassment and direct or indirect discrimination on the grounds of gender, race, ethnic origin, religion or belief, disability, age or sexual identity regarding conclusion, termination and content of contracts offered to See Bundesministerium der Justiz, ‘Diskussionsentwurf…’, and Vennemann, ‘e German Draft Legislation…’, paras. -. 18 Mahlmann, ‘Anti-Discrimination Legislation…’, . 19 See Vennemann, ‘e German Draft Legislation…’, para. -. 20 e implementation process for Directive //EC has to be completed by July ; for Directive //EC by December . 17
e Drafting of a Law against Discrimination on the Grounds of Racial or Ethnic Origin the public or related to occupation, healthcare and education. Furthermore, equal access to organizations for members of a particular profession is guaranteed.21 Section a does not apply, however, to labour contracts, access to unions and employers’ organizations and to family and inheritance law.22 Section d defines permissible grounds of differentiation.23 3. Definitions (Draft Section 319b of e Civil Code) Draft Section b of the Civil Code defines ‘direct discrimination’, ‘indirect discrimination’ and ‘harassment’. e definitions given in Draft Section b are similar to the definitions in Article of the Race Equality Directive.24 Direct discrimination occurs when one person is treated less favourably than another is, has been or would be treated in a comparable situation on the grounds mentioned in Section a.25 Indirect discrimination occurs where an apparently neutral provision, criterion or practice would put persons at a particular disadvantage compared with other persons on the grounds set out in Section a, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.26 Harassment is conduct, related to the grounds set out in Section a, which takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.27 4. Reversed Burden of Proof (Draft Section 319c of e Civil Code) Draft Section c of the Civil Code lays down a rule dealing with the burden of proof. After the adoption of the draft law, in pending proceedings before the courts, the complainant must merely present a prima facie case of discrimination.28 e respondent has to rebut that presumption and prove that there was no case of discrimination or that the difference in treatment was based on reasonable or justified criteria. 5. Compensation (Draft Section 319e of e Civil Code) Draft Section e of the Civil Code grants the victim the right to forbearance, the right to have the negative consequences of the act nullified and allows a subsidiary claim for pecuniary damages.
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Draft section a()(). Draft section a() and (). is issue is discussed in Herbert Wiedemann and Gregor üsing, ‘Fragen zum Entwurf eines zivilrechtlichen Anti-Diskriminierungsgesetzes’, Der Betrieb (), -, at -. However, Section b refers to Section a, which prohibits discrimination based on gender, race, ethnic origin, religion or belief, disability, age or sexual identity. us, the scope of the draft law is broader than the scope of the Race Equality Directive. Section b() of the proposed amendment to the Civil Code. Ibid., Section b(). Ibid., Section b(). A pure allegation would be insufficient, see Bundesministerium der Justiz, ‘Diskussionsentwurf…’, .
Frank Selbmann B. Criticism e arguments of the Federal Ministry of Justice for including the anti-discrimination provisions discussed above in the Civil Code are not very convincing. It seems, that the ministry has failed to develop a general strategy to implement the Race Equality Directive. is leads to inconsistencies and gaps. e Law on the Prevention of Discrimination in the Private Sector would apply only to conclusion, termination and content of contracts regarding occupation in general,29 but not to contracts in labour law.30 For the latter type of provisions so far no draft code has been made public. It may have been preferable to enact a single anti-discrimination act implementing Directives //EC, //EC and //EC,31 Protocol No. to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR Protocol )32 and CERD. e introduction of several acts against discrimination is unpractical and may lead to gaps or overlaps. A recent examination of legislation in Australia revealed that the introduction of a system of different anti-discrimination laws leads to inconsistencies.33 Unfortunately, the German drafters failed to examine antidiscrimination laws in other countries. It is not possible to draft an anti-discrimination law without studying regulations and practices elsewhere.34 Countries in the common law system in particular, namely the United States, the United Kingdom, Australia and Canada, have a long tradition of outlawing discrimination by special legislative acts, which should have been considered in the drafting process in Germany. One example that could have been taken into account is the legislation in the United Kingdom. In , the United Kingdom adopted the Race Relations Act, which is, according to the European Commission against Racism and Intolerance (ECRI), one of the most comprehensive pieces of legislation dealing with racial discrimination.35 Owing to the duty to implement the three directives mentioned above the law-making bodies in the United Kingdom went even further and reviewed all of its anti-discrimination acts in force. As a consequence, in January a Draft Equality Bill was introduced, which goes beyond the scope of the EC directives and covers all grounds of unlawful discrimination.36
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Section a()()(b) of the proposed amendment to the Civil Code. Ibid., Section a(). Directive //EC of September amending Council Directive //EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, Dir /, OJ L , . e Directive has to be implemented into national law by October . Adopted on November , ETS No. (not yet in force).
Sarah Pritchard, ‘Approaching its Use-by Date? National Enforcement Mechanism: e Case of Australia’, in Titia Loenen and Peter R. Rodrigues (eds.), Non Discrimination Law: Comparative Perspectives (e Hague, London and Boston, 1999), 365-83, at 378.
See Wiedemann and üsing, ‘Fragen zum Entwurf…’, . ECRI’s country-by-country approach, Vol. IV, CRI() (Strasbourg, January ), , . 36 Bob Hepple, ‘A Unified Approach to Equality Law’, / Roma Rights Quarterly (), -, at . 34 35
e Drafting of a Law against Discrimination on the Grounds of Racial or Ethnic Origin e draft bill is considered to be a model for other EU members and candidate states.37 Further, the German draft act failed to provide a mechanism to comply with Article of the Race Equality Directive, which provides as follows: . Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin. ese bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals’ rights. . Member States shall ensure that the competences of these bodies include: – without prejudice to the right of victims and of associations, organisations or other legal entities referred to in Article (), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination, – conducting independent surveys concerning discrimination, – publishing independent reports and making recommendations on any issue relating to such discrimination.38 Germany therefore has a legal obligation to establish a body dealing with equal treatment.39 So far, no concept for implementing Article of the Race Equality Directive has been developed.40 Most of the conceptual work in the implementation process still has to be done. C. Subsequent Developments e publication of the Discussion Draft Law on the Prevention of Discrimination in the Private Sector led to various reactions. Non-governmental organizations working in the field of anti-discrimination pointed out that the draft does not meet the requirements of the Race Equality Directive and voted for the adoption of a single act against discrimination.41 e legal literature is divided. While initially some scholars endorsed the draft Ibid., . e Commissioners for the Affairs of Foreigners (Beauftragte für Ausländerfragen), who work at the federal and at the Länder level, do not have the competency to fulfil the obligations deriving from the Race Equality Directive. See Mahlmann, ‘Anti-Discrimination Legislation…’, . 39 Apart from the legal obligation deriving from the Race Equality Directive, the establishment of an independent human rights institution, dealing in particular with the issues of racism and racial discrimination was also recommended at the World Conference against Racism, Racial Discrimination, Xenophobia and related Intolerance in Durban, see ‘Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance’ (Durban, August to September ), Programme of Action, UN Doc. A/CONF./, para. . 40 Possible models for equal treatment bodies (Gleichbehandlungsstellen) and limits set by the Constitution are outlined in Rädler, Verfahrensmodelle…, -. 41 See ‘Stellungnahme der Anti-Diskriminierungsinitiativen aus Nordrhein-Westfalen zur Verhinderung von Diskriminierungen im Zivilrecht’ ( December ), at http://www.nrwgegendiskriminierung.de/de/ docs/pdf/Stellungnahme-Netzwerk.pdf. e Federation of German Trade Unions also voted for the adop37
38
Frank Selbmann law,42 others claimed that it not only violates the Constitution but is also contrary to common sense.43 e Catholic and Protestant churches opposed the inclusion of ‘religion or belief ’ as a prohibited ground of discrimination.44 In February , the Federal Ministry of Justice introduced a revised Discussion Draft.45 Nevertheless, two months later it was decided to postpone the adoption of the anti-discrimination law due to the ongoing election campaign at the time.46 e draft was therefore not sent to the federal council (Bundesrat) and the federal parliament (Bundestag) for adoption. e fear of members of the government of addressing a potentially unpopular issue during an ongoing election campaign was, however, unfounded. A recent survey conducted for the European Monitoring Centre on Racism and Xenophobia revealed that % of the population in eastern Germany and % of the population in western Germany supported the idea of outlawing discrimination through binding regulations.47 In general, % of the population in the European Union and % of Germany supported the idea of promoting equality of opportunity by political measures.48 Besides the fact that Germany has the legal obligation to adopt an anti-discrimination law in order to implement the Race Equality Directive, it ought to continue the codification process in order to send a political signal. e interruption in the progress of the draft law is inconsistent with previous official statements. In its report regarding human rights policy, the federal government stated that one of the primary issues for the implementation of the Programme of Action, adopted by the World Conference against
42 43
44 45 46
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tion of a single anti-discrimination act, see ‘Stellungnahme des Deutschen Gewerkschaftsbundes’, at http: //www.nrwgegendiskriminierung.de/de/docs/pdf/ Stellungnahme-DGB.pdf. See Vennemann, ‘e German Draft Legislation…’, para. ; more critical are Wiedemann and üsing, ‘Fragen zum Entwurf …’. Karl-Heinz Ladeur, ‘e German Proposal of an ‘Anti-Discrimination-Law’: Anticonstitutional and Anti-Common Sense. A Response to Nicola Vennemann’, () German Law Journal ( May ), at http: //www.germanlawjournal.com/past_issues_archive.php; Klaus Adomeit, ‘Diskriminierung –Inflation eines Begriffs’, NJW (), -, at ; See also the critical comments by Franz-Jürgen Säcker, ‘Vernunft statt Freiheit – Die Tugendrepublik der neuen Jakobiner – Referentenentwurf eines privatrechtlichen Diskriminierungsgesetzes’, ZRP (), - and the German Lawyers’ Association, ‘Stellungnahme des Deutschen Anwaltsvereins durch den Ausschuss Zivilrecht zum Diskussionsentwurf eines Gesetzes zur Verhinderung von Diskriminierung im Zivilrecht’ No / (Berlin, February ), at http: //www.anwaltverein.de////index.html. See Cathrin Kahlweit, ‘Das ‘Antidiskriminierungsgesetz’ ist vorerst gescheitert – Benachteiligt sind irgendwie alle’, Süddeutsche Zeitung ( April ). ‘Diskussionsentwurf eines Gesetzes zur Verhinderung von Diskriminierung im Zivilrecht; Überarbeitung auf Grund der Besprechungen und Stellungnahmen’ ( February ). See Nicole Janz, ‘Bundestag im Wahlkampf – Nichts geht mehr’, SPIEGEL ONLINE ( June ), at http://www.spiegel.de/politik/deutschland/,,.html. e elections took place on September . See Stefan Seibert, ‘Einstellungen gegenüber Minderheiten in der Europäischen Union’, () Menschenrechtsmagazin (), -, at . For a more detailed analysis of the data, see Eva alhammer, Attitudes towards Minority Groups in West and East Germany, European Monitoring Centre on Racism and Xenophobia (Vienna, April ), at http://www.eumc.eu.int/publications/eurobarometer/east-west-ger_en.pdf. See Seibert, ‘Einstellungen ... ’, .
