European Yearbook of Minority Issues: Volume 4, 2004 5

EUROPEAN YEARBOOK OF MINORITY ISSUES

EUROPEAN YEARBOOK OF MINORITY ISSUES volume  General Editors Arie Bloed Rainer Hofmann Joseph Marko James Mayall John Packer Marc Weller Managing Editors Emma Lantschner Tove H. Malloy Assistant Editors Marnie Lloydd Gabriel N. Toggenburg Leonhard Voltmer Matthew Ward

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 14953 8

© Copyright 2006 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. 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 The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

Table of Contents – 2004/5 Issue

Foreword

ix

PART I: ARTICLES

1

A. General Articles Section

3

B.

Towards a New Paradigm of Minority Law-Making: A Rejoinder to Palermo and Woelk’s Law of Diversity Tove H. Malloy

5

Minorities and Religions in Europe. Case Study: The Assyro-Chaldeans of Turkey Joseph Yacoub

29

Minority Rights in China: A Legal Overview Joshua Castellino and Elvira Domínguez Redondo

51

Situating Federalism, Minorities and Communalism in the Indian Polity Arshi Khan

85

Minority Representation within the Spanish Electoral System Eduardo J. Ruiz Vieytez

117

Still No Place to Go: Nomadic Peoples’ Territorial Rights in Europe Jérémie Gilbert

141

Special Focus: Ombudsman Institutions

161

Ombudsmen and Similar Institutions for Protection against Racial and Ethnic Discrimination Andrea Krizsán

163

Building up a Specialized Body Mikko Puumalainen

185

The Ombudsman as Advocate Philip Giddings

207

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution to Vulnerable Communities Marnie Lloydd

221

Table of Contents – / Issue Towards Increased Cooperation between National Ombudsman Institutions and International Minority Rights Mechanisms Rianne Letschert

247

Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine: A Failure of Local Institution-building? Bill Bowring

269

C. Special Focus: the EU and Minority Protection Minority Protection and Anti-discrimination Policies: Synergies and Challenges at the EU Level Birgit Weyss and Alexander Lubich

297

Looking Back at Ten Years of EU Minority Conditionality vis-à-vis Central and Eastern European Candidate States Guido Schwellnus

321

Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey Dilek Kurban

341

Recent Developments on the Status of (Minority) Languages within the EU Framework Niamh Nic Shuibhne

373

The Long-Term Residents Directive John Handoll

389

Integrating the Roma into European Society: Time for a New Initiative Olivier De Schutter and Annelies Verstichel

411

D. Special Focus: The Caucasus Region

vi

295

445

Integrating Minorities in Weak States: The Case of Georgia Jonathan Wheatley

447

Building a New Regime of Interethnic Cooperation in Armenia? Shavarsh Khachatryan

461

Ethnic Profile of Post-Soviet Azerbaijan Arif Yunusov

481

Durable Solutions for Meskhetian Turks: The Issue Revisited Andrei Khanzhin

495

Table of Contents – / Issue PART II: REPORTS

511

A. International Developments

513

B.

Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities Alain Chablais

515

The Committee of Experts of the European Charter for Regional or Minority Languages: June 2004 – June 2005 Vesna Crnić-Grotić

541

The Jurisprudence of the European Court of Human Rights Roberta Medda-Windischer

557

The Activities of the OSCE High Commissioner on National Minorities: July 2004 – June 2005 Krzysztof Drzewicki and Vincent de Graaf

595

Minorities at the United Nations: The UN Working Group on Minorities in Context Asbjørn Eide

615

Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 Nathalie Prouvez

637

National Developments

669

Recent Developments in Romania on the Draft Law on the Status of National Minorities: Déjà Vu All Over Again? D. Christopher Decker

671

The Referendum on Decentralization in Macedonia in 2004: A Litmus Test for Macedonia’s Interethnic Relations Joseph Marko

695

Democratization as a Means of Conflict Resolution in Moldova Oleh Protsyk

723

vii

FOREWORD

This fourth volume of the European Yearbook of Minority Issues is dedicated to the th anniversary of the Bonn-Copenhagen Declarations, a successful model for minority protection. The Yearbook remains faithful to its mission and proposes an up-to-date overview of both mechanisms for the accommodation of diversity and specific situations. In this issue, the first special focus is on the Ombudsman mechanism, which is thoroughly examined by not less than six articles. The second special focus is on the minority-dimension of the European Union, planned since the first big wave of the Eastern enlargement has been concluded. The emphasis is on the EU’s responsibility vis-à-vis its minorities, as proposed by EURAC/LGI in the so-called Bolzano/Bozen Declaration, where a pool of international experts coordinated by Gabriel N. Toggenburg expressed the hope that the Eastern enlargement “will stimulate a constructive effort to improve minority protection”. The Union and its states should not misuse the  May  “to retreat into a tacit policy consensus and disregard the problems faced by the minorities in their midst”. The third special focus deals with the Caucasus Region, where ideological shifts show minority questions in an ever new light. Of course the Yearbook continues its regular reports on international developments, namely within the Council of Europe, the OSCE Office of the High Commissioner on National Minorities, as well as the relevant bodies of the UN System. If this European Yearbook is again a highlight in this year’s scholarly study of minority issues, it is so thanks to the Board of General Editors. For the formal quality thanks go to the editorial team of the Institute for Minority Rights at the European Academy Bozen/Bolzano and the European Centre for Minority Issues in Flensburg, Dr. Tove Malloy, Dr. Leonhard Voltmer, Ms. Emma Lantschner, Mr. Matthew Ward, Mrs. Marnie Lloyd and Dr. Gabriel Toggenburg. Thanks to our proofreaders Ms. Jo Malcolm and Ms. Farah Fahim. Joseph Marko Director of the Institute for Minorities Rights EURAC

Part I Articles

A. GENERAL ARTICLES SECTION

Tove H. Malloy *

Towards a New Paradigm of Minority Law-Making: A Rejoinder to Palermo and Woelk’s Law of Diversity

I. Introduction The changing nature of minority-majority relations in Europe continues to challenge the development of minority rights law in the direction of new theoretical explorations. Minority rights in international law have a long pedigree evolving from freedom guarantees afforded to religious minorities in the late Middle Ages to a human rights protection paradigm in the late twentieth century.1 In particular, the last two decades have seen a plethora of soft law initiatives seeking to further the international protection of minorities in Europe. As societies become more and more diverse, minority rights law has had to adjust to new modes of accommodating both stationary and migratory non-dominant groups. Indeed, the academic minority rights discourse at the turn of the millennium has been particularly intense in its attempts to theorize innovation. Considering the diversity of theories as to the purpose and objectives of law-making, the legal approach to minority rights has a variety of options to choose from. While the view based on pragmatism sees the law-making process as a contingent act of creative problem-solving,2 the deconstructivist view holds that law-making is an ongoing intercultural multilogue about constitutional arrangements,3 defined by a dialectic process of constant redefinition and contestation.4 Moreover, the goal of law-making has been fiercely debated by the ever expanding lot of critical theorists who have hammered away at the injustice of the liberal dogma of neutrality in favour of contextual justice.5 Finally, *    



Senior Research Associate, Head of EU Programme, ECMI, Flensburg, Germany. The author wishes to thank the anonymous reviewers for their valuable comments. Geoff Gilbert, “Religio-nationalist Minorities and the Development of Minority Rights Law”,  RIS (), -. Siegfried Schieder, “Pragmatism as a Path towards a Discursive and Open Theory of International Law”, () EJIL (), -. James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, Cambridge, ). Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority’”, in Drucilla Cornell, Michel Rosenfeld and David Gray Carlson (eds.), Deconstruction and the Possibility of Justice (Routledge, London, ), -. Martti Koskenniemi, “The Politics of International Law”, () EJIL (), -.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 5-28. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Tove H. Malloy there is a more recent social idealism view, which sees law as a result of the systematic way in which the social exchange is organized.6 Yet, international law’s approach to minority rights remains anchored in the paternalistic human rights view of protection, based on the assumption that national minorities are not able to evidence group agency in terms of collective action, self-empowerment and self-protection.7 Drafters of minority rights law seem to ignore that empowerment may, in fact, lead to self-protection, and that self-protection is the corollary of self-determination – not in terms of self-government and power over territory and population, but as self-protection of self-constituting communities. A much welcome attempt to ignite a debate on these issues is the excellent reflections offered by Palermo and Woelk in their article “From Minority Protection to a Law of Diversity? Reflections on the Evolution of Minority Rights”.8 This article seeks to expand, through rigorous analysis, on the ideas offered by Palermo and Woelk, in the hope that a debate on protection versus empowerment may truly be launched in the discourse of European minority rights, not only within our own narrow circle of scholars, but also beyond. II. Protection versus Empowerment Protection refers to the responsibility of the state to protect individuals against injury committed either by the state or third parties and, thus, also implies the right to international humanitarian intervention on behalf of citizens belonging to a state.9 In contemporary international law use, the general duty to protect is based on three interpretations.10 First, there is a duty to protect vulnerable groups in times of armed conflict. These are the civil populations who are not in combat. Secondly, the duty to protect refers to the right to humanitarian intervention when states are unable or unwilling to protect those under their jurisdiction. This has lately become interpreted to include armed intervention. Thirdly, there is a duty to protect needy groups, such as families, refugees and migrant workers. In international law, protection is considered a postWorld War II human rights tool, although we find it also in the obligation among    





Philip Allott, “Reconstituting Humanity – New International Law”,  EJIL (), . Tove H. Malloy, National Minority Rights in Europe (Oxford University Press, Oxford, ). Francesco Palermo and Jens Woelk, “From Minority Protection to a Law of Diversity? Reflections on the Evolution of Minority Rights”,  EYMI (/), -. Throughout this article, when referring to minority law I mean national minority rights on the assumption that in international law, national minorities have historically received the greatest attention in terms of protection. This does not mean that I do not support Palermo and Woelk’s suggestion that the Law of Diversity should include affirmative action for members of ‘new’, or ethnic minorities. Certainly, affirmative action is in line with the thesis of this article that it is empowerment rather than protection that is needed in minority lawmaking. See Hans-Joachim Heintze, “Article ”, in Marc Weller (ed.), The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford University Press, Oxford, ), -, at .

Towards a New Paradigm of Minority Law-Making states to afford diplomatic protection to the agents of a foreign state.11 Nevertheless, it is usually held that national minority protection was firmly established by the peace settlements after World War I when national minorities found themselves under the authority of an alien state due to territorial changes. However, both views neglect the early development of the protection paradigm in the various peace treaties of the late Middle Ages and the Congress of Vienna.12 The contemporary meaning of protection has thus developed from the medieval guarantees to the late modern notion of active protection. The current view of protection is rather more paternalistic than the earlier meaning of guarantees, although this is not to argue that guarantees are better than protection. Certainly, guarantees may be nothing but empty promises. Moreover, paternalism need not be seen as negative. Paternalism usually refers to a policy of governing which limits freedom and responsibility by well-meant regulations. Indeed, paternalism is considered good if it is advantageous for the community in question. A problem with paternalism is that it has a connotation of ethnocentricism based on insensitive hectoring in a spirit of moral superiority.13 Protection is therefore likely to fall into a trap of cultural imperialism. In contradistinction to protection, empowerment refers to the act of moral and social recognition of individuals, as well as constitutive communities.14 According to anthropologists, a constitutive community is usually one’s ethnic, linguistic or national group, but race, gender and sexual orientation have also been suggested as constitutive.15 Empowerment can be said to bring ethical standing, where ethical standing refers to the individual’s feeling of moral and social worth achieved and afforded through the recognition of one’s constitutive community. In international law, ethical standing is usually afforded to individuals through the moral recognition of their communities to independence as states and through a national self-determination test.16 The  Montevideo Convention on Rights and Duties of States holds that communities have the right to moral recognition as states on certain conditions.17 Partial moral recognition is also possible in international law. In these cases, internal self-determination has been established but external self-determination remains problematic. Internal self-determination is not usually seen as part of the protection paradigm and thus not afforded to national minorities. This is why the international society has focused on protecting national minorities in terms of human rights. The reason why national minori    

 

See Vienna Convention on Diplomatic Relations (). Geoff Gilbert, “Religio-nationalist Minorities …”. Bhikku Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Macmillan, London, ), . Axel Honneth, Struggle for Recognition: The Moral Grammar of Social Conflicts, trans. Joel Anderson (Polity Press, Cambridge,  []). Charles Taylor, Sources of the Self: The Making of the Modern Identity (Harvard University Press, Cambridge, MA, ); and Iris Marion Young, Justice and the Politics of Difference (Princeton University Press, Princeton, ). Peter Malanczuk, Akehurst’s Modern Introduction to International Law (Routledge, London, th revised ed. ), Chapter . Montevideo Convention on the Rights and Duties of States, signed at Montevideo on  December , entered into force on  December .



Tove H. Malloy ties are not considered constitutive communities in international law is that, according to international law and the prevailing view in European international law, states are seen as nations and, therefore, nations equate with states. Consequently, only those nations that equate with states have moral recognition and national self-determination. However, in reality, nations and states rarely coincide, thus resulting in what has been termed the ‘national self-determination fudge’.18 Hence, those national minorities who consider themselves nations cannot have national self-determination. To elucidate the problematic relationship between protection and empowerment one must problematize the discourse of national minority rights, not solely in terms of law-making, but also in terms of social reality. This is why theorists of minority rights have been forced to search for solutions outside international law, within theories of democratization, citizenship and justice. Theories of democratization, citizenship and justice merit attention inasmuch as they relate to the issue of social recognition of national minorities. Whereas law affords moral recognition in terms of granting rights to national minorities and their members, democratic institutions, citizenship and justice help national minorities and their members achieve social recognition and a feeling of moral and social worth. Firstly, democratic institutions that include national minorities in the political process provide them with the opportunity for individual and collective self-determination. Secondly, citizenship, not in terms of rights but in terms of individual reasoning about action, affords members of national minorities (as well as non-members) the opportunity to learn how to be self-critical and critical about issues, thus feeling social inclusion. Thirdly, justice in a form that is acceptable to all members of society, and which is negotiated through democratic institutions, allows national minorities the opportunity to achieve a sense of social worth inasmuch as they are socially and morally recognized as equal members of society. However, democratic institutions are often more exclusive than inclusive. Designing inclusive institutions is a delicate matter, especially in societies where citizenship is cast in a narrow mould of rights and entitlements. Citizenship in terms of action is difficult to foster; it requires individual capabilities and education. More importantly, it requires ethical guidelines upon which we can rely in the social interaction of dayto-day democracy.19 This is why justice becomes problematic as a structure for ethical guidelines. Justice is more than rights and rules about our lives; it is about social interaction and the ordering of our societies that we ourselves negotiate. Hence, if justice is to afford us the opportunity to achieve a feeling of moral and social worth through social as well as moral recognition, the laws must be flexible and adjustable to the constant changes in society. This is the view I wish to elucidate in this article in terms of lawmaking and a new paradigm of minority rights law. I will take my starting point from Palermo and Woelk’s discussion of minority rights in which they argue for a complex ‘Law of Diversity’. In responding to three major elements of Palermo and Woelk’s Law of Diversity, I will seek to show some of the  



Jennifer Jackson Preece, National Minorities and the European Nation-States System (Clarendon Press, Oxford, ), . Onora O’Neill, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge University Press, Cambridge, ).

Towards a New Paradigm of Minority Law-Making weaknesses in their approach while suggesting ways to augment it. This will bring me to examine, albeit in brief, the debate in legal theory on political law-making followed by a discussion of the EU’s approach to apply some of these ideas in its move towards complex constitutionalism. In showing, through the EU’s complex constitutionalism, that political law-making may open up the space for alternative ways of approaching minority rights law-making in Europe, I will argue that one should perhaps not speak of a Law of Diversity but rather of a new paradigm of minority law-making, a political one. III. The Law of Diversity According to Palermo and Woelk, minority law, or the law regarding the protection of minorities, is always a work in progress. Although, at the European level, minority law consists of an eclectic mass of instruments, the protection of minorities at the state level continues to use the criterion of citizenship, thus pitting the identity of the minority against that of the majority. However, in the late modern paradigm of political and legal interdependence, the state, i.e. the majority population, is not the only force holding the power of regulation; external forces are also capable of regulating minority conditions. For instance, the Copenhagen criteria have become a force in themselves. In this new paradigm, the ability of the state to hold sole power in regulating minority conditions has been eroded by a division of forces functioning both vertically and horizontally. At the vertical level, subsidiarity has forced the state to divide its power and sovereignty among three levels of governance whereas at the horizontal level, complexity has forced the state to accept that, in the public and private spheres, minorities assume increasingly greater autonomy. At the vertical (subsidiarity) level, this means that minority protection has become an issue of multilevel governance and a concern of international bodies, the result being that there is no clear division of competences. At the horizontal (complexity) level, it results in minorities assuming control of their own situation as they move between different levels of their identity depending on prior territoriality and competences. This result renders members of minorities masters of their own fate (‘mechanics’), as well as enabling them to assume responsibility towards the society in which they live. Relying on conventional norms of constitutionalism and democracy by the majority, Palermo and Woelk argue that the vertical (subsidiarity) and horizontal (complexity) developments in minority law are recent. Minority law thus remains an issue of concession of the majority to protect the minority according to the ideal of equality. However, this scenario, the authors argue, does not describe the late modern reality of complex societies where democratic principles require constant readjustment through legal applications. It is therefore clear that the principle of formal equality does not protect against discrimination and assimilation of disadvantaged groups; these groups require explicit recognition and particular status to receive proper protection. Correcting inequality means underlining the culturally plural dimension of societies. Minority rights are therefore measures that enable minorities to perform under the same conditions as majorities and, thus, are not special privileges. The requirement is for substantive considerations rather than purely formal considerations of equality. Special minority education is, according to Palermo and Woelk, an example of taking 

Tove H. Malloy into consideration substantive aspects of equality, enabling members of minorities to become more equal in the human interaction with the majority. However, as law is usually culturally disposed as per the culture of the majority, minority rights have come to be seen as exceptions to this cultural outlook. As a consequence, differentiating rules are needed and which should not be seen as discriminating against the majority. Even though law is often considered neutral, the fact that it represents the cultural outlook of the majority means that specific anti-discrimination clauses are required in addition to a formal equality clause. This is why Palermo and Woelk argue that a ‘qualitative leap’ is needed in the approach to minority rights dislodging itself from the protection-oriented route towards a ‘law of diversities’.20 This would call for more sophisticated instruments that do not allow for hegemonic positions on minority rights to form but would seek a balance between equality and difference while remaining subject to constant revision. This, Palermo and Woelk argue, is the only way to guarantee the legitimacy of these instruments. The balancing of equality and difference means living together in diversity. In cases of open conflict, this may mean applying protection instruments in order to maintain security. According to Palermo and Woelk, this is still the case for many minorities in Europe, and is indeed a major step not yet taken by many majorities. In other cases, security and protection in terms of group survival are no longer the major issues. Instead, mechanisms of cooperation and management of diversity are needed. These mechanisms are often more sophisticated and perhaps harder to define as they should aim at taking minorities out of isolation and into becoming fully participating in the democratic process. The range of minority instruments available thus spans from nonrecognition and assimilation to complex rules of diversity management. The latter situation is especially relevant in the European legal space, which includes the OSCE, the Council of Europe and the EU. This evolution from unethical approaches of minority control to the ethical approach of the new ‘law of diversities’ is a transformation of law from being a technical tool of conflict resolution to being a tool of inclusion. The former often results in exclusionary trends while the latter represents the plural values of both majority and minorities. However, according to Palermo and Woelk, the two systems of tools must coexist, as they are both needed. In the space between the two, there is room for soft law values which, if designed and applied correctly, make the entire outlook of minority rights law a “much more beautiful picture”.21 The soft law of this space must rely on conviction rather than coercion, and it must follow procedures of negotiation that lead to informed choices in law-making. According to the authors, this will promote a space of law in which persuasion rather than coercion will dominate in a rule of law system. The procedures must be based on common rules, as well as some shared values, in order to function. This amalgamation of ideals results in a multicultural citizenship as opposed to the exclusionary citizenship based on formal equality. Using the analogy of a city square, Palermo and Woelk argue that a set of common rules is needed to police the square. This paradigm would be applicable to both national or historical minorities and new or immigrant minorities.  



Palermo and Woelk, “From Minority Protection to a Law of Diversity? …”, at . Ibid. at .

Towards a New Paradigm of Minority Law-Making In summing up, Palermo and Woelk argue that the Law of Diversity may be characterized by three elements: asymmetry, pluralism and negotiation. Asymmetry defines the conceptual outlook and the application of the Law of Diversity, whereas pluralism refers to the complexity of subjects and the nature of the legal instruments. Negotiation refers to the process of establishing the Law of Diversity in a space of innovation. Moreover, the Law of Diversity must favour cooperation and put aside ideology. According to Palermo and Woelk, it should not be seen as a system of justice as this usually entails ideological bias; rather the Law of Diversity should be a prescription for procedure aiming at determining the common ground. It should not determine the details, but become detached as a regulator whose services are only needed as a ‘referee’.22 On this view, the Law of Diversity would be substantively determined by the minority groups themselves and the local governments under whose jurisdiction they belong in the system of subsidiarity. Like the owners of the shops around the city square, they decide on the substantive issues of cooperation. Palermo and Woelk make it clear that cooperation is paramount for the Law of Diversity to function well. This includes the willingness on behalf of minorities to cooperate and become integrated. At the same time, this will force the majority to understand that their society is complex and thus needs complex solutions. In other words, simple rules are not efficient when dealing with minority issues. Palermo and Woelk’s theory of a Law of Diversity represents a step in the right direction towards empowering national and other minorities through a late modern European consolidation approach to law and democracy rather than continuing the protection paradigm invented for a different purpose during a different era. European international law’s maturing from its Cold War philosophy is long overdue.23 There are, of course, as this article will demonstrate, a number of reasons why the Law of Diversity is not entirely perfect. My argument is that, in dividing the task of drafting the procedural matter and the substantive content of the Law of Diversity, Palermo and Woelk inadvertently, and against their intentions, embed the Law of Diversity in the static and imperialistic nature of the current liberal paradigm of law. Given the performance of European international law in the s, this seems to continue to be the direction desired by European leaders and, thus, may have the impact of stalling the Law of Diversity in the paradigm of protection. However, the good news may be hidden in the emerging paradigm of complex constitutionalism pursued by the EU. While the space made available for minority rights in the new Constitution for Europe is minuscule to say the least, the democratic space is destined to grow more inclusive in the post-May  years of adapting to minority rights. Acknowledging that Palermo and Woelk are indeed very aware of this development within the EU, I will address this issue only briefly before my closing remarks. In the following sections, I will address the three main elements of Palermo and Woelk’s Law of Diversity, namely the aspects of asymmetry, pluralism and negotiation.  

Ibid., at . I borrow the term ‘European international law’ from Eduardo Ruiz Vieytez. See, Vieytez, The History of Legal Protection of Minorities in Europe, XVIIth – XXth Centuries (University of Derby, Derby, ), .



Tove H. Malloy IV. Asymmetry in Legal Theory Palermo and Woelk’s argument that asymmetry defines the instruments within and the application of the Law of Diversity is interesting for a number of reasons. Firstly, with regards to applicability, it challenges the formal equality approach that has characterized the liberal paradigm of international law for decades, but which is beginning to see the proportional equality principle encroaching on its territory. Secondly, it implies that applying corporate rights to groups could be necessary. Thirdly, it implies a conceptual challenge to the universal buttresses of international human rights law, by which human rights are seen as belonging to all humankind. The conceptual aspect of asymmetry poses a number of problems in law-making inasmuch as asymmetric rights in legal theory are special institutional rights that give members of society particular entitlements to a range of benefits subject to meeting certain well-defined criteria. The problem of institutional rights is at the core of the problem of national minority rights, and one of the reasons why national minorities are not granted corporate rights in public international human rights law. This is partially due to the fact that claims to have rights amount only to rhetoric if obligation-bearers are not identifiable by rightsholders, and in public international human rights law it is very difficult to identify who are the bearers of obligations.24 Special asymmetric rights impose two categories of obligations. In one category, the imperfect category of special obligations, obligations may not correspond to a right. For instance, the obligations that good parents will feel they should extend to their children in terms of love, attention and support are special to the relationship between parents and child, but it is questionable whether parents owe these obligations to their children. Thus, they are not institutional rights. Whereas it is debatable whether children have a right to emotional or moral support, arguably they have the right to substantive support. In fact, most Western democratic states consider this a legal right. The other category, the perfect category of special obligations, “require[s] social structure or practices that connect specific agents to specified recipients of action, to whom they owe and for whom they are bound to perform, who are the holders of the equivalent special rights”.25 The rights that correspond to these duties are far from rhetoric but very definite entitlements that are distributed according to some scheme and whose enforcement would have to justify institutional structures as well as more abstract principles. Thus, the definition of a special and perfect obligation is a right “held by some; owed to specified others; counterpart special rights; fixed by structure of specific transactions and relationships; [which] can be distributively universal given appropriate institutions”.26 Examples of rights in this category are the special relationships that states, markets, firms and families define and create, as well as specified welfare rights and time-restricted rights. Inasmuch as the special obligations that are imposed following this definition may be rather burdensome at times to some members of society but not to others, these obligations and their corollary rights are asymmetric. This is in contradistinction to universal rights, which are mainly   



O’Neill, Towards Justice and Virtue …, . Ibid., . Ibid., .

Towards a New Paradigm of Minority Law-Making liberty rights. While not dismissing universal rights as applicable to special protection, universal rights may be illusionary if they do not specifically allocate the bearers of the duty. This may result in inflated expectations while masking a lack of claimable entitlements.27 Therefore, while asymmetric duties and rights may be distributed universally given appropriate institutions, they are usually distributed within a confined system to a particular group of people. An example of an institutionalized relationship that is asymmetric is the special welfare rights that are, for instance, granted to disabled persons, the elderly, single mothers and the like. These rights are both universal and particular asymmetric rights because, although everyone within a certain society has the right to claim these rights when needed, they do not become rights until such time that the rights-holders can prove that they need this protection. Hence, special welfare rights belong universally to all but are distributed to some members of society deemed in particular need; thus they are particular rights. These rights are institutional rights in the sense that they have been negotiated through the political process and institutions have been designed to disburse the entitlements. They impose heavy duties on the government and the remainder of the members of society who grant these rights. Another example of an asymmetric relationship requiring institutions is the right of national minorities to territorial or collective autonomy, such as home rule arrangements. These are usually arrangements that are carefully negotiated and renegotiated because they impose heavy duties on the governments and, ultimately, on the part of the population who are not members of a national minority. They are particular asymmetric rights and duties because they are rights that only pertain to a national minority living within a territory, or, if it is not territorially defined, national minorities that fulfil certain other criteria set out in the negotiated agreements. These are municipal law arrangements that, clearly, would be very difficult to implement through public international law, let alone public international human rights law. Asymmetric relationships are perilous, not only because they must rely on a moral justification of the asymmetric rights granted, but also because the value of the political institutions supporting the asymmetric rights-holders must be ethical. This is because special obligations always presuppose special relationships by which agents are allocated to recipients. Moreover, they are always subject to two levels of ethical vindication or query so that both the ethical claims that arise within special relationships and those of the background practices, institutions and relationships that establish or enable special relationships can be questioned.28 Essentially, this means that to justify the granting of asymmetric rights there must be evidence of both moral justification for imposing asymmetric duties on others and ethical reasons and behaviour among the rights-holders to claim such rights. Thus, the ethical reason for a recipient of special welfare benefits must be that she can prove that she cannot exist without this special entitlement. In terms of national minority rights, it means that national minorities must prove both that they are better off if they receive special group protection and that they are worthy of such special protection. Otherwise, the political will to institutionalize asymmetric rights is not likely to materialize.  

Ibid., . Ibid., .



Tove H. Malloy The aspects of institutionalizing asymmetric rights runs into moral problems if we, as suggested by Palermo and Woelk, wish to apply the Law of Diversity to both national and new minorities. While the moral justifications for asymmetric rights of new ethnic minorities and national minorities may initially seem the same, the political will of governments is usually more forthcoming to grant these rights to ethnic minorities than to national minorities. Depending on the severity of the discrimination suffered, the political will to protect ethnic minorities has been reasonably strong in many liberal democracies. However, when members of national minorities seek asymmetric rights and institutions because they have been discriminated against as a result of their national minority membership, the political will of a ruling national majority is not always forthcoming. Although both types of claims are founded on discrimination, national minority claims are often considered less ethical for another reason. Whereas ethnic minorities are usually seen as seeking integration in the greater society, national minorities are suspected of lodging claims to special rights with a view to disassociating themselves from the greater society. The suspicion is usually based on the view that national minorities have nationalistic ideals that are different from those of the ruling majority. Hence, whereas ethnic minority rights are justified on the moral case of injustice in terms of discrimination, national minority rights must be justified both in terms of discrimination and in terms of explaining the minority nationalism to the majority. This is not to argue for a right to counter-nationalism, but merely to establish that the justification of national minority rights will not only be faced with conceptual and moral evaluation but will also be likely to face evaluation in terms of different national sentiments than those of the majority. Asymmetry for minority rights is, thus, rather complex and perhaps not easily resolvable in a system relying on the Law of Diversity that favours cooperation and which functions merely as a procedure for determining the necessary common ground. Because defining asymmetric rights is so context-specific, the Law of Diversity as a procedure does not appear to be able to address diversity but must remain procedural. It is, therefore, a problem for diversity management when Palermo and Woelk argue that the Law of Diversity should be performing but a regulatory role. This is, of course, as they hold, because the Law of Diversity should give up, as much as possible, ideological approaches to law.29 However, if we wish the Law of Diversity to be asymmetric, and we wish to find ways of circumventing ideology, I am not sure proceduralism alone will eradicate ideology. The problem, I believe, lies in Palermo and Woelk’s argument for pluralism. V. Pluralism in Legal Theory Pluralism in terms of national minority rights is precisely where the issue of ideology has posed the greatest problem to legal experts wishing to devise common rules that go beyond protection. The core of this problem lies in the divergent meta-ethical approaches to equality that liberals and communitarians suggest for multicultural and multinational societies. Palermo and Woelk discuss formal and substantive equality. Liberals and communitarians discuss equal access to recognition. Palermo and Woelk 



Palermo and Woelk, “From Minority Protection to a Law of Diversity? …”, .

Towards a New Paradigm of Minority Law-Making argue that pluralism refers to both the complexity of subjects and the nature of the legal instruments. Here, I will focus on the subjects on the assumption that the complexity of subjects eventually defines the complexity of the legal instruments. With the risk of rehashing what has been debated numerous times, it may be instructive to briefly outline the liberal and communitarian arguments. Liberals and communitarians differ on the issue of national minority rights and accommodation because they disagree on the legitimacy of the moral values of constitutive communities. Communitarians perceive the problem in terms of a ‘politics of recognition’, or a right to recognition of the moral values of constitutive communities inasmuch as this promotes recognition of individual identities, which is considered essential to the individual’s sense of moral and social worth. This is in contradistinction to liberals who believe that the moral values of constitutive communities only deserve recognition in so far as they are just. As a result, individuals who live in communities that are perceived unjust should not receive recognition. This impasse between liberals and communitarians appears to stem from the different ways in which they value the moral values of constitutive community. To many this has become a fruitless, crosspurpose dialogue going nowhere. This is because, while it might be possible to agree on the ontological aspects, i.e. what is a constitutive community, the ideological questions of what should be considered moral and just values seems rather more subjective. This is partly due to the fact that liberals and communitarians have divergent views of how personal identity is formed. While liberals see personal identity as acquired, communitarians view personal identity primarily as a question of ascribed characteristics. The problem of divergent views of personal identity therefore impacts on the way in which liberals and communitarians recognize each other’s right to an identity. Where liberals advocate recognition in terms of equal rights to pursue and achieve a chosen identity, communitarians advocate recognizing a contextualized view of personal identity. This means that liberals see personal identity as detached from the constitutive community and neutral in terms of commitment to nation, region, or tribe,30 whereas communitarians contextualize personal identity in the aspects of culture, nation, family, peers, society, etc.31 Moreover, communitarians perceive personal identity as being dependent on individual as well as collective recognition in terms of the health of moral and social worth. The ensuing ‘struggles for recognition’, in which groups vie for formal as well as psychological recognition, is thus seen as a natural part of democratization and progress. Whether liberal or communitarian, in so far as the individual enjoys recognition at several levels, s/he becomes capable of participating and contributing to society. Struggles for recognition relies on a theory based on three ideas and one ideal.32 The three ideas concern the intersubjective relationships of love, rights and solidarity, which we experience as members of society. The ideal refers to a view of social interaction as ethical, which lies between the thick relationship ideals of communitarians and the thin relationship ideals of liberalism. The health of the intersubjective relationships is essen  

Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Clarendon Press, Oxford, ), -. Taylor, Sources of the Self …, -. Honneth, The Struggle for Recognition … .



Tove H. Malloy tial to our flourishing and self-realization as human beings. The way in which these relationships become healthy is through recognition of their relevance. Love in terms of parent-child, adult and friendship relationships facilitates the development and maintenance of self-confidence, which provides bodily and mental integrity. Rights in terms of the legal recognition of status, universal dignity, the liberty to act and participate, and the possibility of holding responsibility, facilitates self-respect and provides a sense of moral worth. Legal recognition thus provides the equal basis for the equal moral worth of the beneficiaries. It also provides them with the ultimate Kantian freedom of being the authors of their own laws. Finally, solidarity in terms of a shared concern, interest or value and the opportunity to contribute to these facilitate self-esteem and provide a sense of social worth. Significant here is that it is not only solidarity within the constitutive community that is important, but also solidarity across cultural borders. Hence, for an individual to enjoy self-esteem s/he must be allowed full self-realization by not being denied the opportunity to contribute to the common good of all groups. Denial of this recognition often leads to social denigration, which in turn fuels social movements and struggles for recognition. The ideal of social interaction is a conception of ethical life where all three intersubjective relationships are recognized and provide the ethical approaches to human interaction. In societies where the need for self-confidence, self-respect and self-esteem is not recognized and institutionalized, social conflicts arise and articulate demands for the recognition of these. The way this works is in a sense a dialectical process: an individual knows that s/he is recognized by others in some of his/her abilities or attributes and this constitutes a first form of community. This community enables the individual to get to know some other aspects of his/her own particularity, since s/he has developed more aspects of his/her own identity. However, these aspects are still ignored by the others, and the individual must launch into a new struggle to have these new aspects recognized, and so on. Hence, the struggles for recognition lodged by social movements are based on collective experiences of denigration and exclusion due to misrecognition and not as often assumed on resistance due to idiosyncratic misfortunes. Moreover, the fact that many social movements are seen as interest-driven movements is equivalent to seeing only the one side of the conflict. The utilitarian conflicts in terms of securing economic survival are often the first manifestation of the moral conflict, which seeks to secure moral and social recognition. Of course, there is variation in how conflicts develop and whether the utilitarian or the moral argument dominates. Either way, engaging in political action has the direct function of tearing disrespected individuals out of the crippling situation of passively endured humiliation and helping them on their way to forging positive self-esteem. Hence, the philosophical thesis of the model of struggles for recognition also has a social dimension. The core thesis of this model is that the forces within social reality – which are responsible for development and progress – are fuelled by struggles for recognition. This is interesting, not only as a social theory, but also as an explanation for national minority conflicts in divided societies. Usually, national minorities are not considered social movements, but are seen as backward communities hailing archaic ideals of nationalism as the reason for claims of self-determination. However, if we take it that members of national minorities are also social beings, the model of struggles for recognition as a social theory would indicate that national minority conflicts, while certainly at times 

Towards a New Paradigm of Minority Law-Making violent, should be seen as part of the development and progress toward democracy. Indeed, such an argument is radically different from the conventional view of national minority conflict as a problem of archaic nationalisms. This is not to argue that nationalistic rhetoric is not part of national minority politics; it certainly has been. However, the careful reader of reports on nationalistic rhetoric in Central and Eastern Europe will usually find that such rhetoric is more likely to stem from individuals with special agendas or eccentric groups of sometimes dubious political background.33 Moreover, a social movement view of national minority conflicts relying on the argument that social misrecognition causes lack of self-esteem and is detrimental to social unity supports the thesis that national minority demands for moral recognition in terms of inclusion are ethical. Hence, Philip Allott has argued that: [A] society’s development, so far as other societies are concerned, is a matter for their reality-for-themselves, including their words and ideas and theories and values. The mutual recognition of the social development of societies is part of the total social process of societies, especially as they struggle with the dilemma of identity (the self and the other).34

An ethical system where all members of society receive equal moral and social recognition based not on the principle of equality but on a principle of individual worth is a holistic system. By holistic is meant a model which “makes it clear that political autonomy is an end in itself that can be realized not by the single individual privately pursuing his own interests but only by all together in an intersubjectively shared practice.”35 The way in which the individual exercises his/her capacities in terms of individual autonomy is, however, crucial to his/her ability to live in peace with members and non-members of constitutive communities. On a recent reinterpretation of Immanuel Kant’s moral philosophy, it has been suggested that the meta-ethical problem of being able to recognize divergent moral values might be mediated in so far as subjectivity about our constitutive communities is overcome through a critical way of individual practical reasoning about action.36 By being critical in our individual practical reasoning about action, we avert the moral question by taking a critical approach to evaluating our own and other communities’ actions. In this way, we know not to support illiberal actions. In doing so, we prevent illiberal communities from surviving by remaining critical about our own as well as other’s actions. However, in so far as we realize that our moral view is not necessarily a view we can share with non-compassionates, we still face the problem of how to settle for a conception of justice that is acceptable to all.    

See Taras Kuzio, “Loyal Nationalism in Postcommunist States”, RFE/RL Newsline /, Part II of  June , Endnote. Philip Allott, Eunomia: New Order for a New World (Oxford University Press, Oxford, , ), Section ., . Jürgen Habermas, “Citizenship and National Identity” in id., Between Facts and Norms, trans. William Rehg (Polity Press, Cambridge, , []), Appendix II, . O’Neill, Towards Justice and Virtue …, . See also, id., Bounds of Justice (Cambridge University Press, Cambridge, ).



Tove H. Malloy This is why some political philosophers have questioned the notion of a fixed, one perfect model of justice. Justice, they argue, should not be seen as static and inflexible. Rather, they see justice as non-static and unsettled in that it is constantly renegotiated through a dialectical process among the people to whom it pertains. Dialectic here means rather than deriving ought from is, the process requires us to see justice not as something we should have but something we could have. In a sense, the dialectic process derives could from is. In other words, when we negotiate about conceptions of justice we seek to establish, not what we ought to support as an ethical model, but what we could support. It goes without saying that in such a process it is vital that no absolutes are exhibited and that the individual is capable of critical practical reasoning. However, by substituting could for ought, we take the ideological debate out of the social interaction and, thus, set the stage for negotiation that is based on facts rather than values. Pluralism in law-making is therefore not a question of reconciling divergent values but of reconciling divergent factual existences in an ethical manner. This is also what Palermo and Woelk would like to achieve with the Law of Diversity when they argue for a set of non-legal preconditions for the acceptance of the single solutions. These preconditions must include mutual recognition, consideration of the position and interests of others, mutual trust and cooperation, as well as acceptance.37 However, Palermo and Woelk beg the question of pluralism by setting the negotiations in a fixed structure. In seeking to place the process of establishing the Law of Diversity in a space of innovation through negotiation, Palermo and Woelk argue that the negotiation process would take place in a quasi-contractual framework, the details of which would be hammered out by the beneficiaries themselves. The contractual framework would thus be supported by a set of operational rules, in addition to the basic rules of the framework, which would be overseen by the regulator, or referee. In other words, a multilayered legal system where the framework rules hold the upper place in the hierarchy and the operational rules the lower place. VI. Negotiation in Democratic Law-making Notwithstanding the anarchical nature of a hierarchy, the Law of Diversity approach is akin to the model of democracy based on the procedural republic, constitutionalism, communicative action and representative government. In procedural democracy, law is the structure that defines proceduralism. Procedural democracy is also referred to as deliberative democracy.38 Deliberative democracy refers to the ideal of reaching agreement through communicative action. The rules that guide deliberative democracy are procedural inasmuch as they set a standard for how the deliberation process should be ordered. Hence, ethics are regulated by the procedures of law where law is discursively agreed upon through communicative action regulated by discourse ethics. On this view, discourse ethics are, in a sense, the rules that people follow when they negotiate substantive matters. Hence, this resembles the Palermo-Woelk model. It is based nei 



Palermo and Woelk, “From Minority Protection to a Law of Diversity? …”, . Jürgen Habermas, The Theory of Communicative Action, I, trans. Thomas McCarthy (Heinemann, London, ) and II, trans. Thomas McCarthy (Polity Press, Cambridge, ).