e Drafting of a Law against Discrimination on the Grounds of Racial or Ethnic Origin Racism, Racial Discrimination, Xenophobia and related Intolerance in Durban is the adoption of measures against racial discrimination in the employment market and in the workplace.49 With the adoption of the Coalition Agreement on October a new round was opened. According to the Coalition Agreement, it was planned to use the draft act as a basis for an anti-discrimination law, implementing Directives //EC and / /EC.50 However, so far no agreement between the different players in the field has been reached.51 As of June , it seems that the Federal Ministry of Justice is planning to develop a narrowly tailored anti-discrimination law, which implements only Directive /.52 Should these considerations prevail, Germany would miss the chance to develop a coherent equality law. IV. S M A-D L C E L A. e Legal Basis for Testing the Compliance of an Anti-Discrimination Act with HigherRanking Law Although it is now clear that the Draft Law on the Prevention of Discrimination in the Private Sector will not be adopted in its present form, some issues raised in the debate – sometimes in a very irrational way – require further clarification. e main criticism of the anti-discrimination draft law is that its provisions violate the Constitution, in particular the guarantee of private autonomy, freedom of action (both set out in Article () of the Basic Law), the right to freely pursue an occupation (Article ()), property rights (Article ) and freedom of association (Article ). e reversed burden of proof has also been criticized.53 e question as to whether the draft law violates higher-ranking law is not easy to answer. e draft law was primarily intended to implement secondary EC law. It will be argued that as far as the Race Equality Directive has to be implemented, the legal basis for an assessment of its conformity with higher-ranking law is EC law. In so far as it is not possible to remove inconsistencies with the Basic Law, secondary EC law prevails. On the other hand, the draft law encompasses prohibited grounds of discrimination that are not mentioned in the Race Equality Directive. Insofar as an anti-discrimination ‘Sechster Bericht der Bundesregierung über ihre Menschenrechtspolitik in den auswärtigen Beziehungen und in anderen Politikbereichen’, Berichtszeitraum ..-.., . 50 ‘Coalition Agreement …’ ( October ), . 51 See Veronika Kabis; ‘Wer diskriminiert wen, wo, wann und wie?’, die tageszeitung ( May ), . 52 See ‘Stellungnahme des Deutschen Anwaltsvereins durch den Ausschuss Zivilrecht zur Verlautbarung der Bundesministerin der Justiz, die EU-Richtlinien //EG und //EG umzusetzen in deutsches Recht durch ein ‘Zivilrechtliches Antidiskriminierungsgesetz’’, No. / (May ), at http: //www.anwaltverein.de///index.html, . 53 ‘Stellungnahme des Deutschen Anwaltsvereins durch den Ausschuss Zivilrecht zum Diskussionsentwurf eines Gesetzes zur Verhinderung von Diskriminierung im Zivilrecht ...’, .
49
Frank Selbmann act goes beyond the scope of Directives //EC, //EC, //EEC54 and //EC, the legal basis for an assessment of its legality remains solely the Basic Law. B. European Community Law e question of whether the German Federal Constitutional Court has the jurisdiction to examine whether secondary EC law infringes upon the fundamental rights of the Basic Law has been a hotly debated issue for a long time. e German Federal Constitutional Court addressed this issue in the Solange I, Solange II, Maastricht and Banana Market decisions.55 e Federal Constitutional Court pointed out in the Solange II decision: As long as the European Communities, in particular European Court case law generally ensure effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Basic Law, and in so far as they generally safeguard the essential content of fundamental rights, the Federal Constitutional Court will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation cited as the legal basis for any acts of German courts or authorities within the sovereign jurisdiction of the Federal Republic of Germany, and it will no longer review such legislation by the standard of the fundamental rights contained in the Basic Law. … 56 In the Banana Market decision the Court affirmed: Constitutional complaints and submissions by courts which put forward an infringement by secondary European Community Law of fundamental rights guaranteed in the Basic Law are inadmissible from the outset if their grounds do not show that the European evolution of law, including the rulings of the European Court of Justice (ECJ) has resulted in a decline below the required standard of fundamental rights after the Solange II decision.57 e Court went on: e constitutional requirements are satisfied in accordance with the preconditions mentioned in [Solange II] if the rulings of the European Court of Justice generally 54
55 56 57
Council Directive //EEC of February on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions: Dir /, OJ L , . e development is outlined in Jutta Limbach, ‘Inter-Jurisdictional Cooperation within the Future Scheme of Protection of Fundamental Rights in Europe’, HRLJ (), -, at -. German Federal Constitutional Court, BVerfGE (), , quoted in Limbach, ‘Inter-Jurisdictional Cooperation …, . German Federal Constitutional Court, HRLJ (), .
e Drafting of a Law against Discrimination on the Grounds of Racial or Ethnic Origin ensure effective protection of fundamental rights as against the exclusive powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Basic Law, and in so far as they generally safeguard the essential content of fundamental rights.58 e findings can be summarized as follows: e Federal Constitutional Court does not examine constitutional complaints and submissions by courts which put forward an infringement by secondary EC law of basic rights in the Basic Law as long as ECJ case law generally ensures effective protection of fundamental rights. e standard of protection of fundamental rights in European Community law does not have to be equivalent to the standard enshrined in the Basic Law. It is sufficient if the ECJ generally provides for the protection of human rights. e former President of the Federal Constitutional Court, Jutta Limbach, recently specified which minimum fundamental freedoms must be protected by the ECJ. ese are in the first place ‘the very core of the right to freedom’ and the ‘right to equality’; in the second place the freedom of opinion, freedom of the press, freedom of assembly, the freedom to pursue a profession and the right to property, although these rights may be interpreted differently than in national constitutions.59 While a first reading of the relevant passages in the Solange II decision might lead one to conclude that the Federal Constitutional Court addresses only procedural issues, the decisions in fact go further. e Solange II decision has to be interpreted as a statement with substantive effect. As long as human rights are generally protected in European Community law, secondary European Community law has primacy over fundamental rights in the Basic Law.60 e next question to be discussed is whether these principles apply only to regulations and decisions or also to directives. An answer can be found in the Tabak-Richtlinien decision of the Federal Constitutional Court where the Court came to the following conclusion: e directive … obliges the member states to implement its contents in national law, but it leaves a wide margin of appreciation. e national legislator is bound by the standards of the Basic Law. e question whether an implementation law within this margin of appreciation violates basic rights can be examined by the Constitutional Court without restrictions.61 us, as far as a directive leaves a margin of appreciation, the legislator has to make sure that the implementation law complies with the fundamental rights in the Basic Law. Ibid., . Limbach, ‘Inter-Jurisdictional Cooperation…’, . 60 Ulrich Everling, ‘Brauchen wir ‘Solange III’? – Zu den Forderungen nach Revision der Rechtsprechung des Bundesverfassungsgerichts’, 25 Europarecht (1990), 195-, at 202. 61 German Federal Constitutional Court, NJW (), (author’s translation).
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Frank Selbmann However, if a directive leaves no other option, the legislator has to deviate from the fundamental rights in the Basic Law.62 e drafting of an anti-discrimination law must therefore be guided by the following principles: e legislator has to find a way by which the directive can be implemented without an infringement of basic rights. If such infringement cannot be avoided, the directive has to be implemented even if the implementing act violates basic rights. Nevertheless, a careful consideration shows that it is possible to implement the Race Equality Directive without infringing the Constitution. C. Constitutional Law 1. Private Autonomy and Freedom of Contract e principle of private autonomy in general and the freedom of contract is one of the most important principles in the German legal order. It is ensured by Article () of the Basic Law.63 However, freedom of contract is not unlimited.64 Limits are enumerated in the second part of Article () and comprise the rights of others, the constitutional legal order and morality. In the relevant legal literature it is accepted that the principle of private autonomy can be restricted when a weaker party has to be protected or when fundamental rights or rights which are equivalent to fundamental rights are infringed.65 Under specific circumstances, even an imposed obligation to enter into a contract is permissible. An obligation to enter into a contract, which can be developed from the principle of a social state based on the rule of law, exists regarding essential services for the public, e.g. supply of electricity and public transport.66 It may exist also in fields outside of the supply of goods and services for essential needs. One case discussed in the legal literature is that of racial discrimination. Some authors argue that the obligation to enter into a contract can be developed from the value system of the Basic Law, namely Articles and .67 Other authors rely on Section of the Civil Code.68 e Discussion Draft Law was much narrower and did not introduce an obligation to enter into a contract. us, the implementation of the Race Equality Directive does not lead to conflict between constitutional and EC law.
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Everling, ‘Brauchen wir ‘Solange III’…’, -. See Philip Kunig, ‘Art. , MN ’, in Ingo von Münch and Philip Kunig (eds.), Grundgesetz-Kommentar (Munich, th ed., ). See also Susanne Baer, ‘‘Ende der Privatautonomie’ oder grundrechtlich fundierte Rechtssetzung? – Die deutsche Debatte um das Antidiskriminierungsrecht’, ZRP (), -, at -. Karl Larenz and Manfred Wolf, Allgemeiner Teil des Bürgerlichen Rechts (Munich, th ed., ), . Ibid., . See Reinhard Bork, ‘Vorbemerkungen zu §§ ff., MN ’, in Julius von Staudinger (founder), Günther Beitzke (ed.), Kommentar zum Bürgerlichen Gesetzbuch, §§ - ff. (Berlin, th ed., ). Helmut Heinrichs, ‘Einf. v. § , MN ’, in Otto Palandt (founder), Bürgerliches Gesetzbuch (Munich, th ed., ) and Larenz and Wolf, Allgemeiner Teil…, .