Towards a New Paradigm of Minority Law-Making ther on the universal liberal ideology of individualism alone nor on the particularistic communitarian tradition of civic humanism.39 Rather, this ethics claims to follow a discourse principle that is explained from the point of view of which norms of action can be impartially justified. Because the liberal tradition is overly moralistic and the communitarian tradition reduces democracy to substantive values, neither can produce legitimacy in pluralistic societies. Proponents of this view instead introduce a ‘third way’, the proceduralist model based on the discourse principle, which indirectly sets procedures that regulate bargaining from the standpoint of fairness.40 Inasmuch as the aim is to secure an uncoerced consensus, the discourse principle imposes on people the obligation to agree on a set of valid norms prior to any morality.41 But the valid norms must be based on both reason and values.42 Discourse ethics is therefore an account of public reason in which not only reason but also values, interests and identities would be included. This proceduralist model of deliberative democracy thus purports to seek to resolve the tension between universal and particular values in social life through a discourse ethics that is based on an ideology of common norms and values. By rejecting the onesided view of both liberal and communitarian ideals of justice, it wishes to give power to the state on the basis of a discursive character of public reason. Law then is seen as the medium by which public reason is transformed into administrative power, and the proceduralist model insists on the empirical relevance of democratic ideals accepted by citizens. On this view, proceduralism is a combination of the juridical and the political, or a combined model of the constitutional and the political state.43 Whereas the constitutional state adjudicates rights by means of institutions and procedures, the political state operates in a public arena where collectivities contend and interpret collective goals and collective goods. However, this model works fine when the issues in question are of a social, economic or political character but is less clear in regards to cultural issues. This is because on the surface the system of individual rights appears difference-blind. Arguably, in reality bearers of individual rights have ascribed identities formed in their own context of the good life. The relationship between the political and the juridical

 

 



David Rasmussen disputes this view in “Discourse Ethics”, in Rasmussen, Reading Habermas (Basil Blackwell, Cambridge, ), -. Habermas, Between Facts and Norms …, . For a defence of minority rights based on proceduralism and opposed to power-sharing, see Steven Wheatley, “Minority Rights, Power Sharing and the Modern Democratic State”, in Peter Cumper and Steven Wheatley (eds.), Minority Rights in the ‘New’ Europe (Martinus Nijhoff Publishers, The Hague, ). Habermas notes that this is different from his earlier view of discourse as morality. See Between Facts and Norms …, -. This is what Rasmussen calls “a post-Kantian form of deontological ethics”. See Rasmussen, Reading Habermas, . I contend that it is in fact a Kantian ethics on the revisionary conception described by O’Neill. Jürgen Habermas, “Struggles for Recognition in the Democratic Constitutional State”, in Amy Gutmann (ed.), Multiculturalism (Princeton University Press, Princeton, NJ, ), -. See also, Melissa S. Williams, “Justice Toward Groups. Political Not Juridical”, () Political Theory (), -.



Tove H. Malloy model is therefore a relationship that seeks to unite universal justice and the substantive issues of the particular but which does not guarantee that this happens at all times. Like Palermo and Woelk, this model of proceduralism suggests mediation by just personalities who are able to disengage any self-interest in that process. This way, the parties to the deliberation will evidence trust in each other, as well as in the final result. In this process, citizens debate and deliberate in public on the kind of rights they regard as fair and necessary for the protection of both private liberties and public participation. As long as the conceptions of the good life of all involved groups are questioned on an equal basis, the connection between the universalist core of the constitutional principles and the particularist context of each political community will protect the interests of all citizens. However, inasmuch as the ethics of this procedural model is the law, this account of ethics runs the risk of becoming imperialistic, which is precisely the aspect of this approach that has incurred the most criticism. This is because procedural law is based on rational dialogue and rational dialogue precludes alternative ways of reaching agreement. Rational dialogue may therefore preclude some groups from participating if they do not possess the faculties to argue rationally. Inasmuch as procedural law is based on rational dialogue only, it poses at least three problems for law-making through negotiation. Firstly, it may exclude some individuals or groups from the public debate, especially in a system of representational democracy where interest groups compete for power often based on financial might rather than substantive issues.44 This is because financial might is often able to gain a principled position through the rational dialogue whereas under-privileged groups may not have the resources or capacities to participate. Secondly, rational dialogue as a basis for proceduralism suffers from the perennial problem of the distortion effect of rhetoric on substantive issues. In fact, the problem of hegemonic rhetoric may be even greater if proceduralism does not foster individual critical practical reasoning about issues. Thirdly, rational dialogue that produces rules and legal guidelines in terms of procedural law as a set of ethics does not engage with the problem of virtues in ethics. Virtues guide the actions that implement the rules. The procedural process of deliberative democracy is thus limited in its scope of actors and its approach to dialogue. In such a system, national minorities would not be guaranteed opportunities to participate. The procedural approach to democracy therefore risks excluding the weaker groups in society. In separating procedure from the actual discursive process, this model of democracy essentially begs the question of how to ensure the inclusion of all groups in the process of law-making. This, I believe, is also the weakness of Palermo and Woelk’s Law of Diversity. In contrast to the procedural model of deliberative democracy, a discursive model of democracy has been put forth that encourages virtues in the ongoing intercultural multilogue of constitutional arrangements by allowing for new democratic articulations to be lodged, heard, debated and evaluated as part of the constitutional debate. This approach seeks to return the space for virtues and ethics in terms of ethical conduct to the activities of human interaction. Ethics refers to a set of rules constituting a defined sphere, and virtues refer to the way in which human beings interact. Discursive democ



C. B. MacPherson, Models of Liberal Democracy (Oxford University Press, Oxford, ), -.

Towards a New Paradigm of Minority Law-Making racy argues for a method by which to arrive at a model of democracy that is acceptable to all groups in a diverse society through a discursive approach to constitutionalism.45 By discursive it is meant that differences may be settled by argument and collective reasoning. It builds upon three cornerstone concepts or conventions of intercultural multilogue that one may term ‘conventions of trust’. These are ‘mutual recognition’, ‘consent’ and ‘continuity’. ‘Mutual recognition’ refers to the principle of equality of self-governing groups.46 The second convention of trust, ‘consent’, is derived from the principle of q.o.t. in Roman law meaning quot omnes tangit ab omnibut comprobetur (‘what touches all should be agreed to by all’).47 The third convention of trust, ‘continuity’, refers to the principle of respect, meaning that the ways and customs of diverse groups and peoples are evidence of their free agreement and, therefore, the continuity of the group’s culture in terms of norms, values and traditions should be respected.48 According to this theory, these three conventions should be seen as preconditions for a reasonable system of negotiation in divided societies. More importantly, they are not only preconditions; they are principles that diverse groups must follow in their intercultural multilogue, a mode of communication that is built on another principle from law, the ethical principle of audi alteram partem, which means the duty to listen to the other side.49 One might call it the ‘principle of multilogue’. Risking the labelling of reductionism, one might ‘translate’ these conventions into legal theory language. Hence, the convention of mutual recognition might be seen as referring to the right to de jure sovereignty and the convention of consent might refer to the right of collective self-determination. The convention of continuity might refer to a right to identity whereas the principle of listening to the other side would seem to translate into legal theory as a set of ethics. This discursive approach has potential value for including national minorities democratically in the law-making of their society and state as it seeks to arrive at a just system through democratic exchange rather than juridical adjudication by experts. It is also a system that wishes to take into account all voices in society. In fact, if rules are to be found as to how voices are to be heard, the discursive system suggests these rules be defined by all rather than by the few. Although this discursive approach resembles Palermo and Woelk’s non-legal preconditions in many ways, it goes beyond these in that it avoids the quasi-contractual framework. Rather than requiring that the law-making debate rely on a system to which we have given prior consent, the discursive approach requires us to make our own system to which we can consent.50 Direct consent through negotiations means reaching agreement based on mutual recognition of each other and mutual recognition that the process is fair. Thus, mutual recognition is not a quasi-contractual relationship but an inter-human action requiring informal recognition among stakeholders. Moreover, while the discursive approach provides an account of ethics both in terms      

Tully, Strange Multiplicity …, . Ibid., . Ibid., . Ibid., . Id., “The Crisis of Identification: the Case of Canada”,  PS (), -, at . Id., Strange Multiplicity …, .



Tove H. Malloy of action and guidelines for dialogue, the Law of Diversity stops short of establishing how virtues are fostered when individuals and groups reason with each other during the discursive approach to democracy. This may be in part due to the fact that it is often argued that ethics and politics should be kept apart, and inasmuch as ethics are not seen as part of politics, an account of virtues is not deemed necessary.51 However, ethics in politics is one of those issues that is disregarded by most, considered non-existent by many and, for the most part, discussed only by a few philosophers. While theorists of republicanism have argued that ethics are better separated entirely from politics, moral philosophers have cautioned that ethics in politics is, in fact, a question of virtues, ethical virtues that is. Hence, the revisionary conception of Kantian ethics noted above suggests that ethical virtues fostered through the model of critical practical reasoning may create an environment of cosmopolitan consideration of the other. Cosmopolitan consideration in terms of mutual recognition is desirable inasmuch as it forces us to consider moral and social recognition of each other. Moreover, it is the moral and social recognition that is the spirit of most post-modern theories of how to devise normative approaches in international and domestic law-making. Making normative law thus concerns both processes and end-results, as rightly suggested by Palermo and Woelk. The key argument is, however, that to avoid excluding groups from the law-making function, the two cannot be separated. VII. Towards a New Paradigm of Minority Law-making We have established that the processes must remain inclusive and ethical and that the end-results must take into account both the plural outlook of post-modern society and the variety of conceptual options available to us. It has been noted that, in order to avoid the ideological debate about values, it is important that the actors in diverse societies act according to ethical guidelines about individual practical reasoning and cosmopolitan consideration of the other. In doing so, the actors act in an inter-subjective manner rather than the problem-prone mode of subjectivity. This does not imply that actors must be objective, as it is assumed that objectivity is unattainable. Rather, in being inter-subjective, the law is relational in its approach to problem-solving. While the objective view of law takes its starting point in objective norms outside the changing international legal system, the inter-subjective view rejects objective and universal principles unless these are needed in addressing the real possibilities of law-making. This means that it is untenable to operate with metaphysical concepts that treat individuals as prior to the community and states as prior to the international system. The inter-subjective approach to law-making is not only complex and very demanding on the actors, but must also achieve a flexible model of justice in order that the inter-subjective approach may survive. The presupposition of objectivity of law is precisely the aspect that has made followers of pragmatism question the ability of law to adapt to the present day postmodern diversity introduced by globalization. According to the view of pragmatism, seeing law as an objective, already given norm prevents it from adjusting to contingent





Richard Bellamy, Rethinking Liberalism (Pinter, London, ), .

Towards a New Paradigm of Minority Law-Making acts of creative problem-solving.52 Objective law refers here to the liberal perspective of a new ethics of global democracy and human rights, affirming universalist value orientations oriented towards an objective view of justice and seeing law as universal socializing media. This outlook results in a liberal paradigm of law, which is based on epistemological, ontological and methodological assumptions that narrow down the spectrum of possible perceptions of problems and, thus, hinder an approach to solving problems. The pragmatism view instead looks for ‘real possibilities’ within our thoughts and actions. In doing so, pragmatism employs the relational logic of finding the law. By being relational, pragmatism employs an approach that seeks to remove the opposition between reality and appearance. Instead of asking why things are as they are, pragmatism asks whether we have the best possible system for bringing things into relation to other things in such a way as to better meet our needs by more appropriately fulfilling them. This ties the pragmatism view to the argument noted earlier above that, rather than deriving ought from is, we should endeavour to derive could from is. Moreover, as pragmatism finds law through a relational method based on empirical facts and history, it is discursive. Law is discursive when it is understood as a creative and situational act of creative problem-solving which is flexible and open in its adaptation to the conditions of life. In other words, it is not substance but discursive relations seeking to arrive at the norms that are relevant for the actual situation. Pragmatism therefore finds law through particular social action and particular social contexts. In social idealism, we speak of law-making as the most systematic way of social exchange.53 The social exchange takes place between those actors in society who are willing to serve society’s purposes. This happens when the natural power of the actor becomes social power, and that social power is applied to relational networks seeking to organize society. Law thus participates in societies organizing themselves while also functioning as the means to actualize social objectives. For this reason, law-making must cope with a number of dilemmas in the social process. First, the subjects to the law are not only individuals, but also groups, as the identity of the subjects is formed through the relations to the other. Second, law must pertain to the actual society at the same time as it must pertain to all the members of society. Third, law must represent both the social unity of society and the human diversity of society. As the purposes of society are formed in struggles for recognition, law must take into account the affirmation-negation processes that happen in these struggles. Fourth, law must be able to settle the tensions that arise in the processes that seek to define justice. It must be able to accept that value is modifiable. Fifth, inasmuch as law is necessarily out of date and thus retroactive, it must continuously renew itself. It is therefore clear that law-making on this view is a dialectical process fuelled by the dialectical processes within societies. The dialectical process of law-making is also the outlook of the deconstructionist camp of political philosophers. On the deconstructionist view, justice is undecidable and thus law-making dialectical.54 Justice as undecidability refers to the undecidability   

Schieder, “Pragmatism as a Path …”. Allott “Reconstituting Humanity …”. See also, id., Eunomia: New Order for a New World… . Derrida, “Force of Law … ”. See also, William E. Connolly, The Ethos of Pluralization (University of Minnesota Press, Minneapolis, ), -.



Tove H. Malloy in law that results from issues of morality being renegotiated continuously inasmuch as morality is an inter-subjective matter. The possibility of justice thus only comes about through the dialectical process. This means that the moment a society settles on a concept of justice, those who are not entirely satisfied with it begin to deconstruct it and bring it towards a new concept of justice, which in turn will become deconstructed and taken towards new ideas of justice. On this view, law is constantly negotiable because morality is constantly negotiable, and because it is constantly negotiable, there is no one theory of justice or morality. Therefore, law is made inter-subjectively through the dialectical process of finding undecidable justice. So what does this mean for the law-makers of the Law of Diversity? To some, it means that law-making is ultimately political. Consequently, social conflict must be solved by political means and even though there may exist “a common legal rhetoric among international lawyers, that rhetoric must for reasons internal to the ideal itself, rely on essentially contested – political – principles to justify outcomes to international disputes”.55 On this view, the approach to law-making must be post-modern, meaning that, in seeking to write laws, we must use a mixture of the doctrines available to us. Thus, law doctrine must avail itself of “positivistic and naturalistic, consensualistic and non-consensualistic, teleological, practical, political, logical and factual arguments in happy confusion, unaware of its internal contradictions”.56 Distinguishing between two major approaches in international law, the rule approach and the policy approach, this theory holds that neither is coherent as neither takes into account political arguments. While the rule approach insists on objectivity, the policy approach aims at effectiveness. In reaction to these, some experts have become sceptical while others have remained idealists. Neither of these camps has brought the issue further. While the sceptical position assumes that international law can neither be seen as normatively controlling nor be widely applied in practice, the idealist position simply expects that international law will have binding force and will develop as a matter of course. The view of ‘law-making as political’ holds that, inasmuch as law seeks to find a contextual justice, law cannot be found through the application of ready-made rules or principles. Rather, law-making requires venturing into the fields of politics as well as social and economic casuistry. In other words, we must reach into areas where the legal argument based on certainty is unable to reach because it must remain legal. To many legal experts, entering into the political field will mean giving up the control that law has upon societies. Indeed, political philosophers have warned us that ‘the return of the political’ is by no means a peaceful process. The return of the political refers to bringing the political back into the public debate thus rendering “the dimension of antagonism inherent in human relations, antagonism that can take many forms and emerge in different types of social relations”.57 This is in contradistinction to politics, which refers to “the ensemble of practices, discourses and institutions which seek to establish a certain order 

 



Koskenniemi, “The Politics of International Law …”, at . See also, id., From Apology to Utopia: The Structure of International Legal Argument (Finnish Lawyers’ Publishing Company, Helsinki, ). Koskenniemi referring to Allott in “The Politics of International Law …”, at . Chantal Mouffe, “For an Agonistic Model of Democracy”, in Noël O’Sullivan (ed.), Political Theory in Transition (Routledge, London, ), -, at .

Towards a New Paradigm of Minority Law-Making and organize human coexistence in conditions that are always potentially conflictual because they are affected by the dimension of the political ”.58 By acknowledging the dimension of the political and the lack of same in politics, as well as realizing that politics “consists in domesticating hostility and trying to defuse the potential antagonism that exists in human relations”, we can hope to create understanding in a context of conflict and diversity. In a sense we can hope to overcome what has been called the ‘poverty of politics’, meaning the inability of a political system to allow for a rich debate about both ends and means and provide efficient systems for resolving the debate in the form of legal and other action.59 The problem with the return of the political is that it will not overcome the us/them syndrome, but it may find a way of “establishing the us/ them discrimination which is compatible with the pluralist character of contemporary democracy”.60 This is an outlook of democracy that holds on to the so-called friendenemy dichotomy whereby it has to be realized that the relationship between friend and enemy cannot be transcended but must be understood and turned into a productive energy in order to grasp the phenomenon of politics.61 On this view, it is an illusion to think that the different ends that people hold can be reconciled.62 This is why we must rely on a degree of undecidability in politics since the existence of tension between the logic of identity and the logic of difference defines pluralist democracy.63 Hence, on this view, democracy is built on justice as undecidability and through the discursive debate, the enemy is transformed into an adversary, i.e. a non-hostile opponent. While this may be difficult for many to accept, it nonetheless is the reality we have experienced in the early political type law-making process of the EU’s desire to become constitutional. VIII. Political Law-making in EU Constitutionalism The process of getting organized constitutionally in the EU has taken quite some time. During most of the history of European integration, constitutionalism has been defined by a desire to move the Communities toward a single constitutionalism, or the idea that Europe should become an entity united by a homogenizing legal framework. This view of constitutionalism as a single constitutionalism is likened to national constitutionalism. According to this view, national constitutionalism is, however, a representation of constitutionalism that is dated and artificial.64 If constitutional ideals are neither dependent nor legitimized by the borders of member state polities, there is no a priori claim of higher validity for national constitutionalism vis-à-vis European constitution      

Mouffe “For an Agonistic Model …”, . Philip Allott, The Health of Nations: Society and Law Beyond the State (Cambridge University Press, Cambridge, ), Section ., . Mouffe “For an Agonistic Model …”, . Id., The Return of the Political (Verso, London, ), . See Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago University Press, Chicago, ). Mouffe, The Return of the Political …, . Miguel Poiares Maduro, “Europe and the Constitution: What if this is as Good as it Gets?”, in Joseph H. H. Weiler and Marlene Wind (eds.), European Constitutionalism Beyond the State (Cambridge University Press, Cambridge, ), Chapter .



Tove H. Malloy alism. Thus, European integration requires a deconstruction of national constitutionalism to expose its long ignored limits. To conceive of national constitutionalism as the ideal form of constitutionalism centred in the power of the state and organizing society towards predefined social goals therefore brings European constitutionalism into crisis. Rather, constitutionalism should be seen as a balancing of diverse and often conflicting interests and fears. Drawing on an idea of post-national constitutionalism,65 three paradoxes in national constitutionalism that highlight the artificial character of the borders and concepts may be exposed. These are the paradox of the ‘polity’, the paradox of the ‘fear of the few and the fear of the many’, and the question of ‘who decides who decides’.66 The paradox of the ‘polity’ exposes the limitations of national constitutionalism in terms of the scope, the degree and the intensity of representation and participation in democracy. This view of constitutionalism, which holds the member state as the ideal reference, is deprived, as it is often the smaller jurisdictions that provide less extensive but better representation. The paradox of the ‘fear of the few and the fear of the many’ refers to the core of constitutional law, the mechanisms that balance the powers among institutions so that there is a balance between the democratic will of the majority and the rights of the minority voters. Thus, the mechanisms allow the many to rule but, at the same time, create rights and processes to protect the few. The analysis of this paradox draws on the ‘democratic deficit’ discussion and the debate on institutional reform within the EU. However, again the member state is represented as the main interest holder. This is problematic, as it does not take into account the impact of other actors in the political process and the importance of alternative forms of participation. Instead, we must realize that the constitutional debate now takes place in a context of competing polities. The third paradox of ‘who decides who decides’ refers to the complex relationship between the European Court of Justice (ECJ) and the member states’ highest courts in terms of hierarchy and indeterminacy. An alternative way of viewing this complex relationship would keep the question ‘who decides who decides’ open, while promoting an inclusiveness in the judicial processes based on reflexivity in the identity formation of the two legal orders, the member state courts and the ECJ. Thus, “the reconstruction of the tools of constitutionalism to be employed in framing the European Constitution must depart from these paradoxes”.67 In doing so, we would challenge single constitutionalism, which is not compatible with the diversity of interests and forms of institutional representation and participation. Hence, by bringing these paradoxes into the open, we may be able to develop a more complex constitutionalism. The fact that an inflexible view of constitutionalism became the assumption upon which the EU originally based its identity, resulted in a hegemonic identity, which excluded democratic articulations during the early days of single European constitutionalism. Thus, the European Parliament (EP) had no co-decision powers and only received the right to be heard with the adoption of the Maastricht Treaty in . It will,   



Jo Shaw, “Postnational Constitutionalism in the European Union”,  Journal of European Public Policy (), -, at . Maduro, “Europe and the Constitution …”, . Ibid., .

Towards a New Paradigm of Minority Law-Making however, have co-decision powers in the decision-making process if the Constitution for Europe comes into effect. The existence of pluralism in the European citizenry, as well as the need to protect the fundamental rights of Europeans, was championed numerous times by the EP but its democratic articulations often went unheard. The first indication that the European Council realized that the EU consisted of diverse peoples and perhaps needed a more complex approach to constitutionalism only came with the occurrence of a diversity type clause in the Maastricht Treaty.68 This coincided with the simultaneous transition toward political integration and post-Cold War enlargement. The subsequent enlargement phase initiated a phase of conditionality with regard to national minority rights, the tool used by the EU policy makers to bring about Europeanization. This created a dichotomy in the EU’s approach to national minority rights known among observers as the ‘double standard’ problematique. Although this ambivalence has been countered with strong criticism from experts and warnings about a ‘reverse conditionality’ effect,69 it appears that policy makers have not attempted to address this criticism openly and directly. Instead, they have paid greater attention to the ‘democratic deficit’ criticism and, thus, became more attuned to the democratic articulations on the subsidiarity principle made by the EP and the Committee of the Regions (CoR) when drafting the Amsterdam Treaty. While the Amsterdam Treaty neither incorporated the high minority standards imposed externally on candidate states, nor advanced the internal approach towards a minimal level of individual protection of members of national minorities, it did, however, sharpen the subsidiarity aspect of democratic governance. The transition toward political integration continued with the Treaty of Nice stipulating new conditions for the EU internally, including prohibition against discrimination on the basis of membership of a national minority. Thus, it seemed that the EU entered the first defining phase of constitutionalism, the Convention on the new Constitution for Europe, apparently willing to overcome the dichotomy between internal and external minority policies. However, unlike national minority rights, the subsidiarity principle was further elaborated during the drafting of the Constitution for Europe providing members of the CoR with procedural rights. This could, as a matter of unintended consequences, become good news to national minorities. Although the membership of the CoR is not based on national minority criteria, the space is nevertheless open for regionally defined national minorities to become active in the CoR politics and lobby the CoR to become more inclusive. In its attempts to make the Union more democratic through a more complex form of constitutionalism, the EU appears considerably flexible in its continuously developing approach towards finding law that allows for a view of justice as undecidability. Of course, as we have seen, procedural rights are not as desirable as discursive rights to define the Law of Diversity. Moreover, this is not a guarantee that the EU will adapt to a political approach to finding law on minority rights, precisely because the political approach builds on the assumption of undecidability. However, it may be an indication that the post- era of EU constitutionalism may take into  

Art.  of the consolidated version of the Treaty establishing the European Community (TEC) of  February . James Hughes and Gwendolyn Sasse, “Monitoring the Monitors: EU Enlargement Conditionality and Minority Protection in the CEECs”,  JEMIE (), -.



Tove H. Malloy consideration the articulations made to expand the scope of national minority rights in the EU. Although many would ascribe this to the expected ‘reverse conditionality’ effect, I would term it a dialectical political law-making process towards complex constitutionalism. As political law-making cannot guarantee that there will be one normative minority rights scheme in Europe, one should perhaps not speak of a Law of Diversity but rather of a paradigm of political minority law-making. IV. Conclusions A paradigm of political minority law-making resting on the premises described in this article would take the debate on protection versus empowerment further. It would set the stage for Palermo and Woelk’s wish that law-making take a qualitative leap in the fundamental approach to the issue of minority rights. Only, I suspect, to go from one to several fundamental approaches, it will require several leaps and a change of mindset. It has been a core tenet of my argument here that we must accept that there are plural solutions to the plurality of our societies. In this, my argument is entirely in harmony with Palermo and Woelk. In fact, their argument that the Law of Diversity must rest upon the three tenets of asymmetry, pluralism and negotiation is a sound and balanced approach to devising law for diverse societies. The intention is unquestionable but the technicalities need fine-tuning. Where we all agree is that diversity simply cannot be managed by adhering to objective, universal norms. This is not to argue that ‘anything goes’ or to throw the ball back in the lap of individual states. Certainly, we have seen that the post-World War I treaties system and the post-World War II human rights system, both of which rely on the states to adhere and conform, have not worked for minorities. Rather, theorists should be requested to devise flexible paradigms of law, in particular, the paradigm of minority law. As Palermo and Woelk argue, it is time to open up the space of municipal and international law to the minorities themselves as social actors. This, I have argued, would be in line with the paradigm of political minority law-making. More importantly, in such a paradigm, minorities are forced to become self-empowered and, in doing so, they become empowered to be self-protecting. In the absence of willingness in international law, the EU could become pioneers by opening up the political space for national minorities.



Joseph Yacoub *

Minorities and Religions in Europe. Case Study: The Assyro-Chaldeans of Turkey

“An authentic human liberty can survive, in the civil and political field, only on the basis of freedom of religion valid for all.” Waldensian text.

I. Introduction In Europe, just as in other areas of the world, minorities, including religious minorities, exist within states.1 The process of state formation has inevitably meant that minority people and communities have been left inhabiting the margins of national territories, often poorly assimilated but equally often wishing to preserve their distinctive heritage. When one examines social realities, it becomes clear that, despite policies aimed at integration, most European states have living within their territories groups of people characterized by their own distinct identities and beliefs. Over time, in light of the weakening of national cohesions, the instability of states and influxes of immigrants, minority problems have, if anything, increased in intensity and in quantity. In this regard, Europe is currently undergoing a period of radical change. While the old European continent was the site of the birth, development and triumph of the modern nation state, today this idea is in crisis, with the decline of statist-nationalist sentiment and the development, at the same time, of modern European ideas of communalism, provincialism and regionalism. At the institutional level, this has resulted in the transfer of political power from the state to new supranational and intranational entities – that is to say, from a centralized institutional structure to one characterized by regional structures, on the one hand, and local collectivities, on the other.

*



Specialist on minorities, human rights and Christians of the Middle East, Joseph Yacoub is Professor of Political Science at the Institute of Human Rights, Catholic University of Lyon. Translated in a dozen languages, he is the author of many publications, including: Les droits de l’homme sont-ils exportables? Géopolitique d’un universalisme (Editions Ellipses, Paris, December ). Joseph Yacoub, “Les minorités en Europe centrale et orientale”, ENA, November , No. , -.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 29-49. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Joseph Yacoub As such, within the  regions that comprise Italy, five have been endowed with special status, including normative powers and legislative capacity in a large number of domains. The Spanish state recognizes four languages and  autonomous communities, which have been given very significant competences, such as the increasing autonomy being given to the Basque country in Galicia and Catalonia. In Switzerland, the sovereignty of the cantons that comprise the state is affirmed in the constitution. As for Germany, it is constituted by  Länder, each of which enjoys important powers covering diverse fields. In addition, this country recognizes the existence within its territory of peoples such as the Danish and the Sorbs, as well as ethnic groups like the Frisians. Austria is composed of nine autonomous Bundesländer and recognizes, among others, Slovene, Croatian and Hungarian minorities. Finland recognizes two official constitutional languages – Finnish and Swedish. The parliament of the Netherlands is bicameral and each of the  provinces constituting the country are run by provincial councils, which enjoy certain competences. Portugal’s island provinces (Madeira and the Azores) benefit from an autonomy status due to their particularities. Scotland and Wales have devolved within the United Kingdom. Greenland and the Faroe Islands constitute autonomous regions within Denmark and have their own parliaments. What is more, they have a seat at the Nordic Council. Within this diverse range of autonomies, a number are expressed in terms of religion. What issues of judicial and legal status affect religious minorities in Europe and what practices affect this field? Do exchange frameworks exist between national and local authorities and these minorities? Is there an institutional management of cultural and religious identities and, if so, how does it manifest itself in practical terms? These questions are important and will be addressed below in the context of an assessment of the situation of Assyro-Chaldeans in Turkey, an ethnic and religious minority living in an officially secular country that is a candidate for accession to the EU. II. The European Historical Context and the Role of Religion Despite notions of secularism, religion permeates our societies and our ways of life.2 The process of secularization has slowed down, buried under the weight of accumulated frustrations. Moreover, the privatization of religious sentiment, theorized by Western thinkers, remains unfulfilled. Indeed, reality illustrates a fundamental interpenetration between religion and social and political life. In many places, religion interlinks with other national, cultural, linguistic, historic, symbolic and economic factors to provide a legitimating reference, the scope of which is widening and gaining ground. Thus, we must ask, is religion truly a private matter? Were not John Locke and Ernest Renan mistaken? Experience invalidates the thesis that religion belongs strictly within the personal sphere. On the contrary, religions play a fundamental role in the life of societies and for a great number of people. The privatization of religion has failed to 



See id.: Au nom de Dieu! Les guerres de religions d’aujourd’hui et de demain ( JC. Lattès, Paris, ); id., “De l’interpénétration du religieux et du politique: les religions à l’épreuve de l’histoire”,  Théophylon, Revue de théologie et de philosophie de l’Université catholique de Lyon (), -; id., “Europe: nouveaux conflits religieux? ”, Salamandra (Spring ), .

Minorities and Religions in Europe. Case Study: The Assyro-Chaldeans of Turkey extinguish entirely its influence in the public sphere. Moreover, religious freedom is not like any other freedom and is not a solely internalized process – we do not change religions as we change newspapers. Classical human rights theories have failed to reduce religious freedoms on a par with other freedoms – that approach lacks the anthropological depth to do so. Secularization of thought has stagnated and consequently the linking of politics and religion endures. God and religion are mentioned in several European constitutions. The Irish (both Dublin and Belfast) and Greek examples negate any exclusion of religion from the public space. Religion figures prominently within the Polish constitution, which puts the emphasis on moral values. Orthodoxy is a major identity referent for Slavic peoples, such as the Russians and the Serbs, and is both infused through their cultures and codified in their legislative corpus. Many European conflicts have an undeniable religious dimension, in addition to nationalist dimensions, as has been the case in conflicts between Croats and Serbs, Polish and Germans, Eastern and Western Ukrainians (in the elections of November-December ), Orthodox Bulgarians and Muslim Pomaks, and Serbs and Kosovar Albanians. Manifestly, the countries of Eastern Europe have not come to terms with their Turkish and Muslim past. Ten years after the war in Bosnia between Catholic Croats, Orthodox Serbs and Muslim Bosniacs, which featured ethnic purges and displacements of populations, stabilization remains a long way off, with nationalistic voting with a religious connotation remaining the norm. Until recently, there had been a prevalent assumption that religion was a matter particular to traditional societies and that modernity had insulated European societies from the return of religious influence. Nothing is less certain. Yet the return of religion is a paradoxical product of modern times, which has devalued the symbolic, the transcendent and the sacred, and affirmed in a peremptory way the sovereignty of reason and the exclusive bliss of the individual, liberated from his/her heritage, from divinity, from local traditions and from his/her roots. In this regard, the Greek example is particularly edifying, for a number of reasons. The country of Aristotle, Clisthene and Pericles, where modern political thought finds its roots, has nonetheless acquired a constitution that is strongly influenced by orthodoxy. It is promulgated “In the name of the Holy, Consubstantial and Indivisible Trinity”.3 Article  of the Constitution recognizes the central role of the Greek Orthodox Church, which acknowledges as its head “Our Lord Jesus Christ” and “is indissolubly united in doctrine with the Great Church of Constantinople and every other Church of Christ of the same doctrine. It observes steadfastly, as they do, the holy apostolic and synodical canons and the holy tradition.”4 Every known religion is free and forms of worship may be practiced without hindrance under the protection of the law. However, the Fundamental Greek Law maintains that proselytizing is prohibited.5 Prior to undertaking their duties, Greek members of parliament must take the following oath: “I swear in the name of the Holy, Consubstantial and Indivisible Trinity to be loyal to the Motherland and the democratic form of government, to obey the constitution and the laws and discharge   

The Constitution of Greece. Ibid., Art. . Ibid., Art. ().



Joseph Yacoub my duties conscientiously”.6 Moreover, Mount Athos, the important Greek centre of universal orthodoxy, has enjoyed substantial autonomy over the past thousand years, as if it were a state within the state.7 At the same time, the facts prove that religions have become a cause of tensions and a cause of internal and international conflicts, especially when they are subjugated to nationalism and radicalism, and when the muddle between Churches, nations and states narrows. One can point to many politico-religious collusions. Ulster is a sad and striking example of this, despite the fact that Western Europe seems to have forgotten the importance of religion in political life. In spite of peace accords signed in April , subsequent talks have made no headway in re-establishing a government of Northern Ireland comprising Unionist Protestants and Republican Catholics. The peace process has been deadlocked for several years, due to the significance of the differences between the sides. The Irish Catholic leader Daniel O’Connell (-) reminds us of the import of the connection between religion and patriotism: “Patriotism and religion run in the same channel”.8 Moreover, archival research has recently shown that, in , the conservative British government of Edward Heath considered practicing in Ulster (Belfast and Londonderry) an “ethnic purification” to drive out the Catholics. Indeed, on  July , after Bloody Sunday, the British suggested creating in this rebellious region an “overtly sectarian micro-state” – in other words an exclusively Protestant autonomous region. It was suggested that a third of the population – thousands of Northern Irish Catholics – should be displaced and regrouped in two border zones of the Republic of Ireland.9 This plan was never implemented. That said, the Northern Ireland conflict between Catholics and Protestants has had its repercussions elsewhere, particularly in Scotland, where it has transposed itself onto the football terraces. Indeed, the Scottish regional government has expressed its desire to forbid the sign of the cross on football stadiums, in order to reduce the religious hatred that divides the two Glasgow clubs, Celtic (a mainly Catholic club of Irish origin) and Rangers (a principally Presbyterian Protestant club originating from Ulster). The Irish Catholic Church reacted angrily, making a parallel between this and the Israel-Palestine conflict: “This banning project is absurd. It amounts to preventing a Muslim who goes to Israel from bringing his prayer may with him.”10 III. Different Practices Certainly, freedom of conscience and religion is recognized in Europe. Generally speaking, minority religions are protected in European countries in accordance with Article    





Ibid., Art. (). Ibid., Art. . Malcolm Brown, The Politics of Irish Literature: From Thomas Davis to W.B. Yeats (University of Washington Press, Seattle, ), Chapter . Jacques Duplouich, “Quand Heath voulait chasser les catholiques d’Ulster”, Le Figaro,  January ; and Jean-Pierre Langellier, “Londres a envisagé un ‘nettoyage ethnique’ en Ulster”, Le Monde,  January . Marc Roche, “Est-il convenable de faire le signe de croix au football?”, Le Monde,  January , .

Minorities and Religions in Europe. Case Study: The Assyro-Chaldeans of Turkey  of the European Convention on Human Rights and Fundamental Freedoms and the UN Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief.11 However, its cultural manifestations emerge within the framework of differing relation systems between states, where every country lays down its sovereign policy concerning religious institutions. Consequently, administrative practices can vary from one state to another, from a flexible to a strict secularism.12 In this regard, there are no common European rules. The fact is that the secular state, theoretically neutral and impartial, bears the hallmarks of context, history and mentalities, and the imprimatur of personalities in power, from whom flows the conception and adoption of laws. This variance is increasingly visible in the process of EU enlargement, constituted by  states since  May . The traditionally Catholic, Anglican and Protestant Europe has now been extended to encompass Orthodoxy, Judaism, Eastern European Islam, as well as other Catholics and Protestants. This has resulted in a multiplicity of institutional relations and types of relations, which manifest themselves in different ways between states, churches and religious institutions. Within this framework, even if there is a theoretical affirmation that no confession has official precedence and that all are sovereign and independent in their own field, it is clear that Europe is faced with, under the weight of tradition and on account of historical and social particularities, national and established state churches, churches of the dominant social majority, whether autocephalous or autonomous, among others governed by the official system. This reality is not without consequences for the treatment of minorities. Certain European states – such as Germany, Denmark, Spain, Italy and Malta – participate in the financing of religious communities. This can take various forms, depending on the country. Some constitutions require the sovereign to be a member of the dominant church, which benefits from the direct financial support of the authorities. For example, the preamble of the German Basic Law states: “Conscious of their responsibility before God and man … the German people, in the exercise of their constituent power, have adopted this Basic Law”.13 As for the Swiss Federal Constitution, it begins with the term: “In the name of God Almighty”.14 Even Albania, though atheist under the communist regime, adopted a democratic constitution on  October , whose preamble refers to God and other universal values: “We, the people of Albania, proud and aware of our history, with responsibility for the future, and with faith in God and/or other universal values …”.15

 

  

In particular, Art. , adopted on  November . See Joseph Yacoub, “Dieu et les Constitutions”, La Croix,  October ; id., “L’Europe et son héritage religieux”, Le Figaro,  October ; id. ,“Présentation comparée des religions dans les Constitutions des Etats européens”, Missi, April-May-June , No. , -. Basic Law for the Federal Republic of Germany, preamble. Federal Constitution of the Swiss Confederation,  April  (version of  September ), preamble. Albanian Constitution, approved by the Albanian Government on  October , preamble.