e Drafting of a Law against Discrimination on the Grounds of Racial or Ethnic Origin 2. e Reversed Burden of Proof More difficulties are raised by the introduction of the principle of the reversed burden of proof. Section c of the proposed amendment to the Civil Code stayed close to the wording of Article () of the Race Equality Directive, according to which ‘Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination’ and ‘it shall be for the respondent to prove that there has been no breach of the principle of equal treatment’. It follows from the wording of Article () that it leaves only a small margin of appreciation for the German legislator. e introduction of a system of a reversed burden of proof may lead to an interference with basic rights of the respondent. From the perspective of constitutional law, the fair trial guarantee, the principle of proportionality (both deduced from the Rechtsstaatsprinzip), the right to a hearing in accordance with the law (Article () of the Basic Law) and the principle of equality of arms (Article of the Basic Law) have to be taken into consideration.69 A deviation from the ordinary rules according to which each party has the burden of proof for preconditions which are favourable for it is only consistent with the Basic Law if the application of the ordinary rule leads to serious and socially unbearable results.70 In cases of racial discrimination, the victims have to be protected, since they are the weaker side and particularly vulnerable,71 and the retention of the ordinary rule might lead to socially unbearable results. It is also virtually impossible to assess the mental state and motivation of the respondent. But even if the legislator came to the conclusion that the introduction of a reversed burden of proof does not comply with the principles mentioned above, a provision similar to Section c has to be adopted since it is required by secondary EC law. 3. Prohibited Grounds of Discrimination not Mentioned in the Race Equality Directive As explained above, the legal basis for an assessment of the legality of an anti-discrimination act beyond the scope of secondary European law is solely basic constitutional rights. In the discussion process regarding the Discussion Draft Law on the Prevention of Discrimination in the Private Sector and its conformity with the Constitution, the introduction of ‘sexual identity’72 as a ground for discrimination was considered a violation of the constitutional principle of the protection of marriage and family (Article () of the Basic
Michael Reinhardt, ‘Die Umkehr der Beweislast aus verfassungsrechtlicher Sicht’, NJW (), - , at -. 70 Ibid., . 71 e concept of vulnerability is explained in Alexander H. E. Morawa, ‘Vulnerability as a Concept of International Human Rights Law’, () Journal of International Relations and Development (), -). 72 e term ‘sexual identity’ is broader than the term ‘sexual orientation’ and comprises discrimination against homosexuals, intersexuals and transsexuals, see Bundesministerium der Justiz, ‘Diskussionsentwurf…’, . 69
Frank Selbmann Law).73 However, on July , the German Federal Constitutional Court approved the Equal Treatment Act regarding Homosexual Partnerships (Lebenspartnerschaftsgesetz). e Court came to the conclusion that the legislator has the mandate to protect persons living in a homosexual partnership against discrimination and to support the free development of their personalities deriving from Articles () and (), () of the Basic Law.74 e decision can be interpreted as a signal. e Discussion Draft Law on the Prevention of Discrimination in the Private Sector also encompassed the prohibited grounds of discrimination on gender, religion or belief and disability. Unlike the ground of sexual identity these are explicitly mentioned in Article () or () of the Basic Law. e constitutional mandate to outlaw discrimination therefore encompasses these grounds as well. Generally, an act which outlaws direct discrimination in the private sector on grounds of gender, sexual identity, religion or belief, and disability would be consistent with the Basic Law. Articles () and (), () of the Basic Law encourage the legislator to adopt measures against direct discrimination on the grounds mentioned above. V. C F A A-D L P P Due to the delays in the law-making process, another issue to be discussed is the question of what the consequences would be if Germany (or another member state) failed to comply with the Race Equality Directive in the time limit set by Article . In this case it has to be examined whether the substantive part of the Race Equality Directive would apply directly. Normally, directives do not apply directly. ey ‘shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’.75 us, directives influence the national lawmaking process only indirectly.76 However, a directive may apply directly when a member state fails to implement a directive in the prescribed period or where it implements the directive incorrectly. As has been repeatedly pointed out by the ECJ, an individual may rely upon the substantive provisions of a directive against a member state if that state fails to implement it by the end of the period prescribed or where a state implements it incorrectly, if they are unconditional and sufficiently precise.77 73 74
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Ladeur, ‘e German Proposal…’, para. ; contested by Winkler, ‘e Planned German Anti-Discrimination Act…’, para. . BVerfG, BvF / ( July ), at http://www.bverfg.de, para. . e decision is summarized in Russel Miller and Volker Röben, ‘Constitutional Court Upholds Lifetime Partnership Act’, () German Law Journal ( August ), at http://www.germanlawjournal.com/past_issues.php?id=. See EC Treaty, Art. . See Arno Scherzberg, ‘Die innerstaatlichen Wirkungen von EG-Richtlinien’, JURA (), -. See, e.g., ECJ C-/, Ursula Becker v. Finanzamt Münster-Innenstadt, judgment of January , [] ECR , para. and ECJ C-/, Fratelli Costanzo SpA v. Comune di Milano, judgment of June , [] ECR, , para. .
e Drafting of a Law against Discrimination on the Grounds of Racial or Ethnic Origin Article as a whole, and large parts of Article , of the Race Equality Directive are unconditional and sufficiently precise. Article of the Directive contains a detailed definition of the terms ‘direct and indirect discrimination based on racial or ethnic origin’. Apart from Article (f ), which is too indeterminate, prohibited action is explained in detail in Article . National courts would be enabled to examine whether the facts brought before them constitute an illegal act of discrimination within the scope of Article (a) - (e), (g) and (h) of the Race Equality Directive. By contrast, Article of the Race Equality Directive leaves a wide margin of appreciation for member states regarding the sanctions that can be imposed for an illegal act of discrimination. us, Article is not sufficiently unconditional, since it requires the further act by the state of defining the sanctions which have to be imposed. Further, a directive which has not been implemented within the prescribed period cannot impose obligations on individuals.78 In other words, a directive has no direct, horizontal effect. Victims of an alleged act of discrimination cannot rely on the directive when the discrimination occurs in the private sector. However, in this case the victim of an illegal act of discrimination described in Article of the Race Equality Directive might have a compensatory claim against the member state which failed to implement the Race Equality Directive in the prescribed period.79 As discussed above, apart from the legal consequences of a breach of EC law, the interruption of the drafting process may also lead to political damages. It would therefore be desirable for Germany to continue the implementation process of the Race Equality Directive without delay.
See e.g. ECJ C-/, Paola Faccini Dori v. Trecreb Srl., Judgment of July , [] ECR I, , para. . 79 e preconditions are outlined in ECJ, Paola Faccini Dori v. Trecreb Srl., para. . See also Ingo Saenger, ‘Staatshaftung wegen Verletzung europäischen Gemeinschaftsrechts’, Juristische Schulung (), -. 78
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Jonas Nilsson *
e Ombudsperson Institution in Kosovo and the Protection of Minorities
I. I e Ombudsperson Institution in Kosovo (hereinafter ‘the OIK’) is the one institution to which people in Kosovo1 can complain about individual measures and policies implemented by the United Nations Interim Administration Mission in Kosovo (UNMIK), which since has been the main authority in the territory. e OIK therefore has a central role when it comes to the protection and promotion of human rights, including the rights of minorities.2 e Ombudsperson Institution has, in its mandate a special focus on complaints from minorities; since minorities have a particular vulnerability in Kosovo, a major part of the work has thus far been focused on this issue. e severe persecution of Serbs, Roma and other minorities by the Kosovo Liberation Army (UÇK) and Kosovo Albanian civilians during the first months after the international forces arrived in Kosovo in led to mass flight. Although a lot of effort has been put into the issue of return, very little has been actually achieved. After almost four years of United Nations administration, the remaining minority population still suffers from *
1
2
e author worked in the Ombudsperson Institution in Kosovo (OIK) between July and June , through a secondment by the Swedish government to the OSCE (Legal Officer July – May and Director of Investigations June – June ). e views expressed in this article are those of the author and not necessarily those of the OIK or the OSCE. For the purpose of this article the English spelling of the names of geographic places is used to the extent possible (for example ‘Kosovo’) and otherwise both the Albanian and Serbian names respectively are used (for example ‘Fushë Kosovë/Kosovo Polje’). e term ‘minority’ is used in this article merely to describe groups of persons who are in a numerical minority situation in a particular location (for example municipality or village), regardless of their status elsewhere in a state or province. See UNHCR/OSCE, ‘Overview of the Situation of Ethnic Minorities in Kosovo’ ( November ) (hereinafter ‘OSCE/UNHCR ird Minority Report’), para. . is report, as all other reports published by the OSCE Mission in Kosovo, is available at http://www.osce.org/kosovo/documents/ reports.
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Jonas Nilsson discrimination with regard to their human rights, particularly when it comes to freedom of movement, access to public and social services and employment. is article attempts to describe the work and function of the Ombudsperson Institution in Kosovo, particularly with regard to minority protection. To this end, it is essential to understand the particular political, legal and social context in which the OIK operates, in particular, the context of past and present human rights violations, especially with respect to minorities, and the functioning and role of the UN administration itself. II. K J 1999: T U N M I K S M By the end of the NATO campaign against the Federal Republic of Yugoslavia in June , Kosovo was left in a state of political, economic and social chaos. Around , Kosovo Albanians had been forced out of the province while around , were internally displaced.3 ose who returned with the NATO troops and during the subsequent months often found their homes and possessions destroyed. e economy in Kosovo had basically come to a halt as a result of Serb repression during the preceding years, war damage and the departure of key Serbian personnel, in connection with, and after, the NATO bombings.4 e peace agreement after the NATO intervention not only marked both the end of the persecution of Kosovo Albanians by Yugoslav authorities and the deployment of an international military and civil presence in Kosovo. It also was the beginning of an era of revenge against Kosovo Serbs and other minorities, such as Roma, Bosniaks and Gorani. e persecution to which these minorities were subjected by the UÇK as well as by Kosovo Albanian civilians took the form of physical violence, harassment, intimidation, destruction and looting of homes, Orthodox churches and monasteries.5 e security vacuum following the departure of the Serbian police and military could only partly and over time be filled by Kosovo Force (KFOR) and this left the field open to revenge attacks on minorities.6 In November , the United Nations High Commissioner for Refugees (UNHCR) reported that approximately , persons had been 3 4 5
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Report of the Secretary-General on UNMIK, UN Doc. S// ( July ) (hereinafter ‘SecretaryGeneral July Report’), paras. -. Michael J. Matheson, ‘United Nations Governance of Postconflict Societies’, AJIL (), -, at . See also Secretary-General July Report, paras. -. See generally, Human Rights Watch, ‘Federal Republic of Yugoslavia: Abuses Against Serbs and Roma in the New Kosovo’, Human Rights Watch Report No. (D), Vol. (August ); UNHCR/OSCE, ‘Preliminary Assessment of the Situation of Ethnic Minorities in Kosovo’ ( July ); UNHCR/OSCE, ‘Second Assessment of Ethnic Minorities in Kosovo’ ( September ) (hereinafter ‘UNHCR/OSCE Second Minority Report’) and UNHCR/OSCE ird Minority Report. See for example Benjamin Ward, ‘e failure to protect minorities in Post-War Kosovo’, HM (), -, at ; Tim Judah, Kosovo: War and Revenge (Yale University Press ) and Alvaro Gil-Robles, ‘Kosovo: e Human Rights Situation and the Fate of Persons Displaced from eir Homes’, Report for the Attention of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe, CommDH() ( October), para. .