Joseph Yacoub Viewed from this angle, Greece is the least secular country in the EU and Malta the most religious. The statute of the Greek Orthodox Church is established in the first part of the constitution, even before that of citizens. The Orthodox faith remains the official religion of the Greek state and, consequently, the Orthodox Church benefits from the provision of significant financing on the part of the state. In the Maltese Republic, despite the affirmation of the “neutral and non-aligned”16 character of the state, the constitution renders the Roman Catholic Apostolic Church the state religion17 and adds: “The authorities of the Roman Catholic Apostolic Church have the duty and the right to teach which principles are right and which are wrong”.18 As for religious teaching: “the Roman Catholic Apostolic Faith is provided in all state schools as part of compulsory education”.19 Within federal states such as Germany or Austria, the status of religions, under the responsibility of the regions, varies between the Länder (Bavaria, Bad-Wurtemberg, Brema, Hamburg, Tyrol, etc.) The president of the regional government of Bavaria, Edmund Stoiber, declared that we must not “cast doubt on our national identity, distinguished by the Christian religion”.20 In Tyrol (Austria), where % of the population is Catholic, the crucifix is everywhere. In Malta, most of the houses are decorated from the outside with religious signs. In the Irish Republic, the Catholic religion is a major referent for identity. The Constitution is adopted and promulgated “in the name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred”.21 The preamble adds that the people of Ireland humbly acknowledge all their obligations to their Divine Lord, Jesus Christ, who: … sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations.22

All powers of government – legislative, executive and judicial – derive “under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the

    

 



Constitution of Malta, Art. (). Ibid., Art. (). Ibid., Art. (). Ibid., Art. (). Islamic Human Rights Commission, “Muslim Women, Human Rights and Religious Freedom: Europe Under the Spotlight of National and International Law”,  March , at . Constitution of the Republic of Ireland, preamble. Ibid.

Minorities and Religions in Europe. Case Study: The Assyro-Chaldeans of Turkey common good”.23 From the point of view of religion, the Irish state “acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion”.24 Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.25 In the Nordic countries (Sweden, Norway, Denmark), the link between the Church and the State has been narrowed. Here, Lutheranism has a privileged position in relation to other confessions, despite an appreciable decrease in the practise of religion. In these countries, the dominant churches perform public tasks and act in civic life (e.g. administer the registration of civil status in Denmark) and the governments financially support these churches. In Norway, in accordance with the Constitution, the Evangelical-Lutheran religion is the official religion of the state and the “inhabitants professing it are bound to bring up their children in the same”.26 As for Finland, Section  of its Constitution is devoted to freedom of religion and conscience. Since , this freedom has been widened to include non-believers. It consists of: “the right to profess and practice a religion, the right to express one’s convictions and the right to be a member of or decline to be a member of a religious community. No one is under the obligation, against his or her conscience, to participate in the practice of a religion.”27 In Great Britain, narrow institutional links bind the Anglican Church, which is the established church, to the British authorities, pursuant to laws favouring this church. A law on human rights (Human Rights Act) was adopted in  – preceded by the Race Relation Act  – in order to integrate the European Convention on Human Rights into British legislation, notably Article  on freedom of conscience and religion. This Act prohibits any form of discrimination. We read everywhere that public authorities take into account the religious beliefs of society and thus maintain cooperative relations with – citing specifically by name – the predominant national church, as is the case in Spain or in Italy. Besides, Article  of the Spanish Constitution is of the utmost importance in this regard. It concerns the guarantee of “freedom of ideology, religion, and cult of individuals and communities”.28 Its paragraph , quoting in full the Catholic Church, stipulates: “No religion shall have a state character. The public powers shall take into account the religious beliefs of Spanish society and maintain the appropriate relations of cooperation, with the Catholic Church and other denominations.”29 Moreover, according to Article , a law on religious freedom was adopted in , which provides the legal framework for the execution of these norms. This law provides for the possibility of specific cooperative       

Ibid., Art. (). Ibid., Art. (). Ibid., Art. (). The Constitution of the Kingdom of Norway, as laid down on  May  by the Constituent Assembly at Eidsvoll, Art. . Constitution of Finland,  June  (/), Section . Constitution of Spain, Art. (). Constitution of Spain, Art. (). Relations with the Catholic Church are governed pursuant to an agreement with the Holy See concluded in .



Joseph Yacoub agreements with religious communities. The state pays the bishops and priests, as well as Catholic religious teachers in public and private schools under such an agreement.30 The other Jewish, Protestant and Muslim denominations call for the same treatment. Slovakia became a sovereign and independent state in January . The preamble of its Constitution affirms: We, the Slovak nation, mindful of the political and cultural heritage of our forebears, and of the centuries of experience from the struggle for national existence and our own statehood, in the sense of the spiritual heritage of Cyril and Methodius and the historical legacy of the Great Moravian Empire ... .31

The Constitution of the Polish Republic – approved by citizens in a referendum on  May  – is promulgated with the words “Recognizing our responsibility before God or our own consciences”.32 Article  is devoted to religious freedom.33 Of course, legal stipulations about religions in certain countries should not be seen as implying that religion really is so important in political life. A lot is a certain tradition without really emotional value and is often not shared by a major part of the secularized population. What is perhaps more pertinent is the actual practical treatment of religious minorities within European countries. IV. National and Local Authorities and Minorities Here are a few detailed examples illustrating the treatment of minorities in some European countries: Germany, the Netherlands, Spain and Italy. A. Germany Article  of the German Basic Law, as far as action and liberty of the person are concerned, stipulates that: Everyone has the right to the free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral code. Everyone has the right to life and to inviolability of his person. The freedom of the individual is inviolable. These rights may only be encroached upon pursuant to a law. All persons are equal before the law. Men and women have equal rights. No one may be prejudiced or favored because of his sex, his parentage, his race, his language, his homeland and origin, his faith or his religious or political opinions.34

    



Barbara Loyer, “L’enseignement des religions divise l’Espagne”, La Croix,  December . Consitution of Slovakia, preamble. The Constitution of the Republic of Poland,  April , preamble. Ibid., Art. . Basic Law for the Federal Republic of Germany, Arts.  and .

Minorities and Religions in Europe. Case Study: The Assyro-Chaldeans of Turkey

Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, is inviolable35 and the undisturbed practice of religion is guaranteed.36 Article  is interpreted as the right to align behaviour according to the teachings of ones’ religion and to live accordingly to ones’ profound personal convictions. In this regard, some articles of the German Constitution of  August  (Weimar) relating to the regulation of relations between the state, churches and religious communities, are still in force.37 Civil and civic rights and obligations are neither conditioned nor limited by the exercise of freedom of religion.38 There is no state church39 but there is a deduction of a church tax for devotees, which represents % of the budget of ecclesiastical institutions (Catholic and Protestant). Indeed, the state deducts the ecclesiastical tax on behalf of the churches. The freedom to form religious communities is guaranteed and each religious community regulates and administrates its own affairs autonomously, within the limits of the law applicable to all.40 It may perform its functions without interference from the state or local groups. Religious societies acquire legal personality according to general prescriptions of civil law. In so far as there is demand for religious services and ministerial work in the army, in hospitals, prisons or other public institutions, religious organizations must be permitted to take care of these, and must not be hindered by any form of coercion.41 Religious societies, which before  had institutional status under public law, maintain this characteristic. The same rights can be granted to other religious societies, when they present in their constitution the number of members and evidence of continued establishment for a definite duration. The Jewish community has such a status under public law, with the resulting rights and benefits, as do the Mormons. However, this right is not applicable to Muslims, who seek, through their main associations, to obtain the status of natural person under public law for the rights it offers (in particular, cultural tax, tax exemptions, public financial aid, religious education and instruction). Indeed, Islamic organizations have taken steps towards this goal. Up to now, however, the state has refrained from providing this status to Muslim organisations for many reasons, particularly linked to numbers, the duration of their stay on German soil, the representativeness of the organizations and the inertia of dominant mentalities. This process is, however, under way.42 As for religious instruction, Article  () of the Basic Law stipulates that: “Without prejudice to the state’s right of supervision, religious instruction shall be given in accordance with the tenets of the reli       

Ibid., Art. (). Ibid., Art. (). See also, Angelika Köster-Lossack, “La situation des minorités religieuses et idéologiques en République fédérale d’Allemagne”,  Conscience et liberté (), -. The Constitution of the German Federation (Weimar Constitution), Arts. -. Ibid., Art. . Ibid., Art.  (). Ibid., Art. . Ibid., Art. . Report presented by Abdelfattah Amor to the UN Human Rights Commission on his visit in Germany, E/CN.///Add,  December , .



Joseph Yacoub gious community concerned”.43 There are representatives of immigrant groups in the Bundestag and a federal commission of immigrant associations exists. B. The Netherlands A country of ethnic and religious diversity (there are  million immigrants out of a population of . million), the Netherlands has been host to all sorts of minorities since , including Indonesians, Moluks, Hindus, Pakistanis, Surinamians (in their ethnic and religious diversity), Gypsies, Turks, Kurds, Alevis, Moroccans, Syriac-Assyrians. While, by virtue of the Netherlands’ ratification of the European Charter for Regional or Minority Languages, the Frisian minority is the only minority that is accorded official recognition, other minorities (such as the Syriacs) are to some extent recognized in practice in regard to religious and linguistic issues. Following the legislative elections of May , questions were raised, beyond their political aspect, regarding multiculturalism and the manner of living together in the context of religious and ethnic diversity. This issue is not limited to the Netherlands and has a much wider relevance to Europe as a whole. Within the Netherlands, each minority group is endowed with rival organizations. The management of minorities is dealt with at the central, provincial and municipal levels. The religious characteristics of minorities are recognized and the Dutch politic aims to facilitate their integration into Dutch society. Local collectivities finance social, cultural and educational activities on the part of minority organizations, such as in Enschede and Hengelo (Overijssel province). Moreover, in the  March  provincial elections, Mrs. Attiya Gamri, of Syriac-Assyrian origin, was elected in the region of Overijssel on the list of the Labour party (Partij van de Arbeid). The Constitution, adopted on  February , put an end to official relations between the state and the churches (Catholic and Protestant). Article , removing any reference to religion, stipulates in regard to freedom of religion: “All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race, or sex or on any other grounds whatsoever shall not be permitted”.44 As for Article (), it sets out: “Everyone shall have the right to manifest freely his religion or belief, either individually or in community with others, without prejudice to his responsibility under the law”.45 Article  deals with education. The Constitution allows religious minorities to establish their own private schools, subsidized by the government: “All persons shall be free to provide education, without prejudice to the authorities’ right of supervision … Education provided by public authorities shall be regulated by Act of Parliament, paying due respect to everyone’s religion or belief ”.46 This enabled the creation, for example, of some  primary

   



Basic Law for the Federal Republic of Germany, Art. (). Constitution of the Netherlands, Art. . Constitution of the Netherlands, Art. (). Constitution of the Netherlands, Art. .

Minorities and Religions in Europe. Case Study: The Assyro-Chaldeans of Turkey Muslim schools47 endowed with grants by the public authorities. There are four national federations of Muslim organizations in the Netherlands and religious education is provided in public schools, notably in the language and culture of origin, as long as it contributes to better integration into Dutch society. The first secondary Islamic school was created in  in Rotterdam. Education concerns other communities too, such as the Syriac-Assyrians, who are Christians from the Middle East and fairly active within the country. However, the Dutch have been confused since the legislative elections of May , with the victory of the populist right and its participation in government in July . Problems have arisen regarding the content of religious instruction, which has been contested by certain immigrants. C. Spain The  Constitution affirms that Spaniards are equal before the law, without any religious discrimination.48 Article  is important; it concerns the guarantee of freedom of ideology, religion, and cult of individuals and communities. No religion shall have a state character, although paragraph  explicitly refers to the Catholic Church having some privileges. A consultative Commission has been created, with the aim of studying and recommending the drafting of agreements with other (non-Catholic) religions. Article  of the  Religious Liberty Law offers the possibility of being recognized and represented to certain religious confessions. This was applied to the Federation of evangelical religious entities of Spain, to the Federation of Israeli communities of Spain and to Muslims. Concerning the latter, we need to mention that Spain has experienced more than eight centuries of Muslim presence on its soil (-), especially in Andalusia (Cordoba, Granada, Sevilla). This explains why the Islamic Commission of Spain (CIE), formed of two Muslim Federations (the Spanish Federation of Islamic Religious Entities and the Union of Islamic Communities of Spain), was able to sign, on  April , an agreement with the state recognizing in detail the Muslim denomination and fixing a collaboration procedure with its bodies.49 Thirteen years later, however, the  agreement is still not properly applied.50 D. Italy Among the fundamental principles affirmed by the Italian Constitution, it is said that all citizens have: “equal social status and are equal before the law, without regard to their sex, race, language, religion, political opinions, and personal or social conditions”.51 The Italian Republic is “one and indivisible, recognizes and promotes local autonomy;     

There are about one million Muslims in the Netherlands, amounting to .% of the total population. Constitution of Spain, Art. . Rosa Maria Martinez de Codes, “Christianisme et islam en Espagne”,  Conscience et liberté (), -. Loyer, “L’enseignement des religions …”. Constitution of the Republic of Italy, Art. .



Joseph Yacoub it fully applies administrative decentralization of state services and adopts principles and methods of legislation meeting the requirements of autonomy and decentralization”.52 It protects “linguistic minorities by special laws”.53 The Constitution defines the relations between the state and the church – they are “each within their own reign, independent and sovereign”.54 The Constitution stipulates that: Religious denominations are equally free before the law. Denominations other than Catholicism have the right to organize themselves according to their own by-laws, provided they do not conflict with the Italian legal system. Their relationship with the state is regulated by law, based on agreements with their representatives.55 Everyone is entitled to freely profess religious beliefs in any form, individually or with others, to promote them, and to celebrate rites in public or in private, provided they are not offensive to public morality.56 For associations or institutions, their religious character or religious or confessional aims do not justify special limitations or fiscal burdens regarding their establishment, legal capacity, or activities.57

On a strictly religious level, according to Article  of the Constitution governing nonCatholic denominations, Italy has concluded since  many agreements with minority denominations, such as the Waldensian Table58 and the Union of Jewish Communities (), in the framework of a revision of the Concordat with the Holy See.59 Law No.  approved the agreement between the Italian government and the Waldensian Table on  August , with the Seventh-Day Adventist Church in , with the Christian Evangelical Baptist Church in , with the Pentecostals in  and with the Lutheran Church in . Certain Evangelical churches are allowed to observe the Sabbath, with special dispensation not to attend classes.60 The Italian state has also opened negotiations with the two largest Muslim organizations. There is a big mosque in Rome. As in other European countries, public schools give up premises to religious communities for their classes, outside of the class schedule.61       

 





Ibid., Art. . Ibid., Art. . Ibid., Art. . Ibid., Art. . Ibid., Art. . Ibid., Art. . There are a total of , believers of the Waldensian Church. Its centre is at Torre Pellice, in the Piedmont Alps, where an important Waldensian centre exists. The Waldensians have a Faculty of Theology in Roma, and many publications. Giorgio Tourn, Les Vaudois: L’étonnante aventure d’un peuple-église (-) (Claudiana, Torino, ), . See “La religion en Italie: L’Etat face au rôle de l’Eglise catholique et à la présence des minorités religieuse. Entretien avec Massimo Introvigne”, Religioscope (), at . On recent political religion in Italy, see Francesco Margiotta Broglio, “Les aspects de la politique religieuse des quinze dernières années en Italie”,  Conscience et liberté (), -.

Minorities and Religions in Europe. Case Study: The Assyro-Chaldeans of Turkey V. The United Nations and the Status of Religions In its General Comment No.  of  July  on Article  of the International Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee considered that the fact that a religion is recognized as an official religion – if it is established as an official or traditional religion, or if its followers represent the majority of the population – is not in itself contradictory with human rights. It is, however, specified that this fact must not lead to any discrimination against the followers of other religions and minorities. It was stated that: If a set of beliefs is treated as official ideology in constitutions, statutes, proclamations of ruling parties, etc., or in actual practice, this shall not result in any impairment of the freedoms under article  [of the ICCPR] or any other rights recognized under the Covenant nor in any discrimination against persons who do not accept the official ideology or who oppose it.62

Additionally, the Committee underlines that: … the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.63

Moreover, the right to freedom of religion, as defined by United Nations texts, encompasses a vast programme and implies a certain number of varied, individual and collective expressions, including a certain number of exterior manifestations. These include the freedom: – To worship or assemble in connection with a religion or belief and to establish and maintain places for these purposes; – To establish and maintain appropriate charitable or humanitarian institutions; – To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief; – To write, issue and disseminate relevant publications in these areas; – To teach a religion or belief in places suitable for these purposes; – To solicit and receive voluntary financial and other contributions from individuals and institutions; – To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief; – To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief;

 

United Nations Human Rights Committee, General Comment No.  of  July  on Art.  of the International Covenant on Civil and Political Rights, para. . Ibid., para. .



Joseph Yacoub –

To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.64

In addition, the General Comment of the Human Rights Committee analyzes the concept of worship, which: extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest.65

It adds: The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.66

However, certain limitations to the freedom of religion obtain under the UN system also. A provision of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based upon Religion or Belief stipulates: “Freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others”.67 VI. The Status of the Assyro-Chaldeans in Turkey Here we take the example of the Assyro-Chaldean68 minority in Turkey, which was investigated by the UN Special Rapporteur on freedom of religion and belief, Abdelfattah



   



Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Proclaimed by General Assembly Resolution / of  November , Art. . United Nations Human Rights Committee, General Comment No.  of  July  on Art.  of the International Covenant on Civil and Political Rights, para. . Ibid., para.  Art. (). On Assyro-Chaldeans, see Joseph Yacoub, Babylone chrétienne. Géopolitique de l’Eglise de Mésopotamie (Desclée de Brouwer, Paris, ); id., Menaces sur les chrétiens d’Irak (CLD/ Témoignage Chrétien, Chambray/Paris, ); Joseph Alichoran (études et présentation), in Jacques Rhétoré (ed.), Les chrétiens aux bêtes (Cerf, Paris, ), .

Minorities and Religions in Europe. Case Study: The Assyro-Chaldeans of Turkey Amor, who presented his report on  October , at the th session of the UN General Assembly, concerning freedom of religion and belief in Turkey.69 In Resolution / of  March , the UN Human Rights Commission decided to appoint a Special Rapporteur to examine incidents and governmental actions in all parts of the world that were inconsistent with the provisions of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief ( November ) and to recommend remedial measures for such situations. Since his designation to this post in , Abdelfattah Amor has regularly presented reports of great importance on this issue. We examine here his report on Turkey, viewed from the angle of the Assyro-Chaldean minority, which is the object of a detailed analysis. Indeed, in pursuit of his mandate on freedom of religion and belief, Amor made a visit to Turkey from  November to  December  – to Ankara, Istanbul and Mardin in southeastern Turkey – at his request and with the invitation of the Turkish government. However, for reasons unspecified, he was unable to go to Midyat, a city with a Syrio-Christian majority. During his visit, he met with numerous religious representatives. This on-the-spot mission followed many visits since  to China, Pakistan, India, Iran, Sudan, Greece, Australia, Germany, the United States of America, Vietnam, Bangladesh, Argentina, Georgia and Algeria, among others. His report on Turkey studies Turkish legislation and policy in the framework of freedom of religion and belief, as well as the situation of non-Muslim communities – including the Assyro-Chaldeans – estimated at , people, all faiths included. Concerning the legal framework, freedom of religion and belief, the principle of non-discrimination based on religion and belief, and the principles of secularity and nationalism are analyzed in great detail. His report, presented to the st session of the Human Rights Committee in , mentioned grave violations, in particular in the field of religious tolerance, including brutalities and assassinations, especially towards the Assyro-Chaldeans.70 His report for the year  mentions the particularly difficult situation of Syriac communities, and contains a series of observations, conclusions and recommendations on their condition. A. The Situation of the Syriac Communities The Syriac communities in Turkey were not recognized by the Turkish authorities as a minority in the Treaty of Lausanne ( July ), despite their long historical presence in the country: “They therefore enjoy none of the rights of a religious minority, albeit they should, in principle, be covered by the constitutional guarantee relating to freedom 



Interim report of the Special Rapporteur of the Commission on Human Rights on the elimination of all forms of intolerance and of discrimination based on religion or belief, A///Add., at . Implementation of the declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief. Report submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution /. E/ CN.//,  December , -.



Joseph Yacoub of religion and worship”.71 Consequently, the communities have said that it is difficult for them to exercise that freedom. One should also note the lack of any legal status for the Syriac community. With respect to clerics, the community has no religious training seminary – this poses a serious problem, since the corps of clergy is ageing and the authorities have prohibited the replacement of any deceased clergy by clerics from abroad. The Rapporteur makes this bitter remark: “The situation thus threatens the very survival of this community, since its religious identity will gradually disappear as the present clergy pass on”.72 With respect to places of worship, the authorities have imposed restrictions on the renovation of churches and monasteries in southeastern Turkey (Turrabdin region). The Rapporteur writes: “Yet in many cases this stance in fact seems to represent interference by the authorities, inspired by a nationalism that rejects all minorities, particularly Christians”.73 The report also presents the problem of the confiscation of places of worship declared ‘unused’ by the General Director of Foundations, which sometimes will convert them into mosques. In Istanbul, which has become the principle destination of Syriac migration, there is only one Syriac church. Repeated complaints by the Syriac representatives to the authorities, including the president of the republic and the prime minister, have been fruitless: “The Syriac community is thus, in practice, denied the right to construct places of worship in Istanbul, despite its evident, urgent and legitimate needs”.74 With respect to other properties, the Syriacs are severely lacking social, charitable and health institutions, because they are prohibited from opening their own establishments. The same is true for applications to open schools. And yet, “The Syriac culture, including its religious basis (such as its liturgical language and rites) can only be passed on to the new generations through courses offered in places of worship”.75 The report mentions this example of prohibition from a municipal authority: “It was reported that in  the mayor of Mardin prohibited Syriac religious instruction”.76 The Rapporteur also mentioned problems concerning religious and ethnic courses in public schools. The situation of the Syriacs is of particular concern in light of their massive exodus from their principal traditional homeland, i.e. southeastern Turkey. According to Syriac representatives, this exodus is due to religious and political factors, particularly the nationalistic policy of Turkification (nonrecognition of Syriac religious and cultural identity; occasional banning of the Aramaic language and the prohibition of community social and educational institutions, as well as the Turkification of Syriac village names and of personal and family names). It must be added that there is considerable social pressure everywhere, particularly in southeastern Turkey, reflecting a 

    



Interim report of the Special Rapporteur of the Commission on Human Rights on the elimination of all forms of intolerance and of discrimination based on religion or belief, A///Add., . Ibid., . Ibid. Ibid. Ibid. Ibid.

Minorities and Religions in Europe. Case Study: The Assyro-Chaldeans of Turkey refusal to accept the local Syriac population, who are viewed as not conforming to the nationalist motto of “one nation, one race, one culture”.77 The Rapporteur notes: “This attitude, unfortunately, extends to certain authorities, particularly at the local level, who betray their rejection of this community in different ways”.78 Amor concludes the section devoted to Syriacs with a very significant demand formulated by the Orthodox Syriac representatives that they be treated “as full Turkish citizens, and not as outsiders”.79 Since , however, their situation has improved, as the author will address below. B. Conclusions and Recommendations In his conclusions and recommendations relating to non-Muslim minorities (with the notable exception of the Jewish minority), their situation poses a problem in terms of principles of tolerance and non-discrimination and is a direct result of state policies on secularism and nationalism: “The political manipulation of nationalism … has made itself felt in particular, and in an intolerant and discriminatory way, against the Christian minorities”.80 And yet, “This particular form of nationalism pervades not only State institutions but society as a whole, and generally conveys a message that leaves no room for the Christian minorities”.81 In regard to the specific situation of each community, Amor drew conclusions and established some recommendations relative to Syriac communities. As we saw, he speaks at length of the particularly difficult situation of this community, which has been deprived of its most basic rights. He concludes with a remarkable synthesis containing all the arbitrary and discriminatory elements against them, the perfect example of an excluded community: The Syriacs, and in fact the entire Assyro-Chaldean community, seem to be gradually disappearing. In the first place, this community faces all of the problems described above: they are not recognized as a minority under the Treaty of Lausanne, although they have been present in Turkey for centuries; they have no legal status as a community; they are denied the right to their own educational, social, charitable and health institutions, and have no religious training seminaries; their places of worship are subject to confiscation and they are prevented from renovating those properties or from building new ones. In addition, they have on a number of occasions been denied the right to teach the Syriac religion, even within their churches and monasteries, while their demands for exemption from religious instruction in the public schools are often ignored. All of these obstacles and restrictions can be explained essentially by the policy of Turkization and by the failure to recognize the Assyro-Chaldeans as a distinct religious and cultural community. To these factors must be added the impact

    

Ibid. Ibid. Ibid.,  Ibid., . Ibid.



Joseph Yacoub of the armed conflicts between the Turkish authorities and Kurdish insurrectionists that has placed the Assyro-Chaldeans in a climate of constant fear from acts of terrorism (assault, robbery, assassination, abduction, forced conversion to Islam, etc.) and has provoked their massive departure from southeastern Turkey. It is also true that this community is rejected by society and by the local authorities, who are generally intolerant of any minority that does not conform to the stereotyped imperatives of the Turkization policy (i.e. to be Turkish by ethnic origin and to be Muslim by religion). This situation is at its worst in eastern Turkey, but it is also reflected in Istanbul, where most Assyro-Chaldeans migrate, and where the rise of Islamism is viewed as a threat. Finally, the Assyro-Chaldeans feel that they are threatened as foreigners, and in growing numbers they are leaving Turkey in the hope of preserving their cultural and religious identity”.82

Eventually, the Rapporteur recommends that the Turkish authorities guarantee, respect and protect the rights of minority religious communities. With respect to AssyroChaldeans (including Syriacs), he recommends access to legal entities, which are in fact essential for maintaining the cultural and religious identity of this community. It is thus necessary that they have access to appropriate legal mechanisms for acquiring and managing their own properties, including places of worship. Indeed, it is essential that, regardless of the issue of recognition of minority status, this community have a legal structure that allows it to have its own educational, social and religious training institutions. Also, the Rapporteur recommends that the Turkish government should satisfy legitimate demands for the construction of new places of worship, in particular in Istanbul. It is also urgent to put a stop to the arbitrary and discriminatory confiscation of Assyro-Chaldean places of worship by the General Directorate of Foundations and the abuse of power in procedures for authorizing the renovation of religious establishments. The recommendations made with respect to instruction and religious culture are relevant here as well. Furthermore, “while appreciating the situation created by the armed conflict in southeastern Turkey”, the Special Rapporteur believes that “the State must fulfil its responsibilities to protect the Assyro-Chaldeans and to identify and prosecute those who violate their human rights”.83 He finishes with a recommendation calling upon the Turkish authorities to ensure that Islam does not become a political tool; to combat all manifestations of intolerance – including extremisms in all religions – while respecting international human rights standards; and to ensure that the interpretation of the constitutional principles of secularism and nationalism – and policies for implementing them – do not affect religious communities and, in particular, minority religious communities. If guaranteed the right to maintain their own identity, these minorities may remain a fundamental component of Turkish society. Finally, he recommends that religious communities should be protected from any political manipulation in the context of Turkey’s foreign affairs and concludes with a call for dialogue between religions and civilisations, and defends the importance represented by diversity:

 



Ibid., -. Ibid., .

Minorities and Religions in Europe. Case Study: The Assyro-Chaldeans of Turkey The Government should undertake a true dialogue with minority communities so as to better understand their needs and to promote a climate of respect and trust; The Government should provide for the effective protection and promotion of religious diversity, by ensuring respect for diversity both between and within different religions.84

Eventually, the author suggests undertaking a broad campaign to educate and sensitize society and its different components to the values and principles of tolerance and nondiscrimination with respect to minority religious communities and to counter religious fanaticism, whether in the media, in the schools (curricula and textbooks) or in political debate. In this respect, he says that it is particularly important “for the Government to ensure that religious instruction, whatever the religion concerned, provided in public and private institutions alike is such as to foster tolerance and non-discrimination and that it is not used to promote extremism and intolerance”.85 C. The Assyro-Chaldeans: a Historical Minority An autochthonous Christian minority, heir to the ancient Mesopotamia, the AssyroChaldeans were forgotten for a long time. However, the situation has changed profoundly since . They have resurfaced on the scene of history and we can say that they are no longer forgotten. They are the subjects of a growing interest, no longer as a museum artefact but this time as a living reality. Thus, Europe has rediscovered them, since they have sought refuge on this continent – in Germany, the Netherlands, Belgium, Sweden, Denmark, United Kingdom, France, Switzerland – having fled Turkey. D. Turkish Policy Towards the Assyro-Chaldean Minority The few changes in Turkish policy pertaining to the status of the Syriac communities that are evident may largely be due to international – and, particularly, European – pressure, which has permeated due to Turkey’s desire to become a member of the EU. It is also probably true that, lacking this impetus, the weight of Syriacs within Turkey would not be sufficiently important to produce any kind of impact on the domestic policy of the country. However, since the reality is that Turkey is determined to gain accession to the EU, the question is how will it be challenged and how will it react on the Assyro-Chaldean issue? Things are changing in the sociopolitical Turkish landscape. This concerns the Assyro-Chaldeans (so-called Süryaniler or Syriacs), who have resurfaced on this country’s scene, while Turkey has for a long time consciously ignored and showed indifference towards them. Turkey has begun to react to this shift by expressing its uneasiness. An example of this is a rather negative article by the journalist Yalçin Doğan published in the daily Milliyet ( July ) titled Türkiye’ye yeni dert: shimdi de Süryaniler (Turkey’s new grief: and now the Syriacs). The novelty resides in the fact that this time it is Turkey that is interested in this community as a living reality inherent to its  

Ibid.,  Ibid. On this report, see Joseph Yacoub, “Une page ignorée de l’histoire turque”, Le Figaro,  June , .



Joseph Yacoub history. Moreover, one needs to note that Ankara does not mention the Süryaniler only as Christians (Hiristiyan) but as a community in the same respect as the Armenians or the Kurds. It is true that the awareness raising campaign led by the Assyro-Chaldeans to engage global public opinion and international (UN) and European organizations (EU, European Parliament, Council of Europe, OSCE) has been successful. Consequently, the world has learned of the tragedy suffered by the Assyro-Chaldeans in the twentieth century, particularly in Turkey. However, this problem is rather embarrassing to Turkey since it adds to the already numerous and heavy difficulties it encounters in trying to join the EU, such as the Kurdish and Armenian questions. To reply to this image, which is instilled in the international consciousness, and in order to better defend itself, one can point to the publication, in Turkish, of works on the Assyro-Chaldeans negating the massacres and portraying this community as a victim of manipulations by the European powers. In that respect, we must mention the research work undertaken in the framework of Turk Tarihi Tetkik Cemiyetti (Turkish Historical Society). Founded under the patronage of Mustapha Kemal Atatürk on  April , this state body, recognized by the Turkish Constitution,86 publishes numerous works relating to Turkish modern and contemporary history. Since , the Turkish Historical Society has been incorporated, pursuant to a law, in the Atatürk High Institution for Culture, Language and History. In -, it edited four archival volumes covering  years of Armenian history (-).87 And, for the first time, this society had, in , a book published in English by one of its honorary members, Salahi R. Sonyel, on Assyrians, titled The Assyrians of Turkey: Victims of a Major Power Policy.88 With a clearly slanted title, it is regrettable to note that this professor of international relations, although having undertaken documented research, falls into a partisan analysis, with a strong defence of the Turkish nationalistic thesis. In his very short preface, he insists on the fact that the Assyrians left Turkey for economic reasons and that the anti-Turkish unrest felt by this community is attributable to “some extremists” who have emigrated to Western Europe and North America.89 He discounts all charges of oppression by the Turkish authorities and rejects the parallel with the Armenians. Moreover, he adds, “apparently some of these extremists cooperate with numerous secessionists and terrorist organisations who aim to destabilise and to break up Turkey”.90 The author says that the aim pursued in writing this book consists in putting the reader “in a better position to judge whether these accusations against Turkey and the Turkish people are true or false”.91 That said, it is notable that talking about Assyro-Chaldeans is no longer a taboo in Turkey. Moreover, their situation has improved somewhat since  – some positive      



Constitution of the Republic of Turkey, Art. . Bilâl N. Shimshir, Documents diplomatiques ottomans: Affaires arméniennes, Vols. I-IV (Imprimerie de la société turque d’histoire, Ankara, , , ). Turkish Historical Society Printing House, Ankara, ,  pages of documents and archives. Salahi R. Sonyel, The Assyrians of Turkey: Victims of a Major Power Policy (Turkish Historical Society Printing House, Ankara, ). Ibid. Ibid.

Minorities and Religions in Europe. Case Study: The Assyro-Chaldeans of Turkey signs are noticeable. Pursuant to a decree, the former Turkish Prime Minister Bulent Ecevit authorized the return of Syriacs to their villages. Some associations were created (in Istanbul, Mardin) and some families living in Belgium (a negligible number) who had fled the region returned to their villages. The Turkish National Assembly voted in June  to pass a law allowing the instruction and diffusion of mother languages.92 It is to be hoped for that the amendments to the Turkish Constitution of  November  will facilitate the return of this community, long neglected, if not utterly excluded from the physical, cultural and religious landscape of the country. Many of the priorities concluded between Turkey and the EU may directly concern the Assyro-Chaldeans – in particular, the expansion of democracy, the guarantee of diversity and of the cultural rights of all citizens, and the recognition of religious minorities. Among the selected criteria in the short term (), “the improvement of the situation in the southeastern regions in order to reinforce the economic, social and cultural rights for all the citizens” is specifically mentioned.93 However, the prevailing nationalism affirmed in full in the Turkish Constitution,94 which remains an official principle, steeped in official ideology and the indivisible unity of the “eternal existence” of the nation, could be interpreted as a restriction on minorities’ public freedoms.95 VII. Conclusion If today Europe pays particular attention to cultural and religious minorities, it is because we consider that the question is urgent and that the worsening of ethno-religious tensions threatens the national corpus, the social tissue, the stability and the security of countries and of the European continent. In embarking on a path of tolerance, pluralism of identity and protection of religion, Europe seems to have learnt the lessons of the past. As is clear from this study, the process of insertion, integration and good governance assumes the recognition of cultural and religious diversity as a positive phenomenon and the implementation of appropriate legislation likely to offer to religious minorities the possibility of effectively participating in public life. Altogether, the situation seems positive – with the exception of Turkey – although there remain many things to improve. Legal frameworks, likely to reinforce democracy and enlarge the base of legally constituted states, have been adopted. The principles of freedom of religion, equality, non-discrimination and secularity are affirmed. But the manifestations of religious and denominational recognition take diverse forms in European countries, due to different geographic, historic, cultural and ideological contexts. Religions, as well as cultures, exist in plural form.  

 

See, as an example, Nicolas Cheviron, “Un vent de liberté souffle sur les musiques en Turquie”, Le Monde, - November . See the response letter of Dominique de Villepin, then French Foreign Affairs Minister, to Gerard Patrimonio, President of Christian Solidarity International (CSI) France,  June . Constitution of the Republic of Turkey, see preamble and Art. . On this subject, see Atilla Nalbant and Ozan Erozden, “L’Etat-Nation et l’indivisibilité de la République en tant que principe restrictif des droits culturels et politiques”,  Turkish Yearbook of Human Rights (), -.



Joshua Castellino* and Elvira Domínguez Redondo **

Minority Rights in China: A Legal Overview 1

I. Introduction China has been the focus of much human rights activity in the last decade.2 Beginning with an attempt to condemn China for its human rights record at the UN Commission on Human Rights,3 a gradual discussion has opened up on the specifics of how China * **







Irish Centre for Human Rights, National University of Ireland, Galway, Ireland. IRCHSS Post-Doctoral Fellow, Irish Centre for Human Rights, National University of Ireland, Galway. This article forms part of a wider project funded by the Irish Research Council for Social Sciences and the Humanities by which the authors have undertaken to examine minority rights law in Asia, focusing on China, India, Malaysia and Singapore. This article is based on work undertaken by the authors in the course of preparation for the EU-China Experts Network Training Programme on Minority Rights held in Kunming, Yunan Province, China, - November . For more information on the EU-China Dialogue and other engagement of the EU with China, see . For instance in  alone, the Chinese government held dialogues, discussions or exchanges in respect of human rights with the EU, Australia, Canada, Britain, Germany, Holland, Norway, Switzerland, Austria and Belgium; hosted the th China-Canada-Norway human rights forum; and hosted, jointly with the European Union, the China-EU judiciary seminar. According to a Chinese government statement: “Those dialogues, exchanges and cooperation helped China and the relevant countries and organizations toward a better mutual understanding on the human rights issue, reduced disagreements and expanded consensus.” See Information Office of the State Council of the People’s Republic of China, Government White Paper on Human Rights in China in  (Beijing, March ), paragraph entitled “International Exchanges” at . The delegation of China has continuously resorted to a tactic by which it calls for a “noaction motion” vote on the substantive question of a resolution against itself in the UN Commission on Human Rights, winning this vote on the following occasions: in  (– with  abstentions) (Commission Decision /,  March); in  (--); in  (--); in  (--); in  (--); in  (--); in  (-); in  (--); and in  (--). On only one occasion has the “no-action motion” failed: in  (--), but this was followed by success in the substantive resolution (--). It is important to note that this process began in the Commission after the Tiananmen Square incident. For more on these issues see Ann Kent, China, the United Nations, and Human Rights: The Limits of Compliance (University of Pennsylvania Press,

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 51-83. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Joshua Castellino and Elvira Domínguez Redondo can seek to inculcate international human rights standards within its law. Looking at the plethora of activities conducted through various channels, it might be concluded that China has begun to embrace the need for human rights standards, and imputes value to international exchanges on the subject. In writing this article, however, it is important to stress the difficulty of accessing materials and understanding the Chinese legal system, and to acknowledge that much of the legal writing on China takes in a significant element of legal history.4 While some may discount history in the setting up of human rights standards, it seems impossible to export a system of values such as international human rights into the Chinese context without due cognizance of its rich history. Thus, this article is written with a caveat borrowed from Clarke, who in commenting on the Chinese legal system made the following statement: It is impossible for a scholar to express any conclusions, casual or otherwise about reality except by means of abstractions which are, by their very nature, distortions of that which simply “is”. … That which is does not dictate the properties of the discourse by which its intelligibility to humans is rendered, and thus knowledge claims can be properly viewed as simply forms of discourse.5







Philadelphia, ); Elvira Domínguez Redondo, Los Procedimientos Públicos Especiales de la Comisión de Derechos Humanos de Naciones Unidas (Tirant lo Blanch, Valencia, ); Michael J. Dennis, “The Fifty-Fourth Session of the UN Commission on Human Rights”, () AJIL (), -; Nazila Ghanea-Hercock, “A Review of the rd Session of the Commission on Human Rights”, () NQHR (), -, at -; Id., “A Review of the th Session of the Commission on Human Rights”, () NQHR (), -, at -. See, for instance, Randall Peerenboom (ed.), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S. (Routledge, London, ); Derek Bodde and Clarence Morris, Law in Imperial China (University of Pennsylvania Press, Philadelphia, ); Katherine Bernhardt and Philip C. C. Huang (eds.), Civil Law in Qing and Republican China (Stanford University Press, Stanford, ); Jerome Cohen (ed.), Contemporary Chinese Law: Research Problems & Perspectives (Harvard University Press, Cambridge, MA, ); Chi Hsin, The Case of the Gang of Four (Cosmos Publications Ltd, Hong Kong, ); Stanley B. Lubman, Bird in a Cage: Legal Reform in China after Mao (Stanford University Press, Stanford, ); Yali Peng, “Democracy & Chinese Political Discourses”, () Modern China (), -; Perry Keller, “Sources of Order in Chinese Law”, () American Journal of Comparative Law (), -; Id., “Legislation in the People’s Republic of China”, () University of British Columbia Law Review (), -; Mark van Hoecke and Mark Warrington, “Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law”, () ICLQ ( July ), -; Donald C. Clarke, Wrongs & Rights: A Human Rights Analysis of China’s Revised Criminal Code (Lawyers Committee for Human Rights, New York, ); Thomas Stephens, Order & Discipline in China (University of Washington Press, Seattle, ); Edward X Gu, “Elitist Democracy and China’s Democratization”, () Democratization (), -. Donald C. Clarke, “Puzzling Observations in Chinese Law: When is a Riddle Just a Mistake?”, in Stephen Hsu (ed.), Understanding China’s Legal System: Essays in Honour of Jerome K Cohen (New York University Press, New York, ), -, at .