e Ombudsperson Institution in Kosovo and the Protection of Minorities forced from Kosovo since June and were now displaced in Serbia and Montenegro.7 During the same period several thousand left for Macedonia and other countries. Most of them were forced out during the first weeks after the initial entry into Kosovo of NATO troops, but the exodus continued also after the international military and civil presence had been established. 8 In addition to displacement outside the territory of Kosovo, large parts of the minority population were forced together into monoethnic enclaves within the province. It is estimated that around , Serbs lived in Prishtinë/Priština prior to the conflict and that this number dropped to around , within a few weeks after the arrival of NATO troops.9 Today the number of Serbs in Prishtinë/Priština is down to a few hundred.10 With the establishment of its mission in Kosovo, the UN undertook its perhaps largest and most challenging tasks ever in the field of territorial administration. rough Resolution , the United Nations Security Council established UNMIK with, inter alia, the following responsibilities: ‘[p]erforming basic civilian administrative functions where and as long as required’, ‘[m]aintaining civil law and order’ and ‘[p]rotecting and promoting human rights’.11 e powers of the international administration stem from the United Nations Security Council, exercising its authority under Chapter VII of the UN Charter.12 UNMIK was set up with four components or ‘pillars’: civil administration, led by the UN itself; institution-building, led by the Organization for Security and Co-operation in Europe (OSCE); reconstruction, led by the European Union; and humanitarian affairs, led by the UNHCR.13 e latter was replaced by a UN-led police and justice pillar in May .14 A Special Representative of the United Nations Secretary-General (SRSG) was 7 8
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UNHCR Position Paper on the Continued Protection Needs of Individuals from Kosovo (April ) para. . Secretary-General July Report, para. (‘While the first wave of Kosovo Serb departures was prompted by security concerns rather than by actual threats, a second wave of departures resulted from an increasing number of incidents committed by Kosovo Albanians against Kosovo Serbs.’). UNHCR/OSCE Second Minority Report, para. . See UNHCR/OSCE Assessment of the Situation of Ethnic Minorities in Kosovo (Period covering March through August ) (September ), para. . Security Council Resolution (), UN Doc. S/RES/, dated June (hereinafter ‘Resolution ’). e legal basis for the creation of UNMIK lies in Articles and of the UN Charter. Article sets out that the Security Council should determine the existence of a ‘threat to the peace, breach of the peace, or act of aggression’, while Article gives the Security Council a wide discretion when it comes to determining which measures should be taken to maintain or restore peace (‘e Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions … . ese may include complete or partial interruption of economic relations of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.’) (for an interpretation of these, see, for example, Prosecutor v. Tadić, Appeal on Jurisdiction, Case No. IT--AR ( October ), paras. -). Secretary-General July Report, para. . UNMIK Press Release, ‘PDSRSG Announces New Police & Justice Pillar’, UNMIK/PR/ ( May ).
Jonas Nilsson appointed as head of the administration and exercises the authority of UNMIK.15 e powerful role of the SRSG was confirmed in the Constitutional Framework adopted on May , in which it was established that certain ‘reserved powers’ should remain exclusively in the hands of the SRSG. ese include: the obligation to ensure that the rights and interests of minorities are fully protected; the right to dissolve the Kosovo Assembly and call for new elections; the exercise of authority over law enforcement authorities; and the exercise of authority regarding appointment, removal from office and disciplining of judges and prosecutors.16 UNMIK signified a new way for the UN to address different aspects of both resolving conflicts and dealing with their consequences, and the mission is unique in its wide scope.17 e wide-ranging powers of UNMIK are set out in the first Regulation which the administration issued, establishing that ‘[a]ll legislative and executive authority with respect to Kosovo, including the administration of the judiciary, is vested in UNMIK and is exercised by the Special Representative of the Secretary-General’.18 According to the SRSG’s interpretation of Resolution , he has, in addition to the powers mentioned, granted himself the power to override valid judicial decisions. e most obvious examples of this are where the SRSG has issued executive orders for maintaining individuals in detention, despite formal judicial decisions by local or international judges ordering their release.19 ere are also examples of cases when UNMIK has simply refused to execute final judgments from courts in Kosovo.20 UNMIK Regulation / sets out that the applicable law in the province should be ‘[t]he law in force in Kosovo on March ’ as long as it does not conflict with any regulation promulgated by the SRSG and subsidiary instruments issued thereunder.21 e 15
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At the time of writing the SRSG is the German diplomat Michael Steiner. e former SRSGs were Sergio Viera de Mello (ad interim) (Brazil) June - July , Bernard Kouchner (France) July - January and Hans Haekkerup (Denmark), January - December . UNMIK Regulation No. / on the Constitutional Framework for Provisional Self-Government, UNMIK/REG// ( May ) (hereinafter ‘Constitutional Framework’), Chapter . See for example the Secretary-General July Report, paras. -. UNMIK Regulation No. / on the Authority of the Interim Administration in Kosovo, UNMIK/ REG// ( July ) (hereinafter ‘UNMIK Regulation /’), Section .. OIK, Special Report No. on e Conformity of Deprivation of Liberty under ‘Executive Orders’ with Recognised International Standards’ ( June ) (hereinafter ‘OIK Special Report No. ’); OIK, Registration No. /, Çelë Gashi v. UNMIK, report of September ; OIK, Registration No. /, Jusuf Veliu v. UNMIK, report of September , and OIK, Registration No. /, Avdi Behluli v. UNMIK, report of September . See also, OIK, Special Report No. on Certain Aspects of UNMIK Regulation No. / on the Establishment of a Detention Review Commission for Extra-judicial Detentions Based on Executive Orders ( August ) ( September ) (hereinafter ‘OIK Special Report No. ’). All reports published by the Ombudsperson are available at http://www.ombudspersonkosovo.org. OIK, Registration No. /, Elife Murseli v. UNMIK, report of December . UNMIK Regulation No. / Amending UNMIK Regulation No. / on the Law Applicable in Kosovo, UNMIK/REG// ( October ) Section . See OIK, Special Report No. on Certain Aspects of UNMIK Regulation No. / Amending UNMIK Regulation No. / on the Law Applicable in Kosovo ( October ) ( May ).
e Ombudsperson Institution in Kosovo and the Protection of Minorities SRSG has made use of his law-making competency on numerous occasions and over a wide range of subjects, such as the organization of the judiciary, matters relating to criminal investigations and proceedings, taxes, pensions, banking issues, construction, elections, non-governmental organizations and vehicle registration.22 e international security presence (KFOR) was, as the international civil presence, established through Resolution but clearly separated from the latter. KFOR has its own areas of responsibility, its own structures and its own chain of command.23 erefore, UNMIK and the local authorities cannot be held responsible for the acts of KFOR.24 e main responsibilities of KFOR lie with ‘[d]eterring renewed hostilities’ by removing or demilitarizing the fighting parties and ‘[e]nsuring public safety and order until the international civil presence can take responsibility for this task’.25 UNMIK and KFOR are granted immunity from any legal action whatsoever and all UNMIK and KFOR personnel are granted immunity from jurisdiction in Kosovo with respect to any civil or criminal act performed or committed by them in their official capacity within the territory of Kosovo.26 Immunity for UN missions derives from the UN Charter and the Convention on Privileges and Immunities of the United Nations27 but, as the Ombudsperson has pointed out, this particular mission differs in relevant respects from others which opens up the issue of immunity to criticism.28 After two municipal elections, in and , and one Kosovo-wide election in , a good deal of power has been handed over to the local institutions that have emerged from these processes. Many important functions, such as authority over the
22 23
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All UNMIK Regulations are available at http://www.unmikonline.org/regulations/index.htm. Security Council Resolution , para. . See also the Constitutional Framework, Chapter . UNMIK and KFOR are to ‘coordinate closely’ with each other but the SRSG has no authority over the military forces (Security Council Resolution , paras. and f ). Gil-Robles criticizes this lack of accountability in his report: ‘I find the view that UNMIK is not to be held responsible for the respect of human rights standards by KFOR problematic. Were this the case, then one of the basic principles governing the functioning of any democratic State (or ‘entity’) respectful of human rights and the rule of law, would not be respected in Kosovo: the principle that the military is not a separate power operating outside the realm of law and that it must fall under the full control of civilian power.’ Gil-Robles, ‘Kosovo: e Human Rights Situation …’, para. . Security Council Resolution , para. . UNMIK Regulation No. / on the Status, Privileges and Immunities of KFOR and UNMIK and their Personnel in Kosovo, UNMIK/REG// ( August ) (hereinafter ‘UNMIK Regulation /’), Sections and . Convention on the Privileges and Immunities of the United Nations ( February ), U.N.T.S. . See OIK, Special Report No. on the Compatibility with Recognised International Standards of UNMIK Regulation No. / on the Status, Privileges and Immunities of KFOR and UNMIK and eir Personnel in Kosovo ( August ) and on the Implementation of the Above Regulation ( April ). In this report, the Ombudsperson states that ‘the main purpose of granting immunity to international organizations is to protect them against the unilateral interference by the individual government of the state in which they are located … does not apply to the circumstances prevailing in Kosovo, where [UNMIK] in fact acts as a surrogate state. It follows that the underlying purpose of a grant of immunity does not apply as there is no need for a government to be protected against itself.’ (para. ).
Jonas Nilsson judiciary and law enforcement institutions, authority over external relations and authority to ensure minority protection, are however still in the hands of UNMIK.29 e security situation for minorities in Kosovo is still very precarious, even if the number of incidents involving minorities has decreased.30 KFOR has, however, since the first half of been in the process of dismantling checkpoints and decreasing the number of armed escorts.31 Critics argue that the only reason for any improvement in the security situation is that the remaining minority population is now isolated in monoethnic enclaves and that the level of violence, intimidation and harassment is on a level sufficient to keep this situation permanent.32 e isolated existence of the minority population affects all aspects of life and adds to even further deteriorate the situation. is includes limited economic opportunities in a society with % of the population living in extreme poverty and with an unemployment rate of %.33 It also includes problems of access to public and social services, such as electricity, water, health care, education and social welfare.34 Moreover, it is important to keep in mind the extreme constraints that this situation puts on the every-day private life of persons forced into an isolated enclave-existence. III. T O I K e Ombudsperson Institution was established by UNMIK Regulation / on June ‘[f ]or the purpose of enhancing the protection of human rights in Kosovo’.35 e establishment and setting up of the OIK was mainly an effort by the Council of Europe (CoE) and the OSCE.36 It was set up as a hybrid organization with both interna29
30
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Constitutional Framework, Chapter . See, for example, UNHCR/OSCE Tenth Assessment of the Situation of Ethnic Minorities in Kosovo (Period covering May to December ) (March ) (hereinafter ‘UNHCR/OSCE Tenth Minority Report’), -. Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S// ( January ) (hereinafter ‘Secretary-General January Report’), para. . ‘It has been reported [that] there were fewer murders and fewer attacks on Serbs and other non-Albanians … I emphasise that this result is only a consequence of the fact that [they] have been forced to live in enclaves and ghettos, and that they have learned to stay away from the harm.’ (Statement by Dr. Covic, Deputy Prime Minister of Serbia, before the UN Security Council, New York, April p., quoted in Gil-Robles, ‘Kosovo: e Human Rights Situation …’, para. , fn. ). World Bank, ‘Kosovo Poverty Assessment’ (October ) and OIK, Second Annual Report -, addressed to Mr. Michael Steiner, Special Representative of the Secretary-General of the United Nations ( July ). See also, Development Researchers’ Network, ‘WFP/UNHCR Food Assessment in Minority Areas of Kosovo’ (December ). OIK Second Annual Report …, and Gil-Robles, ‘Kosovo: e Human Rights Situation …’, para. . See also UNHCR/OSCE Tenth Minority Report, p. . UNMIK Regulation No. / on the Establishment of the OIK ( June ), UNMIK/REG// ( June ) (hereinafter ‘UNMIK Regulation /’) Preamble. For some relevant background documents, see Interim Agreement for Peace and Self-Government in Kosovo, Rambouillet, France ( February ), Chapter ; Secretary-General July Report, para. -; Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,
e Ombudsperson Institution in Kosovo and the Protection of Minorities tional and local staff members.37 Although created and established by international organizations, with an international Ombudsperson and partly international staff, the OIK was clearly set up to remain in place after the international administration’s withdrawal from Kosovo.38 e Ombudsperson is appointed by the SRSG for a two year-period and on July , the Polish human rights lawyer, Marek Antoni Nowicki, was appointed as the first Ombudsperson in Kosovo.39 e OIK formally opened on November .40 e role of the Ombudsperson Institution in Kosovo was confirmed by the Constitutional Framework.41 e OIK’s jurisdiction covers UNMIK and the local authorities emerging after the municipal elections in and the Kosovo-wide elections in .42 Yet, to date, many of the functions that are of most concern to the OIK are within the reserved powers of UNMIK, for example the police and the justice system.43 erefore, the main respondent party for the OIK has been and still is UNMIK and, more specifically, the SRSG. e fact that the jurisdiction covers the international administration makes the OIK unique as an Ombudsman institution. e OIK has however no jurisdiction over KFOR.44 e jurisdiction of the Ombudsperson extends to the entire territory of Kosovo and s/he may also offer good offices on behalf of Kosovars living outside the territory.45
37 38
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UN Doc. S// ( December ), para. ; Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S// ( March ), para. and Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S// ( June ), para. . Today (May ), the staff consists of a few internationals, Kosovo Albanians, Kosovo Serbs and members of the Turkish and Roma communities. See, for example, UNMIK Press Release of July (UNMIK/PR/). After June , the Ombudsperson will be the only international staff member in the OIK. In June , the current international Ombudpserson’s mandate expires and a local Ombudsperson will be in charge of the OIK. UNMIK Regulation /, Sections . and UNMIK Press Release of July (UNMIK/PR/). In July , Mr. Nowicki was reelected by the SRSG for another two-year term. OSCE Press Release, ‘Ombudsperson Institution to be inaugurated in Kosovo’ ( November ), available at http://www.osce.org/news. Constitutional Framework, Chapter . UNMIK Regulation /, Section .. Constitutional Framework, Chapter . In order to deal with cases involving KFOR, the Ombudsperson may however enter into an agreement with the Commander of the Kosovo Forces (UNMIK Regulation /, Section .). As of today, no such agreement has been made. UNMIK Regulation /, Sections . and .. For actions taken in this regard, see OIK, First Annual Report -, addressed to Mr. Hans Haekkerup, Special Representative of the Secretary-General of the United Nations ( July ) (intervention on behalf of Kosovars from Gjakovë/Djakovica that had been displaced, indicted and convicted in Serbia, for the crime of terrorism) and OIK, Second Annual Report … (intervention on behalf of individuals living and working outside Kosovo who are experiencing long delays in the processing of applications for UNMIK identification cards and UNMIK travel documents). Relying on the same provision, the Ombudsperson made trips to Serbia (May ) and Montenegro (February ), in order to visit refugee and IDP-camps where people from Kosovo are living and to help these people raise their problems with the relevant authorities (OIK, Second Annual Report…).
Jonas Nilsson UNMIK Regulation / sets out that the Ombudsperson ‘shall act independently [and that] [n]o person may interfere with his or her functions’.46 e power of the Ombudsperson is to receive complaints, conduct investigations and make recommendations.47 is includes making recommendations to the competent authorities that disciplinary or criminal proceedings should be initiated against any person.48 In order for him or her to effectively exercise his jurisdiction, the Ombudsperson has full access to files and documents of UNMIK and the local authorities and can require any person to cooperate with him by providing relevant information, documents and files.49 e SRSG may however refuse to release a file or document, provided that reasons to do so in writing are given to the Ombudsperson. In these cases ‘the Ombudsperson may draw such inferences as he or she sees fit from the refusal’.50 e SRSG has invoked this provision on only one occasion.51 If administrative authorities or officials do not take ‘appropriate measures within a reasonable time’ after a recommendation from the Ombudsperson, or do not provide the Ombudsperson with reasons for refusal that are acceptable to him, the Ombudsperson ‘may draw the [SRSG’s] attention to the matter and make a public statement thereon’.52 Except for dealing with applications from individuals, the Ombudsperson has the possibility to open ex officio investigations and write special reports.53 e Ombudsperson in the role of mediator is also envisaged, namely through the offering of his or her good offices.54 As of May , the Ombudsperson has received more than formal applications and has opened ex officio investigations. Most of the cases before the OIK concern property issues (governmental takings of or damage to property, difficulties in gaining access to property, etc.), employment issues (recruitment practices, unjust dismissals, etc.), fair trial issues (lack of access to court, undue delays in civil and criminal proceedings, etc.), right to liberty issues (no arrest warrant, no means to challenge lawfulness of detention, etc.) or impunity issues (governmental failures to investigate or prosecute crimes etc.).55 About % of the cases have been closed as inadmissible or due to the fact that either the case had been previously successfully resolved or the applicant had demonstrated a lack of interest in pursuing it.56 e Ombudsperson has addressed UNMIK on several occasions 46 47
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UNMIK Regulation /, Section .. UNMIK Regulation /, Section . UNMIK Regulation /, Section .. UNMIK Regulation /, Section .. Ibid. OIK, Application Registration No. / ( May ). UNMIK Regulation /, Section .. UNMIK Regulation /, Sections ., . and . and Rules of Procedure for the OIK (hereinafter ‘OIK Rules of Procedure’), Rules and .. UNMIK Regulation /, Sections . and . and OIK Rules of Procedure Rule . OIK, Second Annual Report…. It is the author’s assessment that the mentioned categories of cases are dominant also today. See OIK, Second Annual Report …, . It is the author’s assessment that the rate of inadmissibility is the same today.
e Ombudsperson Institution in Kosovo and the Protection of Minorities criticizing the practice of keeping individuals in detention regardless of decisions ordering their release;57 preventing a legally valid court judgment from being executed;58 removing persons, without any basis in law, from the list of candidates eligible to be elected to the Kosovo Assembly on November ;59 and for refusing to register contracts for the sale of real property in specific geographic areas of Kosovo.60 He has also published reports concerning: length of procedure and non-execution of judgment by different courts in Kosovo;61 the lack of effective remedy for persons who have been ill-treated by UNMIK police officers;62 inadequate police investigations into killings63; and irregularities concerning detention of an individual.64 As set out above, the Ombudsperson has a general mandate to deal with human rights violations and abuse of authority but has still a very specific focus on violations of rights of minorities. In UNMIK Regulation / and the Constitutional Framework it is set out that the Ombudsperson ‘shall give particular priority to allegations of … violations … founded on discrimination’65 including ‘discrimination against Communities and their members, and allegations of violations of rights of Communities and their members’.66 Another particular aspect of the functions of the Ombudsperson, in this respect, is that he ‘may promote reconciliation between ethnic groups’.67 In practice, this has meant that special efforts in a number of different ways have been made by the Ombudsperson. Of fundamental importance was, from the time of the establishment of the OIK, the improvement of the actual accessibility of OIK services for minorities, so that their views
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OIK, Special Report No. ; Gashi v. UNMIK: Veliu v. UNMIK; Behluli v. UNMIK and OI Special Report No. . Murseli v. UNMIK. OIK, Ex officio Registration No. /, Regarding the Removal of Emrush Xhemajli, Gafurr Elshani and Sabit Gashi from the List of Candidates for the November Elections, report of October . OIK, Special Report No. on Certain Aspects of UNMIK Regulation No. / on the Registration of Contracts for the Sale of Real Property in Specific Geographical Areas of Kosovo ( October ); OIK, Ex officio Registration No. /, Regarding the refusal of UNMIK to register a contract for the sale of a residential property in Lipjan/Lipljan, report of April and OIK, Registration No. /, Milomir Mitrovic v. UNMIK, report of March . OIK, Registration No. /, Muharrem Sadiku v. UNMIK, report of April ; OIK, Registration No. /, Alush Krasniqi v. UNMIK, report of January ; OIK, Registration No. /, Zarife Haxholli v. UNMIK, report of April and OIK, Registration No. /, Haki Sahiti v. UNMIK, report of April . OIK, Registration No. /, Hamdi Rashica v. UNMIK, report of October and OIK, Registration No. /, Shefqet Maliqi v. UNMIK, report of March . OIK, Ex officio Registration No. / (I, II, IV and V) Concerning the right to life of V.S., V.N., R.C., S.B. and S.A., report of January . OIK, Ex officio Registration No. / Concerning the deprivation of liberty of A.P.L., report of October . UNMIK Regulation /, Section .. Constitutional Framework, Chapter .. UNMIK Regulation /, Section ..