Minority Rights in China: A Legal Overview While this quote has relevance in every cross-cultural study, its particular relevance to China lies in the difficulty of understanding the Chinese legal system, within which its human and minority rights regime is located. This article is unable to offer a definitive audit of the Chinese legal system vis-à-vis the protection of minority rights; it aims, less ambitiously, to provide an overview of the legal standards that exist for the protection of minorities in China and to identify the challenges that lie ahead in boosting its effectiveness. To achieve this task, the article is divided into three additional sections. The next section seeks to locate the minority rights discussion within the marked change in attitude towards human rights in China, examining its basis. While much is written in international literature on the question of the definition of a minority,6 section III will briefly discuss Capotorti’s controversial albeit widely accepted definition7 and contrast it with the Chinese conception of ‘minority nationality’. One of the objects of this section is to reveal the range of diversity that exists within China: something that is generally misunderstood due to the fact that international focus rests almost exclusively on Tibet,8 the Falun Gong and, more recently, the Uighurs in the west of China. In studying minority rights in a country the size of China, it is important to understand the wide swathe of people covered under this rubric, rather than focusing on a chosen few that may be of interest for particular reasons. This section will also set out the principles in Chinese law for the protection of minorities, drawing from two primary sources: the Chinese Constitution9 and the Law of the People’s Republic of China on 







Jelena Pejic, “Minority Rights in International Law”,  HRQ (), -; Philip Viciri Ramaga, “The Group Concept in Minority Protection”,  HRQ (), -; Nigel S. Rodley, “Conceptual Problems in the Protection of Minorities: International Legal Developments”,  HRQ (), -; John Packer, “On the Definition of Minorities”, in John Packer and Kristian Myntti (eds.), The Protection of Ethnic And Linguistic Minorities in Europe (Institute for Human Rights, Åbo Akademi University, Åbo, Finland, ), -; Oleg Andrysek, “Report on the Definition of Minorities”, Netherlands Institute of Human Rights, SIM Special No.  (); Miriam J. Aukerman, “Definitions and Justifications: Minority and Indigenous Rights in a Central/Eastern European Context”,  HRQ (), -. Francesco Capotorti, “Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities”, UN Doc. E/CN./Sub.//Rev., UN Sales No. E..XIV. (). The issue of Tibet will not be commented upon in depth in this article. For contradictory histories of Tibet and the situation there currently, see Tsering Shakya, The Dragon in the Snow: A History of Modern Tibet Since  (Penguin Compass, New York, ); Patrick French, Tibet, Tibet: A Personal History of a Lost Land (Harper Collins, London, ); Theodore Sorenson and David Phillips, Legal Standards & Autonomy Options for Minorities in China: The Tibetan Case (Belfer Centre for Science & International Affairs, John F Kennedy School of Government, Harvard University, ); China Society for Human Rights Studies, Government White Paper on Tibet (Intercontinental Pan-Chinese Network Information Co., Ltd., ) at . Constitution of the People’s Republic of China, adopted at the th Session of the th National People’s Congress and promulgated for implementation by the Proclamation of the NPC on  December  and subsequently amended at the th Session of the th National People’s Congress and promulgated for implementation by the Proclamation of the NPC on 



Joshua Castellino and Elvira Domínguez Redondo Regional National Autonomy,10 as well as from authoritative commentaries on these.11 Section IV seeks to look further into specific issues pertaining to minorities in China, by examining policy and legislation towards minorities in fields such as education and religion, while briefly highlighting the issues in the context of economic rights and development, and linguistic rights. The final section is offered as a conclusion and contains an analysis of the challenges that exist in making the existing regime effective. It is important, in studying minority rights in China, to be cognizant of the fact that the vast majority of the Chinese people are only now coming under the umbrella of protection afforded by human rights standards. There has been much reform in China as it seeks to build an effective legal regime and as the government seeks to achieve the goal it has set itself for , namely to be considered a developed country.12 The conclusion offers some thoughts on this goal and its potential interaction with human rights and, more importantly, analyzes the obstacles that remain in achieving a fully functional, effective regime for the protection of minorities. II. China and Human Rights Writing in , Theodore Barry sought to explain the Chinese resistance to human rights norms at that time as follows: The Chinese have thought of the Way (or Dao) as a growing process and expanding force. At the same time, following Mencius, they have felt that this Way could not be real or genuine for them unless somehow they could find it within themselves, as something not external or foreign to their own nature. The unfortunate aspect of their modern experience has been the frustrating of that healthy instinct, through a temporary loss of their own self-respect and a denial of their right to assimilate new experience by a process of reintegration with the old. To have seen all values as coming









April ; and subsequently amended as per adoption at the st Session of the th National People’s Congress and promulgated for implementation by the Proclamation of the NPC on  March ; and amended as per the nd Session of the th National People’s Congress and promulgated for implementation by the Proclamation of the NPC on  March . published in English by Foreign Languages Press, Beijing, China (th ed.  with Chinese text). Henceforth ‘Autonomy Law’, adopted at the nd Session of the th National People’s Congress, promulgated by Order No.  of the President of the People’s Republic of China on  May , and effective as of  October . See, for example, William C. Jones, “The Constitution of the PRC”, () Washington University Law Quarterly (), ; and Wang Zhenmin, “Woguo xianfa ke fou jinru susong” (Can our Country’s Constitution be Brought into Litigation?),  Fa Shang Yanjiu (Studies in Law & Commerce) (), -. According to a Government White Paper “the goal of the third stage – to reach the level of the medium-developed countries in the mid-st century, so that the entire Chinese people can realize common prosperity – already has a relatively good foundation”. Information Office of the State Council of the People’s Republic of China, Government White Paper Fifty Years of Progress in China’s Human Rights (Beijing, June ), at .

Minority Rights in China: A Legal Overview solely from the West or as extending only into the future, and not also as growing out of their own past, has hindered them in recent years from finding that Way or Dao within themselves. The consequences of that alienation and its violent backlash have been only too evident in the Cultural Revolution. We may be sure, however, that the process of growth is only hidden, not stopped, and that the new experience of the Chinese people will eventually be seen in significant part as a growth emerging from within and not simply as a revolution inspired from without.13

The Chinese were not at the centre of what began to be described as the ‘Asian Values’ debate on human rights. Rather, they exhibited, for the most part, studied indifference to the international regime that was developing around them.14 Yet there remain conceptual difficulties in seeking to blend international standards with time-honoured traditions of behaviour in China. Not least of these is a difficulty that is cited often enough in the cultural relativist context, namely that of individualism and collectivism.15 Without reproducing that debate, it is important to add that in the case of China, there is a further fissure in the concept around the perception of the private and the public: A point of common confusion in the context of individual versus collective is the positing of the dichotomy between the public (gong) and the private (si) as an antithetical one – where public stands for the common good and private essentially for selfishness.16

But in studying and commenting on ancient Confucian texts, Barry suggests that there is evidence of a balance existing between the public and the private – not, as often claimed, a simple dominance of one over the other. He goes further, suggesting that the Confucian point of view required the state’s responsibility for the public interest to include an “encouragement of legitimate private initiative”.17 These difficulties will







 

As quoted in Theodore Barry, Asian Values & Human Rights: A Confucian Communitarian Perspective (Harvard University Press, Cambridge, MA, ), in reference to work written in , at . See Wan Ming, “Chinese Opinion on Human Rights”, () Orbis (), -; and id., (ed.), Human Rights in Chinese Foreign Relations (University of Pennsylvania Press, Philadelphia, ). See also Daniel Bell, East Meets West: Human Rights & Democracy in East Asia (Princeton University Press, Princeton, ); Michael Davis, “Constitutionalism & Political Culture: The Debate over Human Rights & Asian Values”,  Harvard HRJ (), -. For the notion of cultural relativism, see Jack Donnelly, Universal Human Rights in Theory & Practice (Cornell University Press, Ithaca, ); and Abdullahi Ahmed An-Na’im, Human Rights in Cross-Cultural Perspectives (University of Pennsylvania Press, Philadelphia, ); see also Paul Mahoney, “Marvellous Richness of Diversity or Invidious Cultural Relativism?”, () HRLJ (), -. Barry, Asian Values & Human Rights …, . Ibid., .



Joshua Castellino and Elvira Domínguez Redondo not form a part of this article, though it remains important to be cognizant of them.18 What is more germane to legal scholars of minority rights regimes is the perception and manner of operation of the law: important since unless we have a thorough understanding of the Chinese vision of law, making suggestions as to effective legal protection regimes remains redundant. In trying to unravel Chinese law, one author suggested: Chinese law is very easy to misunderstand. It is not at all certain that anyone – Chinese or foreign – understands it. The reason for this is that when we think about law, we think about a formal legal system of the western type. We look at China and expect to find such things as a law of contracts, a bench and a bar, and all other paraphernalia that we associate with law. At present, one can find such institutions in China, but they are modern imports. Until recently, they did not exist. What one found instead – and still finds – quite easily, are a vast number of statements by China’s most prominent thinkers, notably including Confucius, that show great hostility to what we think of as law.19

Having studied some of these debates and statements, Jones draws the conclusion that there are similarities in terms of how law is conceived of today and how it was , years ago. This may seem a striking conclusion, but arguably no more remarkable than cases of the eighteenth century and earlier being cited as precedent in modern western courts of law. It is also crucial to bear in mind that during these , years, law was conceived of as an administrative tool to aid the government. It presents an interesting contrast with Roman law, that during the period -, the Chinese legal system governed a territory and a population that was “larger than that governed by Roman law, either when it was the law of the Roman Empire or when it became the dominant law of medieval and modern Europe”.20 The difficulty of studying Chinese law, however, is that, unlike in its Roman counterpart, there are no easily discernible sources of law. One common way of seeking to understand Chinese law has been to study the codes that have been enacted by the various emperors. In this manner, it is possible to generate principle and to argue that precedent is a legal tool that has been imbibed. Yet the Codes are nothing but administrative diktats of the rulers and did not really concern disputes between private individuals and, certainly, from our point of view, did not inculcate any notion of rights.21 An alternative approach that studies the remarks of the commentators on these 

  



For an effective summary of this, especially on the effect of the discussion on the Rule of Law between the legalists and the realists, see Randall Peerenboom, “Competing Conceptions of Rule of Law in China”, in Peerenboom, Asian Discourses on the Rule of Law …, -. William C. Jones, “Trying to Understand the Current Chinese Legal System”, in Hsu, Understanding the Chinese Legal System …, -, at . Ibid., at . See Minxin Pei, “Citizens v Mandarins: Administrative Litigation in China”,  China Quarterly (), -. See also Randall Peerenboom, “Globalization, Path Dependency and the Limits of Law: Administrative Law Reform & the Rule of Law in the People’s Republic of China”, () Berkeley JIL (), -.

Minority Rights in China: A Legal Overview codes remains equally flawed for the same reason.22 Thus, to have anything more than a vague conception of Chinese law, it is important to acknowledge the system we are accustomed to, which is: … to think that a legal system [as] … primarily a social institution within which ‘persons’ – private individuals, or groups of such individuals, or even the state – can make claims against other ‘persons’ and have these resolved by a neutral trier of fact and law – the court. We also tend to think that the laws applied by the courts will deal to a very considerable extent with private law, with torts, contracts, property and the like. An organized bar, judicial independence, separation of powers, and some judicial review of administrative acts are also institutions we expect to see.23

Instead we have to accept that Chinese law, over a ,-year period, consisted of nothing more than rules concerning the enforcement of government policy. Thus, over half the Codes are devoted to regulations of the official activities of government officials24 and it could be argued that the modern description of the law in Government White Papers,25 as well as the material examined by Peerenboom in his authoritative studies of the legal system, essentially concern, or have been concerned with, the question of accountability and the rule of law.26 While accountability of government officials forms an important part of human rights law, it is by no means the sum total of its ambit; even without taking into account the fact that, substantively, the Codes were mainly concerned with administrative law. To conclude this discussion, it suffices here to produce a potted version of the historical summary expressed by Jones, in a bid to understand the basics of the Chinese legal system: .

   



The ancient Codes, that many consider precursors to modern Chinese law did not equate to the full breadth of law.

William C. Jones, “Trying to Understand the Current Chinese Legal System”, in Hsu, Understanding the Chinese Legal System …, at . Ibid. Ibid., at . As stated in a Government White Paper: “The essence of this goal is guaranteeing that the Party and the government control political power and administer the state according to law, that the law-enforcement departments work in accordance with the law, and that the citizens exercise their rights and perform their duties in accordance with the law. In short, we must guarantee human rights in the country’s laws and systems. Therefore, the implementation of the strategy of exercising the rule of law and the realization of the goal of building a country governed according to law possess important and essential significance in guaranteeing human rights and promoting China’s cross-century development of human rights”. See Information Office of the State Council of the People’s Republic of China, Government White Paper Fifty Years of Progress in China’s Human Rights (Beijing, June ). Peerenboom has written an authoritative volume on the relevance of the ‘rule of law’ concept in China, see China’s Long March Toward Rule of Law (Cambridge University Press, Cambridge, ).



Joshua Castellino and Elvira Domínguez Redondo .

Western style law began to develop in China during the last years of the Qing Dynasty, and accelerated after  through the activities of Dr. Sun Yat-Sen.

.

By and large ‘it seems certain that [law, and the development of it] had no effect on the lives of the vast majority of Chinese who were peasants, and were for the most part, illiterate.27

This final point is of utmost importance to human and minority rights law. Constructing a legal system concerned with the protection of the individual dignity and worth of every human being on an edifice composed of edicts concerned with administrative law presents a daunting challenge. Significant resources have been devoted recently, both by the Chinese government and the EU (amongst others) in an effort to bridge this gap, though the challenge has by no means been surmounted. Chinese law has begun to crystallize into standards that are recognizable and comparable at an international level, while nonetheless maintaining a Chinese element. The difficulty, as will be highlighted in the final section of this article, remains not in the framing of the law, nor so much in its conception, but, rather, in its implementation; and this includes its implementation at all levels of the bureaucracy and consideration of the effect of this implementation on the psyche of the masses. Governmental attitude and, to a certain extent, rhetoric vis-à-vis human rights can be discerned through a series of White Papers that are published (and also available on a website). While accepting the need for human rights, one such White Paper stated in  that: China is a developing country … with a long history and a huge population, but with a relative shortage of resources and wealth. To promote human rights in such a country, China cannot copy the mode of human rights development of the developed Western countries, nor can it copy the methods of other developing countries. China can only start from its own reality and explore a road with its own characteristics.28

To human rights scholars, this statement would appear no different from those made in the context of the development of economic, social and cultural rights, or in the terms of the ICESCR – the concept of ‘progressive development’.29 It is clear that, in the face of paucity of resources, the government needs to orient its priorities carefully. While

 





As discussed by Jones, “Trying to Understand the Current Chinese Legal System”…, at -. Information Office of the State Council of the People’s Republic of China, Government White Paper Fifty Years of Progress in China’s Human Rights (Beijing, June ), at . The text of Article  of the CESCR  uses the words “…achieving progressively the full realization of the rights”. Also see CESCR General Comment No. : “The nature of States parties obligations [Art. () of the Covenant]” (Fifth Session, ), at .

Minority Rights in China: A Legal Overview ‘progressive development’ is often an excuse for procrastination,30 in the case of China reference to the sentiment itself denotes significant change. Gone are the references to cultural relativism and a Chinese model of human rights. Replacing it instead is an admission of the need for human rights and a statement based on resources, while nonetheless insisting on an indigenous model of implementation.31 This is in sharp contrast to the statement at the beginning of this section made by Barry in . Moreover, in the most recent government report available, the foreword states that: … China maintained political stability, and achieved rapid economic growth and overall social progress. Moreover, further improvements were witnessed in the people’s living standards and new progress was made in human rights cause. The Chinese government gives top priority to the people’s life and health and basic human rights. Adopting the attitude of holding itself accountable to the people, acting in their interests and accepting their supervision, the Chinese government has formulated the principles of government, that is, ‘governing the country for the people,’ and ‘using the power for the people, sharing the feelings of the people and working for the interests of the people’.32

This reveals the envisioned role for human rights succinctly: as a mechanism that needs to be interpreted in the context of political stability and which will not hinder the emphasis on rapid economic growth and social progress.33 In addition to locating human rights within governmental policy, further prioritisation is expressed for ‘people’s life and health and basic human rights’. Yet this is followed by a statement that reflects Chinese heritage and also the terrible experiences of the Cultural Revolution (-); namely, the focus on accountability.34



 

 

For more on the issue of the realization of economic, social and cultural rights, see “The Realization of Economic, Social and Cultural Rights: Final report submitted by Mr. Danilo Türk, Special Rapporteur”,  July , E/CN./Sub.//. For an analysis of ‘rights and interests’ in China see Randall Peerenboom, “Rights, Interest and the Interest in Rights in China”, () Stanford JIL (), -. Information Office of the State Council of the People’s Republic of China, Government White Paper on Human Rights in China in  (Beijing, March ), at . Also see “Of Laws and Men”, The Economist [print edition],  April , which discusses the thoughts of Jerome Cohen. For more on this aspect of Chinese history, including its impact on modern China, see Jonathan D. Spence, The Search for Modern China (W. W. Norton & Co., New York, ).



Joshua Castellino and Elvira Domínguez Redondo III. The Role of Law in Protecting Minorities: A Description of Chinese Legal Policy A. A Question of Definition The principle that individuals and groups are accountable for their actions towards groups that are numerically inferior and in non-dominant positions within the state35 even in times of conflict is further evidence that human rights principles are now firmly embedded within the international legal system.36 The relative successes of the treaty monitoring bodies, in tandem with the sterling research of the Thematic Rapporteurs coordinated by the Office of the High Commissioner for Human Rights, suggests that the outlook for the future progress of the human rights regime is basically sound. The biggest gain in this process has arguably been the inroads that the human rights discourse has provided into conservative notions of state sovereignty. That this erosion of sovereignty has evolved with the consent of states is arguably the most convincing evidence of the wide consensus among states as to the importance of human rights issues. While the aftermath of the events of  September provided a setback for what has been a largely uninterrupted upward curve for human rights regimes, the movement itself is arguably resisting this challenge, to emerge stronger. The lack of an effective regime guaranteeing the rights of minorities, however, remains a significant lacuna within human rights law. For the purpose of this exercise, Capotorti’s definition of ‘minority’ will be accepted with its conceptual weaknesses. He considered a minority as: A group which is numerically inferior to the rest of the population of a State and in a non-dominant position, whose members, being nationals of the state, possess ethnic, religious or linguistic characteristics which differ from those of the rest of the population who, if only implicitly, maintain a sense of solidarity, directed towards preserving their culture, traditions, religion and language.37

The requirement that minorities are nationals of the state is made explicit in the definition. The allowable differentiation in a state’s treatment of citizen and non-citizen is









For a general overview of the minority rights regime today, see Patrick Thornberry, International Law and the Rights of Minorities (Oxford University Press, Oxford, ); Catherine Brölmann, Marjoleine Zieck and Rene Lefeber (eds.), Peoples & Minorities in International Law (Martinus Nijhoff, Dordrecht, ); Gudmundur Alfredsson and Erika Ferrer, Minority Rights: A Guide to the UN Procedures & Institutions (Minority Rights Groups International, London, ). This can be seen in post-conflict scenarios such as the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia but also in the general growth of international human rights standards as represented by the treaty-based system of human rights protection. On the former point see William A. Schabas, “‘Ethnic Cleansing’ and Genocide: Similarities and Distinctions”,  EYMI (/), -. Capotorti, “Study on the Rights of Persons …” (emphasis added).

Minority Rights in China: A Legal Overview reflected in human rights law38 but has subsequently been constricted.39 However, this traditional definition of ‘national’ minorities40 has not been held useful since it only accords status to groups living in one state with the nationality of another. The ‘nationality’ issue though, is congruous with the Chinese attitude to minority rights. China has identified  internal ‘nationalities’, based on linguistic, ethnic and religious features. From this point onwards, the identification of minorities becomes one of numbers: Han Chinese form the large majority,41 thus rendering the remaining  nationalities with the status of ‘national minorities’. Minorities in China are officially described as follows: The People’s Republic of China is a united multi-ethnic state founded jointly by the people of all its ethnic groups. So far, there are  ethnic groups identified and confirmed by the Central Government, namely, the Han, Mongolian, Hui, Tibetan, Uygur, Miao, Yi, Zhuang, Bouyei, Korean, Manchu, Dong, Yao, Bai, Tujia, Hani, Kazak, Dai, Li, Lisu, Va, She, Gaoshan, Lahu, Shui, Dongxiang, Naxi, Jingpo, Kirgiz, Tu, Daur, Mulam, Qiang, Blang, Salar, Maonan, Gelo, Xibe, Achang, Pumi, Tajik, Nu, Ozbek, Russian, Ewenki, Deang, Bonan, Yugur, Jing, Tatar, Drung, Oroqen, Hezhen, Moinba, Lhoba and Jino. As the majority of the population belongs to the Han ethnic group, China’s other  ethnic groups are customarily referred to as the national minorities.42

These identified nationalities in China are diverse with practices and beliefs that differ significantly. According to some sources, nationalities such as the Hui and the Zhuang are considered as being closest in tradition and belief to the Han majority, while the Turkic peoples who live in Western China including the Uighurs, the Kazakhs, or the Irani Tajiks have much closer links to states of the Middle East. Remarkably, while only accounting for a small percentage of the total Chinese population, minorities occupy a land mass equivalent to almost % of Chinese territory: such a high proportion





 



See CERD , Art. (). For a general commentary on issues connected with the international regime on racial discrimination, see Michael Banton, International Action Against Racial Discrimination (Oxford University Press, Oxford, ). See CERD General Recommendation XI () on non-citizens (), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,  April , UN Doc. HRI/GEN//Rev., at . For a history of minority rights, see Thornberry, International Law …, especially -. According to a Government White Paper, the fourth national census () revealed that .% of the country’s total population belonged to the Han ethnic group, and .% belonged to minority ethnic groups. It also gives figures for a sample survey in  suggesting a . percentage point increase over the  figures for minorities. See Information Office of the State Council of the People’s Republic of China, Government White Paper National Minorities Policy and its Practice in China (Beijing, ), at . Ibid., at .



Joshua Castellino and Elvira Domínguez Redondo being mainly on account of the vast underpopulated western areas being predominately inhabited by minorities.43 Official government statements suggest a progressive attitude towards minority nationalities, and this is reflected in many laws discussed later in this section. Official policy opposes forced assimilation, grants territorially based nationalities autonomy (whether at regional, provincial or township level) and creates provisions for the furtherance of minority participation whether in the educational, political, administrative, or cultural realm. The most striking aspect of Chinese policy towards minorities is the detailed arrangements vis-à-vis autonomy. This is based primarily on China’s Regional National Autonomy Law. As with a majority of states, Chinese politics fiercely opposes secession and the government has shown on a number of occasions that it is willing to use force to repel any movement that it considers as destabilizing to the state.44 By and large, it could be argued that secessionist sentiment is not a significant force, with even the much publicized problem in Tibet now moving towards a constructive phase.45 The most burning question with regard to minority rights in China is the question of how a ‘minority nationality’ is determined. The census of  recognized  nationalities in China, though the  census registered as many as  nationalities of which the government only recognized . According to one source “…of the remaining  nationalities,  were considered to be part of the officially recognised ,  were classified as ‘other nationalities’ and the remaining  were classified as ‘indeterminate’”.46 This source also recognizes that there are problems with the population count, since many Han sought to register themselves as minorities in a bid to avail themselves of preferential benefits accruing from the government’s positive action measures, most notably through a waiver of the controversial one child policy for specified minorities. Rather than using an official definition of a minority, the Chinese consider the following to be an understanding of ‘nationality’: An historically constituted community of people having a common territory, a common language, a common economic life and a common psychological makeup which expresses itself in a common culture.47





  



For more information on Chinese minorities, see ; see also Working Paper on Chinese Minorities and Legal Reform, at: . For an account of the Tiananmen Square incident, see Zhang Liang (compiler), with Andrew Nathan and Perry Link (eds.), The Tiananmen Papers: The Chinese Leadership’s Decision to Use Force Against Its Own People – In Their Own Words (Public Affairs, New York, ). See the conclusions drawn in Sorenson and Phillips, Legal Standards and Autonomy Options for Minorities in China …, at -. See Paul Noll and Associates, “Chinese Policy on Minorities”, at . This has been referred to as a ‘Stalinist’ definition of minorities. See . For a general discussion of this topic

Minority Rights in China: A Legal Overview Thus, the Chinese definition of a ‘nationality’, as a group of people of common origin living in a common area, using a common language48 and having a sense of group identity in economic and social organization and behaviour, corresponds closely enough with Capotorti’s definition. There is little information forthcoming regarding the precise terms by which the  nationalities were identified,49 reflecting an attitude similar to the oft-quoted van der Stoel statement of ‘knowing’ a minority on sight.50 Most indicators suggest that, as in most other countries, minorities in China live in conditions below that of the Han population. This can be partly explained by the large proportion of minorities living in China’s underdeveloped western region. Among the  national minorities differences in living conditions are stark: some, such as the Tibetans (Zang nationality) and the Uighur, are concentrated in a single region; many are nomadic peoples engaging in agriculture or pastoral pursuits. China also has its equivalent of the ‘melting pot’ of Yunan where different nationalities live in close proximity to each other and account for % of the region’s population. In keeping with the spirit of multiculturalism in this province, the Chinese government has opened what it calls a “National Minorities Village” to showcase the diversity of its  minority nationalities. This theme park is perhaps not to everybody’s liking, since it ‘exhibits’ peoples and cultures to visitors, but it has the useful educational purpose of revealing the differences that exist within China vis-à-vis ethnicity, language, religion and traditions.51 After the Tibetans, the Uighurs receive the widest international attention of the Chinese minorities. Despite widescale and continuous Han immigration into Xinjiang province, nearly % of the peoples living in the province are of minority nationalities, with the Uighurs the largest of these. China’s largest minority, the Zhuang consist of approximately . million people, who live in the Guangxi-Zhuang Autonomous Region. This minority receives little attention at the international level and, according to some reports, many or most of them are highly assimilated into Han customs and culture. China has a host of nationalities with kin-groups in neighbouring countries.





 

in the context of ‘nationalism’, see Anthony Smith and John Hutchinson (eds.), Nationalism (Oxford University Press, Oxford, ). According to one source, China has  major linguistic regions, which generally coincide with the geographic distribution of the major minority nationalities. See Country Studies US, “China: Demographic Overview”, at . The process of identification arguably began in  with the promulgation of the Directives on the Handling of the Titles, Names of Places, Tablets and Signboards Which Are Discriminative and Insulting to Ethnic Minorities. The process of identifying the country’s ethnic peoples started shortly thereafter in . A total of  ethnic minorities were identified, with each given ‘equality as members of China’s family of peoples’. See Information Office of the State Council of the People’s Republic of China, Government White Paper National Minorities Policy and its Practice in China (Beijing, ), at . As expressed on the website of the OSCE High Commissioner on National Minorities at . The authors were part of a delegation that visited this site in the course of the two-day EU-China Experts Network Training Programme on Minority Rights, in Kunming, Yunan Province, - November .



Joshua Castellino and Elvira Domínguez Redondo Included among these are the Shan, Korean, Mongol, Kazakh and Yao – who have kin in Burma, Korea, Mongolia, Kazakhstan and Thailand respectively. Promises about the importance of preservation of minorities’ group identities formed a part of the incoming Chinese government’s agenda as early as  – at the founding of the Chinese state. In fact, the country’s first constitution of  expressly declared the country to be “a unified, multinational state” and “prohibited discrimination against or oppression of any nationality and acts which undermine the unity of nationalities”.52 Minorities, like most of the Chinese population, suffered during the Cultural Revolution: when minority languages were discouraged, severe curbs were placed on religious and cultural freedom and minorities were even compelled to cultivate certain crops at the expense of their more traditional occupation of animal husbandry.53 But these policies were reversed with the arrest of the Gang of Four.54 B. Sources of Chinese Minority Rights Law There are several laws, resolutions and decisions of the Standing Committee that reflect some minority rights content.55 In this brief subsection we will focus on two particular documents – the Constitution of the People’s Republic of China as amended in 56 and the Autonomy Law of the People’s Republic of China.57 1. The Chinese Constitution There remain questions to be answered about the relevance of a constitution in a country such as China.58 As Clarke suggests:

 





  



See Information Office of the State Council of the People’s Republic of China, Government White Paper National Minorities Policy and its Practice in China (Beijing, ), at . For a micro-study of some of China’s minority nationalities, especially in Central China, see the columns of BBC correspondent Louisa Lim at . The Gang of Four – Jiang Qing, Zhang Chunqiao, Yao Wenyuan and Wang Hongwen, – played a dominant role in the Cultural Revolution and tried unsuccessfully to seize power after the death of Communist leader Mao Zedong in . For a concise list of some of the laws of China, see Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s Republic of China, The Laws of the People’s Republic of China (Law Press China, Beijing, ). Constitution of the People’s Republic of China, adopted at the nd Session of the st National Assembly on  April  and promulgated by president on  May . Autonomy Law. For a more detailed history of thought on Chinese constitutionalism, including the remarkable contributions of Wang Anshi (-), Zhu Xi (-), and especially Huang Zongxi (-) in his masterwork Mingyi Daifang Lu (), Liang Qichao (-) and culminating with Sun Yat-sen, see William Theodore De Bary, Asian Values & Human Rights (Harvard University Press, Cambridge, MA, ), at -; see also Hao Tiechuan “Lun lingxian weixian” (On Benign Violations of the Constitution),  Faxue Yanjiu (Legal Studies) (), ; Xi Zhong, “Dui ‘lingxian wexian’ de fansi” (Some Thoughts About ‘Benign Violations of the Constitution’),  Faxue Pinglun (Legal Studies Review) (),

Minority Rights in China: A Legal Overview … the current regime in China is not the result of a political deal; it was the result of a one-sided military victory. Thus, I would claim that China’s written xianfa is less of a constitution than the famous unwritten constitution of the UK, which is very much the product of a series of political ideals and understandings. If we accept that the xianfa is nothing like a constitution as the rule of law paradigm understands it, then the ‘violations’ are not puzzling or perplexing; they are simply observations without significance.59

However rather than dismissing the Constitution, Clarke imputes value to it, only questioning its legal character. He likens the list of ‘rights’ as akin to the American Declaration of Independence rights such as the ‘pursuit of happiness’. Instead he suggests that “it is like a National Declaration wherein each regime has indicated its policy directives. They have never been considered binding law and no Chinese government has ever treated them as such”.60 Thus, the Constitution, unlike in other settings, cannot be considered a “beacon of salvation: that is provided by the Communist Party of China”.61 Despite this caveat, the references to minority nationalities in the Constitution remain worth highlighting, as an indicator of the emphasis laid in Chinese discussions on this question. The preamble itself begins by making reference to the question of minority nationality by declaring that: The People’s Republic of China is a unitary multinational state built up jointly by the people of all its nationalities. Socialist relations of equality, unity and mutual assistance have been established among them and will continue to be strengthened. In the struggle to safeguard the unity of the nationalities, it is necessary to combat big-nation chauvinism, mainly Han chauvinism, and also necessary to combat local national chauvinism. The state does its utmost to promote the common prosperity of all nationalities in the country.62

Article  continues the prominence given to this idea: () All nationalities in the People’s Republic of China are equal. The state protects the lawful rights and interests of the minority nationalities and upholds and develops the relationship of equality, unity, and mutual assistance among all of China’s nationalities. Discrimination against and oppression of any nationality are prohibited; any acts that undermine the unity of the nationalities or instigate their secession are prohibited.

   

-; and Andrew Nathan, Chinese Democracy (IB Tauris & Co., London, ), specifically “Political Rights in the Chinese Constitutional Tradition”, at -. Clarke, “Puzzling Observations in Chinese Law”, at . Ibid. For more on the difficulty of interpreting Chinese law, see the discussion on page - of this article. Ibid. The author also gives an explanation of this in the context of a programme of land leasing in Shenzen province. Constitution of the People’s Republic of China, preamble.



Joshua Castellino and Elvira Domínguez Redondo The state helps the areas inhabited by minority nationalities speed up their economic and cultural development in accordance with the peculiarities and needs of the different minority nationalities. () Regional autonomy is practiced in areas where people of minority nationalities live in compact communities; in these areas organs of self-government are established for the exercise of the right of autonomy. All the national autonomous areas are inalienable parts of the People’s Republic of China. () The people of all nationalities have the freedom to use and develop their own spoken and written languages, and to preserve or reform their own ways and customs.63

The significance of this Article is not merely its statement of equality in paragraph () and the prohibition of oppression of any nationality (though with the unsurprising qualifier against secession), but the rest of the article, which expresses positive obligations. The second part of paragraph () emphasises the importance of state assistance in development and the need to focus on peculiarities (sic) of minority nationalities. In addition, paragraph () clearly identifies regional autonomy as an option, though the Autonomy Law examined below deals this with in greater detail. Paragraph () of the Article emphasises the cultural and identity-based question of language and custom, though it does not explicitly identify a state obligation towards this. Another important Article in understanding China’s attitude to minority rights is provided in Article : The State maintains public order and suppresses treasonable and other criminal activities that endanger State security; it penalizes actions that endanger public security and disrupt the socialist economy and other criminal activities, and punishes and reforms criminals.64

This, coupled with the qualifier in Article () reveals the strong emphasis placed on public order and national unity. It is important, in terms of minority rights law, since it explains the Chinese attitude to movements such as Falun Gong. From a Chinese standpoint, this group does not fall within the ambit of minority rights, since it is not identified as a minority nationality, and is unlikely to ever be recognised so, since it consists of a multinational grouping of people. In addition, the Chinese argue that it is a movement that is in place to undermine the state and thus refuse to classify it as a religion.65   



Art. , Constitution of the People’s Republic of China. Art. , Constitution of the People’s Republic of China. An official website of the Chinese government makes the following veiled reference to the Falun Gong: “… since the s some pernicious organizations have sprung up in certain areas of China, which engage in illegal and even criminal activities under the signboard of religion. Some of the heads of these pseudo-religions distort religious doctrines, create heresies, deceive the masses, refuse to obey the State’s laws and decrees, and incite people

Minority Rights in China: A Legal Overview Chapter II of the Constitution focuses on fundamental rights and, while it lists a whole set of rights, the following are particularly relevant to the protection of minority nationalities, and will be examined in more detail in the penultimate section of this article:66 Article , which sets out the provisions on the freedom of religion: () Citizens of the People’s Republic of China enjoy freedom of religious belief. () No state organ, public organization, or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion. () The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. () Religious bodies and religious affairs are not subject to any foreign domination.67 Article , which identifies the state obligation vis-à-vis education: () Citizens of the People’s Republic of China have the duty as well as the right to receive education.





to overthrow the government. Some pretend to be supernatural beings, and have killed or injured people; others organize promiscuity, or defraud people of money or property. They are a serious danger to the normal life and productive activities of the people. The broad masses of the people and personages of the religious circles detest this phenomenon, and so, in order to safeguard the public interest and the sanctity of the law, and to better protect the people’s right to freedom of religious belief and normal religious activities, China’s judicial organs punish law-breakers and criminals who severely endanger the society and the public interest in accordance with the law. The punishment of criminals by China’s judicial organs in accordance with the law has nothing to do with religious belief. No one in China is punished because of his or her religious belief. But no country that practices the rule of law in the world today would tolerate illegal and criminal activities being carried out under the banner of religion”. China Society for Human Rights Studies, “Legal Protection of the Freedom of Religious Belief ”, at . Also relevant though not a focus of this section are: Fundamental Rights such as Art.  [Citizenship, Equality]; Art.  [Electoral Rights and Equality]; Art.  [Freedom of Speech]; Art.  [Freedom of Speech]; for further restrictive clauses see also Art.  [Interest of the State]; Art.  [National Unity]; Art.  [Obedience to the Constitution]; for rights in the context of due process, see Art.  [Language in Trials]. Also of relevance is Chapter VI of the Constitution which is titled “Self-Governance of National Autonomous Areas”, which is discussed in more detail in the next subsection. Art. , Constitution of the People’s Republic of China.



Joshua Castellino and Elvira Domínguez Redondo () The state promotes the all-round moral, intellectual, and physical development of children and young people.68

2. Autonomy Law The Law of the People’s Republic of China on Regional National Autonomy (Autonomy Law) is a centrepiece of Chinese minority nationality policy.69 The document begins by revealing the concept of regional autonomy as: … Regional national autonomy means that the minority nationalities, under unified state leadership, practise regional autonomy in areas where they live in concentrated communities and set up organs of self-government for the exercise of the power of autonomy. Regional national autonomy embodies the state’s full respect for and guarantee of the right of the minority nationalities to administer their internal affairs and its adherence to the principle of equality, unity and common prosperity for all its nationalities.70

The rationale for this is given as the need to build equality and to combat Han chauvinism towards minority nationalities.71 Such regional autonomy is aimed at areas where minority nationalities live in concentrated communities, whether in regions, prefectures or counties.72 In a bid to terminate any association of ‘autonomy’ with ‘independence’, the law also stresses that the autonomous areas are “integral parts of China”.73 The autonomous government is envisaged as exercising the functions and powers of local organs of state,74 with the stated goal of leading “the people of the various nationalities in a concerted effort to promote socialist modernization”.75 Cognizant of minorities within the autonomous regions, the regional autonomous governments are also required to pay attention to minorities vis-à-vis their linguistic76 and religious rights.77 Chapter II of the document identifies the establishment of such autonomous areas and the structure of their organs of self-government. The location of the area is given in Article :

 

       



Art. , Constitution of the People’s Republic of China. Adopted at the nd Session of the th National People’s Congress, promulgated by Order No.  of the President of the People’s Republic of China on  May , and effective  October . Preamble, Autonomy Law. Preamble, Autonomy Law. Art. , Autonomy Law. For an understanding of the administrative divisions of China see Art. , Constitution of the People’s Republic of China. Art. , Autonomy Law. Art. , Autonomy Law. Art. , Autonomy Law. Art. , Autonomy Law. Art. , Autonomy Law.

Minority Rights in China: A Legal Overview Autonomous areas may be established where one or more minority nationalities live in concentrated communities, in the light of local conditions such as the relationship among the various nationalities and the level of economic development, and with due consideration for historical background. Within a national autonomous area, appropriate autonomous areas or nationality townships may be established where other minority nationalities live in concentrated communities. 78

As emphasised above, crucial conditions need to be met for the setting up of an autonomous area. The basic requirement is for the existence in that area of one or more minority nationalities, living in concentrated communities. It thus follows that a group not recognized as a minority nationality would not have the right to self-government. The final phrase of the opening paragraph is also material, since it gives due consideration to the historical background of the given area, making it difficult for autonomy to be extended to new situations. The flexibility in allowing smaller, subregional units, such as ‘nationality townships’, the right to self-governance forms a remarkable aspect of the law. Chapter II also seeks to identify the means of drawing the boundaries of various areas to be considered autonomous,79 and the accountability of the local government.80 The emphasis on administrative participation by minority nationalities at the executive level is captured in the text of Article :81 The chairman of an autonomous region, the prefect of an autonomous prefecture or the head of an autonomous county shall be a citizen of the nationality exercising regional autonomy in the area concerned. Other posts in the people’s government … should, whenever possible, be assumed by people of the nationality exercising regional autonomy and of other minority nationalities in the area concerned.82

The powers of the local autonomous government are set out in the text of Chapter III of the document, which provides significant legislative powers,83 though maintains accountability to higher national organs. Provision is also made for allowing autonomous governments a qualified right to modify higher legislation to suit local conditions: If a resolution, decision, order or instruction of a state organ at a higher level does not suit the conditions in a national autonomous area, the organ of self-government of the

     

Art. , Autonomy Law (emphasis added). Art. , Autonomy Law. Art. , Autonomy Law. In terms of minority nationality participation at other levels see Art. , Autonomy Law. Art. , Autonomy Law. This strongly framed sentiment is also visible at the highest level of governance of the state; see Art. () Constitution of the People’s Republic of China. Art. , Autonomy Law.



Joshua Castellino and Elvira Domínguez Redondo area may either implement it with certain alterations or cease implementing it after reporting to and receiving the approval of the state organ at a higher level.84

The rest of the document sets out a variety of different provisions, including the facilitation of minority nationality recruitment, an identification of the structure of the legal system operable at autonomous area level,85 the relations among the nationalities in an autonomous area86 and the question of “leadership and assistance from higher state organs”.87 By and large, the law is framed in a positive light, though there are several examples of qualifying statements that sound ominous in the context of the freedom of action of the governments of autonomous areas.88 IV. Specific Measures Guaranteed by Legislation Having examined the general framework for the protection of minorities at national level, this section seeks to continue the description of Chinese law by focusing on specific rights: the right to education, the freedom of religion and other rights such as economic rights in the context of development rights and linguistic rights. The objective of this section is to provide an understanding of existing provisions and to reflect on their operation. A. Education Minority education policy includes: – Schools waiving or lowering tuition fees for minority students facing hardship;89 – Priority of admission in universities and colleges for those of minority origin with work experience;90 – Preparatory classes at colleges and universities for minority students who complete the one-year preparatory programme (who have a good political outlook!);91     









Art. , Autonomy Law. Chapter IV, Autonomy Law. Chapter V, Autonomy Law. Chapter VI, Autonomy Law. Note the use of qualifying terms “in accordance with” (in the context of security) (); “under the guidance of state plans” (in the context of economic development) (, , ); and “in accordance with legal stipulation” (, ). Office of the State Education Commission, Opinion on Supporting the Poor Through Education in the  Impoverished Minority Counties Throughout the Country, Jiaominting [] No. , effective  October . State Ethnic Affairs Commission and the Ministry of Education, Opinion on Accelerating Vocational Education Reform and Development for Minorities and Minority Areas, Minweifa [] No. , effective  July ; and the earlier State Education Commission, Opinion on Strengthening the Vocational Skills Education of Minorities and Minority Areas, Jiaozhi [] No. , effective  April . State Education Commission, Opinion on the Recruitment of Excellent Minority Youth into Colleges and Universities, Jiaominting [] No. , effective  October , also State

Minority Rights in China: A Legal Overview – – –

Threshold admission scores may be lowered for minority students;92 Central government subsidies for development of vocational education for minorities;93 Minority quotas for teacher training schools and medical schools, with the latter in economically developed provinces being paired up with those in minority areas.94

In addition, there are instances where the law guarantees the right to use minority languages in teaching in minority areas95 and the right to have textbooks available in minority languages.96 In terms of religious education, the law is clearly stated and strictly enforced, potentially to the grave detriment of ‘unrecognized’ religious minorities. It prevents the advocacy of religion, or even the carrying out of religious activities to students in elementary schools.97 The ostensible rationale for this is similar to that which motivates laws against proselytization in Europe but it is framed in starker terms in China, since it includes any religious activities advocated to school-going children. There are also regulations that seek to prevent school-age children from entering temples, while simultaneously banning religious organizations from recruiting them for religious study.98 The exception on religious education notwithstanding, many provisions concerning minorities in education arguably match or surpass best practice internationally vis-à-vis policies towards minorities. Unlike in the United States of America, where affirmative action measures seem extremely controversial,99 it seems relatively uncontroversial in

  

   



Education Commission, Opinion on Strengthening Minority Preparatory Classes in Ordinary Colleges and Universities, Jiaominting [] No. , effective  November . State Education Commission, Opinion on the Recruitment of Excellent Minority Youth into Colleges and Universities, Jiaominting [] No. , effective  October . State Education Commission, Opinion on Strengthening the Vocational Skills Education of Minorities and Minority Areas, Jiaozhi [] No. , effective  April . See especially Ministry of Health, State Ethnic Affairs Commission and Ministry of Education, Opinion on Strengthening Medical Education in Minority Areas, effective  May . Art. , Autonomy Law. Art. , Autonomy Law. As visible in the Tibetan Autonomy Region Education Regulations, Section ; Qinghai Education Regulations, Section ; A Ba Education Regulations, Section . See for example, Ganzi Education Regulations, Section , Compulsory Education Regulations of Yushu Tibetan Autonomous Prefecture, effective  November , adopted  May  by the th Session of the th People’s Congress of the Yushu Tibetan Autonomous Prefecture of Qinghai Province; approved  November  by the th Session of the Standing Committee of the th People’s Congress of Qinghai Province. As quoted and discussed in Sorenson and Phillips, Legal Standards abd Autonomy Options for Minorities in China …, , note . See Gertrude Ezorsky, Racism and Justice: The Case for Affirmative Action (Cornell University Press, Ithaca, New York, ). For a discussion of affirmative action in the United States of America, see Robert K. Fullinwider, “Affirmative Action”, in Edward N. Zalta (ed.), The Stanford Encyclopaedia of Philosophy (Spring  edition), at . See also Steven M. Cahn, The Affirmative



Joshua Castellino and Elvira Domínguez Redondo China, at least in a legal context. Despite the progressive portrayal of education towards minorities, however, China continues to be affected by poor implementation of the Opinions that are the basis of the above policies. Instead, the UN Special Rapporteur on Education’s visit to China elicited harsh criticism of the regime:100 China’s law does not yet conform to the international legal framework defining the right to education. Its Constitution defines education as an individual duty, adding a ‘right to receive education’. Freedom to impart education is not recognized, nor is teachers’ freedom of association, and religious education remains prohibited. Therefore, the Special Rapporteur recommends that China’s laws be reviewed using the yardstick of its international human rights obligations so that human and minority rights can be integrated in education policy, law and practice.101

Of course, the prohibition on religious education was central to the criticism of China’s education policy, especially in terms of minorities,102 but the report criticized the emphasis on compulsory education when it denies such religious or linguistic identity, and also criticized the denial of access to migrant workers’ children.103 Making the link between language and religion more explicit, the report quoted CERD Concluding Observations:104 … Although there is an affirmation that minority languages can be taught, there is no similar tolerance for religion: ‘no religion is allowed to disrupt education’ and ’no one is allowed to make use of religion to oppose the socialist system or to undermine the unification of the country’. As the Committee on the Elimination of Racial Discrimination has stated, ‘a distinctive religion is essential to identity … Out of more

 

  



Action Debate (New York, Routledge, nd ed. ). Some American commentators argue that affirmative action could be seen as a price for previous discrimination. See, for example, Howard McGary, “Justice and Reparations”, (-) Philosophical Forum (-), -. This is also reflected in diverse case law such as Plessy v. Ferguson,  US  (); Brown v. Board of Education,  US  (), which overturned the ruling in Plessy v. Fergusson. See also Griggs v. Duke Power Co.,  US  (); DeFunis v. Odegaard,  US  (); Washington v. Davis,  US  (); Regents of the University of California v. Bakke,  US  (); United Steelworkers of America AFL-CIO-CLC v. Weber,  US  (); Fullilove v. Klutznick,  US  (). More recently see Barbara Grutter v. Lee Bollinger et al.,  D.Ct. ;  L.Ed.d  () and Jennifer Gratz and Patrick Hamacher v. Lee Bollinger et al.,  L.Ed. d  (). For a news report on this visit, see “Right to Education: China Fails to Make the Grade”,  October , at . Mission to China, “The Right to Education”, Report Submitted by the Special Rapporteur on Education, Katarina Tomaševski, UN Doc. E/CN.///Add. of  November , para.  (summary). Mission to China, “The Right to Education” …, para. . Mission to China, “The Right to Education”…, para. . CERD Concluding Observations following Consideration of the th, th and th Reports of the People’s Republic of China, UN Doc. CERD/C//Add., para. ,  September .

Minority Rights in China: A Legal Overview than  languages spoken in China, % are endangered’, reinforcing the necessity of remoulding education with a view to preserving cultural diversity. An education that would affirm minority rights necessitates full recognition by the majority of the worth of minority languages and religions in all facets of life. Otherwise education is seen as assimilationist and, hence, not compatible with China’s human rights obligations.105

B. Religion Despite the restriction on religious education, provisions in law seem to suggest that minorities are guaranteed the same religious freedom as that enjoyed by the Han. There are several Chinese government pronouncements such as this: China is home to many religions, mainly Buddhism, Taoism, Islam and Christianity. Most people belonging to ethnic minorities in China hold religious beliefs. In the case of certain ethnic groups religions are followed on a mass scale, for instance the Tibetans have Tibetan Buddhism as their traditional religion. In accordance with the Constitution’s provisions on freedom of religious belief of citizens, the Chinese government has formulated specific policies to ensure respect for and safeguard freedom of religious belief for ethnic minorities and guarantee all normal religious activities of ethnic minority citizens. In China, all normal religious activities, such as those of Tibetan Buddhism, which is followed by the Tibetan, Mongolian, Tu, Yugur and Moinba ethnic groups, Islam, followed by the Hui, Uygur, Kazak, Dongxiang, Salar, Bonan, Kirgiz, Tajik, Ozbek and Tatar ethnic groups, and Christianity, followed by some people of the Miao and Yao ethnic groups, are all protected by law. To date, there are more than , mosques in China, of which , are in the Xinjiang Uygur Autonomous Region. In Tibet there are over , places for Tibetan-Buddhism activities.106

The State Ethnic Affairs Commission also ostensibly plays a role safeguarding religious rights by requiring the observance of minority holidays, the following of dietary restrictions where appropriate, and in facilitating religious practices.107 The main clawback on religion seems to stem directly from the question of public security and stability thus, “no state agency, social group, or individual may force any to adopt beliefs or disavow any religious beliefs and may not discriminate against citizens who have religious beliefs and those who do not”.108 When read in the context of the strong emphasis on stability and security, many of China’s relatively progressive laws can be easily emasculated. Sorenson highlights the strong provision of a public order element in Chinese laws:

 Mission to China, “The Right to Education” …, para. .  Information Office of the State Council of the People’s Republic of China, Government White Paper National Minorities Policy and its Practice in China (Beijing, ), Chapter II.  Sorenson and Phillips, Legal Standards & Autonomy Options for Minorities in China …, at .  Ibid., at . This is also backed by the criminalizing of any such attempt by punishment under Art.  of the Criminal Law of the People’s Republic of China.



Joshua Castellino and Elvira Domínguez Redondo All religious groups and places of religious activity and individuals must accept the leadership of the Communist Party of China and the government and support the socialist system. Religion or places of religious activity may not be used to incite trouble, create havoc, carry out criminal activities such as separatism, destroy the unity of ethnic groups, or disturb social and public order.109

Thus, while putting in place special measures for the enhancement of religious rights, such as in facilitating pilgrimages to Mecca for its Muslim population, facilitating the opening of mosques and waiving one-child policy rules based on religion and custom,110 any repression is justified by recourse to stability and the ‘public order’ element. Thus, the same site that reports the above, states: The Chinese government resolutely opposes attempts to split the country along ethnic lines, and any use of religious fanaticism to divide the people, split the country or harm the unity among all ethnic groups or engage in illegal activities and terrorist actions under the signboard of religion. Meanwhile, the Chinese government firmly upholds national unity and social stability in areas where ethnic minorities live in compact communities, and safeguards the normal religious activities of the ethnicminority believers.111

One way in which the government seeks to regulate religious activity is by requiring the registration of all associations. Thus, religious organizations and sites for religious activities must register with the government and this registration is denied if some of the conditions set down are not met. Among these: a permanent site for meetings; a name for the religious association; a record of regular attendance; a clearly visible management structure for the organisation; and clergymen/women with appropriate qualifications.112 While admitting that religious persecution took place during the devastation wreaked upon Chinese society and morale by the Cultural Revolution, government sources stress the rebuilding effort, citing a variety of evidence: … in the course of correcting the errors of the ‘cultural revolution’ governments at all levels made great efforts to revive and implement the policy of freedom of religious belief, redressed the unjust, false or wrong cases imposed on religious personages, and reopened sites for religious activities. Since the s, approximately  Protestant  Ibid.  See, for example, Regulations of Gansu Province on Population and Family Planning, adopted  November , th Session of the Standing Committee of the th NPC, Gansu province, amended  September , further amended on  September .  China Society for Human Rights, “Protection of the Right to Freedom of Religious Belief for Ethnic Minorities”, at .  For more information on this, see China Society for Human Rights, “Judicial and Administrative Guarantees and Supervision of Freedom of Religions”, at .



Minority Rights in China: A Legal Overview churches have been reopened or rebuilt each year in China. By the end of  more than  million copies of the Bible had been printed, with special tax exemption treatment speeding their publication. In addition, more than eight million copies of a hymn book published by the China Christian Council in  have been distributed. From  to , a total of  Catholic bishops were selected and ordained by the Chinese Catholic church itself. In the past dozen years more than  young Catholic priests have been trained or consecrated by Chinese Catholicism. More than , Protestants attend the Sunday service at Chongwenmen church in Beijing each week. The Beijing Nantang Catholic Cathedral observes Mass four times each week with an attendance of more than ,. Of these, one Mass is held in English specially for foreigners in Beijing.113

C. Other Specific Rights Chinese legal strictures cover several other aspects of minority rights that constraints of space will not allow proper focus upon.114 However, it is worth briefly highlighting two more areas that cast light on the legislative design that exists for the protection of minority nationalities in China. 1. Economic Rights and the Right to Development The Government of China constantly emphasises the progress it has made in terms of the economy. This is backed up in more recent years by analysts who have seen a dramatic improvement in the living standards in China as its economy has grown dramatically.115 It is worth highlighting that China appears to have made the transition from a planned to a market-driven economy without the same level of difficulty that seems to affect other states seeking to achieve this difficult transition. It can also be argued that it is this spur to be more connected in global trade terms that is behind much of China’s new attempt to create a legal regime and, accompanying it, to create a human rights regime recognizable at international level. This drive towards the economy and development is also reflected in government statements vis-à-vis minorities. As many as  articles in the Autonomy Law specify the duties of the state organs at higher levels to assist ethnic autonomous areas with their development.116 Efforts by the state to increase its investments in minority areas are also discernable, clearly motivated by the resources that exist in some of these areas, 

China Society for Human Rights, “The Present Conditions of Religion in China”, at .  For several of these see Joshua Castellino and Elvira Domínguez Redondo, Minority Rights in Asia (Oxford University Press, Oxford, ), -.  See “The Giant Stirs” and “The Greatest Leap Forward”, both in The Economist (print edition),  April ; for a more thorough, albeit older, analysis, see Xia Li Lollar, China’s Transition Toward a Market Economy, Civil Society & Democracy (Wyndham Hall Press, Bristol, ). For an analysis of the change in civil society see Gordon White, Jude Howell and Shang Ziaoyuan, In Search of Civil Society: Market Reform and Social Change in Contemporary China (Clarendon Press, Oxford, ).  See, specifically, Arts. , ,  and , Autonomy Law.



Joshua Castellino and Elvira Domínguez Redondo but nonetheless with the potential to transform minority areas, though it is too early to say whether this will benefit minorities in a fair proportion. What is clear is that laws stipulate that the state shall: – Formulate preferential policies to support the development of foreign economic and trade activities in autonomous areas;117 – Formulate preferential policies to attract and encourage foreign investment;118 – Improve conditions and infrastructure for agriculture, animal husbandry, etc.;119 – Consider the interests of autonomous areas in developing natural resources and carrying out construction in autonomous areas;120 – Facilitate autonomous agencies’ management and protection of natural resources in autonomous areas;121 – Subsidize and provide assistance in minority economic activity.122 The Ministry of Labour has also sought to put preferential policies in place for employment, including lowering the minimum standard of recruitment, prioritizing minority employment (rebus sic stantibus), encouraging minority students to sit professional exams, creating vocational training schools123 and modifying entry levels for minority candidates.124 There are also regional examples of specific provisions for development that ostensibly respect minority cultures and traditions.125

     

Art. , Autonomy Law. Art. , Autonomy Law. Art. , Autonomy Law. Art. , Autonomy Law. Ibid. State Ethnic Affairs Commission and Ministry of Finance, Provisions on the Management of Subsidies for Minority Areas, issued  July . Includes provisions for subsidies from the national budget to meet special expenses of minorities for promoting production, culture, education, medical care and health.  See State Ethnic Affairs Commission and the Ministry of Education, Opinion on Accelerating Vocational Education Reform and Development for Minorities and Minority Areas, Minweifa [] No. , effective  July ; and the earlier State Education Commission, Opinion on Strengthening the Vocational Skills Education of Minorities and Minority Areas, Jiaozhi [] No. , effective  April .  See Letter of the General Office of the Ministry of Labour on Giving Special Consideration to Minority Areas in Respect of Labour Matters, Laobantinghanzi [] No. ,  April .  For instance, the regulations of Tianzhu County in Gansu Province require that mining programmes must implement policies relating to ethnic groups as well as laws relating to workers of an ethnic group and are to respect the minorities’ traditions and religion, and safeguard and develop the unity of ethnic groups. See Regulations of Tianzhu Tibetan Autonomous County of Gansu Province on the Management of Mineral Resources, effective  March ; adopted  March , by the nd Session of the th People’s Congress of Tianzhu Tibetan Autonomous County, approved  January , as quoted in Sorenson and Phillips, Legal Standards & Autonomy Options for Minorities in China …, at , footnote .



Minority Rights in China: A Legal Overview 2. Language While language is only one aspect of culture,126 it remains a good indicator of specific policy initiatives towards the protection of minorities. The restriction in terms of religious education and its impact on linguistics notwithstanding, there are several provisions that seek to address the issue of linguistic rights, starting with Article  of the Constitution.127 The mainstay of the legal protection and promotion of linguistic rights is contained in the Law of the People’s Republic of China on the Commonly Used Oral and Written Language of the State.128 Constraint of space will not permit an analysis of this law here but, in addition to it, there are also other facets of law that highlight the importance of the linguistic rights of minorities, including: – Freedom to use and develop oral and written languages;129 – Use of local language by autonomous agencies in performance of duties;130 – Requirement of Han majority to learn minority languages;131 – Use of minority language in appropriate teaching settings;132 – Encouragement of publishing in minority languages;133 – Use of minority languages in conducting litigation.134

 Examples of laws that seek to protect culture are: Notice of the Office of the State Council Transmitting the Request of the State Ethnic Affairs Commission on Saving and Organizing Ancient Minority Books ( April ); Ministry of Civil Affairs, State Ethnic Affairs Commission and Ministry of Health, Explanation Regarding the Provisions of the Funeral Management Regulations of the State Council Relating to Respect of Minority Funeral Traditions, Minshifa [] No. , effective  June ; Regulations of Qinghai Province on the Development of Chinese, Tibetan and Mongolian Medicine, effective  June , adopted  March , th Session of the Standing Committee of the th NPC of Qinghai Province; and the Regulation exempting a minority nationality from the one-child policy, already mentioned above, i.e. Regulations of Gansu Province on Population and Family Planning, adopted  November , th Session of the Standing Committee of the th NPC, Gansu Province, amended  September , further amended  September .  Art. () of the Constitution of the People’s Republic of China.  Effective  January , adopted  October  by the th Session of the Standing Committee of the th NPC, published  October  by Decree No.  of the People’s Republic of China.  Art. , Constitution of the People’s Republic of China.  Art. , Constitution of the People’s Republic of China.  As given in specific legislation in autonomy areas. See, for example, Hainan Autonomy Regulations, Section .  See State Education Commission, Opinion on Strengthening the Vocational Skills Education of Minorities and Minority Areas, Jiaozhi [] No. , effective  April ); and Ministry of Health, State Ethnic Affairs Commission and Ministry of Education, Opinion on Strengthening Medical Education in Minority Areas, effective  May .  See State Council, Report of the State Ethnic Affairs Commission and the State Publishing Bureau on Strengthening the Publication of Books in Minority Languages (transmitted on  March ).  Art. , Constitution of the People’s Republic of China.



Joshua Castellino and Elvira Domínguez Redondo It is clear that, on a purely legislative level, the law touches on aspects of minority rights protection that approach international standards, and possibly surpass them on many aspects. Yet, for a legal regime to be truly effective in guaranteeing promotion and protection, this is merely one of the necessary ingredients. The final section will provide a commentary on the challenges of minority protection in China. V. Challenges to Minority Rights Protection A. Legislative Design As has been seen from the above, the quality of Chinese law on the subject of the protection and promotion of minority nationality rights is of a high order. Government White Papers consistently indicate a belief in the need for the protection and promotion of ‘minority nationalities’. The edifice of law that has been built traces back to constitutional guarantees and, arguably has its genesis in the Chinese reading of the significance of the events of  and the ‘emancipation’ of the masses by the actions of the Chinese Communist Party. With the growing emphasis on the structuring of a legal regime in China, this rhetoric has been turned into law, seeking to protect and promote various aspects of minority protection. Thus, the Constitution contains guarantees of equality backed by the criminalization of discrimination against minority nationalities by any arm of the administration. In many ways, it could be argued that the entire edifice of protection for minority nationalities is built on the foundation of the sentiment expressed in Article  (which stresses the recognition of the importance of China’s diverse nationalities contained in the preamble) and Article  (which stresses the need for state stability). There remains a tension between the promotion and protection of minority nationalities on the one hand and the duty of those minority nationalities to be ‘loyal’ and not to act in a manner that threatens national integrity. A wide variety of different legal regimes seeking to promote minority rights have been discussed above. By far the central feature of the system, however, is the Autonomy Law discussed in section III of this article. As stated in a Government White Paper: Regional autonomy for ethnic minorities means that under the unified leadership of the state, regional autonomy is practiced in areas where people of ethnic minorities live in concentrated communities; in these areas organs of self-government are established for the exercise of autonomy and for people of ethnic minorities to become masters of their own areas and manage the internal affairs of their own regions.135

While the lynchpin of Chinese minority nationality policy, this is supplemented by affirmative action measures for dispersed minorities. These range from economic and social development mechanisms and programmes, linguistic protection schemes and guarantees of political participation such as that indicated in Article () of

 Information Office of the State Council of the People’s Republic of China, Government White Paper National Minorities Policy and its Practice in China (Beijing, ), Chapter III.



Minority Rights in China: A Legal Overview the Constitution. Thus, it could be argued that, on paper at least, Chinese law is well endowed to protect and to promote the rights of minority nationalities.136 B. Implementation of Laws Despite this relative sophistication in the legal strictures created for the protection of minority nationalities, it could hardly be said that the rights of China’s minorities are well-respected. The three issues raised in much reportage outside China consistently point to violations in the rights of three particular groups: the rights of Tibetan peoples; the rights of the Uighur nationality who live in Xinjiang province; and the much publicized violations of the rights of people who follow the Falun Gong. Through this lens, it is easy to view the landscape of Chinese minority protection as inadequate. In terms of Tibet, there is a range of literature that suggests that the Chinese government has been responsible for the slow ebb of destruction of that society. A more recent authoritative study that has sought to assess the situation against existing law seems to suggest that the tide is turning as greater dialogue has been possible between the Chinese government and the Tibetans.137 Of course, Tibet is one of the six regions of China that have autonomy. Xinjiang province is another, but the complaints of violation in that area seem to indicate that it is not functioning as it should either. According to one report: The ongoing crackdown on the so-called ‘three evil forces’ of ‘separatists, terrorists and religious extremists’ is continuing to result in serious and widespread human rights violations directed against the Uighur community in the XUAR. The human rights situation in the region has deteriorated further following the events of  September  as China uses the international ‘war on terror’ as a pretext to justify its policies of repression in the region.138

The report also suggests that the Chinese government has sought to ban particular parties, labelling them ‘terrorists’. There are apparently some links between some of the groups and some Uighurs who fought and were captured fighting the jihadi wars in Afghanistan. In addition, there are some reports of Uighur involvement in Iraq and Chechnya – and this has apparently been seized upon by the Chinese government as creating a congruence of the ‘three evil forces’ vis-à-vis the Uighurs in Xinjiang. With respect to the Falun Gong, the law of minority nationalities seems unable to help. As will be discussed below, this is one of the legislative weaknesses that need to be highlighted. The Chinese stance on minority nationalities is very clear: China has  nationalities,  of whom, being minorities, are entitled to special protection from the state. The Falun Gong, not being a ‘national’ or ‘ethnic grouping’, do not fall within this ambit and therefore are not entitled to ‘minority protection’. This does not mean that  For the political processes incumbent in law-making, see Murray Scott Tanner, The Politics of Lawmaking in China (Clarendon Press, Oxford, ).  Sorenson and Phillips, Legal Standards and Autonomy Options for Minorities in China …, at -.  Amnesty International, Uighurs Fleeing Persecution as China Wages its ‘War on Terror’ (International Secretariat, London, July ), AI Index: ASA //.



Joshua Castellino and Elvira Domínguez Redondo the rights of the members of this group can be violated, just that they fall outside the ambit of minority rights law, as does the situation of migrant workers. To point to the violation of the rights of members of this group as evidence of a weak minority rights regime is the equivalent of pointing to the violation of gender identity-based rights to draw the same conclusion. The oft-cited situations of the violation of minority rights often obscure the fact that even with the laws that exist, China’s  minority nationalities very often do not receive adequate protection and promotion of their rights. The most obvious reason for this is the fact that while laws may be on the books, their record of implementation remains poor. Some of the factors for this are examined below: they highlight more than ever that much more than good law is required to effectively protect the rights of minorities. C. Obstacles to Minority Rights Protection At least six factors arguably affect the quality of minority rights protection, and we conclude by focusing on each of these. 1. Attitude Towards Human Rights Standards The protection for minority rights in a state is arguably a good barometer for the effectiveness of a state’s overall health in terms of human rights norms. It is clear that there are severe difficulties with China’s regime for the protection of human rights. Some of these are based on ideological difficulties, others due to the sheer difficulty of creating a regime based on these values in a country the size of China. The scale of the problem is exacerbated by the fact that China is not yet a wealthy state and its infrastructure needs significant investment before it can progress to being a state in which the economic and social rights of all can be respected. This aspect is important, since it lies at the centre of the stated objectives of the Chinese government. While the change in attitude towards human rights is to be heralded, there remains a long way to go before it will yield a regime through which every individual’s inherent dignity and worth are respected. As highlighted earlier though, the subtle change of position in the Chinese government’s attitude augurs well for the future of human rights in that setting. And with the growth in the value of human rights, some of the obstacles identified below vis-àvis their protection of minority rights will, it is hoped, be overcome. 2. Identification of ‘Nationalities’ The identification of ‘nationalities’ is likely to remain a controversial issue. It would need an anthropologist or an ethnicist to determine which of the huge variety of groups in China merit ‘nationality’ status. It is not the intention here to challenge the wisdom that has yielded the decision to recognize the  nationalities, though it would be useful to see the basis on which this was done and perhaps the basis on which other groups that claim nationality were rejected. It is clear that a significant discrepancy between the Chinese regime protecting ‘minority nationalities’ and the international regime seeking to protect ‘minorities’ – national or other – is the fact that the former is much narrower than the latter. Thus, other groups who fall short of being ‘nation’, but who are nonetheless minorities – identified along less onerous criteria – cannot benefit from the 

Minority Rights in China: A Legal Overview protection afforded by the minority rights regime, even though their right to maintain their culture and traditions may be as valid as those considered to fall within ‘nationality’ status. There have been several attempts to try and include within ‘minorities’, groups that perhaps do not fit in easily. In addition, the discussion on subjective and objective criteria for identifying minorities has not been concluded authoritatively. It is clear that the Chinese regime for the protection of minority nationalities is in line with traditional regimes for minority protection: an extension of protection and, where necessary, special measures to promote equality with the majority, while not compromising ‘national’ group identity.139 However, it is also clear that the modern human rights agenda deems such a high threshold for minority protection as not in keeping with the goals of ensuring human rights. While there are some states that consider gender and ability differentials for the status of minorities, it would also be true to state that the other extreme – of only considering those with ‘nationality’ to be minorities – is rare. If China, with its great size and population, could be considered akin to a continent (it has a greater population than every other continent except Asia), then the extension of a minority rights regime to only those with ‘nationality’ status, would no more protect ‘minority rights’ than would a federal Europe that recognized only its component nationalities but did not feel that it needed to create special measures and protection for subnational groups. 3. Goal of Stability One issue that clearly affects the way the current minority rights regime operates is the overwhelming emphasis placed on state security. Part of this can be explained by Chinese history and past uprisings that have threatened the integrity of the Chinese nation. Add to this a genuine distrust of Western policies (rather unsurprising in the light of historical incidents such as the opium wars and the work of missionaries in the state), and the goal of stability is one that is easy to understand, if not to accept. States warily guard their domestic realms and there are several modern instances of human rights standards being relaxed in the face of ‘threats to national security’ – with government themselves the arbiters of the nature and scope of that threat. Nonetheless, it is equally clear that a strict emphasis on state stability ahead of every other notion has an adverse impact on human rights and the rigid ethos indicated by Article  of the Chinese Constitution clearly suggests that this remains a significant obstacle in how the minority regime is likely to be interpreted. 4. Emphasis on Development There is a potential threat to minority nationalities, as the lands they occupy come under increasing attention from global marketplaces. China has adopted a ‘Go-West’ strategy, in which it seeks to lay emphasis on the development of its western areas, and it advances this as a good example of its prioritization of development and its potential benefit to the large numbers of minorities that live in these areas. Without questioning the veracity of this, the potential threat in the future needs to be highlighted. The ques For an early history of minority rights regimes, see Thornberry, International Law …, .



Joshua Castellino and Elvira Domínguez Redondo tion of land rights and, more specifically, rights to the resources that exist in land has been one that has been dealt with in several national jurisdictions140 and has also come before the Human Rights Committee.141 The challenge of creating a regime that gives the (usually indigenous) people living on resource-rich lands effective rights to their resources has not been one that has been successfully overcome globally, and this is a very specific issue that the Chinese government and international society at large needs to be mindful of in the future.142 5. ‘War Against Terror’ The so-called ‘war against terror’ has been a potential weapon against vulnerable groups in society. One report suggests that the war against terror has been used against Uighurs in Xinjiang province.143 Once again, without agreeing or disagreeing with this report, it needs stating that in a vast country such as China, nationalities that live on the fringes sharing kinship across international borders are likely to be targeted if the state across that border is suspected of engaging in activities that are considered to destabilize the state. A large number of China’s  national minorities fall into this category and it could be argued that several of them, especially the Muslim nationalities in the western part of China, could see their rights eroded by so-called ‘wars against terror’. China is not unique in facing this particular situation and international society at large needs to reiterate, in the strongest possible terms, that the ‘war against terror’ is against human rights principles and remains a potential threat to values of human rights that have been meticulously built over the last half century. 6. Lack of Training, Knowledge The final obstacle that needs to be highlighted in the context of Chinese minority protection brings us back to the question of implementation. While some might argue that the poor record of implementation is due to a lack of government will, it could be equally true that the poor implementation of laws is owed to a lack of training, knowledge and understanding of the laws among the administrative cadres. Thus, the sentiment expressed by Jones that, historically, ‘law’, whatever its manifestation in China,  See Siegfried Wiessner, “Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis”,  Harvard Human Rights Journal (), -; Joshua Castellino and Steve Allen, Title to Territory in International Law: A Temporal Analysis (Ashgate, Dartmouth, ), special contribution by Jérémie Gilbert, “The Treatment of Territory of Indigenous Peoples”, at -.  For an authoritative analysis of the host of cases on this issue, see Martin Scheinin, “The Right to Self-Determination under the Covenant on Civil and Political Rights”, in Martin Scheinin and Pekka Aikio (eds.), Operationalizing the Right of Indigenous Peoples to Self-Determination (Åbo Akademi, Åbo, ), -; and Scheinin, “Indigenous Peoples’ Rights under the International Covenant on Civil and Political Rights”, in Joshua Castellino and Niamh Walsh (eds.), International Law and Indigenous Peoples (Martinus Nijhoff, Leiden, Raoul Wallenberg Institute Human Rights Library, Volume , ), .  For case studies of this issue in several different states, see Castellino and Walsh, International Law and Indigenous Peoples … .  Amnesty International, Uighurs Fleeing Persecution as China wages its ‘War on Terror’ … .



Minority Rights in China: A Legal Overview did not impact the lives of the peasants much,144 remains true to this day. No matter how sophisticated the standards are that exist in the archives of the capital, unless they are put to use, unless the administrative cadres understand them and are willing to use them, unless there is knowledge of these standards among those they are created to protect, and unless they can be challenged with confidence, they remain mere standards. With regard to China and minority rights, it can be said that the standards, albeit with weaknesses, are in place. The real challenge that will guarantee the effective protection and promotion of the rights of minorities is the successful implementation of these standards, which would be impossible without further wide-ranging discussions within society. It remains early in the process for such a dramatic change to come about. To most objective observers it would appear that China is slowly evolving towards a society in which rights can be protected. The fact that this change is not occurring fast enough is a matter of frustration, but calls for a period of constructive cooperation with the Chinese government, rather than an antagonistic stance such as adopted in the past, which would work against the progress made thus far.

 Jones, “Trying to Understand the Current Chinese Legal System” …, at -.



Arshi Khan *

Situating Federalism, Minorities and Communalism in the Indian Polity

I. Introduction The diversity of India’s social realities and historical identities, as well as its centuries of experience with social cohabitation, has brought about an evolving recognition of the political necessity of pluralism and multiculturalism in national and subnational governance. Diversity is well-recognized in India’s Constitution, in relation to both national minorities living in traditional areas and those who are dispersed in areas dominated by the majority religious community. Despite adhering to the principle of ‘common citizenship’, the concept of group cultural rights is also embedded in the  constitution. On the other hand, India’s territorial vastness and regional variations have been dealt with by federal political arrangements, both symmetrical and asymmetrical, for the states of the Indian Union on the basis of cultural, linguistic and ethnic factors. Besides accommodating various rights under federal arrangements for  states and the seven Union territories, the Indian Constitution and several later statutory developments envisaged compensatory measures for economically weak, historically discriminated people, as well as for alienated tribal populations of the country, in terms of reserving seats in elected bodies, employment, job promotions and, in many areas, community development schemes. India is the world’s largest parliamentary democracy, based on regular elections in three arenas of governance at the Union, state and local levels. Its parliament consists of the Council of States ( members) and the House of People ( members). Besides the constitutional merits of federalism and rights for minorities, there are also many institutional and operational dynamics within the Indian polity which reflect centralizing tendencies on the part of the Union/federal government towards the state governments, particularly in the sphere of the encroachment of their legislative, administrative and financial rights and opportunities. The constitutional schema of the distribution of powers (competencies) under the seventh schedule of the constitution – namely the Union list, state list and the concurrent list (the latter containing items on which both Union and state have powers) – are clearly tilted more in favour of the Union government. Moreover, the dominance of the national political parties over the politics of the majority of the states and the delay in the rise of regional political parties and coalition governments at the Union level *

Senior Lecturer, Centre for Federal Studies, Hamdard University, New Delhi.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 85-115. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Arshi Khan also strengthened the ‘centrality’ of the Union government vis-à-vis states. There is a voluminous list of complaints and grievances that have been issued by the states and regional leaders since the s against the authoritarian tendency of the Union, which is now being reduced by the consolidation of the multi-party system and an emerging tradition of coalition government that has developed following the ninth general elections of . The framers of the Indian Constitution followed their guiding principles of recognizing autonomy and special rights for some states and differential rights for some of the communities. In other words, the Union government has many constitutional prerogatives to both interact with and intervene in the sovereign domains of the state governments in both normal and emergency situations. The constitution is designed so that both the national and subnational tiers of governments can perform successfully. However, the strength of the federal government vis-à-vis the subnational units – envisaged as a safeguard against secessionism – also allows the ruling central parties to dispense with the principles and purpose of federalism merely on the basis of political manipulations. There are many instances of politically motivated interventions and noninterventions of the Union/federal government into the affairs of the states. For example, the Union has imposed ‘President’s Rule’ (seizing the governance powers of a state) several times under Article  of the constitution, citing the failure of the affected states to act in accordance with the provisions of the constitution. The constitution has provided strong arms to the Union to take over any of the states on the pretext of national unity, sans the investigative oversight of the judiciary. Similarly, there have also been cases of inaction on the part of the Union where it perhaps should have intervened. The Union government did not intervene in Gujarat for failing to abet genocide against a particular community in early . In other words, the constitutional arrangement of competencies assigned to the Union is such that it is capable of both promoting and eroding the ‘trust’ of the state governments and the people. At present, many issues – ranging from the drawing of state borders or the creation of new states to the protection of dispersed and national minorities – largely depend upon the ‘interest’ and ‘desire’ of the Union for their resolution. II. Federal Attributes India is basically a federal society with the established attributes of cultural pluralism – autonomy, respect and identity. The diversities in the country are pre-political and have maintained their autonomous characters, traditions, family affairs, personal laws, lifestyles and many other cultural and social distinctions in which the government has only rarely intervened. Different sections and communities of Indian society have a history of fierce competition, cooperation and coordination. Despite the legacy of caste and communal conflicts in some parts of the country, communities have learnt to live in harmony based on mutual tolerance and accommodation. The two major communities (Hindu and Muslim) have remained the most active players in the inter-communal relationship. Six other smaller religious communities (Christians, Sikhs, Buddhists, Jains, Zoroastrians and Jews) have all maintained their cultural distinctiveness. One of the unique merits of Indian social federalism is that smaller religious communities have so far been prosperous, autonomous and represented in various sectors, both those con

Situating Federalism, Minorities and Communalism in the Indian Polity trolled by the government and in the corporate world. It is important to recall the view of the late Rasheeduddin Khan, one of the greatest advocates of federalism in India: India’s polity is federal twice over. Political federation of the union type has been superimposed by the constitution over a classic socio-cultural federalism whose survival and continuity in the duration of time, continental dimension, social complexity, and cultural diversities which makes it the world’s oldest, largest and most persistent plural society, the like of which human history has never known.1

India is not only the world’s largest (i.e. populous) but also probably the most complex (i.e., diverse) federal democracy. While its democratic structure protects its political unity, its federal form guarantees the harmonious coexistence of non-political diversities. Indeed, none of the federal polities, old or new, bourgeois or socialist – Imperial Germany, the Austro-Hungarian Empire, Switzerland, the United States, Canada, Nigeria, Malaysia, Yugoslavia or the Soviet Union – are known to encompass such a wide range of discrete subnational identities and that too with a distinct historical past, as is the case with India. Owing to the background of social federalism in Indian history, pre-modern rulers (until the takeover by the British colonialists in the eighteenth century) governed the vast proportion of people by employing schemes for autonomy and rendering protection for group rights. The British also recognized the need to respect different cultural identities, despite being in favour of centralizing the administration. They held some provinces directly under their full control while allowing hundreds of princely states to function in various provinces. Similarly, they also extended vast autonomy to the tribal populations and their territories in northeast India, in addition to other parts of the country. There are, at present, seven states in northeast India. During the  years of British rule that preceded the early phase of India’s independence, the northeast region was represented by the single province of Greater Assam. At present, there are demands for Greater Nagaland to become an independent state and for the creation of smaller states out of the current state of Assam. This northeast region is predominantly a tribal territory, as  of the  tribal categories of India are found here.2 The British colonial rulers’ policy of noninterference vis-à-vis the tribal people was manifested through models such as ‘non-regulated areas’, ‘backward tracts’ and ‘excluded and partially excluded areas’ between  and .3 The British rulers had also extended powers of self-government to Panchayats (traditional village governance) at the lowest level in rural areas and to municipalities in urban areas under various local designations such as the Bengal Local Self-Government Act , the Bengal Village Self-Government Act  and the Bengal Municipal Act . Despite their colonial approach, the British established several models of self-governance and provisions for the participation of Indians in the governance of the country. Since , they have come up with various Acts and entered into the challenging era   

Rasheeduddin Khan, Federal India: A Design for Change (Vikas, New Delhi, ), . B. G. Verghese, India’s North-East Resurgent: Ethnicity, Insurgency, Governance, Development (Konark, New Delhi, ), . K. P. S. Gill and Ajay Sahni (eds.), Faultlines (Bulwark, New Delhi, Vol. , ).