Jonas Nilsson and complaints could be heard and dealt with.68 e security risks involved for Serbs and other minorities in visiting the main office of the OIK in Prishtinë/Priština still exist today.69 During the autumn of , the OIK set up four field offices, in Gjilan/Gnjilane, Pejë/Peć, Prizren and Mitrovicë/Mitrovica. e lawyers in these offices make regular visits to all municipalities in the respective region, including minority areas within those municipalities.70 Because of the lack of freedom of movement for minorities in large parts of Kosovo such an arrangement proved to be necessary for providing access to the OIK. As part of a formal investigation of a case or otherwise as an intervention on behalf of individuals or groups facing various difficulties, the Ombudsperson has intervened on numerous occasions on behalf of members of minority communities. Looking at formal applications before the OIK, approximately % have been filed by Serbs and other minorities.71 e interventions have concerned for example difficulties in obtaining social welfare and disconnection from electricity and water supply. In January , inhabitants in three Serbian villages close to Prishtinë/Pristina demonstrated against power restrictions and more specifically the unequal distribution of electricity to minority areas, which in this case had led to the villages being without electricity for three consecutive days. e exact reasons for the disconnection of these particular villages were disputed.72 After the intervention by the Ombudsperson with the municipal, international and local authorities and the electricity company in Kosovo, the electricity was reconnected for the villages. Another example was the termination of escorts for Serbian school children for an ethnically mixed village in the Gjilan/Gnjilane municipality in eastern Kosovo. During , KFOR and UNMIK agreed that the responsibility for escorts was to be taken over by UNMIK Police and the local police force, the Kosovo Police Service (KPS). For the village referred to above this came into practice in August , with the beginning of a new school year. As UNMIK Police made the assessment that no escort was needed, the result was that the school children went from being escorted by KFOR during one school year to no escort at all the next. e parents threatened to take the children out of school unless some kind of security was provided for them. After the Ombudsperson’s intervention, escorts were reinstated but with patrols of mixed Kosovo Albanian and Kosovo Serb policemen instead of KFOR soldiers.73 In January , the Ombudsperson received applications from three Serbian men who at that time had been suspended from the KPS police training academy for one year,
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OIK, First Annual Report … . Regarding minorities’ lack of freedom of movement in Kosovo in general and in Prishtinë/Priština, see UNHCR/OSCE Tenth Minority Report. OIK, Second Annual Report … . Ibid. It is the author’s assessment that the rate is approximately the same today. Secretary-General January Report, para. . See also UNHCR/OSCE, ‘Update on the Situation of Ethnic Minorities in Kosovo’ (Period covering February through May ) ( May ), para. (‘Whatever the causes, minority populations often bore the brunt of electricity shortages.’). See Secretary-General January Report, paras. and .
e Ombudsperson Institution in Kosovo and the Protection of Minorities without receiving any final decision on dismissal.74 e reason for the suspension was accusations about committing crimes during the conflict in . After the Ombudsperson’s involvement in the cases, it turned out that the three men had already been cleared of any involvement in criminal activities only a couple of weeks after their suspension but that their reinstatement in office, for unknown reasons, had not taken place. As a direct consequence of the Ombudsperson’s intervention, the three men were reinstated with retroactive salary and without their seniority within the KPS being affected. Another example of the Ombudsperson’s intervention in cases concerning minorities is the efforts made to improve the situation for the one remaining Serb living in central Prizren.75 e applicant is years old and, because of the complete lack of security for Serbs in Prizren, he has been forced to barricade himself in his home for the last three years. On numerous occasions has he been subjected to unlawful entries into his property, arson attacks, cutting of his electricity and phone lines and assaults on his person. Despite efforts by both the municipality and KFOR, the applicant is forced to live as a prisoner in his own home with the constant risk of attacks from neighbours and others. In addition to putting pressure on UNMIK and the municipality to take responsibility for the applicant as a citizen of Prizren, the Ombudsperson has also addressed all citizens of Prizren in an open letter urging them to leave this man in peace. Despite these efforts the applicant still lives in his house in Prizren under deplorable and dangerous conditions. e Ombudsperson has also facilitated talks between different ethnic groups in Kosovo. ese talks have been held at village-level, when there has been a common will for dialogue between the two groups and with the aim of finding solutions to concrete problems, such as access to a road for members of one group through the other group’s part of the village. Such dialogues have gone under the heading ‘neighbour to neighbour’ and have so far taken place between Kosovo Albanians and Kosovo Serbs in for example the mixed villages of Bordosh/Devet Jugovic, Fushë Kosovë/Kosovo Polje and Rahovac/ Orahovac.76 IV. T O I K: P F C A e role and function of the Ombudsperson Institution in Kosovo, with regard to the protection of minorities, must be seen within the unique political, legal and social context of Kosovo. Most important in this respect is UNMIK’s role as ‘the surrogate state’.77 As the Ombudsperson has pointed out, ‘UNMIK is not structured according to democratic principles, does not function in accordance with the rule of law, and does not respect OIK, Application Provisional Registration No. / (submitted on January ); OIK, Application Provisional Registration No. / (submitted on January ) and OIK, Application Provisional Registration No. / (submitted on January ). 75 OIK, Application Provisional Registration No. / (submitted on May ). 76 OIK, Second Annual Report … . 77 Ibid. 74
Jonas Nilsson important international human rights norms.’78 e OIK is the one institution to which people in Kosovo can complain about individual measures and policies implemented by UNMIK. With the exception of the regular reporting done by the SRSG to the UN, no other possibility for external review of UNMIK exists.79 is puts the OIK in a central role when it comes to the promotion and protection of human rights, including the rights of minorities, in Kosovo. While the OIK is set up with the same, or at least similar, jurisdiction and powers as Ombudsperson institutions in other countries, it suffers in aspects of its work due to the special powers and functions of UNMIK.80 UNMIK often does not respond to the recommendations made by the Ombudsperson or to his requests for information. Out of the four reports with recommendations published during the first year of operation, only two received responses and out of the published during the second year only eight did.81 It must also be said that many of the replies that the Ombudsperson Institution did receive from UNMIK were not substantial and did not address all of the problems and concerns that were laid out in the relevant report. When looking at the response rate from different parts of UNMIK to other interventions by the OIK and to requests for information, the record is similarly weak. e immunity for UNMIK, as well as for its employees, the structure of UNMIK that does not allow for its actions to be reviewed and the fact that UNMIK is not elected by, and therefore not accountable to, the people of Kosovo means that the same people are deprived of protection of their basic rights.82 Moreover, this also sets poor precedent for the local leaders who are about to take over the governing of the province.83 As the CoE’s Commissioner for Human Rights has pointed out: Whilst such anomalies might have their place in the aftermath of a fraught ethnic conflict … the time has come … to reconsider their continued necessity …. It cannot in the long run, as the situation continues to stabilize, be a salutary example to [local] democratic institutions, to continue to be answerable to an ultimate executive authority, which does not itself adhere to [international human rights standards].84 e effectiveness of an Ombudsperson institution in any society depends on the credibility of the OIK and the abilities of the executive and lawmaking authorities to follow its
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Ibid. See also Gil-Robles, ’Kosovo: e Human Rights Situation …’, para. . Outi Korhonen, ‘International Governance in Post-Conflict Situations’ LJIL (), -, at . For a general definition of the ombudsperson model, see e International Ombudsman Institute, Information Booklet, available at http://www.law.ualberta.ca/centres/ioi. OIK, First Annual Report … and OIK, Second Annual Report … . OIK, Second Annual Report … . Ibid. and Gil-Robles, ‘Kosovo: e Human Rights Situation …’, paras. and . Gil-Robles, ‘Kosovo: e Human Rights Situation …’, para. .
e Ombudsperson Institution in Kosovo and the Protection of Minorities advice and recommendations.85 As Kosovo is in a period of transition from one political and economic system to another, the Ombudsperson Institution plays an important role because of the impact its work can have on the formation of new institutions and structures and on the attitudes of political leaders, the administration and the population in general, towards human rights and good governance. In the field of minority protection the work has involved monitoring the situation for minorities and reminding authorities about their responsibility in this field. UNMIK’s lack of respect for human rights norms and for the principles of the rule of law, although not necessarily directly related to the situation of minorities in Kosovo, is in the long term detrimental to the building of a democratic society that fully respects human rights. If Kosovo is not developed into this kind of society, there can be no improvement for the minorities living there.
85
Marek Antoni Nowicki, ‘Presentation to the Informal Meeting of the Permanent Council of the Organization for Security and Co-operation in Europe’ ( November ) (on file with the OIK).
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Alessia Sonaglioni *
e War in Chechnya and Actions Taken by the Council of Europe
I. I When the second Chechen War started in September , Russia was already a member of the Council of Europe (CoE) and had ratified the European Convention on Human Rights (ECHR) and all its protocols, the European Convention for the Prevention of Torture (ECPT) as well as the Framework Convention for the Protection of National Minorities. Almost four years on, little has been diplomatically achieved for the solution of the conflict. Human rights are still being systematically violated in Chechnya and victims have little hope of obtaining any kind of redress. e referendum on the new Chechen Constitution held on March was supposed to give an appearance of legality to the new institutional structure imposed on the Chechen population by the Russian government, but it has not stopped the war. e status of Chechnya within the Russian Federation remains unclear and future perspectives are uncertain. e aim of the present contribution is to examine the different actions taken by the organs of the CoE during the second Chechen War and to make an initial provisional evaluation of their impact on the conflict. II. T A S C E S U C W1 On October , Dzokhar Dudaiev, former chairman of the executive committee of the Chechen National Congress, was elected President of Chechnya and on November he declared the independence of the country. *
1
Human Rights Lawyer. For a legal analysis of the legitimacy of the Chechen independence claim, see Tarcisio Gazzini, ‘Considerations on the Conflict in Chechnya’, HRLJ (), -. On the legal nature of the Chechen wars,
European Yearbook of Minority Issues Vol , /, -. © Koninklijke Brill NV. Printed in the Netherlands.
Alessia Sonaglioni In the aftermath of the end of the Soviet Union Dudaiev refused to sign the Treaty of the Russian Federation. Although Article of the Russian Federal Constitution includes the Chechen Republic among the subjects of the Federation, the Chechens did not participate in the referendum on the new Federal Constitution which took place on February . e Chechen Republic attempted to act as an independent sovereign state, while Russia continued to regard it as part of the Russian Federation and subject to its laws. Although Russia failed to establish effective control over the Chechen Republic, the two coexisted until mid-. In the period preceding the beginning of the first conflict, opposition groups had called for Dudaiev’s resignation and for a referendum on whether Chechnya should remain part of the Russian Federation. In February , Russia and Tatarstan – the only republic other than Chechnya that did not sign the March federal treaty – signed a treaty affirming Russian sovereignty but giving Tatarstan great autonomy in domestic affairs. Dudaiev, however, refused to enter negotiations with Russia until the latter recognized Chechnya as an independent state and subject to international law. A low-level conflict between the two began in July . After various military incidents, in December Dudaiev issued a decree calling the Russian forces ‘illegal armed formations’, while on the same day the Russian Ministry of Internal Affairs and the Ministry of Defence reciprocated the gesture with respect to Chechen forces. Two days later, on December, Russian troops invaded Chechnya. In April , Dudaiev was killed. e new president, Zelmikhan Yandarbiev, entered into negotiations with the Russian authorities. On the Russian side a key role was played by General Lebed, who met in the city of Khasavyurt with Aslan Maskhadov, an important Chechen commander in the - war. e Khasavyurt Accords were signed on August .2 ey put an end to the first Chechen conflict, but they made no mention of Chechnya’s status, although at Chechen insistence the documents made reference to the people’s right of self-determination (but not to the territorial integrity of states and the inviolability of existing borders). e definition of the status of Chechnya was postponed to the end of . e Chechens considered Moscow’s acceptance of the Accords as a de facto recognition of their independence. However, no international recognition was subsequently achieved and the Chechen Republic ended up being as economically, socially and institutionally devastated as ever. On January , Maskhadov was elected president of Chechnya in elections supervised by the OSCE. On May a peace treaty was signed by Maskhadov and the then president of Russia, Boris Yeltsin. Again the status of Chechnya was not raised as an issue, even though the treaty sets out that: ‘e High Contracting Parties ... have agreed ... that they
2
Rahim Kherad, ‘De la nature juridique du conflit tchétchène’, RDIP (), -. e English translation of the Khasavyurt Accords can be found in Ivan Ribkin, Consent in Chechnya, Consent in Russia (London, ), .