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Arshi Khan of reform of federal management through the Morley-Minto Reforms of , the Montagu-Chelmsford Report and Government of India Act  and the Act of .4 In the last phase of its colonial rule, the British drafted the Government of India Act , which became the bedrock of the present Indian Constitution of . Despite borrowing from the constitutions of Canada, Ireland and the United States, India’s Constitution is deeply rooted in the Government of India Act . However, the Indian Constitution also departed from some of the federal arrangements made by the British for the autonomy of the provinces and minorities. The  Act was based on a series of consultations and inquiries about the demands and choices of different communities in the country. This Act had introduced provincial autonomy and political safeguards for minorities in addition to granting cultural, religious, linguistic and educational rights. It is important to mention that both national independence and the division of British India had dual effects, which appeared simultaneously in mid-August . The positive effects of national independence on the mainstream Indian political leaders resulted in their adherence to federalism and consensus building at some stages in the Constituent Assembly of India and fostered a concern for the cultural and religious rights of minorities. On the other hand, the negative impact on the framers of the Constitution of the division of British India into India and Pakistan surfaced in their determination to create a very strong federal government vis-à-vis the constituent units. Despite the partition, the territorially-organized national minorities in the states of Jammu and Kashmir and the northeast chose not to opt for partition. Soon after independence, Indian leaders were concerned with seeking the territorial unity of the country by integrating all the provinces into the states and territories of the Indian Union. They achieved this objective by persuasive consensus-building methods, financial incentives/compensations to the Princes, affording special rights to some states and using force in Hyderabad and Junagarh. It was basically the accommodative thinking on the part of the nation–builders, who preferred federal governance in the country. As a result, the Indian Constitution became the world’s longest constitution, containing  Articles and  schedules.5 Some of the outstanding features of the Indian Constitution are the ‘Special Provisions’ that aim to manage the regional problems in the state of Jammu and Kashmir (under Article ) and the states of Nagaland, Assam, Manipur, Andhra Pradesh, Maharashtra, Gujarat, Sikkim and Mizoram, amongst others (under Articles -I).6 Owing to what was considered at the time to be the ‘backwardness’ of the people, the constitution makes special provisions under Article  for the administration of certain areas called ‘scheduled areas’ in states other than Assam, Meghalaya, Tripura and Mizoram, which broadly authorize the Union and its representative, the governor, to play a decisive role under the fifth and sixth schedules of the constitution. The governors of the states having ‘scheduled areas’ have to submit 

 



Reginald Coupland, The Indian Problem -:The Report on the Constitutional Problem of India (Oxford University Press, Mumbai, ), , ; Arthur Berriedale Keith, A Constitutional History of India - (Methuen and Co., London, ), -. Durga Das Basu, Introduction to the Constitution of India (Prentice Hall of India, New Delhi, th ed., ), . Ibid., -.

Situating Federalism, Minorities and Communalism in the Indian Polity reports regarding the administration of such areas to the president annually or whenever so required by the president. Under the fifth schedule, ‘Tribal Advisory Councils’ are to be constituted to provide advice regarding the wellbeing of the scheduled tribes in the states. The governor is authorized to direct the state government that any particular act of parliament or of the legislature of the state shall not apply to a scheduled area or shall only apply subject to certain exceptions or modifications. The governor of the state is also authorized to make regulations to prohibit or restrict the transfer of land by, or among members of, the scheduled tribes, regulate the allotment of land and the business of moneylending. However, such regulations require the assent of the president. There are nine tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram mentioned under paragraph  of the sixth schedule of the Constitution, which have to be administered as autonomous districts. These are provisions for the creation of District Councils and Regional Councils for the exercise of certain legislative and judicial functions. They are primarily representative bodies with law-making powers. These councils also possess judicial power, civil and criminal, subject to the jurisdiction of the State High Court as the governor may from time to time specify.7 There are clearly defined and extensively codified relations between the Federation/ Union and the states/units in legislative, administrative and financial areas other than the provisions for the rights and responsibilities of the state governments and administration of Union territories. The seventh schedule has three long lists of powers to be distributed between the Union and the states. The Union list is the longest with  items; the state list containing  items and the concurrent list with  items. Following the British pattern of devolution of powers to the states in the context of local selfgovernment, the Union added  Articles in the rd Constitutional Amendment Act (Articles , A-O) and the th Amendment (P-NG) under the new Part IX of the constitution.8 Under this third tier of Indian federal polity, certain participatory arrangements were made for women (/ of the total seats) and the weaker sections of society – mainly scheduled castes and scheduled tribes. Elected seats were reserved for them on a proportional basis. There are provisions empowering the local governments to impose taxes and collect duties and tolls. There are also provisions for Panchayat finance commissions and a state election commission for holding Panchayat elections. Similar arrangements were made at the municipal level. There are also constitutional mechanisms for coordination between the governing entities. There is explicit provision for setting up intergovernmental agencies under Articles  and . Article  provides for setting up an Inter-state Council (and other such councils as may be from time to time required). Article  empowers the Union parliament to appoint authorities (including statutory bodies) to look into various dimensions of interstate trade and commerce. In addition, there is also a provision for appointing tribunals (a semi-judicial authority) under Article  of the constitution to adjudicate interstate river water disputes. There are statutory institutions such as the Finance Commission of India, and various zonal councils (for example, the

 

Basu, Introduction to the Constitution of India …, . Mangal Chandra Jain Kagzi, The Constitution of India, Vol.  (India Law House, New Delhi, th ed., ), -.



Arshi Khan Northeastern Council), which are meant to play a fundamental role in promoting harmonious relations between the Union and the states. Among the non-statutory bodies are those created under an executive order of the Union government: for example, the Planning Commission of India, the National Development Council, the Inter-state Council and National Integration Council, which aim to promote the interests of the Union and the states. In addition, from time to time, several constitutional commissions and committees are established to look into the various aspects of Union-states relations and the overall working of the Indian Constitution. Though entirely advisory in nature, the recommendations and reports of these commissions have had important bearings on effecting suitable constitutional amendments, laying down norms for regulating federal culture and constitutional practices, and serving as a standard reference for judicial pronouncements. At the civil society level, the emergence and increasing role of regional political parties deserves appreciation in the federalization of Indian polity. Regional parties have improved their electoral strength with the objective of sharing powers with national political parties. Regional parties have continued to exert a stabilizing influence on state elections since  and in national elections since , providing an increasingly durable counterpoint to the tendency towards single party domination in states and in the Union. As a result, they have become fundamental to government coalition building at the centre.9 III. Different Views Even from the time of the drafting of the Indian Constitution, many members of the Constituent Assembly of India (-) were disappointed by the creation of a very strong Union government and weaker states. This can be substantiated by looking into the Constituent Assembly Debates.10 There have not been many favourable opinions voiced on Indian federalism. Most have remained skeptical. They appreciate Indian federalism but at the same time point to the reality of centralizing tendencies. Many institutions and operational realities in Indian polity effectively violate some of the basic norms of federalism. Complaints that indict the Union for being overarching and centrist are commonly found in most of the writings of Indian academics, foreign observers, inquiry commission reports set up by both the government and opposition, and in the protest notes of almost all political parties except the Congress Party. In fact, centralization has been one of the biggest factors leading to the consolidation of regional political parties in different states. Rasheeduddin Khan says that the “Union has pronounced centripetal tendencies, and therefore exhibits propensity to centralize administration, governmental activities and political power”.11 He maintains that the Indian polity remains federal, with a bias towards the Union.12 G. N. Joshi says that 

  



Arshi Khan, “Regional Political Parties: Federal Experiences in Indian Polity”, in Abdulrahim P. Vijapur (ed.), Dimensions of Federal Nation Building: Essays in Memory of Rasheeduddin (Manak, New Delhi, ), -. Constituent Assembly Debates, Book Nos. - (Lok Sabha Secretariat, Parliament House, New Delhi, ). Khan, Federal India …, . Ibid.

Situating Federalism, Minorities and Communalism in the Indian Polity “[T]he Union is not strictly a federal polity but a quasi-federal polity with some vital and important elements of unitariness… . It is designed to work as a federal government in normal times, but as a unitary government in times of emergency.”13 Granville Austin views the Indian Constitution as the embodiment of “centralized federalism”.14 W. H. Morris-Jones describes Union-state relations in India as “bargaining federalism”.15 To K. C. Wheare, it is classified more as “a Unitary State with subsidiary federal features than a Federal State with subsidiary unitary features”.16 C. H. Alexandrowicz does not accept the view of India being “quasi-federal”17 and agrees with D. D. Basu that “India is neither purely federal nor purely unitary but is a combination of both. It is Union or composite State of a novel type. It enshrines the principle that in spite of federalism the national interest ought to be paramount. Some others have categorized it as a real federation.”18 It would be reasonable to agree with this view that the Indian Constitution represents “federation with strong centralizing tendency”.19 There is a general consensus among most of the scholars of the Indian polity that the constitution has in-built centralizing tendencies that were well-recognized by the leading members of the Constituent Assembly of India and later by political parties and inquiry commissions on intergovernmental relations. There is also a unitary bias “regarding the distribution of powers and functions between the Union and the states in all aspects of their administrative and other activities”.20 There is a unitary bias regarding interstate relations, coordination and adjudication of disputes among the states. The nature of distribution of powers between the Union and the states was envisaged in such a manner that it was bound to give a stronger and more privileged position to the centre.21 The most vital of all types of amendment that affect the size, shape and number of the constituent states were made subject to a simple majority vote in the Union parliament. Most others require a majority of not less than two-thirds of those present and voting.22

         

Constituent Assembly Debates … . Granville Austin, Working a Democratic Constitution: The Indian Experience (Oxford University Press, New Delhi, ), . Wyndraeth Humphreys Morris-Jones, Parliament in India (Longmans, Green and Co., London, ). K. C. Wheare, Federal Government (Oxford University Press, London, ), . He relaxes this view in the th edition (), , . Charles H. Alexandrowicz, Constitutional Developments in India (Oxford University Press, Mumbai, ), -. Basu, Introduction to the Constitution of India …, . Ivor Jennings, Some Characteristics of the Indian Constitution (Oxford University Press, Madras, ), . Rajendra Prasad, Constituent Assembly Debates, Vol. IX (Lok Sabha Secretariat, Parliament House, New Delhi, ), . Arshi Khan, “Centre-State Relations: Issues and Reforms”,  Indian Journal of Federal Studies (), . Albert Henry Hanson and Janet Douglas, India’s Democracy (Vikas, Delhi, ), .



Arshi Khan The three separate lists that specify the powers of the Union and the states clearly show a significant tilt in favour of the Union.23 Residuary powers (i.e. the power to legislate with respect to any matter not enumerated in any one of the three lists) are vested in the Union. Under Article , the Union has power to make laws in the state list if it is in the national interest. Under schedule five, the Union parliament can alter some of the provisions related to the administration of scheduled and tribal areas by ordinary legislation. In the sphere of administrative relations, the Union can issue directives to the state governments. In addition to the features this article has already catalogued, the centralizing policy is seen in the retention of a single, unified judicial system for the whole country, headed by the Supreme Court. The Upper House of the Union Parliament features unequal representation from the constituent units. The Interstate Council and other intergovernmental agencies have not been actively engaged in increasing the share of the states in national governance. Similarly, Union-type centralizing tendencies can be found in the context of the third tier of governance in which the respective state has monopolistic powers – as the Union government dominates the state governments, similarly the state governments and their agencies dominate the local self-governments, creating a trickle down effect of centralization. With Indian federalism not being the result of any compact between the states, national leaders emphasized the need for national unity and social solidarity. No state, except Jammu and Kashmir, has its own separate constitution within the Indian Union. There is one single, common citizenship of the federation, one ‘All-India’ judicial service common to the Union and the states, and integrated machinery for elections, accounts and auditing. There are some other areas where the dominance of the Union over the states can be clearly identified, some of which have caused serious difficulties for the states, such as frequent presidential proclamations (emergency rule by the Union), appointment, transfer and role of state governors, fiscal domination of the Union and sometimes the policy of ‘deliberate silence’ on the part of the Union despite inflammatory policies on the part of state. All the above-mentioned issues (with the exception of the last one) have been thoroughly deliberated by the Indian academe, who hold the Union responsible for taking over the rights of the states. The Indian Constitution has placed the Union in a unique position in which it has the attributes of a “Leviathan”. The Union has been made almost as powerful as it was under the imperial arrangements envisaged by the Government of India Act . There are several provisions in the Constitution that tend to give an arbitrary role to the Union government. Though there are some formal arrangements and safeguards against such arbitrariness of the Union, eventually it supersedes and dominates the states in overall distribution of powers and authority. Frequent misuse of presidential proclamations has placed the Union government in an extraordinary position in our Union-type federal parliamentary polity.24 President’s Rule has been imposed on states about  times: Kerala ( times), Manipur ( times), Punjab, U.P., and Orissa ( times each)  



Durga Das Basu, Shorter Constitution of India (Prentice Hall of India, New Delhi, th ed., ), -. Arshi Khan, “The Importance of Article  in Centre-State Relations in India: A Critical Review of Its Use and Misuse”, in Rasheeduddin Khan (ed.), Rethinking Indian Federalism (Indian Institute of Advanced Study, Shimla, ), .

Situating Federalism, Minorities and Communalism in the Indian Polity and Bihar ( times). Both Punjab and Kashmir have experienced more than five years of President’s Rule without any respite.25 M. C. Setalvad reflects: Perhaps, experiences should have taught us that President’s Rule is Central Authoritarianism and is apt for easy misuse insulated from judicial scrutiny. If there is one provision, more than any other in the present Constitution which has belied the expectations of Dr. Ambedkar. It is Article  (President’s Rule). It is a thousand pities, that without exception, parties that have ruled at the Centre have invoked this power mostly with political obliquity.26

The Union has some agencies and institutions – such as the governor, the central paramilitary forces, the Planning Commission and central teams – through which it continues to exercise dominance and control over the states. The office of the governor is also one of the most controversial aspects of Union-state relations. The legitimacy of the governor is rooted in the Union executive rather than in the people and the state where s/he is posted. Despite the suggestion of the  Sarkaria Commission Report, the state’s consent has not been made a prerequisite for the appointment of a governor. The state chief minister and legislative assembly cannot remove, transfer or dislodge the governor for his/her constitutionally undesirable views and actions. It only depends upon the “pleasure of the President of India”. In other words, the post of governor is a kind of ‘political imposition’ of the Union, which can be used both in favour of or against the interests of the respective state. Under Articles  and , the governor can veto state legislation under certain circumstances. On the other hand, the contents of the report of the governor become very crucial for the concerned state to seek the favour or draw the wrath of the Union government. It has been found in several cases that a governor has played a partisan role in inviting the elected parties to form the government in a state and to gain a majority on the floor. Sometimes, the governor did not invite the largest party in the state assembly and has instead paved the way for others to secure a majority on the floor. The governor can be politically utilized in the case of party defections within the assembly. There have been cases of the misuse of the governor’s power in dismissing the elected government and dissolving the assembly on several political grounds. The governor also has the power under Article  to promulgate ordinances during the recess of the assembly. Like presidential ordinances, the courts cannot question the validity of an ordinance made by a governor on the grounds that there were no sufficient reasons for promulgating the ordinance or that there was no need for taking immediate action. Such a decision rests with the legislature. A governor also has the power to obstruct the state’s rights by withholding or reserving bills from the consideration of the president. Fiscal domination of the Union also constitutes one of the most pressing issues in the Indian federal polity. Despite ensuring financial autonomy to state governments, the constitution puts certain restrictions on their taxation powers under Articles  and (). It distinguishes between the legislative power to levy a tax and the power  

Ibid., . As quoted by V. R. Krishna Iyer, “Radical restructuring needed”, The Hindu,  April , .



Arshi Khan to appropriate the proceeds of a tax so levied. The legislative power pertaining to taxation is divided between Union and state governments by means of specific ‘entries’ in the Union list (-B) and the state list (-). The major objectives of federal fiscal transfer are to eliminate vertical and horizontal imbalances. All taxes and duties levied by the Union are not meant entirely for its purpose. Revenues from certain taxes and duties levied by it are totally assigned to or shared with states. However, customs duties, corporation tax, taxes on the capital value of assets (entries ,  and  of the Union list) and fees in respect of matters in the Union list are levied, collected and wholly appropriated by the Union. Resource transfers take place in the form of revenue sharing (Articles , ,  and ) and grants-in-aid (Articles  and ). Borrowing powers (Articles  and ) rest mostly with the Union. The Union has three mechanisms: statutory transfer (Finance Commission), plan transfer (Planning Commission) and discretionary transfer (Union ministries). Therefore, it seems from both constitutional texts and the operational practice of the Indian polity that federalism gives effect to the primacy of the interests of the federal government. At the same time, Indian federalism is structured to accommodate the interests, needs, rights and choice of the states by approving both symmetrical and asymmetrical federal arrangements in the larger interests of the country, society and communities. However, it would be difficult to deny the fact that the Indian Constitution has laid down the principles of building a very strong federal government capable of dominating all the spheres of the activities of state governments. India has also succeeded in its pursuit of consolidating territorial unity by all the means of governance and control. However, its other post-colonial goal of seeking social solidarity remains a challenging task. IV. Federalism and Minorities Federalism also becomes fundamentally relevant as a principle of governance in terms of managing a bi-communal or multi-communal society where no community should dominate over another due to the risk of it becoming a permanent majority ruling community in a diverse society. Therefore, federalism should not only balance the interests of the federal and constituent governments but also the interests of diverse communities. It is now commonly recognized that federalism provides a safety valve for minorities against the permanent domination of the majority. In other words, federal principles of governance in a diverse and multicultural society further boost democratic institutions and the democratization process by either creating a ‘functional civic establishment’ or by providing some viable measures for the protection of minorities from the ills of majoritarianism. Federal attributes range from decentralization to minority rights. Federalism is basically committed to non-centralization and non-majoritarianism. It not only prescribes the principle of proportionality but also takes care of the interests of minorities and other vulnerable groups. Examples include Switzerland, Canada, Belgium and Nigeria where non-majority groups have been provided with adequate constitutional guarantees for their participation and inclusion. Thomas Fleiner and Lidija R. Basta Fleiner have argued that minority protection has to be understood as an immanent characteristic of true democracy. If both federalism and democracy, when interpreted 

Situating Federalism, Minorities and Communalism in the Indian Polity as constituting principles, are principles of power control, the main problem can be summed up as follows: can the equality of all citizens be understood in a way that permits also local, i.e. group, liberty? Fleiner and Basta Fleiner understand federal democracy as a political ideology based on limited democracy, which is respectful of both individual and minority rights. The democratic objective can be achieved only by providing constitutional frameworks that will take into account social differentiation along ethnic, cultural, confessional, linguistic and similar lines and that recognizes minorities as an inherent element of the given federal state. With regard to having a proper constitutional basis for the protection of minority rights, minorities are an inherent element of the legitimacy of a given federal order.27 Daniel J. Elazar views federalism as a political force because it serves the principle that there are no simple majorities or minorities but that all majorities are compounded of congeries of groups. The corollary principle of minority rights not only protects the ability of minorities to preserve their distinctiveness but forces majorities to be compound rather than artificially simple. Federalism and the protection of minority rights serve those principles by emphasizing the consensual basis of the polity and the importance of liberty in the constitution and maintenance of a democratic republic.28 Scholars have deliberated upon the fact that  % of the world’s population lives in multicultural states, fragmented into different cultural communities.  % of these people live in federal states. In the opinion of many scholars, collective rights are other potential tools for reducing multicultural conflicts. At a recent conference on federalism, it was held that majoritarianism, which overrules the vital interests of minorities, was the main cause of ethnic conflicts in multicultural societies. The participants also raised objections to the legitimacy of a state where majoritarianism has excluded minorities. Therefore, they suggest a pressing need to find institutions, principles and tools that can accommodate diversity.29 Thus, the objective of federal governance is to build such a polity and society in which individuals and groups – minorities and majority, governments and public – can trust and cooperate with one another despite sometimes being critical and competitive. In the contemporary world, this is expressed in one dominant form: the principle of territoriality. In other words, different layers of governments, commonly known as federal government and constituent units, together legitimize the supremacy of the constitution as well as the choice and will of the people and public. Lidija Basta Fleiner has said that democratic integration remains a major challenge in multicultural societies, not only as an objective but also as a strategy. She has warned that the winner-takes-all system within pluralist and segmented societies inevitably produces illegitimate group politics. It is well-argued in her summation that it is federalized democracy as a strategy 

 

Thomas Fleiner and Lidija R. Basta Fleiner,“Federalism, Federal States and Decentralization”, in Basta Fleiner and Fleiner (eds.), Federalism and Multiethnic States: The Case of Switzerland (Institut du Fédéralisme Fribourg Suisse, Helbing and Lichtenhahn, Bale, Gèneve, Munich, ), -, at -. Daniel J. Elazar, Exploring Federalism (University of Alabama Press, Tuscaloosa, ), . Views of Thomas Fleiner, Walter Kalin, Wolf Linder and Cheryl Saunders at the International Conference on Federalism : Federalism in Changing World – Learning From Each Other, St. Gallen, Switzerland, - August .



Arshi Khan of constitution making that can be critically important to nation-building in multicultural societies.30 Over the five decades of India’s independence, the subject of federalism seems to have become an area of interest for communities vulnerable to the majority community, which has been quite dominant in the subcontinent since the early nineteenth century. As the Indian states are interested in the federal arrangements that preserve their rights and limited autonomy, minorities also view India’s federal polity as indispensable for the protection of their rights and their opportunities to share power in federal and subnational governance. The first comprehensive statute of federal governance enacted by the British in India in  had provisions for both the protection of the cultural, educational and linguistic rights of minorities and for the guarantee of political safeguards in the institutions of administration and politics. For example, the governor of any state had special rights to ensure the security and participation of the minorities and weaker sections of the society. V. Menace of Majoritarianism What changed in post-colonial India was the reframing of the British federal government statute through a strategy of ‘deletion’ and ‘addition’. The changes aimed at securing a ‘civic establishment’ and an ‘egalitarian civic society’ regulated by the strict principles of the rule of law. In the context of the people, the framers of the constitution had underlined certain principles and rights for the development of an integrated Indian society, which resulted in a mixed bag of common citizenship rights and differential rights. However, the most dominant aspect of constitutional governance in India is the liberal-modern principles of institutions and processes, which can be found in the fundamental rights – laws related to elections, the formation of government, the judiciary, administration and other enforcement agencies. The constitution has a number of provisions for national minorities, which are both territorially organized along with their respective historical rights. They are known as ‘special rights’ for some states, which are basically meant for the communities residing therein. The Indian Constitution has incorporated identity rights (for dispersed minorities and also the majority), group rights (for national minorities concentrated in the northeastern states and the north ( Jammu and Kashmir by according special rights provisions for their states), a modern polity based on a first-past-the-post system (to ensure representation of the people in general), federalism (for healthy intergovernmental relations) and secularism. In other words, the constitutional package is supposed to perform three tasks – to protect the ‘rights’ of dispersed minorities, to ‘revolutionize’ the pattern of relationships among different communities and to ‘create’ a very powerful-dominant federal government to ensure the territorial unity of the country. What transpired to be its priority was to back up the third objective without giving much consideration to the other two. In fact, the very purpose of federalism is not only to build a creative relationship between the federal and constituent governments but also to safeguard minorities 



Basta Fleiner’s views in the Scientific Summary of Sessions  and , based on Case Studies of Cyprus, Serbia and Montenegro, South Africa and Switzerland, International Conference on Federalism … .

Situating Federalism, Minorities and Communalism in the Indian Polity against majoritarianism resulting in the ‘ethnicization’ of the structures of power at the federal and constituent levels. VI. Beyond Majoritarianism: Communalism Majoritarianism in a religion-conscious, plural society like India has resulted in the crystallization of ‘communalism’ under which governmental agencies have, on several issues of violence, employment, welfare and security, responded with communal prejudices mainly against the second largest religious community, i.e. Muslims, who constitute over % of the total population. It is a fact that the majority Hindu community, largely represented by the upper castes (in terms of religious hierarchy), have continued to maintain an overwhelming presence in most of the governmental agencies and elected bodies at the federal and constituent levels. Meanwhile, at the inter-religious community level, minorities (more specifically Muslims) have a highly marginalized participation and share in the structures of power. Their exclusion and marginalization has severely hindered the effectiveness of available constitutional provisions for fundamental rights vis-à-vis minorities. It emerges from an overview of Indian law – Articles - of the Indian Constitution, public interest litigation, the Indian Penal Code, the Religious Institutions (Prevention of Misuse) Act , the statutory status of the Minority Commission in , etc. – that the Indian state has no official religion and treats all religions as being equal, maintaining, in theory, the principle of secular governance. However, there are several instances, both constitutional and extra-constitutional, that show a special relationship between one religion and the state leading to the ‘ethnicization’ of the establishment. The growth of community conflict has coincided with a deinstitutionalization of the Indian state. Both the normative and organizational pillars of the post-independence Indian state – secularism, socialism and nationalism of the Nehruvian type, as well as the Congress Party and civil and political bureaucracies – have weakened.31 Amrita Basu says: Hindu nationalist mobilization, the major form of religious politics that India has experienced, has undermined democratic processes. The movement that Hindu nationalist groups launched around the destruction of the mosque in Ayodhya fostered extensive Hindu-Muslim violence which, in turn, weakened already frayed institutions, deepened biases of the civil service and accentuated a leadership crisis in the state. Most importantly, Hindu nationalism seeks objectives which are inimical to democracy, above all in seeking to undermine minority rights.32

Communalism has been expanding its base in Indian society and polity. Communalism in India is looking increasingly similar to the former South African racial discrimination policy of apartheid and the formation of Bantustans. To begin with, communalism  

Amrita Basu and Atul Kohli, “Introduction”, in Basu and Kohli (eds.), Community Conflicts and the State in India (Oxford University Press, New Delhi, ), . Amrita Basu, “Conclusion: Reflections on Community Conflicts and the State in India”, in Basu and Kohli (eds.), Community Conflicts …, .



Arshi Khan in India is mainly concerned with majoritarianism. Communalism can be understood as a sociopolitical process that strengthens those institutions, groups and individuals who exploit, mislead and mobilize people on the basis of religious and cultural nationalism in order to gain political legitimacy in the structures of power. One of the major purposes of communalism is to mobilize the majority community and to use their political capacity on the basis of a religious community consciousness. Communalism has resulted in communal violence, terror and discrimination against minorities, particularly against the largest minority. Communalization of politics has also “postponed the shift from ascriptive-based, feudal, atavistic, emotionally charged passion politics, which in essence is anti-democratic, to interest-cum-class-based democratic politics, resting on the recognition of individual citizens, as equal and free members of the polity without discrimination made on the basis of tribe, jati, domicile, language, gender etc”.33 Communalism in India has a bi-communal dimension, which basically implies discord, tension and conflict between its two major communities. Communalism has sought to appropriate religious tenets, traditions and values rather arbitrarily to suit the exigencies of current political life and tactical interests. Communalism exploits parts of religious dogma for expedient political and tactical interests. Communalism exploits parts of religious dogma for expedient political pragma. Communalism thus is the exploitation, naked and subtle, of religion and of genuine attachment to a religious community. It emphasizes a religious community alone as the base and universe of political ambition and action.34 Communalism grew stronger mainly due to the fact that the Indian establishment failed to remain a prejudice-free entity. Rasheeduddin Khan noted in the early s that communalism had “acquired a most dangerous form and an alarming proportion”35 that endangered India’s multicultural society. He found communalism an affront to India’s nationalistic identity and “as enemy number one of our democratic polity”.36 Now communalism affects all institutions. This phenomenon has been supplemented by perpetuating violence, atrocities and neglect against minorities on the one hand and by providing them little space in public affairs on the other. VII. ‘Total Domination’ The factor of ‘total dominance’, as both a cause and effect of communalism at the institutional level, has largely affected the political and social culture of the country. The concept of ‘civic statehood’, i.e. equality of status and equal treatment of all groups, is only a drum-beating exercise today. Treatment of Muslims in riots and conflict situations has proven this departure from the civic character of the Indian state due to the partisan role of the police on a large scale.37 It is true that differences occur between     



Rasheeduddin Khan, Bewildered India: Identity, Pluralism, Discord (Har-Anand, New Delhi, ), . Ibid., . Ibid., . Ibid. Iqbal Ansari, “Partisan Police”, The Times of India,  April , .

Situating Federalism, Minorities and Communalism in the Indian Polity the ‘literal theory’ of the constitution and its actual operation. However, the main question is: to what extent? If it leads to the failure of the constitutional machinery or the purpose of constitutionalism is overturned by the actions of the government – as happened in the case of Gujarat () – or by a section or sections of societies in connivance with enforcement agencies then one has to rethink the causes and consequences. In reality, the majority community dominates the three branches of the government, contrary to the principles set out by James Madison in the United States. There are no political safeguards for minorities in the Indian Constitution, nor have social-historical safeguards prevailed over the years due to the growing dominance of communal politics in society. As a result, traditional legalism and societal safety have been reduced to a large extent due to a ‘communal takeover’ of the structures of power. This is why several democratic developments – including  parliamentary elections, periodic elections in the states, coalition experiments, the expansion of enforcement agencies and the creation of many developmental institutions, such as the activated judiciary at the federal and constituents’ levels – have not reduced the exclusion, deprivation and discrimination of the dispersed Muslim minority in various governmental and semi-governmental sectors. Exclusion of Muslims has not only resulted in a kind of ‘segregation’ of Muslims at least in terms of their settlements, but has also recycled the practice of communal discrimination. This is not to say that the Muslims are not themselves communal. In fact, Indian society has by and large remained a historical society where community consciousness based on religious identity has been the guiding force or a dominant part of people’s consciousness in the context of intercommunity experiences. It is true that there are many caste, colour, linguistic and regional differences existing at the intra-community level. However, it is also a fact that these differences disappear when any subsection of a community responds to an individual or group belonging to another community, particularly in instances of riots, violence, police action, police investigation, media interventions, employment, nominations, land allotment to religious trusts, etc. However, since the Hindu community has been in a position of ‘total domination’ over the resources of the establishment and almost all of its agencies, it happens to become the ‘marker’ of ‘communalism’ in the country. If the Muslims were to dominate the structures of power – such as police, bureaucracy, paramilitary forces, banks, postal service, telecommunications, educational institutions, media, ministries, airports and embassies – they, in the given situation, might also discriminate against the Hindus. Therefore, it would be reasonable to submit that communalism, with the privilege of power as a ‘rider’, proves to be quite detrimental in a plural society where equally eligible minority communities are excluded. Thus the ‘automacity’ of communalism is multiplied with the inclusion of ‘in-group’ individuals in the structures of power. As a result, communalism seems to be counterproductive to the goal of federal nation building due to its multi-pronged effects on the working of democracy, federalism, the rule of law and the institutions required for the establishment of a civic society and civic governance. Despite its many merits in the sphere of governance, the pervasive virus of communalism has infected a large number of institutions and people in general. This threat of communalism has resulted in the denial of justice to minorities, particularly in the domain of the fundamental rights provided in the Indian Constitution.



Arshi Khan There are some facts that need to be placed in a proper context. The Hindu community is not the only one in the country conscious of its religion and traditions. Seven other minorities are also conscious of their religions. The difference lies at the point where one group dominates the resources of power and development. This religious consciousness seems to occupy space in the minds of elected leaders, bureaucrats, police and security personnel and other sectors engaged in state-building, service delivery systems, etc. It is a matter of historical accident that the dominant community happens to be the majority Hindu community. If people’s religious consciousness remains central to identity and bargaining within the sociological and cultural matrix, then people can be described collectively to be a community in the context of debating communalism in India. When this collectivity or the dominant part of it attempts to act beyond this matrix and enters into the domain of politics and administration for its own construction then the community representing the people can be reasonably labelled as followers of communalism. The most regular manifestation of communalism can be seen in communal riots, which have always bullied the minority community. Minorities claim to have been facing different forms (violent and non-violent) of problems such as discrimination even in the provision of municipal facilities, admission to educational institutions, employment, political nominations and political representation, etc. On the other hand, they have also faced violence, both organized and in some cases in connivance with local authorities. There have been mainly three communities (religious groups/minorities) – Muslims, Sikhs and Christians – who have experienced violent, discriminatory and prejudiced acts perpetrated by the majority and majority-minded persons in power. Muslims, who had the bitter experience of communal riots in the pre-independence period and genocidal violence during the partition phase, continue to face threats from communal riots and sponsored violence. There are also strong allegations of discrimination by the majority-minded officials at several levels. The second minority group, the Sikhs, faced the worst wave of violence experienced within the country in . Otherwise, they are economically advanced and possess a very high share (or, in other words, overrepresentation) in the armed forces and continue to maintain political accessibility and close associations with the parties belonging to the Hindu right (Bhartiya Janata Party) and right of centre (Congress Party). The third group, the Christians, faced intermittent violence during - in some parts of the country. They have, however, succeeded in strengthening their position in the health, education and employment sectors and have succeeded in applying pressure on the majoritarian militant outfits. IX. Automacity of Communalism: Anti-Muslim Riots Riots, in which several actors play roles before and after the crimes against humanity, poison many minds beyond the boundaries of the rule of law. The term ‘riot’ is quite commonly used to state the matter related to all kinds of violence that take place at the intercommunity level. For example, the recent violence in Gujarat has been termed by many who visited the affected sites as ‘genocide’ and ‘state-sponsored crime against the Muslims’ and not ordinary riots. However, it is a fact that communal riots have become an unavoidable and uncontrollable menace in a country in which the members of the Muslim minority, in almost all parts of the country, become the victims of organized 

Situating Federalism, Minorities and Communalism in the Indian Polity crimes. In all the largest communal riots since independence, state governments, ruled by several political parties, have delayed controlling the situation for weeks. In most of these riots, minorities have suffered disproportionately. It is important to study riots and related situations in discussing the protection of minorities because they provide us, many primary sources of understanding the phenomenon of communal consciousness and communalism in the governmental and non-governmental sectors. How does communalism affect the whole system of justice and governance and the response towards the minorities? How is such a sensitive issue disregarded by those whose task it is to protect the rights of minorities? How does the administration differentiate between the members of the majority and minority during riots and violence? These are only a few questions, which I try to address in a very brief discussion of recurring violence against minorities. Riots, which are generally attributed to violence between two communities, basically unveil both majoritarianism and a communal consciousness in the police and administration. This communal consciousness later culminates in communalism. Communal riots have taken place in all those places where the members of minority groups maintain sizeable strength and they have occurred almost every year under the regime of all different parties. The following table represents the official report, which differs significantly from the local estimation. Table . Year

Communal Riots in India (-)38 No. of riots/communal incidents

No. of persons reported officially as killed

injured

              

              

              

              









 

 

 

 



Source: Asghar Ali Engineer, Communal Riots After Independence (Shipra, Delhi, ), .



Arshi Khan                                 Total

                                

                                

                                

The findings of the National Commission for Minorities over the years clearly indicate the massive impact on minorities. The Report of Justice Joseph Vithayathil on the Tellicherry Riots of , the Report of the Justice Venugopal on the Kanyakumari Riots of  and other reports have lamented the unlawful behaviour of some organizations, parties and officials. In other words, violence becomes ethnicized and creates a free space for unlawful activities based on prejudices and communal consciousness. Riots also cause collateral damages to the victims – mainly economical and psychological. Rasheeduddin Khan, whose scholarly views are better known in relation to secular democratic India, said: Communal riots in India have acquired a permanency as a factor of recurrent tension and violence. Basically it is a phenomenon of Hindu-Muslim conflict and violence, in



Situating Federalism, Minorities and Communalism in the Indian Polity which, as almost all the official reports and judicial inquiries establish over the years, without any exception, stated that the main sufferers in terms of causalities and loss of properties have been mainly the Muslims. Communal riots have been a euphemism for the killing of Muslims and destruction of their business and properties. Of course members of the Hindu community are also assaulted and killed, but their total number and proportion and loss of property is always smaller.39

It is not viable to provide even a brief account of all major riots but some reports and riots are commented on here. Take the example of the state of Gujarat where, according to a report of the state government: Gujarat has a long history of communal riots. Major riots have been occurring periodically in the state since . Two Commissions of Inquiry viz., the Jaganmohan Reddy Commission of Inquiry, , and the Dave Commission of Inquiry, , were constituted to look into the widespread communal violence that erupted in the state from time to time. Subsequently, major communal incidents all over the state have taken place in  and in - following the Babri Mosque episode. In fact, between  and , Gujarat has witnessed  major communal incidents. Even minor altercations, over the trivial matters like kite flying have led to communal violence. 40

I have taken up the fresh case of Gujarat riots and some other riots very briefly to reflect on communal consciousness. In the words of Amartya Sen: “The Gujarat massacre, unrestrained by a state that proved to be, at best, grossly incompetent but very likely a great deal worse, is a manifestation of vicious sectarian politics that is doing its best to turn India into a barbaric country of which every citizen has reason to be ashamed”.41 He further says: “The Gujarat butchery is more than a communal slaughter; it reflects a diabolic beastliness that communal sectarians have planted well into India’s body politic”.42 Rafiq Zakaria quotes Nirad C. Choudhuri who said: “After  there has been a tendency to consolidate communities along religious lines; both Hindus and Muslims did not find anything wrong in their efforts towards religious consolidation. Religious rigidities were over-stressed by the respective elite of the two communities even cutting across the pressures of development of science and technology in the country. The elite on both sides have made use of religions for securing political and economic ends.”43 The police commissioner of Ahmedabad, the capital city of Gujarat, said that his men

 

  

Khan, Bewildered India …, . Mentioned in the National Human Rights Commission Proceedings released in early April, based on earlier Proceedings of the Commission dated  and  March  and the visit of the its chairperson to Gujarat, - March . Amartya Sen, “Forward”, in Rafiq Zakaria, Communal Rage in Secular India (Popular Prakashan, Mumbai, ), vii. Ibid., viii. Zakaria, Communal Rage …, xviii.