e War in Chechnya and Actions Taken by the Council of Europe will build their relations on the basis of generally recognised principles and standards of international law …’.3 In August , a group of guerrilla fighters led by Chechen warlord Shamyl Basayev, invaded Dagestan, a neighbouring Russian republic. Shortly thereafter, a series of unexplained bombings rocked apartment buildings in Moscow and Volgodonsk. e Kremlin condemned the bombings as terrorist attacks, blaming the government of Maskhadov for the death of nearly civilians. In September , the second Chechen conflict started. Russian authorities spoke of an anti-terrorism operation. No state of emergency was declared. Chechnya was put under Russian administration. Akhmed Kadyrov, a pro-Russian Chechen, was appointed as chief of the administration. e second war was characterized by extreme violence on both sides of the conflict.4 Abuses committed by Russian forces are far-better documented than those of Chechen fighters. ey include, inter alia, mass killings of civilians, forced disappearances, unlawful executions, arbitrary detention, torture and rape. Chechen fighters were principally responsible for cases of mass terrorism, unlawful killings and kidnappings. In February , President Putin appointed Vladimir Kalamanov as Special Representative of the President of the Russian Federation for Ensuring Human and Civil Rights and Freedoms in the Chechen Republic. e Special Representative office is a non-judicial redress mechanism set up with the task of collecting claims of human rights violations and either redressing, when possible, the situation or transmitting the claims to the judiciary. On October , around armed men took about people hostage in a theatre in Moscow. ey demanded an end to the war in Chechnya, immediate negotiations with Chechen leader Maskhadov, and the withdrawal of Russian troops from Chechnya. ey threatened to kill all the hostages if their demands were not met. ree days later, Russian special forces stormed the theatre, after pumping an anaesthetic gas into the main hall to incapacitate the hostage-takers. As a result of the operation, hostages died, most due to the effects of the gas. On December , a suicide bomb attack targeted the building of the Chechen Administration and Government in Grozny, killing people and wounding others.5 3
4
5
Ibid., Appendices. For a detailed analysis of human rights violations committed during the second war, see Parliamentary Assembly of the Council of Europe (PACE), Committee on Legal Affairs and Human Rights, Report on the human rights situation in the Chechen Republic, Doc. , March , Rapporteur: Mr. Rudolf Binding. Source of further information: Amnesty International, Chechnya – Human Rights Under attack, at http:// www.amnesty.org/russia/chechnya.html; Chechnya weekly, published by the Jamestown foundation, at http: //www.jamestown.org; Human Rights Watch, Chechnya: Renewed Catastrophe, at http://www.hrw.org/ campaigns/russia/chechnya/; Organization for Security and Cooperation in Europe, ‘OSCE Assistance Group to Chechnya’, at http://www.osce.org/chechnya/; Prague Watchdog, an online service that reports and disseminates information on the northern Caucasus region, focusing on human rights, humanitarian aid conditions, media access and coverage, and the local political situation. e service is supported with special grants provided by two prominent US-based donor institutions. http://www.watchdog.cz.
Alessia Sonaglioni III. A T CE S C W A. e Obligations of Russia Under the Statute of the CoE In the aftermath of the fall of the Berlin wall most Central and Eastern European States rapidly became members of the CoE. e procedure for the accession of Russia, which had made a request to become a member of the organization in , was suspended in due to the first Chechen war. On September , with the adoption of the Parliamentary Assembly of the Council of Europe (PACE) resolution no. , the procedure was resumed on the grounds that Russia was henceforth committed to finding a political solution and that alleged and documented human rights violations were being investigated. On February , Russia became a member of the CoE, although the Chechen conflict was still open.6 Article of the Statute of the CoE sets out: ‘Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.’ e conditions set forth under Article should be satisfied at the moment of accession and, if not respected afterwards, can give rise to a suspension of the membership of the organization or a request for withdrawal or, in the end, exclusion. Prior to accession Russia had given the CoE the assurance that ‘those found responsible for human rights violations will be brought to justice – notably in relation to events in Chechnya’7 B. e Role Played by the PACE During the Second Chechen War e resuming of combat in Chechnya provoked a reaction from the PACE, which in January , by means of recommendation no. (), called Russia, inter alia, ‘to introduce an immediate and complete cease-fire’, to stop ‘disproportionate military action’ and ‘to cease all attacks against the civilian population’ and ‘to respect strictly the fundamental human rights of the civilian population in the territories of Chechnya under its control, in particular with regard to human rights violations and harassment by the military and police forces’. e recommendation recalled that failure to meet the requirements set out would necessitate a review of Russian membership of, and participation in, the Assembly’s work and in the CoE. In April , the PACE voted, by votes to , with nine abstentions, to recommend the Committee of Ministers to suspend Russia’s membership in the CoE.8 It appealed to CoE member states to make use of Article of the ECHR to refer to the 6
7
8
As regards the legal and political circumstances of Russia’s accession to the CoE, see Bill Bowring, ‘Russia’s Accession to the Council of Europe and Human Rights: Compliance or Cross-Purposes?’, EHRLR (), -. PACE, opinion no. () on Russia’s request for membership of the CoE. PACE recommendation no. (), at http://www.assembly.coe.int.
e War in Chechnya and Actions Taken by the Council of Europe European Court of Human Rights (ECtHR) alleged breaches by the Russian Federation of the provisions of the Convention and its Protocols. e Committee of Ministers, however, did not follow the PACE’s request. At the same time, in an almost unprecedented step, the PACE did not accept the credentials of the new Russian delegation which had been nominated following parliamentary elections in Russia in January .9 is measure effectively deprived Russian deputies of all rights of participation in the PACE between April and January . Although little effort had been made by Russia at improving the situation in Chechnya, in January the credentials of the Russian delegation were accepted again.10 e PACE considered that the Russian Government and not the Duma was responsible for the human rights situation. e Duma had in fact agreed to the setting up of a joint working group composed of seven members of the Parliamentary Assembly and ten members of the Duma. is working group was created in order to encourage dialogue between the Russian authorities, Chechens and nongovernmental organizations (NGOs). To date the working group has not been able to agree on any viable proposal in order to put an end to the conflict. On April , the PACE adopted a resolution11 on the human rights situation in Chechnya, which again invites the member states of the CoE to introduce an interstate application before the ECtHR. e PACE ‘considers that, if the efforts to bring to justice those responsible for human rights abuses are not intensified, and the climate of impunity in the Chechen Republic prevails, the international community should consider setting up an ad hoc tribunal to try war crimes and crimes against humanity in the Chechen Republic’. It urges Russia to ratify the Statute of the International Criminal Court without delay. C. e Obligations of Russia Under the European Convention on Human Rights On May , Russia ratified the ECHR.12 Since the beginning of the second Chechen War, no notice of derogation (Article ECHR) from the obligations of the Convention has been introduced by Russia. As a consequence, Russia could be considered responsible before the Court for all kinds of ECHR infringements committed by Russian forces during the second Chechen War and for the absence of effective investigations of alleged abuses by the forces on both sides of the conflict. Although the ECHR allows interstate complaints, none of the states parties to the Convention has submitted an application
Following the military coup d’etat in Turkey, the credentials of the Turkish delegation were not accepted between and . 10 PACE resolution no. (). 11 PACE resolution no. (). 12 For a first evaluation of the respect of Russia’s commitments with relation to the ECHR, see Bill Bowring, ‘Russia’s accession to the Council of Europe and Human Rights: Four Years On’, EHRLR (), . 9
Alessia Sonaglioni against Russia, despite the invitation made by the PACE in its recommendations and resolutions. Since , several individual applications against Russia have been brought before the ECtHR alleging violations committed by Russian forces during the second Chechen War (an estimated number of are pending before the Court). Complaints vary from arbitrary detention and the destruction of property to infringement of the right to life. e right to an effective remedy is also regularly invoked, given the difficulty existing in Chechnya to address a complaint to a national instance that satisfies the conditions set forth by the ECHR. On December , six applications were declared admissible by the Court.13 e applicants’ complaints under Article (right to life), Article (prohibition of torture and inhuman or degrading treatment), Article (right to an effective remedy) of the ECHR and Article of Protocol No. to the Convention (protection of property) went through the admissibility filter. In addition, the Court decided that the government’s preliminary objection that the applicants had failed to exhaust their domestic remedies was closely linked to the merits of the complaints and should therefore be considered together with the merits at the next stage of the proceedings. e solution the Court will find to the exhaustion of domestic remedies issue will be essential in determining the destiny of several other applications. Given the delay in examining applications against Russia and the need for on-thespot investigations that those cases will probably require, it seems that the situation in Chechnya does not represent a priority for the Court in Strasbourg. It is true that the ECHR system should in principle play a subsidiary role in the protection of human rights. However, given the scale of the abuses committed and the doubtful effectiveness of local remedies, the Chechen cases should have called for a prompter response on behalf of the Court. D. e Role Played by the Secretary General of the CoE On December , Walter Schwimmer decided to use the power conferred upon the Secretary General of the CoE by Article of the ECHR14 and asked Russia to provide explanations on the human rights situation in the Chechen Republic. For the first time in the history of the CoE, a Secretary General exercized the discretionary power set forth by Article with relation to a determined situation within a specific country.15 On January , Russia provided a first reply, which the Secretary General did not find sat13
14
15
ECtHR Appl. /, Khashiyev v. Russia; ECtHR Appl. /, Akayeva v. Russia; ECtHR Appl. /, Isayeva v. Russia; ECtHR Appl. /, Yusupova v. Russia; ECtHR Appl. /, Bazayeva v. Russia; and ECtHR Appl. /, Isayeva v. Russia. Article of the ECHR sets out: ‘On receipt of a request from the Secretary General of the Council of Europe any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention’. See Stéphanie Rabiller, ‘Le pouvoir d’enquête du Secrétaire général du Conseil de l’Europe – A propos de la demande d’explications à la Fédération de Russie concernant la Tchétchénie’, RGDIP (), -.
e War in Chechnya and Actions Taken by the Council of Europe isfactory. Two further exchanges of letters took place ( January/ January, March/ March). Even if Russian authorities did not make any thorough analysis of the compatibility of the situation in Chechnya with the provisions of the ECHR, the Secretary General had no further means to compel them to do so. Since the investigation powers are very limited, the Secretary General could only acknowledge Russia’s lack of cooperation and refer the issue to the Committee of Ministers. In June three experts of the CoE started their work in the Office of the Special Representative of the President of the Russian Federation for ensuring Human Rights and Civil Rights and Freedoms in the Chechen Republic16 in order to support its work in collecting claims of human rights abuses.17 ey are the only international observers present in Chechnya at the moment.18 E. e Committee for the Prevention of Torture On May , Russia ratified the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. In March , a delegation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) made a first visit to several places of detention in the Chechen territory. Two other visits followed (in April and March ).19 On July , the CPT made a public statement denouncing the failure of the Russian authorities to cooperate with the Committee with relation to the recommendation it had made following the visits in . e recommendation asked the Russian authorities to redouble their efforts to uncover and prosecute all cases of ill-treatment of persons deprived of their liberty in the Chechen Republic in the course of the conflict. Since July , the CPT has organized two further visits to the Chechen Republic (in February and May ) and high-level talks between Russian authorities and CPT representatives took place in Moscow in mid-December . In accordance with Article ECPT, the CPT’s reports on those visits and the Committee’s consultations with the state’s authorities are confidential. Most states parties have generally agreed to the publication of CPT reports, albeit with sometimes long delays. To date Russia has not accepted the publication of any of the reports, even though the PACE has invited it to do so.20
On February Putin appointed a Special Representative for Chechnya. His main task is to collect complaints from the civilian population with regard to human rights violations and to inform the competent authorities. His office is based in Znamenskoïe. 17 e CoE Secretary General makes regularly a report on the presence of the experts, see at http:// www.coe.int/sg. 18 e mandate of the OSCE Assistance Group to Chechnya ended on December . 19 See at http://www.cpt.coe.int/en/states/rus.htm. 20 See resolution no. (). 16
Alessia Sonaglioni F. e Human Rights Commissioner’s Reports e Human Rights Commissioner has made four visits to Chechnya and addressed one recommendation to Russia21 concerning rights that must be guaranteed during the arrest and detention of persons following ‘cleansing’ operations in the Chechen Republic. On March , the commander of the allied group of armed forces in the North Caucasus region of the Russian Federation, General Moltenskoy, issued an order (no. ) giving soldiers instructions concerning the execution of anti-terrorist operations in Chechnya. e order requires that a detailed report signed by the parties involved (prosecutor, military commander, head of the local authority) is drafted after each operation. In his last visit report (- February ), the Commissioner, though recognizing that limited progress had been made, underlined that the situation in Chechnya remains highly critical for the civilian population. He suggests that action is needed on three fronts: the restoring of personal security, the strengthening of rule of law and of human rights protection, the setting up of an institution which can carry out political dialogue, and the improving of the population’s material conditions. G. e Impact of the CoE Actions on the Chechen Conflict Unfortunately the second Chechen War confirmed the opinions of those who criticized the accession of Russia to the CoE. Although Russia’s lack of respect for its commitments has been widely documented by the different bodies of the CoE, the Committee of Ministers has not even started a suspension procedure (Article CoE Statute). e inertia of the Committee of Ministers represents a dangerous precedent and can pave the way for the justification of further human rights abuses. Probably the only tangible result of the CoE organs’ monitoring of the situation in Chechnya and of CoE presence in the country via the experts collaborating with the Office of the Special Representative is that the Chechen War, otherwise one among several forgotten wars, has been kept on the international scene. Combining the official reports of the different CoE actors with the independent reports of NGOs could at least one day constitute reliable material for the assessment of the responsibility for human rights violations. It seems, however, a meagre result compared to the consequences that the failure in finding a solution to the conflict and in making Russia abide by its commitments will have for the integrity of the CoE system.22
21
22
CommDH/Rec(), at http://www.commissioner.coe.int. e French Chechnya Committe (Comité Tchétchénie) speaks about ‘a political suicide’ of the CoE. See Comité Tchétchénie, Dix clés pour comprendre (Paris, ), .
e War in Chechnya and Actions Taken by the Council of Europe IV. T F C U N C Although the Committee on Legal Affairs and Human Rights of the PACE agreed that the necessary conditions for the holding of a referendum had not been met,23 on March , the referendum on the new Constitution of the Chechen Republic was held on Chechen territory. Even though conducting a referendum during an armed conflict makes its results questionable, official sources affirm that a large majority of the population took part in the poll and voted in favour of the new constitution.24 e referendum posed three separate questions on the following subjects: first, a draft Constitution for the Chechen Republic; second, a draft law on the election of the president of the Republic; and third, a draft law on the election of the parliament of the Republic. e draft Constitution25 outlines a presidential system of government in which power is concentrated in the hands of a president who is the highest official and head of the executive authority of the Chechen Republic (Article ). He has the power to issue edicts and directives (Article ()) and to issue edicts to make up for deficiency of law (Article ). e parliament comprises two chambers (Article ), the Council of the Republic (consisting of deputies representing administrative and territorial entities of the republic) and the People’s Assembly (consisting of deputies elected on the basis of a direct electoral right by secret vote). Article () of the draft sets out that both Chechen and Russian are the languages of the Chechen Republic. However, under the same provision it is said that Russian shall be the working language of public administration. On January , the President of the PACE asked the European Commission for Democracy through Law (Venice Commission) to draw up an opinion on the draft Constitution. e opinion was adopted by the Commission on March .26 e Venice Commission’s opinion states … that the full opportunity to ensure the acceptance of the system by the local population may not have been taken. In particular the powers the Republic enjoys by virtue of the Federal Constitution are not clearly set forth in the draft. e strong concentration of powers in the hands of the President and the relatively weak Parliament may not facilitate the integration of the sceptical or hostile parts of the population into the political system.
PACE Information document no. of January . NGOs contested the official results, see http://www.watchdog.cz, http://www.fidh.org/europ/russie.htm. 25 See the text at http://www.venice.coe.int. 26 Opinion on the Draft Constitution of the Chechen Republic, adopted by the Venice Commission at its th Plenary Meeting (Venice, - March ), CDL-AD (). 23
24
Alessia Sonaglioni As regards the Constitutional Court, the opinion states that its powers … should include in particular a procedure on abstract and concrete control of norms … . e present situation in the Republic would also seem to make it particularly desirable to give the Court the possibility of hearing claims from individuals that their human rights were violated. e future of the Republic remains highly uncertain; a quick return to peace is needed by the prostrated population. However, as said by Lord Judd in his notes to the visit by the joint Parliamentary Assembly/State Duma Working Group to Moscow from - July ,27 ‘any proposed solution which is not supported by a large majority of the population will not bring lasting peace’. In the meanwhile it seems that the CoE and its member states still have to find an answer to the question of ‘how to respond to poorly governed and disintegrating multiethnic states that do not accommodate minorities’.28
27
28
PACE Information document no. – Part I. Rajan Manon and Graham E. Fuller, ‘Russia’s Ruinous Chechen War’, () FA (), -, at .
APPENDIX LIST OF INTERNATIONAL NORMS ACHR
American Convention on Human Rights, concluded on November , entered into force on July , O.A.S.T.S. No. , UNTS
AfrCh
African Charter on Human and Peoples’ Rights, concluded on June , entered into force on October , O.A.U. Doc. CAB/ LEG// Rev.
Am. Decl.
American Declaration of the Rights and Duties of Man, adopted in , O.A.S. Res. XXX, O.A.S. Off. Rec. OEA/Ser.L/V/I. Rev. ()
Am. Decl. Ind. P.
Proposed American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights on February at its rd Session, th Regular Session
Budapest Summit Declaration
Budapest Summit Declaration and Decisions, adopted by the CSCE on December , reprinted in ILM ()
CAT
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concluded on December , entered into force on June , GA Res. /
CCPR
International Covenant on Civil and Political Rights, adopted on December , entered into force on March , UNTS
CCPR Opt. Prot.
(First) Optional Protocol to the International Covenant on Civil and Political Rights, adopted on December , entered into force on March , UNTS
CEDAW
Convention on the Elimination of All Forms of Discrimination Against Women, concluded on December , entered into force on September , UNTS
CERD
International Convention on the Elimination of All Forms of Racial Discrimination, concluded on March , entered into force on January , UNTS
Appendix CESCR
International Covenant on Economic, Social and Cultural Rights (CESCR), adopted on December , entered into force on January , UNTS
CRC
Convention on the Rights of the Child, concluded on November , entered into force on September , GA Res. /
CSCE Charter of Paris
Charter of Paris for a New Europe, adopted by the CSCE on November , reprinted in ILM ()
CSCE Copenhagen Document
Second Conference on the Human Dimension of the CSCE, June July, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Copenhagen
CSCE Final Act
Final Act of the Conference on Security and Cooperation in Europe, adopted on August , reprinted in ILM ()
CSCE Vienna Document Concluding Document of the Vienna Meeting of Representatives of the Participating States of the Conference on Security and Cooperation in Europe, adopted on January Directive //EC
European Union Council Directive //EC of November , Establishing a General Framework for Equal Treatment in Employment and Occupation, Official Journal L ( December ),
ECHR
European Convention on Human Rights and Fundamental Freedoms, dated November , ETS No.
ECHR Protocol
Protocol No. to the European Convention on Human Rights and Fundamental Freedoms, adopted on November , ETS No.
EChRML
European Charter for Regional or Minority Languages, adopted on November , entered into force on March , ETS No.
ECPT
European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, adopted on November , entered into force on February , ETS No.
ESC
European Social Charter, adopted on October , entered into force on February , ETS No.
Appendix FCNM
Framework Convention for the Protection of National Minorities, adopted on February , entered into force on February , ETS No.
Hague Recommendations OSCE High Commissioner on National Minorities, Hague Recommendations Regarding the Education Rights of National Minorities, October ILO Convention
International Labour Organisation Convention (No. ) concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, concluded on June , entered into force on June , UNTS
ILO Convention
International Labour Organisation Convention (No. ) concerning Indigenous and Tribal Peoples in Independent Countries, concluded on June , entered into force on September , reprinted in ILM ()
Lund Recommendations
OSCE High Commissioner on National Minorities, Lund Recommendations on the Effective Participation of National Minorities in Public Life, September
Oslo Recommendations
OSCE High Commissioner on National Minorities, e Oslo Recommendations Regarding the Linguistic Rights of National Minorities, February
PACE Recommendation
Parliamentary Assembly of the Council of Europe, Recommendation () on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights, dated February
UDHR
Universal Declaration of Human Rights, adopted by the UN GA on December , GA Res. A
UN Charter
Charter of the United Nations, concluded on June , entered into force on October , UNTS XVI.
UNDeclMin
Declaration of the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the UN GA on December , GA Res. /
Appendix UN Draft Decl. Ind. P.
Draft Declaration on the Rights of Indigenous Peoples, adopted by the UN Commission of Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities on August , UN Doc. E/CN.//; E/CN./Sub.//
VCLT
Vienna Convention on the Law of Treaties, concluded on May , entered into force on January , UNTS
Vienna Declaration
Vienna Declaration and Programme of Action, adopted by the UN World Conference on Human Rights on June , UN Doc. A/CONF./ (Part I), at — ()