Arshi Khan “are equally influenced by overall general sentiment”.44 A national daily noted: “[T]he past four days have made it clear that the dividing line between the government, the police, the BJP and other fronts of the Sangh Parivar like the Vishwa Hindu Parishad, Bajrang Dal have got totally blurred in Gujarat.”45 It also quoted Inspector General of Uttar Pradesh Vibhuti Narain Rai who said: “What happened in Godhra has to be condemned but the police inaction in Ahmedabad on February  proves my belief that anti-Muslim rioters see the police as allies during riots. Their common enemy is always the Muslims.”46 In the recent Gujarat riots, more than  Muslims were burnt alive and over  mosques and mausoleums were vandalized and “ of them converted overnight into temples”.47 The mosque in the middle of Naroda’s busy bazaar was a few hundred meters from the local police station and the mazar (graves) of poet Vali Gujarati stood in the middle of the road between the police lines and the police commissioner’s office in Shahibagh. Assessing the situation on the ground, Anjali Mody wrote: [T]he civil administration … has been quick to erase any signs that these buildings actually existed. It has levelled the land and removed the rubble at the sites of  mosques and mazars, turning them into vacant plots, or in the case of Vali Gujarati’s mazar into part of the road that runs by the Police Commissioner’s office. … In many places in the city Maha-artis, a public ritual favoured by the VHP [Vishva Hindu Parishad organization], were held – including at the Mansa Masjid [Masjid meaning ‘mosque’ in Arabic] in Bapunagar and Noor Masjid in Hardasnagar – and statues of Hanuman placed inside. Even now saffron flags hang from the minarets of desecrated mosques.48

By all accounts, most of the attacks came “in full view of police, who remained mute spectators to the crime. The continued indulgence of the Gujarat police towards the Sangh Parivar (a rightist fraternity) over the years has virtually snowballed into Hindutva protagonists virtually acquiring quasi-police powers, calling the shots in almost every walk of life.”49 One senior police officer told a journalist that “the intention this time was mass murder of Muslims”. He described it as “genocide” and said, “a substantial amount of homework was done before hand … they knew which shop, business, factories … which home belonged to a Muslim”. The fact is, as many police



    



Celia W. Dugger, “Hindus kill  Muslims in riots in Western India”, The New York Times,  March , ; see also, other Indian national dailies such as The Times of India, The Hindustan Times, The Hindu, Rashtriya Sahara (Urdu); private TV channels in India. Akshaya Mukul, “Riot after riot, police play negative role”, The Times of India,  March , . Ibid. Manas Dasgupta, “Shoot orders in many Gujarat towns”, The Hindu,  March , . Anjali Mody, “Genocide in the land of Gandhi”, The Hindu,  March, , . Rathin Das, “Police indulgence towards Sangh led to carnage”, The Hindustan Times,  March , .

Situating Federalism, Minorities and Communalism in the Indian Polity officers agreed, “Ahmedabad was bloodied because the police high command and the civil administration allowed it to be bloodied”.50 The Hindu editorial commented: The Narendra Modi regime however showed little signs of having come to grips with the situation … leaving the field absolutely free for rampaging mobs to go about their ‘business’ – looting, pillaging and setting blocks of houses afire at will – and there appeared to be a clear designs behind all the ‘senseless’ violence … If the law enforcing machinery in Gujarat has been notoriously politicised and communalised, the fact that all the current lawlessness … explains the State BJP regime’s deliberate lack of firmness in containing the orgy of violence. There has also been an inexplicable delay in calling in the Army. Such a partisan approach to critical issues of governance like maintaining public peace and ensuring security of citizenry will seriously undermine the legitimacy of the Modi administration.51

Despite wide criticism and condemnation from the opposition, several humanist forums and peace activists condemned the flagrant violation of the constitutional duties of the head of the state government and called for the removal of the maligned Chief Minister Modi. The prime minister succeeded in defending him and refused to impose President’s Rule in the state of Gujarat under the emergency provisions of Article  of the constitution. Nor were the affected parts of the state declared disturbed areas and handed over to army control. In other words, the Union government misused its power and constitutional responsibility to maintain Modi’s status as the chief minister of the state of Gujarat. The RSS, which is the ideological and cultural hub of the BJP heading the governments in Gujarat and the Union, issued an arguably objectionable statement that Muslims’ security is dependent upon the goodwill they win from the Hindus,52 as the Prime Minister said on  February , during an election campaign, that he did not care for Muslim votes.53 Such remarks have the content of communal consciousness. Minority members suffered not only during the riots, but also during all those days when they were in need of urgent relief and rehabilitation. For example, in one of the relief camps in Gujarat’s capital, only eight toilets were made available for , victims. There are many documented cases of police refusal to record victim statements and the failure of the police to act against those whose names have been recorded as being involved in the violence. Several women’s organizations and individuals have complained about the refusal to record cases of rape, arson and mass burning in which the names of persons and organizations connected to the rightist forces were identified. Under the law, complaints must be lodged as FIR (First Information Report) in the police station in order to proceed further against any criminality. There are overwhelming complaints from the victims in relief camps about their inability to lodge FIRs. The    

Anjali Mody, “Genocide in the land of Gandhi” ..., . “Horror in Gujarat”, The Hindu,  March , . The RSS executives held their meeting in the state of Goa on  March . Syed Shahabuddin, “Chronology of the Month:  February- March ”,  Muslim India (April ), .



Arshi Khan Union government did not seem perturbed by the state’s collaboration with the rightist militant and ideological forces and it won the approval of the Lower House when the censure motion on Gujarat was moved against it in late April . It was only on  May  that minority members could meet the Gujarat Chief Minister, due to the peace efforts of the National Commission for Minorities, which resulted in little more than a cosmetic exercise. Riots suggest a degree of communal consciousness because they are deeply related to security, the right to life, justice, the workings of the governmental agencies, rehabilitation, implementation of the riot commissions and measures for preventing such massive threats, as well as the collective punishment of the Muslim minority. In the carnage at Gujarat, the role of the state government and its agencies, as well as the role of the Union government, can be easily questioned for their prejudices against the Muslim minority. Whereas both the Union and the state are responsible for the safety and security of minorities, a journalist observed that “Muslims from all walks of life have been targeted and even prominent members of the state and ruling apparatus—sitting High Court judges, senior police officers and politicians have not been spared. Instead of using national television to tell the people of Gujarat that the genocidal mobs would be put down with a firm hand, Mr. Vajpayee [the Prime Minister] delivered a sermon on the need for religious tolerance.”54 IX. Crystallization of Communalism The Gujarat carnage is distinct in the sense that three parties – the ruling party, the fascist and fundamentalist outfits and a large number of the law and order agencies including the local intelligence network – collaborated against persons and religious places. In fact, riots in which the minority members and their belongings have been targeted have been taking place for decades. Many riots and inquiry commissions expose the lack of state neutrality and the nexus between violence and the role of the Sangh Parivar. Moreover, demonstrations organized by minority members have faced a violent response from police and administration. The police disrupted a peaceful demonstration in Kanpur city on  March  and killed at least . A report revealed that the minority community became a “victim of communal violence of looting and arson perpetrated by sections of the police and the Provincial Armed Constabulary (PAC)”.55 During the curfew period, “the PAC looted and burnt shops. In several incidents groups of Bajrang Dal [a Hindu militant organization] accompanied by the police attacked minority shops and burnt several masjids.”56 Similarly, the police, without provocation, opened fire on the minority, killing at least  persons on  October , when minority youths were distributing pamphlets boycotting British and US goods in Malegaon.

 





Siddharth Varadarajan, “Carnage in Gujarat”, The Times of India,  March , . The Times of India, , ,  and  March ; Report of Women’s Delegation comprising All India Democratic Women’s Association, National Federation of Indian Women, Peace and Justice Commission of the CBCI, Women’s Unit of the Indian Social Institute and Muslim Women’s Forum. Para.  of the Report of Women’s Delegation … .

Situating Federalism, Minorities and Communalism in the Indian Polity Justice B. N. Srikrishna’s Commission Report on the Bombay riots (-) says that “the response of police to appeals from desperate victims, particularly Muslims, was cynical and utterly indifferent on occasions, the attitude was that one Muslim killed was one Muslim less … police officers and men, particularly at the junior level, appeared to have an in-built bias against Muslims … .”57 The Justice Jaganmohan Reddy Commission Report on the Ahmedabad riots () said that in “half a dozen instances where Muslim religious places adjoining police lines or police stations [they] were attacked or damaged. The argument advanced by the police … did not impress the Commission. It made this observation because not a single case of damage to a Hindu place of worship near the police station was reported to the Commission”.58 It also indicted the Sangh Parivar leaders and workers of organizing violence against the minority. The Commission led by Justice Madon on the riots in Maharashtra in  said that the work of the special investigation squad is a study in communal discrimination. The officers of the squad systematically set about implicating as many Muslims and exculpating as many Hindus as possible, irrespective of whether they were innocent or guilty. It said that “the police practised discrimination in making arrests and concentrated upon Muslim rioters turning a blind eye to what Hindu rioters were doing”. The Commission found that only  Hindus were arrested compared to , Muslims, that “only Muslims died in police firings”, and that half of the shootings that took place were “wholly unjustified”.59 In almost all riots, it was mainly the members of the minority that faced injuries and that have been losing confidence in the impartiality of the Indian establishment. Many persons from the majority who were accused of involvement in riots have been acquitted by the courts and many have remained unaffected by the rule of law. For example, the Bhagalpur Lower Court (Additional District and Session Judge) acquitted  accused in one of the cases related to the killing of  persons in the Bhagalpur riots of .60 As a result, in most of the riots and police action against the Muslim minority, police personnel not only opt for abusive languages but they also make communal remarks as they are part of the Sangh Parivar discourse. Resorting to force against the members of the minority who allegedly had organized bandh on  August  in Katipalla (Karnataka state) in response to the killing of a member of the minority, the police ( in number) also made communal remarks, such as: “You Muslims deserve to be displaced to Pakistan. You have no place in India. Right now we need only men. We will come at night to pick your women. You Muslims have been spoiled by eating too much of cow meat. You beardys (alluding to the Muslim community in the District) are anti-nationals”.61 Such remarks have also been made in relation to university students belonging to the minority community. Therefore, communal remarks made by police, while dealing   

 

Mukul, “Riot after riot …”. Ibid. Dinshaw Pirosha Madon’s ( Judge, High Court, Bombay), Report of the Commission of Inquiry into the Communal Disturbances at Bhiwandi, Jalgaon and Mahad in May , Vol. III, Part III (Chapters -), -. “ acquitted in Bhagalpur riot case”, The Hindu,  March , . P. B. D’sa, “Police atrocities at Katipalla: Muslims treated as anti-national enemies”,  IOS Bulletin: Human Rights Today ( January-March ), .



Arshi Khan with the largest minority community in different states, also show many similarities in their specificity of categorizing the Muslims as outsiders and undesirables. It is also important to note that after the fully-fledged violence, minority community members have experienced many other problems that weaken their confidence in administrative, legal and other agencies. Minority members who took shelter in camps in the state capital faced the problem of seeking necessary governmental supports and services. Those who were victims and suffered heavy losses faced the problem of rehabilitation and compensation. These facts are widely reported in the Indian media. There have also been cases of economic boycotts against minority members, effected through the distribution of pamphlets, in order to weaken their economic means of survival. Many reports in the media and books written after this violence were unanimous in their opinion that the BJP, which headed the coalition government at the Union level between  and February , itself worked as a part of anti-minority squads in the state of Gujarat. Being posted elsewhere instantly punished those government officials who wanted to stop this. Neither the Supreme Court of India nor the High Court of Gujarat, which have constitutional power to take sue motto notice by issuing warnings or words for corrective behaviour to the state government, did so. The National Human Rights Commission (NHRC) sent a team to the state, but this finally resulted in soft-pedalling despite its use of hard words against the state government. The NHRC is only a soft enforcement body. On the other hand, the Union/federal government has enough powers in its hands under Articles ,  and  to warn the state government and to make interventions. Yet, it too maintained a kind of innocent silence. This is in spite of the fact that there have been cases of direct federal intervention amounting to the suspension or dissolution of the State Assembly more than  times on matters involving political motivation and non-compliance with the Indian Constitution. The governor of Gujarat also failed to perform his constitutional duty. The post of governor in every Indian state is appointed by the Union government and s/he is constitutionally required to work for the ‘wellbeing’ of the people of the state. This post is considered to be mainly constitutional as s/he is the head of the state. Later, the leaders of the federal government called the head of the government of Gujarat, Chief Minister Narendra Modi, ‘star’ chief minister of India. The indicted party was in fact protected by the federal government and its agencies. The Legislative Assembly of Gujarat was dissolved eight months in advance in order to hold state elections with the hope of getting votes as a result of the communally charged situation. In , the chief minister won by a significant majority and became a star campaigner for the party in many other states. This tendency certainly raises a vital question regarding the kind of political culture that has arisen over the decades, which uses democratic means for antidemocratic goals. It would be wrong to blame only one party for entering into the dangerous zones of constitutional violations, in which the constitution is used merely as an instrument to secure majority votes and to magnify the legitimacy of the majority group. Basically, the constitution can be discharged in two ways, one of which misuses its legitimacy. Constitutional law protects the people (all citizens irrespective of sociocultural differences) against abuses by those to whom they entrust power. Unfortunately, parties based on caste, communal and ethnic considerations have prevailed within Indian political 

Situating Federalism, Minorities and Communalism in the Indian Polity culture. They are slowly becoming institutionalized as ‘structural realities’ of Indian politics. The graduation of the ‘ethnicization’ of the Indian establishment and the political process and its expansion from party politics to the institutional-bureaucratic levels has posed serious challenges to federalism and constitutionalism. Now some basic questions can be raised regarding the prevailing crisis in the country in general and in Gujarat in particular. Is the state of politics in Gujarat the result only of the politics of Narendra Modi or communalization at the party level? Is there any other party, with the exception of the left, committed to secularism? Is it legitimate for congress and the like to call the BJP a fascist or communal party? Have others not been guilty of playing with constitutionalism and federalism? Is the Gujarat violence an exception in the post-colonial history of communal violence in this country? Has it not occurred under a leadership that proclaimed to be secular and democratic? What are the other forces or institutions which have been expediting a communal political agenda? Why is it so easy for the BJP or the like to influence and to motivate constitutional and extra-statutory agencies to abide by its party agenda rather than adhering to constitutionalism?62 On a general level, the BJP is not the only party that could be held responsible for the communalization of politics. However, in the case of Gujarat, the BJP can be held more responsible than others in playing with the rule of law. Again, one is not supposed to ignore the lack of commitment or communalization of law and order agencies whose impartial and constitutional role could have prevented the ruling political leaders and their followers from going ahead with an anticonstitutional agenda. As a result, what we are witnessing today as interference in the autonomous domain of the election commission, politicization of the Union Law Ministry and ambiguous interpretations of Articles ,  and  of the constitution is the ‘extended/enlarged’ form of crime against the constitution committed not only by parties, but also by constitutional bodies. It can also be argued that pursuing the policy of ‘benign neglect’ vis-à-vis anticonstitutional activities and movements on one or many stages would certainly result in a revolutionary agenda. Therefore, it is important to look at the whole picture in order to finally diagnose the basis of crisis. If there was a countrywide consciousness of the threat of Gujarat becoming the first laboratory of Hindutva (commonly understood as representing ideology, symbols, cultures and customs belonging to the majority religious community – Hinduism) then why would the so-called secular parties compromise with the majority coalition partner in approving the nomination of the hardcore Sangh Parivar leader S. S. Bhandari to the important constitutional position of governor of Gujarat. Bhandari is fairer than many congressmen in terms of his ideological orientation, but he was not supposed to do what he did with the Laloo Yadav government in Bihar. The Centre – not just the BJP but also the other coalition partners – did not find his role as governor throughout the violence against the Muslim community to be a threat to the constitution. The centre misused the prerogative of federal principles in dealing with



Arshi Khan, “Beyond Federalism and Constitutionalism: Painful Politics and Implications of Communal Considerations in Gujarat”, XL Mainstream, ( September ), - at .



Arshi Khan Gujarat and gave a free hand to the state government to act with impunity. Articles , ,  and  were not invoked. In such situations, the structures and functions of the bureaucracy become very vulnerable to the communal virus. The courts – both at the Union and state levels – could have taken suo motto notice of the deteriorating situation in Gujarat. Such vigilance could have given the law-breakers pause. What is more disturbing in these tragic situations is that the law and order and other enforcement agencies seem to be working as a party and not as agents of the law. It is not difficult to substantiate this claim on the basis of the fact that these agencies, as in other riots, have been active in rounding up minority members and imposing curfews in their areas whereas the majority members have not been subjected to such measures. Many riots have shown consistency in the attitude and behaviour of officials in different places and under different regimes, in which minority members are looked upon as ‘others’. Therefore, the issue of the protection of minority rights in a federal set-up needs to be studied in the context of the dynamics of the existing set-up of governance and social realities. Eminent jurists of India, including Nani Palkhiwala, H. M. Seervai, Fali S. Nariman and Soli J. Sorabjee, expressed shock and dismay over the dismissals of cases against alleged offenders by the High Court and the Supreme Court. The present Attorney General of India, Soli J. Sorabjee, stated: It is extremely unfortunate that the judiciary has not intervened in this case where the law has been openly flouted and communal hatred spread by Bal Thackeray through his mouthpiece Saamna. History teaches us that unless these pernicious tendencies are scotched they grow to become unmanageable monsters later on. The argument that a prosecution of persons responsible for spewing hatred would rake up past events is totally misconceived because there has been no rethinking or regret by the authors of the writings and there is every likelihood of such actions being repeated.63

The report on minorities by the Gopal Singh High Power Panel on Minorities, Scheduled Castes, Scheduled Tribes and Other Weaker Sections of the Ministry of Home Affairs dated  June , records as follows: Unfortunately a great psychological barrier exists today between the majority and minorities. Some religions are considered extra-territorial not only by the masses but also by some of our State Governments. Laws have been passed in a north eastern state to encourage the building of places of worship only of indigenous religions, whatever the word might mean. Elsewhere Acts were passed virtually aimed at depriving the minorities from exercising their constitutional right of religious propagation. Riots have taken place over small scale conversions and the communal elements had a field day to vomit venom about the minority religions and cultures.

History as written by foreigners and still taught to us in our schools and even our universities divides us more than makes of us a cohesive nation. It is not even a true 



Iqbal A. Ansari, “Constitution Review”, (-) IOS Bulletin: Human Rights Today (), .

Situating Federalism, Minorities and Communalism in the Indian Polity or faithful history but just a selective one, out to malign millions of our co-citizens whose only fault is that they follow the same religion as did some occasional invaders or bigots who ruled over us centuries ago. Pakistan is often quoted in denigrations against Muslims. The main purpose of mentioning such outlines is to illustrate the consolidation of communal consciousness in those sections whose presumed neutrality and impartiality had been described as dependable by the constitutional architects in support of their withdrawal of certain minority rights from the Indian Constitution in May . It is difficult to find any data on discriminatory practices in government employment, nominations, promotions and in many other areas in which the members of the Muslim minority constitute a marginalized status. No comprehensive survey is available to trace documentary proof of discrimination and prejudices in non-violent situations as they can be easily identified in riots and other situations where minorities come to face governmental agencies in a more direct way. S. M. Murshed,a senior civil servant, made the following statement: In , I was in the home department of the government of West Bengal. Jyoti Basu of the CPM was my minister and also deputy chief minister. One day I drew his attention to a copy of a circular issued by the centre which suggested that I should be removed from my post. It said, in effect, that Muslims should not hold any sensitive post in government. There was a companion circular to the effect the Muslim applications for passports should be subjected to serve scrutiny. These were first issued in the s and reiterated from time to time. The infamous circulars were obviously based on the premise that the integrity of Muslims in India was suspect. The same notion manifested itself in West Bengal in  during the Indo-Pak war. Thousands of innocent Muslims were arrested and kept in detention without trial on no other ground than their religion. … There is a curious phenomenon which is little known outside the Muslim community. It is communalism in reverse. If any Muslim minister is approached by a fellow religionist for the redress of a wrong the supplicant is rebuffed because of the fear that any intercession in his case will invite the accusation of partisanship. Their presence is necessary in the prevailing scheme of things. The recruitment of a president or a governor or a minister does not bring in secularism in the proper sense. The entire system, beginning from the lowest echelon, has to be made secular.64

The proceedings of the NCHR released in April  also “noted two matters that raised serious questions of discriminatory treatment and led to most adverse comment on both within the country and abroad”65. The first related to the unequal amount of compensation for the victims killed in the train violence in Godhra and those in the Gujarat Riots. The Gujarat state government announced , rupees for the Godhra victims (all Hindus) and , rupees for the Gujarat riots victims (mostly Muslims). The second is related to the application of the POTO (anti-terrorism law)  

S. M. Murshed, “Muslim Factor in India”, The Times of India,  February . National Human Rights Commission Proceedings of  April , Preliminary Comments (xii).



Arshi Khan to the first incident, but not to those involved in the subsequent violence. There are many similar examples that narrate the communally prejudiced mind-set of the government officials – particularly of the enforcement agencies – against the Muslim minority in the country.66 As a result, debate on the prejudices and discrimination against minorities in the country cannot be ruled out. Communal consciousness has proved to be extremely dangerous combined with the placements of its adherents in the structures of power. Communal consciousness has also disrupted the civic growth of the two mainstream national parties – the Congress and the BJP – as frontline agencies of civil society in country. In the  years of its rule at federal and many constituents levels, the Congress Party-led government has focused on energizing itself through the centralization of powers and the forces of majoritarianism by ignoring its commitment to democracy, federalism and constitutionalism. Similarly, the BJP, which aligned with national and regional political parties to put an end to the Congress domination on the one hand and mobilized the majority of Hindu voters to honour Hindu nationalism mainly directed against the Muslims, on the other, further communalized many governmental and non-governmental agencies.67 The ‘soft communalism’ of the Congress and the ‘assertive communalism’ of the BJP have largely influenced the working of the government, which has in turn affected minority rights. Therefore, communal prejudice prevailing in governmental agencies has become a threat because it has acquired time and space in the systems of power. This trend seems to go upward as there is neither any counterstrategy nor any alternative offered by the leaders and reformers who truly seek secularism. This project has manifested itself in words and promises, but has never been defined and enforced in rural and urban sectors. Even the ruling elite lacks any commitment to secularism. Rightist forces are criticized, condemned and abused by such words as fascist, communal and poisonous, but the advocates of the project of secularism hardly worked to either promote secularism or to resist such forces. People at large failed to realize this project either in theory or practice and so the vacant space was gradually filled by those forces that had a complete blueprint to reconstruct the identity of the majority community and the nation as a dominant ruling community and a Hindu nation. They took over the project of nation-state to create and reinforce an establishment that was to address the needs of a majoritarian state and a cultural nationalism. The liberal federal polity failed to dismantle pre-modern identities based on ascriptive values. Despite the proclamations of constitutional imperatives of territoriality, equal justice, participatory democracy and equal citizenship, the existing realities of the Indian federal polity can be found in the operational aspects of those interests that are generating centralization and communalization of politics based on historical inputs, i.e. caste and communal (religious) considerations. Such an alliance can be traced in the rise and perpetuation of those political forces that have strengthened their foundations in the roots of caste and communal consciousness. The Indian establishment, from the  



Engineer, Communal Riots After Independence … . Arshi Khan, “Coalition Politics in India Since ”, in Akhtar Majeed (ed.), Coalition Politics and Power Sharing (Manak, New Delhi, ), -; id., “Constitutional Working for Federal Nation Building”, in Akhtar Majeed (ed.), Constitutional Nation Building: Half A Century of India’s Success (Manak, New Delhi, ), -.

Situating Federalism, Minorities and Communalism in the Indian Polity Union to the block levels, has failed to be an impartial institution in ethnic conflict or interreligious feuds. Ashis Nandy says that, all too frequently, the ruling party, the bureaucracy and, to an extent, the judiciary get involved in ethnic violence as partisans, a hazard common to states the world over. These factions also, reluctantly but surely, try to take political advantage of such involvement.68 Therefore, consolidation of an alliance of modern power structures with the difference-based country of communities provided an opportunity for ‘the strong’ and ‘the majority religious community’ to exploit the sources of modern political authority, particularly in the absence of any safeguards or precautionary measures to ensure equality and justice for minorities. X. Conclusion It is a fact that the Indian polity has had tremendous success in its federal relations with the constituent units. Most of the Indian states have expressed satisfaction over their union with the federal government. They have thus eschewed the forces of secessionism. The state of Punjab, where the secessionist movement peaked in the late s, has finally adhered to parliamentary institutions and procedures. The federal government is quite attentive towards the issue of development and deprivation in the states of the northeast. It is offering talks with the Naga leaders even outside the country for peaceful reconciliation. It is interested in solving the problem of Jammu and Kashmir and it has also met several demands of many regional groups, such as the Bodos, Gorkhas, Mizos, Nagas and other people. It has carved out three new states in the past few years: Jharkhand (from Bihar state), Uttranchal (from Uttar Pradesh state), Chhattisgarh (from Madhya Pradesh). It is also looking at other such demands. However, the other side of the success story suggests that the Union is not fair to all states. Different parties heading the government at the Union level have adopted a policy of ‘selective treatment’, depending upon the political configuration of the concerned states. Rules about the power of presidential proclamations have not changed despite many demands for deletion and reforms. Most of the recommendations of several inquiry committees set up by the government and opposition parties since  regarding reforms in Union-state relations have remained only on paper. The appointment, role and power of the governor have not been satisfactory to the majority of the states. The financial superiority of the Union over the states in terms of distribution, consumption and decision has been painful to many states. The Council of States in the Upper House of the Indian parliament has performed poorly in defence of states’ interests. It is also clear that Indian participation in the global market economy since  has further strengthened the Union in comparison to the states. It is also important to note that the states and Union territories always look to the federal/Union government to secure their rights and privileges. In cases of violations of federal principles, they have largely accused the Union of over-centralization. Similarly, the protection of minorities and their rights largely depend upon the Union and state governments. Such is also the case regarding their inclusion. What is important to mention here is that most of the dispersed minorities live in states that are directly responsible for law and order under the Indian Constitution. The governmental 

Ashis Nandy, “The Political Culture of the Indian State”,  Daedalus (Fall ), .



Arshi Khan agencies of the states – ranging from the office of the governor to the local police stations – are supposed to follow up the constitutional imperatives of the wellbeing of all people within the state. Minorities are part of the people. Their protection falls within state responsibility. If the state government fails in its constitutional duty, the Union government is constitutionally authorized to issue directives to the state or to take over its administration. Moreover, the governor and the chief minister are in such a position in every state that they can play a decisive role in the protection of minorities and their constitutional rights. There are many examples in states such as Kerala, West Bengal, Jammu and Kashmir, the northeast and Bihar where the governor and chief ministers have succeeded in controlling riots merely by directing the district administration and police from time to time. However, there is a significant percentage of Muslims in all the states except the northeast who have been riot victims earlier, due to different governments. Riots might occur again if either the Congress or the BJP comes to power. Even the active intervention of the chief minister cannot prevent riots in the long run because they are the symptoms of the causes, which can be clearly found in the communal consciousness that prevails among different governmental agencies assigned with the task of law and order. The social background of the personnel in most of the governmental agencies – particularly the police, administration and judiciary – shows that they belong to the majority Hindu community.69 As a result, it is but natural for them, being the product of a historical society, to demonstrate their community feeling as and when the question of equal treatment of two unequal communities arises. The ‘total domination’ of one community over the resources and institutions of governmental agencies is the result of the exclusion of the second largest religious community, which generates dangerous tendencies in the project of federal nation-building. It is only the balanced participation of the Muslims (other minorities such as Sikhs, Christians, Jains, Buddhists and Zoroastrians are well accommodated) in the structures of power, based on the principle of ‘proportionality’, that will change this dynamic. It is because of the ‘total domination’ factor we find that post-riot legal measures against the accused are either suspended due to lack of witnesses or biased police investigation, or the cases are prolonged in order to be dismissed due to time delays. Therefore, the debate on federalism in India should rationally be expanded beyond the stereotype Union-state relations in administrative, legislative and financial areas. The states need to have the right and opportunity to question the Union in cases of avoidable interventions into their affairs. On the other hand, the Union needs to maintain a strict vigilance over states to prevent their direct or indirect indulgence in the violation of minority rights. The preceding option also failed between -, when the outspoken rightist parties had governments at the centre and in some states. As a result, the Gujarat state government not only engineered anti-Muslim pogroms, but was also protected by the Union government at the moment of its criticism in the federal parliament. Therefore, the Indian federal polity requires reform of the protection of the rights of the states and protection of minorities from the states in riots, if the Union is to adhere to constitutionalism. If not, then either the judiciary should play a very active 



Arshi Khan, “Situating Riots, Communal Consciousness and the Culture of Exclusion in India’s Liberal Democracy”,  Social Action ( July-September ), -.

Situating Federalism, Minorities and Communalism in the Indian Polity role or the affected minorities (by simple majority) should be given special voting rights such as a referendum to oust the state government from power. The election commission should be vested with special powers to deny recognition to a party/parties if even  % of their activists or affiliated wings are involved in riots. The judiciary should take the lead in taking up the riot cases seriously with measures for suitable compensation and rehabilitation facilities for the riot victims. Thus, in general it can be said that federalism in India can be strengthened by protecting the states and their people.



Eduardo J. Ruiz Vieytez*

Minority Representation within the Spanish Electoral System

I. Introduction In this article we will try to analyze the political representation of the national minorities within the Spanish political system. Nowadays, Spain is perceived as one of the most decentralized countries in Europe as well as a successful model in the treatment of and provision for its national minorities. However, this external perception of the Spanish political system turns out to be highly questionable when we study its functions under an internal perspective. On one hand, the debates around the territorial model of the state are a persistent and current part of the political Spanish agenda and show a clear and growing incongruence between the centralized perceptions and some of the peripheral visions of the state, particularly, those concerning the Basques and the Catalans. On the other hand, public opinion in Spain has gained the idea that the political parties representing peripheral (sub-)national visions have a disproportionate political weight, favoured by the electoral system. This article tries to demonstrate what the real effect of the general electoral system is in relation to the political forces that represent the national minorities in Spain. We will address three topics consecutively. First, we will give a brief outline of the Spanish model and the complex meaning of ‘national minority’ within this system. Second, we are going to refer to the system of parties, and particularly, to the political forces that represent the most important national minorities in the state. Third, we will analyze, with empirical data, the incidence of the central electoral system on such political groups. Finally, we will indicate the main conclusions obtained.

*

LLD, Director of the Human Rights Institute at the University of Deusto (Bilbao).

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 117-140 © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Eduardo J. Ruiz Vieytez II. The Model of State and the Problem of Defining Minorities in Spain A. The Model of State: Autonomy, Nation and Nationalities within the Spanish Constitution of 1978 Spain is one of the most diverse societies in Europe. If we measure diversity in linguistic parameters, Spain has one of the most elevated percentages of population with a different mother tongue to the majority language. Indeed, at least one out of four Spanish citizens has a language other than Spanish as his/her mother tongue and the total percentage of citizens who know languages such as Basque, Catalan, Galician, Bable, Aragonese, Occitan or Berber is even higher. At the same time, these linguistic differences are in many cases linked to diverse feelings of identity, although the correspondence may not be absolute. There are people that despite belonging to these minority linguistic groups have a clear Spanish identity. However, others, minority language speakers or not, identify themselves, nationally speaking, with other realities. These realities are sometimes compatible with ‘Spanishness’, but in other cases they are perceived as incompatible. The only clear measurement of these alternative national identities is the electoral expression of these through the political factions that found their ideals in the existence of a differentiated nation. In this regard, the more differentiated and pronounced perceptions can be found in the Basque Country and Catalonia, where the differentiation seems to be preponderant. In other regions, mainly in Galicia, the feelings of difference are important but are expressed in a minor way in the electoral results. Is the Spanish state model properly addressing this social reality? Although the present Spanish model is habitually understood from the outside as an exemplary arrangement between minorities and a majority,1 the persistence of a bitter political debate on the territorial organization of the state demonstrates that the state structure continues to be the main pending subject of Spanish constitutional law. As professor Pérez Royo indicates, Spanish society has still not been able to legally formulate an answer for the problem of the state structure.2 The Constitution does not define the territorial model of the state. This might be linked to two good reasons. The first is to avoid concepts that could be undertaken by the mainstream political sector with a centralistic inspiration and tradition. Open and flexible formulas turn out to be more suitable in that respect. The second reason is probably even simpler: in that early moment there was not a complete agreement on the final picture of this territorial model. The constitutional text limits itself to pointing out that self-government is a recognised right of nationalities and regions. These terms are used in an intended ambiguous







Francesco Palermo and Jens Woelk, “No Representation without Recognition: the Right to Political Participation of (National) Minorities”, () Journal of European Integration (), -, at . Javier Pérez Royo, “Una asignatura pendiente: la reforma de la Constitución”,  Revista Española de Derecho Constitucional (), -, at .

Minority Representation within the Spanish Electoral System manner and no list of nationalities and regions is included in the Constitution.3 From there on, there is an arrangement principle of access to autonomy open for any territory and two procedural ways of access. It was the subsequent evolution of the events and some political agreements that shaped the present model in force. The autonomic map and the access to political self-government for the territory as a whole (except for Ceuta and Melilla) were decided in an initial stage. Later, through political agreements concluded in , it was intended to compare the competence level for the  Autonomous Communities, except for the specificities resulting from the Basque historic rights. In this way, the accepted wording for the territorial model was ‘autonomies’ state’ or ‘autonomic state’, a neologism in comparative law. Regarding constitutional law, some voices defend the autonomies’ state as being in some way comparable to the federal models effective in Germany, Belgium or Austria.4 However, others deny such a thesis,5 maintaining that the current Spanish model is more like a regional state, with Italy as the closest example.6 Finally, some authors prefer to underline the original features of the system.7 Different positions are taken when comparing the present Spanish system to federal or regional state models. For instance, the fact that all the autonomous communities enjoy an ample political self-government argues in favour of the federal character of the autonomic state. However, even recognizing the high level of self-government in the Spanish autonomous communities, the so-called autonomies’ state cannot be understood as an authentic federal state. There are a good number of reasons for debating against the federal character of the Spanish model. In the first place, the Constitution does not define Spain as a federal 





 

Today, one of the three proposals adopted by the central government foresees including the name of the Autonomous Communities in the Constitution, but without clarifying which are nationalities or regions. The president of Catalonia (also a member of the Socialist Party) has, however, proposed to include a specific reference to the different character of Catalonia, Basque Country and Galicia. Among others, Eliseo Aja, El Estado autonómico. Federalismo y hechos diferenciales (Alianza, Madrid, ). Others with a more cautious approach tend to say that Spain is a decentralized state very close to the federal systems: Pablo Pérez Tremps, Derecho Constitucional, vol. II. Los poderes del estado. La organización territorial del Estado (Tirant lo blanch, Valencia, th ed. ), . For example, Ruiz Robledo, “Veinticinco años de estado autonómico”, - Revista de Derecho Político (-), -, at ; Luis Pomed Sánchez, “Situación actual y perspectivas de futuro del Estado Autonómico”,  El Ebro (), -, at ; López Mira, “Veinticinco años de Estado autonómico: una mala solución organizativa para un problema político”, - Revista de Derecho Político (-), -, at ; Enrique Alvarez Conde, Curso de Derecho Constitucional, vol. II. Los órganos constitucionales. El Estado autonómico (Tecnos, Madrid, rd ed. ), ; Miguel Angel Aparicio Perez (ed.), Temas de Derecho constitucional (I) (Cedec, Barcelona, ), . Pedro Bon, “La Constitución española en el marco del constitucionalismo contemporáneo”,  Revista Española de Derecho Constitucional (), -, at . Giovanni Poggeschi, Le nazioni linguistiche della Spagna autonómica: Universalitá de la lingua castigliana e vitalità delle lingue regionali (Cedam, Padova, ); Antonio Reposo, Profili dello Stato autonomico. Federalismo e regionalismo (Giappichelli, Torino, ).



Eduardo J. Ruiz Vieytez state. The autonomous communities are not constituent parts of the state, since they did not exist prior to the Constitution nor did they come into being with it, but they need a subsequent autonomy act to be established. At the same time, the Constitution categorically insists in Articles () and  that there is a unique and exclusive source of sovereignty. The process of decentralization from a unitary political power is too explicit in the Constitution to be understood as the evolution of a federal system. Legally speaking, there is a manifested inequality between the institutions of the state and the autonomous institutions that does not perfectly fit the federal theoretical scheme. This disparity is evident in some aspects as the procedures of approval and reform of some autonomy acts or the suspension of the regional acts resorted to by the government before the Constitutional Court.8 The same acts on autonomy (the statutes) are not just designed by the specific autonomous community without other intervention, but have to be approved by the central parliament via an Organic Law. Also, the autonomous communities have no clear participation in shaping the state’s will or in the composition of the main state institutions, such as the Constitutional Court. The outdated structure of the Senate is also a good example in this respect. Finally, politically speaking, at this moment Spain does not operate institutionally or socially with the perception of shaping a federal state.9 On the contrary, there is no political force clearly defending the fact that there is already a model of federal inspiration, while some political groups do incorporate in their programmes the proposal of a constitutional reform to move towards a federal state. In consequence the model developed since the Constitution of  responds to a unitary state with a strong political decentralization and tends to the symmetry of the autonomous powers.10 In this regard, the Spanish model drifts away from the traditional unitary state model and also from those that are partially decentralized like the United Kingdom, Denmark or Finland. At the same time, the Spanish model differs from the classical federal state models, like the United States and Switzerland, although slightly less than other European federal states like Austria or Russia. The theoretical model closest to the current Spanish model is probably the one of the Italian Republic, which is also wrapped up in a reform process of federal tendency, although with a dubious final

 





Articles  and  of Organic Act / on the Constitutional Court. As evidence of this the “Initial periodical report of Spain to the Secretary General of the Council of Europe in accordance to Article  of the European Charter for Regional or Minority Languages”, document of the Council of Europe, MIN-LANG/PR (), , at . See Eduardo Ruiz Vieytez, “Federalism, Subnational Constitutional Arrangements and the Protection of Minorities in Spain” in Allan Tarr, Robert Williams and Joseph Marko (eds.), Federalism, Subnational Constitutions and Minorities Rights (Praeger, Westport, ), .

Minority Representation within the Spanish Electoral System result.11 On the other hand, Italy differs from Spain by guaranteeing the asymmetry in the Constitution itself.12 However, the state model is not only expressed by the territorial distribution of power, but also by the constitutional assumption of diversity. In this sense, the Spanish Constitution raises an obstinate model of identity to this plurality. The only concession that the constitutional text makes to a hypothetical plurality of national identities is the inclusion of the term ‘nationalities’ in Article . This is an ambiguous term that, however, has no practical potentiality either in access to autonomy or in the exercise of it. The text of Article  reads as follows: The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible motherland of all Spaniards; it recognizes the right to autonomy of the nationalities and regions of which it is composed, and solidarity amongst them.13

Therefore, the Constitution of  is categorical in establishing national unity. Furthermore, the mere existence of a unique Spanish Nation and its indissolubility represents the foundation of the Constitution. The editing of this Article reflects a nationalistic conception based on the existence of one nation that incorporates all state citizens irrespective of their will, even though an important number of inhabitants think that there are other national identities within the Spanish one. In this sense, the concept expressed in the second Article is excluding, because it does not mention the possibility of other national identities among Spanish citizens and assumes that all citizens form the Spanish Nation, which is defined as common ‘motherland’. In this sense, the current Constitution opposes the assumption of a plurinational state. There is no doubt that the Constitution shapes what is understood as the Nationstate model. The Constitution does not recognize that the state is also the political figure of those who do not belong or do not feel like belonging to such a prevalent national reality for different reasons. According to the Constitution, the various nationalities are part of the Spanish Nation and it seems there is no room for the existence of national minorities that differentiate from it. However, Article  of the Constitution assumes a plurilinguistic social reality. According to this, in Spain, Castilian or Spanish has an official status in any place of 





In October , decentralization was reinforced in Italy through a reform of Title V of the Constitution. Nowadays, another pro-federal constitutional reform is on the way, but the result of the process is uncertain since there is no consensus on the point among the main Italian political parties. Some authors maintain that the Spanish model tends to be permanently open and the symmetry would be one of its typical elements: Antonio Torres del Moral, Principios de Derecho Constitucional (Universidad Complutense, Madrid, th ed. ), . But, as Pomed says, the presence of differential facts does not federalize the system: Pomed Sánchez, “Situación actual …”, . Art.  reads in original: “La Constitución se fundamenta en la indisoluble unidad de la Nación española, patria común e indivisible de todos los españoles, y reconoce y garantiza el derecho a la autonomía de las nacionalidades y regiones que la integran y la solidaridad entre todas ellas.”



Eduardo J. Ruiz Vieytez the state, allogenic or not, while the other languages will share this official status in their respective autonomous communities only.14 Therefore, the assumption of the linguistic plurality is limited even though when speaking in historical terms this represents an important step forward. This constitutional configuration does not help the majority group to assume that the minority languages spoken in the state are a common heritage. Furthermore, the Spanish and Bulgarian constitutions are the only ones in Europe which state the obligation of their citizens to know the national language.15 By stating this, a cultural and linguistic asymmetry is promoted by the Constitution itself. The current editing of the constitutional text encourages the division between the citizens who have a second language, and therefore can participate in both cultures, and those who live from a monolingual and monocultural perspective in line with the constitutional Nation-state configuration. This disparity between majority and minority in the official recognition of the different elements of language, identity and nationality is founded on the basis of the permanent Spanish debate about the state model. At the same time, the current territorial structure is highly decentralized, but this situation does not seem to solve the internal shaping of the country. On the contrary, despite the generalization of territorial self-governments, the demands for the incorporation of determinate identity elements to the political frame are sustained. In this context, it is highly revealing how much polemic has been generated by the demand of some autonomic communities, particularly The Basque Country and Catalonia, to have their own cultural or sport representations. This demand, strongly supported by the Basque and Catalonian communities, is rejected as ‘anti-natural’ by the majority of Spanish society and by the two parties that represent it. This matter does not affect the state model or the devolution of new powers to the respective autonomous communities in a significant way, but it affects the latter’s exterior visibility. Given the nature of the Spanish system, the different national identities find their expression throughout a particular territory. Thus, the political expression of the non-majority realities in Spain is canalised by those political parties that undertake the development of such alternative identities within a given area of the state territory. B. The Lack of a Concept for National Minorities within the Spanish Legal System In Spain, the concept of ‘national minority’ is not used on a regular basis within the legal code, nor in the ordinary political debate. In fact, there is no definition of ethnic, linguistic, religious or national minority in the Spanish legal order, and this issue was 





The current political reality shows the fracture of this constitutional mandate in situation like Galician in Asturias and León, Bable in Asturias, Catalan in Aragon and Murcia, Basque in the largest part of Navarra and Aragonese in Aragon. Iñaki Agirreazkuenaga, Diversidad y convivencia lingüística (Diputación foral de Gipuzkoa, Donostia, ); Edorta Cobreros, El régimen jurídico de la oficialidad del Euskera (Instituto Vasco de Administración Pública, Oñati, ); Antoni Milian i Massana, Derechos lingüísticos y derecho fundamental a la educación. Un estudio comparado: Italia, Bélgica, Suiza, Canadá y España (Civitas, Madrid, ).

Minority Representation within the Spanish Electoral System never on the political agenda, either. This absence of a political approach can be surprising, particularly if we take into consideration that Spain is one of the countries with the highest degree of linguistic or national diversity in Europe. Actually, few external analysts can doubt whether the Spanish state encloses a high dose of plurality. The realities of the Basques, Catalans and Galicians, as well as others, are well-known. Directories of minorities do not hesitate to include these and other groups when they refer to the minority groups in the Spanish state.16 However, as already mentioned, the legal order does not talk about the minority concept, not even in an indirect way. The  Constitution itself eludes that term and it is mentioned only in Article  as the undefined concept of ‘nationalities’. Still, by the editing of Article  alone it is deductible that, according to the Constitution, the nationalities cannot be other than but a part of the Spanish nation, like the regions, but the difference between these two concepts is not explicit. As mentioned before, the Constitution establishes a univocal model of national identity in which all the citizens are incorporated. Therefore, this is a constitutional approach that recalls the French formula rather than that of other European countries. The term ‘minorities’ does not appear in the Constitution, neither regarding linguistic matters (Article ), contrasting with other European constitution expositions, like the Italian,17 nor even when religious freedom is described (Article ), although there is a certain implicit recognition of the majoritarian Roman Catholic faith.18 The official politics go in this same direction of denying the potentiality of the minority concept. The state thesis seems to be that Spain assures its plurality by the territorial self-government granted to the regions and nationalities. As a consequence of this, there would be no need for an extra recognition of the plurality. From this perspective, following political decentralization, there would be no minorities left in Spain. As far as international law is concerned, Spain ratified the Framework Convention for the Protection of National Minorities (FCNM)19 in . Contrary to other European countries, Spain did not formulate any declaration about the scope of application of this treaty20 at the moment of its ratification. However, the first monitoring 

   

Among others, David Levinson, Ethnic Groups Worldwide (Oryx Press, Phoenix, ), ; Ted Robert Gurr, Minorities at Risk (United States Institute of Peace Press, Washington, ),  and ; Bridget Anderson, “Spain”, in Minority Rights Group International (ed.), World Directory of Minorities (Minority Rights Publications, London, ), -; Joseph Yacoub, Les minorities dans le monde: faits at analyses (Desclée de Brouwer, Paris, ), -; Miguel Aguiar de Luque, “Minorities and the State of Regional Autonomy in Spain”, in European Commission for Democracy through Law (ed.), The Protection of Minorities (Council of Europe Press, Strasburg, ), -, at ; Hurst Hannum, Documents on Autonomy and Minority Rights (Martinus Nijhoff, Dordrecht, ), . See Article . See Gerardo Ruiz-Rico Ruiz, “Los derechos de las minorías religiosas, lingüísticas y étnicas en el ordenamiento constitucional español”,  Revista de Estudios Políticos (), -. The instrument of ratification was published in the state Official Bulletin in January . Austria, Estonia, Luxembourg and Switzerland include a definition for the national minority term in their respective declarations. The declarations of Denmark, Germany, Slovenia, Sweden and Macedonia incorporate a list of the minorities that will benefit from the application of the Framework Convention within these states.



Eduardo J. Ruiz Vieytez cycle of this instrument was not very successful, first, due to the limited quality of the state report21 and second, to the impossibility of the Advisory Committee to carry out an on-the-spot visit since it was not invited by the Spanish government to do so. In its report presented in December ,22 the Spanish state incorporates information concerning the situation of the gipsy community, although the official position of the government is to deny that this community constitutes a national minority.23 There is no reference in the report regarding the national or linguistic plurality of the state, and the Advisory Committee itself, in its opinion about the application of the Convention in Spain, mentions the convenience of including other groups in its scope of implementation.24 The Committee asks what the position of the ‘nationalities’ is in relation to an instrument aimed to protect the national minorities. Spain has also ratified the European Charter for Regional or Minority Languages (EChRML). However, Spain is the only country that has done so without specifying in its instrument of ratification the listing of minority languages to which the corresponding measures will be applied.25 The instrument of ratification only talks about the languages recognized as official in the Autonomy Statutes. The state report shown in  gathers a series of measures adopted in favour of the Basque, Catalan, Galician and Valencian languages. It does not talk about linguistic minorities but of minority languages, according to the EChRML terminology. Spain is also part of the United Nations International Covenant on Civil and Political Rights (CCPR), whose Article  protects certain rights of the people belonging to ethnic, religious and linguistic minorities. However, the state reports presented by Spain related to this Covenant allude briefly to the matters linked to minorities. Thus, in the latest state report,26 we find procedures relative to the agreements signed by non-Catholic confessions, but it does not allude to other linguistic or ethnic minorities. On the contrary, when the state talks about the first Article of the Covenant on the right of self-determination of peoples, it indicates the high degree of self-government of the nationalities and regions. This fact could be taken to the surprising conclusion that in the eyes of the government the nationalities are closer to the concept of ‘people’ than to the concept of minority. In fact, in many of the Autonomy Acts the ‘people’



    



The Advisory Committee notes that the state report was submitted  months late. It also states that “the information given on relevant practice is limited”. The Committee “points out that the State Report does not provide the necessary information on Spain’s position with regard to the personal scope of application of the Framework Convention”: Opinion of the Advisory Committee on the FCNM on Spain, ACFC/INF/OP/I(), adopted on  November , made public in October , para. . Report submitted by Spain pursuant to Article () FCNM, ACFC/SR(), received on  December . Comments on Article  of FCNM of the opinion of the Advisory Committee. See in particular para.  of the Advisory Committee’s opinion on Spain. The instrument of ratification was published in the state Official Bulletin on  September . State Report of  August  (th Periodic Report). United Nations document CCPR/ C//Add. .

Minority Representation within the Spanish Electoral System concept is used in addition to the one of nationality.27 At the present time, the political debate in Catalonia is focusing on the admission of the expression ‘national community’ in an amended version of the statute, which is still under parliamentary discussion. This official laxity with regard to the term ‘minority’ is matched by the representative social and political forces of the affected communities. In fact, there are practically no political parties or social movements that use the term ‘minority’ in their agenda. On the contrary, by general norm, it is preferred to use other, better accepted terms. On the one hand, there are minority groups that do not have the force or enough consistency to be able to raise a political-electoral fight by themselves. This would be the case of the minority religious communities (Muslims, Jews, Protestants, etc.) or the gypsy ethnic group. As for the linguistic minority communities, these are either much reduced (as in the case of Berber in Ceuta and Melilla, or of foreign languages), or are included in a broad concept of more national or ‘nationalistic’ identity. For this reason, the linguistic minority communities are represented by political forces of a certain territorial scope. These territorial forces assume the representativeness of the inhabitants of such areas, considering them to make up a distinguished regional or national community. But even these territorial parties, normally known in colloquial terms as ‘nationalistic’, tend to reject the minority concept to define their respective community. In some cases, when the aspirations of the government are relatively moderate and these aspirations are established from a total assumption of the constitutional framework, these parties define their communities (Canary, Andalusia, Valencia, Aragon, etc.) as nationalities compatible with the Spanish nation itself. On other occasions, the nationalistic political parties raise more advanced objectives and claim, with varying degrees of emphasis, a right of self-determination for their group (Basque Country, Catalonia, Galicia, Aragon,28 etc.) to which the legal frame sounds restrictive. The people who identify themselves in an alternative manner nationally speaking normally reject being defined as ‘mere national minorities’, contrasting with their authentic national condition. This explains their nonparticipation regarding the application of the FCNM or the CCPR in Spain. Only the EChRML has raised the attention of social groups in these political scopes. Finally, from the international law point of view, it is very clear that Spain is composed by different linguistic, religious and national minorities. Nevertheless, from the internal perspective, the term national minority is not operative for different reasons. To refer to the political representativeness of the minorities in Spain is to speak of minorities territorially organized. It must be understood that the so-called ‘nationalistic’ political parties do not define their communities as minorities, but as nationalities or nations without state.29

  

For instance, the Act on Autonomy of the Basque Country refers in its first Article to the “Basque people”. In the latter case, this applies to the political position of Chunta Aragonesista (CHA), but not to that of the Partido Aragonés Regionalista (PAR). Michael Keating, The New Regionalism in Western Europe: Territorial Restructuring and Political Change (Elgar, Cheltenham, ).



Eduardo J. Ruiz Vieytez III. Minority Political Organization in Spain A. National Minorities (Nationalities) and Political Parties The absence of the term national minority in the Spanish legal context has its correspondence in the political framework. In Spain, there are no political formations of any relevance that vindicate for themselves the representativeness of ethnic minorities. There are no political parties aiming to represent immigrant communities, due both to the limited number of aliens residing in Spain, and the small percentage of Spanish citizens with the right to vote among them. Consequently, there are no ethnic political parties in Spain. Within the  more relevant parties there is none that represents the interests of immigrant communities, the interests of people from other countries of origin, the interests of religious minorities, or the interests of the gypsy community. In this last case, there is only the Nationalistic Gypsy Calo Party, which has taken part in the last two general elections. In March  it collected , votes in the state elections (. % of the total) and in March  only  votes. Therefore, the only exception to the political parties or coalitions of general scope is represented by the parties acting exclusively in certain zones of the territory. Their territorial character follows from their ideology and concept of identity. Normally they include, at most, the territorial scope of an autonomous community, although in the case of the Basque parties, they are also extended also to Navarre.30 In this article, we will examine territorial parties have received their own seat in the state parliament in one of the eight general elections since the approval of the Constitution. Seats obtained thanks to electoral coalitions or parliamentary agreements with state parties will not be considered here. With these restrictions, the relevant territorial political parties are listed in Table .





Another important exception on this matter is the ERC party which runs for elections not just in Catalonia, where it obtains most of its votes, but also in the other two Catalan speaking communities, Valencian Community and Balearic Islands.

Minority Representation within the Spanish Electoral System Table :

Minority Parties Represented in the Spanish Lower Chamber at Present or Previous Legislatures31

Region

Acronym PNV HB EA EE NB32 CIU ERC

Basque Country

Catalonia ICV Galicia

CG BNG Aragon PAR CHA Andalusia PA Canary CC Islands Valencia UV

Original name Partido Nacionalista Vasco Herri Batasuna Eusko Alkartasuna Euskadiko Ezkerra Nafarroa Bai Convergencia i Unió Esquerra Republicana de Catalunya Iniciativa per Catalunya / Els Verds Coalicion Galega Bloque Nacionalista Galego Partido Aragonés Regionalista Chunta Aragonesista Partido Andalucista Coalición Canaria

English name Basque Nationalist Party Popular Unity Basque Solidarity Left of the Basque Country Yes to Navarre Convergence and Union Republican Left of Catalonia

Ideology Centre-(right) Left Centre-left Left Left Centre-(right) Left

Initiative for Catalonia / The Greens Galician Coalition Galician Nationalist Block Aragonese Regionalist Party Aragonese Assembly Andalusian Party Canary Coalition

Left Centre-right Left Centre-right Left Centre-right Centre-right

Unió Valenciana

Valencian Union

Centre-right

All these parties have competed or compete exclusively in certain electoral constituencies that correspond to the territory whose interests or identity they try to represent. Since the territories include in any case a minority population with respect to the one of the state, it is possible to consider for this effect, that these are the minority parties of the Spanish system. All these parties define their respective communities as nations or, in other cases, as nationalities according to Article  of the Constitution. Following this logic, it can be considered that the minorities represented in the central parliament during its eight legislatures are seven. These are listed with their corresponding seats in Table :





In this table, PA is considered as the natural successor of the former Partido Socialista de Andalucía (PSA, Andalusian Socialist Party), which gained five seats in . Also, CC is considered to be the natural successor of the former Unión del Pueblo Canario (UPC, Union of the Canary People), which gained one seat in , and Agrupaciones Independientes de Canarias (AIC, Independent Groups of the Cannary Islands), which gained one seat in  and . Nafarroa Bai (Yes to Navarre) is a coalition of Basque national parties (among them EA and PNV) set up in , which only operates in the Autonomous Community of Navarre. It clearly represents the Basque national minority within this particular region.



Eduardo J. Ruiz Vieytez Table : Number of Minority Party MPs by Nation(ality) and Legislature

Galicia Andalusia Canary Islands Valencia Catalonia Aragon Basque C. Total

        

        

        

        

        

        

        

        

Obviously only the Basques and Catalonians have had their own representatives in every legislature. For the verification of this data it is important to consider that the communities are different in number. The seats can therefore not be compared directly, but they have to be seen in proportional relation to the population of every community. Some constituencies have also experienced changes in the total number of seats due to losses or gains of population from one election to another.33 As for the position of these parties with respect to the minority or national fact, it is important to indicate that all of them defend in their programmes a high dose of selfgovernment for their respective community, although there are important differences as to the relation with the state.34 Although it is extremely difficult to create such typologies among these parties, we suggest distinguishing three different attitudes according to their statutes or electoral programmes: . Parties defending independence as the most suitable status: HB, EA, NB35 (Basque Country) and ERC (Catalonia). . Parties in favour of the right to self-determination, but without a clearly defined aspiration to independence. They reject the Constitution or ask for an important reform of it to obtain a higher level of self-government: PNV (Basque Country), CIU, ICV (Catalonia), BNG (Galicia) and CHA (Aragon). . Parties who defend the interest of their respective region/nationality requesting a high degree of autonomy, but without questioning the Spanish identity and under









For instance, the seats for the Basque Provinces Biscay and Gipuzkoa were reapportioned from ten to nine and from seven to six due to a decrease in population. For this reason the Basque parties, which used to compete for  seats, have been competing for  since . All the referred parties which have not been disbanded or banned show different ideological or programmatic documents on their websites: the CIU: ; the ERC: ; the PNV: ; the EA: ; the NB: ; the BNG: ; the CHA: ; the PAR: ; the CC: . We consider the NB to be a pro-independence coalition because this is the stand of their two main parties: Eusko Alkartasuna and Aralar.

Minority Representation within the Spanish Electoral System the current Constitution: CG (Galicia), PAR (Aragon), PA/PSA (Andalusia), UV (Valencia) and CC/UPC/AIC (Canary Islands). In this sense, there are other parties that do not have representation in the central parliament, but they do in the regional parliaments. This happens at the moment with the communities of Cantabria, Rioja, the Balearic Islands and Navarre.36 In some cases, the territorial parties represent provincial or islander communities of a lesser territorial scope than the autonomous community itself. This is currently the case in the parliaments of the Canary Islands, Castile-Leon and the Basque Country.37 Finally, in other autonomous communities like Murcia, Asturias, Castile-La Mancha, Madrid or Extremadura, there has either been no minority party or only negligible parliamentary presence. B. Minority Parties within the Spanish Party System Although it was initially considered that Spain had a multi-party system, at the present time it can be said that it has moved to a two-party system. In fact, they are the two great state parties that can aspire to hold the government and normally in an exclusive manner. To date, there has not been any coalition government known in Spain, since in all the legislatures the winning state party has obtained the premiership and all the ministries. On four occasions, the winning party obtained an overwhelming majority in the Congress, which is why it did not need any support to govern. On the four occasions when the leading party needed some external support this always took place through parliamentary collaborations and never by means of a coalition government. If in the polls of  and  the two-party system was structured between the UCD38 and the PSOE39 from  elections onwards, the Popular Party has been the one that competes with the PSOE, representing the centre-right wing after the UCD debacle. Other state parties have tried to break through, as much in the left40 as in the 





 

There are, respectively: PRC, Partido Regionalista de Cantabria (Regionalist Party of Cantabria); PR, Partido Riojano (Party of Rioja); PSM-ENE, Partido Socialista de Mallorca – Entesa Nacionalista (Socialist Party of Majorca – Nationalist Net); UM, Unió Maiorquina (Union of Majorca); CDN, Convergencia de Deócratas de Navarra (Convergence of Democrats of Navarre). A particular case is the one of the Unión del Pueblo Navarro (UPN, Union of the Navarrese People), which has a territorial scope, but also a structural link with the Popular Party. Although this is the first political party in Navarre, and holds the government of this community, in political terms it can be considered the regional version of the Spanish Popular Party. Thus, the PIL, Partido Independiente de Lanzarote (Independent Party of Lanzarote), only represents the isalnd of Lanzarote; the UPL, Unión del Partido Leonés (Union of the Leonese People which stands only for the historical territory of the Leon Kingdom; the UA, Unidad Alavesa (Alavese Union) is only present in the province of Alava. Unión de Centro Democrático (Union of the Democratic Centre) was a coalition of different formations organized around the leadership of the prime minister nominated by the king, Mr. Adolfo Suarez. It was a centre-right-wing-oriented formation. Partido Socialista Obrero Español (Spanish Socialistic Workers Party). Formerly the Spanish Communist Party, nowadays integrated in United Left (Izquierda Unida).



Eduardo J. Ruiz Vieytez centre,41 but the electoral system has caused a progressive concentration of the vote around two great options and reinforced the two-party system. Consequently, the electoral system marginalizes the significance of ‘hinge’ parties at the state level. This entails an important consequence affecting the minority parties. When the winning party does not get an overwhelming majority in the lower chamber, the lack of a small centre-wing state party provokes the PSOE and PP into looking for parliamentary support among nationalistic groups playing the role of ‘hinge’ parties for the system. Thus, in the legislature of , the PSOE obtained an almost permanent endorsement of the CIU, whereas the PP, in the legislature of  obtained the endorsement of the CIU, PNV and CC. In the present legislature, the PSOE leans fundamentally towards the ERC and IU. The political force of minority parties in Spain depends to a great extent on their seats in the Congress, and especially when a state party has no majority of its own, the influence of minority parties increases dramatically. From the experience of the completed legislatures so far, nationalistic parties aspiring to grant a decisive support to the central government must provide a minimum number of at least four MPs. Therefore, several minority parties, mainly of leftist tendencies, are normally not considered when defining government majorities. This blackmail potential of minority parties in the Spanish system also depends on their presence in the autonomous communities’ governments. The access to the autonomous government grants to these parties an important local force and a greater social implantation that can be taken into account at the state level too. The minority parties that have acceded or are at the moment in the presidency of autonomous governments are: the PNV, CIU, CC, UPN and PRC. Other territorial parties having had or having presence in autonomous coalition governments are: the EA, PAR, PA, ERC, ICV, EE, CG, PSM and UM. The local influence of these minority parties strengthens their importance at the state level, but regarding the state perspective, the political weight of these forces and the representativeness of the national minorities of Spain, are measured basically through their presence in the central parliament. This presence happens to be highly conditioned by the current electoral system. IV. Minority Parties and the Spanish Electoral System A. Main Features of the Spanish Electoral System The Spanish parliament is made up of two chambers: the lower chamber or Congress of the Deputies and the upper chamber or Senate. The Spanish dual chamber arrangement is, nevertheless, very biased in favour of the lower house. The political weight falls clearly on the Congress, which nominates and drops the head of government. The enactment of bills lies basically in the hands of the Congress, since, although the Senate can veto bills, the Congress has the capacity to surpass this veto even by a simple major-





The most successful attempt was that of CDS (Social and Democratic Centre) during the s.

Minority Representation within the Spanish Electoral System ity. Finally, although the Constitution states that the Senate is the chamber of territorial representation, this function has not really been assumed yet. For these reasons it will be interesting to study the effects of the electoral system in the politically strong chamber, the Congress of Deputies. Article  of the Constitution establishes the following election principles: – Congress is wholly elected by universal suffrage. – The number of deputies will be a fixed number between  and . – Provinces will function as electoral constituencies, in addition to Ceuta and Melilla. – Ceuta and Melilla will each choose one MP. – The distribution of seats among the parties will be carried out according to the votes received by the different candidacies, based on a proportional formula. – The distribution of the seats to be chosen in each province will be carried out by assigning a minimum representation to each constituency and distributing the rest in proportion to the population. – The Congress will be elected every four years and after its anticipated dissolution. Therefore,  constituencies are to be established ( provinces, plus Ceuta and Melilla) and the possibility of using a majority electoral system in the election of the Congress is rejected. The Organic Act of the General Electoral Regime42 (LOREG) is in charge of establishing this framework and of completing the design of the Spanish electoral system for the Congress. The LOREG establishes the following conditions: – The number of deputies to choose is . – The mathematical formula used for the allocation of seats to candidacies in each constituency is the ‘D’Hondt’ formula. – Each province has a minimum representation of two deputies. The remaining deputies to be chosen (, apart from Ceuta and Melilla), are assigned to the provinces in proportion to their population in the electoral decree. – Only the candidacies receiving at least  % of the valid votes in a given constituency are taken into account for the assignation of seats. These norms have guided the election of the Congress of Deputies in the eight elections held to date since the approval of the Constitution.43 With this regulating frame for general polls, some conclusions regarding the representativeness of the system can be drawn. In particular, there are two elements of extreme importance. On the one hand, the Constitution forces the use of a proportional electoral formula, which in theory reflects the voter’s will more accurately. A majority system would instead affect minority parties negatively, except where they are one of the major political powers. Past experience demonstrates that only the two large Basque  

Organic Act /,  June . This has been partially amended on several occasions. In fact, these regularisations come from a provisional norm (the Decree-Act / of  March ) previous to the Constitution, by means of which the first elections to the constituent assemblies were made, on  June . The eight general elections since  have taken place on the following dates:  March ,  October ,  June ,  October ,  June ,  March ,  March  and  March .



Eduardo J. Ruiz Vieytez and Catalan parties (PNV and CIU) are able to be the first forces in some of their respective provinces. They would be represented also under a majority system (like thefirst-past-the-post system), but all other minority parties would be underrepresented (or not even present in Congress). The D’Hondt formula is the one used in almost every type of election in Spain: regional, Basque provincial, municipal and European. The D’Hondt system tends to favour the big political parties over the small ones, unlike other proportional systems like the Saint-Lague formula. The choice of the D’Hondt system has been traditionally justified in Spain as an attempt to avoid the atomization of parliament and to guarantee stability in the governability of the country. The second element of great importance in the definition of any electoral system is the number and size of the constituencies. The Spanish Constitution starts by fixing a high number of circumscriptions (). This results in a low average number of seats per constituency. On the other hand, the difference between the number of seats elected in the smallest and in the greatest constituency is very high. If we compare these numbers with the average magnitude44 and the rank45 of other countries that also use the D’Hondt system, we obtain the following comparison:46 Table : Basic Characteristics of the Electoral System Used in Several Proportional Representation Models: Country Netherlands Israel Luxembourg Belgium Finland Portugal Norway Iceland Spain Malta

Average magnitude    . . . . . . 

Rank - - - - - - - - - -

Seats          

It can be easily deduced that with a relatively reduced average magnitude and with an excessively ample rank, the electoral system loses an important dose of proportionality and approaches the results of a majority system. This is not just motivated by the 







By magnitude we understand the number of seats to be elected in each constituency. Therefore, the average magnitude of the system results from dividing the total number of seats by the number of electoral constituencies. In electoral terms, rank is the comparison (or difference) between the number of seats elected in the biggest constituency and the number of MPs to be elected in the smallest constituency. The idea of this table is taken from Douglas Rae and Victoriano Ramírez, El Sistema Electoral Español. Quince años de experiencia (McGraw-Hill, Madrid, ), . Data have been updated.

Minority Representation within the Spanish Electoral System formula used, but by the design of the electoral constituencies. In Spain an elevated number of constituencies can be found, one reason why in many of them few deputies must be elected. The election of few deputies distorts the proportionality of the system in these constituencies, affecting the set of the system. On the other hand, the Constitution establishes that each province must receive a minimum representation, and then the rest of the seats will be distributed by constituencies according to their population. The LOREG, instead of establishing the minimum of representation as one MP, elevates it to two. Due to this decision, only  seats (instead of ) remain for distribution according to population. This causes distortions in the relation between votes and seats, since the less populated provinces choose more seats than would proportionally correspond to them. In addition to this, the low average magnitude of the system affects not just the final mathematical measurable result, but influences without doubt the decision of each voter. Indeed, on many occasions, the voter may look for a higher rent of his vote in terms of parliamentary representation, mainly in smaller constituencies where the possibilities of obtaining seats only correspond to the big parties. This a priori effect can nevertheless not be measured in exact terms, but only through surveys. As a result of this, it can be concluded that the Spanish system, in spite of its use of a proportional formula, is designed in a way that the proportional effects are seriously conditioned. For this reason, there is a tendency to include the Spanish electoral system among the proportionally imperfect or impure systems; although there are also those who consider that the Spanish system is in fact an attenuated majority system rather than an imperfect proportional one.47 Finally, it must be indicated that the establishment of a threshold of votes in order to accede to the distribution of seats is ineffective, due to the reduced magnitude of most of the constituencies. On the other hand, this threshold of  % is small and when operating on a provincial level, can only play an effective role in the two bigger constituencies of Madrid and Barcelona.48 B. Empirical Analysis of the Obtained Results by Minority Parties 49 In Spain there is a perception that the minority parties enjoy substantial parliamentary power, superior to that which would correspond to them proportionally speaking. This perception is, of course, more accentuated within the majority group than among those who identify themselves with different minorities. Proof of this perception is the proposal formulated by the president of the autonomous community of Extremadura in January .50 He proposed the establishment of an electoral threshold of  % of the votes at the state level in order to reduce the excessive weight of the territorial political    

José Ramón Montero, “El debate sobre el sistema electoral: rendimientos, criterios y propuestas de reforma”,  Revista de Estudios Políticos (), -, at . Ibid., . The electoral data used for this article were obtained from the database of the Ministry of the Interior, available at . Mr. Juan Carlos Rodríguez Ibarra has been the President of Extremadura since the first regional elections in , and is one of the most popular leaders of the Socialist Party.



Eduardo J. Ruiz Vieytez forces that, in their opinion, only satisfy partial interests and are not representative for the whole of the state. It is easy to conclude that the acceptance of this proposal in practical terms would have meant the parliamentary disappearance of the minority forces. Only the Catalan coalition, CIU, has on two occasions ( and ) received a sufficient number of votes to surpass the barrier of  % of the total votes at state level. In the last general elections of March , if the blank votes had also been counted towards the establishment of a threshold, only the PSOE and PP would have been present in the Spanish parliament. This proposal would produce overwhelming majorities for the winning party in practically all elections. If we considered emblematic nations such as the Basque Country or Galicia, which only represent a little more than  % of the population of the state, it is easily understood that it would be practically impossible for any Basque or Galician party to accede to the parliament, even obtaining  % of the votes in their respective territory.51 Does the electoral system really favour minority parties? In order to formulate an analysis of the electoral data in elections to the Congress, we will take into consideration all the political parties that have obtained representation in Madrid during the various general elections. The research studies developed on the Spanish electoral system usually tend to forget its impact on minor territorial parties, considering only the two greater territorial parties of Catalonia and the Basque Country, CIU and PNV, which the system affects in a different form. As explained previously, we will only consider as minority representation the MPs obtained by political parties that take part in the elections without any collaboration agreement (electoral or parliamentary coalition) with state forces. Under these conditions, the number of seats of each minority party in the eight elections between  and  is reflected in the following table:





However, raising the threshold does not always lead to the intended consequences of subduing the minority: see Timm Beichelt, “Minorities in New Democracies: A Source of Destabilization?”,  EYMI, (/), -, at .

Minority Representation within the Spanish Electoral System Table : Number of MPs Obtained by Each Minority Party by Legislature CG BNG PSA/ PA UPC/AIC/CC UV CIU ERC ICV52 PAR53 CHA PNV EA EE HB NB

             (with AP)       -

            -

              -

               (with PP)         -

                (with IU)         

In order to analyze the effects of the electoral system on this outcome, we will present some meaningful comparisons. Thus, for each election made, we have compared the number of obtained votes by each party with the number of obtained seats. At the same time, for each election we have calculated the number of seats that each party would have obtained in proportion to its votes, that is to say, the proportional number of seats to its weight in votes. This would be the perfect proportional electoral system. Finally, we have calculated the number of seats that each party would have obtained using the D’Hondt formula, but without doing it in  constituencies; that is to say, if the  MPs were elected in a unique national constituency of  seats. Thus, taking as reference the last general election of March , the different electoral results in number of seats have been outlined in Table . Column A reflects the real number of seats obtained by each party by applying the D’Hondt formula in  constituencies according to the current system. Column B represents the proportional results in seats according to the votes of each party. Finally, column C reflects the number of MPs each party would have obtained if the D’Hondt system had been applied in a unique national constituency of  seats.

 

ICV went to the polls in  as this independent formation, but with the commitment of joining the parliamentary group of Izquierda Unida, to which it is linked federally. In , PAR went to the polls in a coalition with AP (the former version of the current Popular Party) and other centre-right-wing state parties. In , PAR went to the polls in a coalition with the Popular Party.



Eduardo J. Ruiz Vieytez Table : Compared Seat Distribution with Different Electoral Systems in the  Elections Parties PSOE PP IU+ICV CIU ERC PNV CC BNG PA CHA EA NB BNV-EV54 PB55 CENB56 Other state Other Minority TOTAL

Total votes ,, ,, ,, , , , , , , , , , , , , , , ,,

Votes share . . . . . . . . . . . . . . . . . .

A Seats share  .  .  .  .  .  .  .  .    .  .  .            

B                  

C                  

By comparing columns A and B it can be observed that the present system causes a favourable allocation of seats to the majority parties. The PP and PSOE together monopolize  % of the seats, although they only concentrate around  % of the valid votes. This overrepresentation acts as a detriment to the remaining political formations that, with the exception of the PNV, obtain the same or fewer seats than their share of votes. Thus, the IU obtained a total of five deputies, while their proportional force was equivalent to  seats. Among the minority parties, CIU lost two MPs with respect to their proportional weight in votes, while ERC and BNG lost a seat each. The more serious consequences are for the PA, BNV and PB, since their parliamentary representation in the Congress is denied when its electoral endorsement in votes would be equivalent to three, one and one deputies, respectively. This means that the territorial political parties have lost eight seats altogether out of the  seats that would correspond to them proportionally. Of course these eight seats have been gained by the national level politi-

 





Bloc Nacionalista Valencia (Nationalist Block of Valencia) is a left-wing nationalist party of the Valencian Community. Progresistas de Baleares (Balearic Progressives) was a coalition of different local and state left-wing parties within the constituency of the Balearic Islands. The members of this coalition were IU, ERC, Socialist Party of Majorca (PSM) and Socialist Party of Menorca (PSm). CENB is the acronym of a state-level candidature under the name “citizens in favour of the blank vote”. Blank votes as such rose to . % of the valid votes.

Minority Representation within the Spanish Electoral System cal parties that represent the majority identity, although in an unequal form. This is very beneficial for each major party and very detrimental for the rest.57 If we compare columns B and C we will verify that the greater distortion between the proportional number of seats and the MPs finally obtained is not so much a consequence of the application of the D’Hondt formula, but of the division of the country into  constituencies, many of which elect a small number of deputies. This fact creates a less proportional system and, therefore, closest to a majority system at least in a great number of circumscriptions. This is added to the well-known effect of the D’Hondt system in favour of the major parties. All this reduces the parliamentary presence of minority parties, as well as their political influence. If we drew up the same chart with respect to the other seven elections held since , we would obtain similar conclusions. The negative influence of the system on minority party representation can be verified in Tables  and : Table : Number of MPs Lost by Minority Parties as a Consequence of the Electoral System Minority Parties Real seats Proportional seats Difference

   -

   -

   -

   -

   -

   -

   -

   -

Table : Losses in Percentages of Parliamentary Representation of Minority Parties at Each Election Minority Parties % of total votes % of MPs Difference

 . . .

 . . .

 . . .

 . . .

 . . .

 . . .

 . . .

 . . .

If we compare by parties, we will note that practically all minority parties are debilitated through the present system. Only the PNV has occasionally obtained proportionately more representants than votes, due without any doubt to its great concentration of electoral votes in its two stronghold constituencies of Biscay and Gipuzkoa. In Table  we specify the seats of minority parties and calculate the total effect:



Eduardo Ruiz Vieytez, “¿Beneficia el sistema electoral a los partidos nacionalistas?”, El Correo,  January ; Eduardo Ruiz Vieytez, “¿Es conveniente la reforma del sistema electoral?”, El Correo,  March .



Eduardo J. Ruiz Vieytez Table : Difference of MPs Obtained by Minority Parties in Respect to Proportional Strength, by Nation/Region Minority parties Basques Catalans Galicians Others Total

 - - - - -

 - - - - -

 + - - - -

 + - - - -

 - - - - -

 - - - - -

 + - - - -

 + - - - -

As can be seen, the Basque minority sometimes obtains a certain overrepresentation. Nevertheless, it is important to consider that on two of the occasions in which this has happened, one of its main political forces (HB) was not present in the elections. In any case, minority parties are underrepresented in the present system, as the smaller state forces. On the contrary, the main parties which represent the majority identity are reinforced by the electoral system. In addition to the D’Hondt effect, the distribution of the country in relatively small constituencies favours the majority character of the system. At the same time, the constituencies less populated in Spain enjoy a considerable premium of representation. These provinces (among others, Soria, Avila, Zamora, Guadalajara) are in the centre of the country and show a sociological structure favourable to state parties and to conservative ideologies. On the contrary, the minority parties are forced to compete in provinces whose representation is proportionally inferior. C. Political Consequences of the Electoral System on Minority Parties As in almost every country, the electoral system in Spain generates important effects on the party system and electoral behaviour itself. The underrepresentation of smaller state parties and most of the minority parties are an added factor that influences voters, who, aware of the electoral effects of their vote, tend to support the more advantageous electoral formation, reinforcing therefore the two-party system. Thus, some potential voters of minority parties in small provinces prefer to give their votes to one big state party, in order to prevent the other one from getting more seats. They presume that their favourite party will not get enough votes in the constituency to obtain any seat in the Congress. These are the dynamics of the useful vote, which has helped the two larger political formations to increase their common share of vote in comparison with the first democratic elections. On the other hand, as we already explained, the Spanish electoral system is not very proportional. Therefore, it is relatively easy to obtain absolute majorities. This has happened in four out of the eight elections until now, although no party has ever surpassed  % of the votes.58 This fact tends to diminish the blackmail potential of minority parties in the Congress.59 In the case of an overwhelming majority, they will not 





The PSOE obtained an absolute majority with these vote percentages:  % in ,  % in  and  % in . The PP obtained an absolute majority in  with  % of the votes cast. Giovanni Sartori, Parties and Parties Systems (Cambridge University Press, Cambridge, ).

Minority Representation within the Spanish Electoral System be necessary to form the government. If the system was truly proportional, the aid of minority parties would have been almost always essential during the last  years, and they would have frequently participated in the central government, as happens in other countries with important national minorities (among others, Romania, Slovakia, Finland, Bulgaria and Belgium). On the contrary, only in the legislatures without absolute majority has their role been politically reinforced, although this reinforcement applies only to minority parties with a greater number of seats, such as the Catalans or, to a lesser extent, the Basques or Canarians. For the same reasons it is difficult for parties representing small minorities to form their own parliamentary group in the Congress and to have real influence in the debates. In order to do so, they would have had to obtain  MPs, or  MPs, whenever they obtained at least  % of the valid votes in the constituencies where they competed.60 Normally, only the CIU and the PNV obtained this qualification, in addition to the CC in recent legislatures61 and ERC in the present one. The under-representation of minority parties in the Congress has also other important consequences. Although the number of ‘lost’ seats by minority parties does not seem high, it corresponds to a very important threshold. Thus, for example, any reform of the Constitution in Spain needs at least the support of / of the MPs in the Congress. This means that a party with  MPs can block such reforms. With the present electoral system it is easy for both major parties to arrive at this number. In fact this happened in , when the PP obtained . % of the votes, but more than  % of the seats, or in , when the PSOE obtained  seats with  % of the votes. The same situation occurs at the present moment. The PP, which only obtained . % of the votes, has  benches (. %) and can block any constitutional reform, even if this reform has the consensus of the PSOE and all minority parties. The system has similar effects on other important parliamentary affairs of the state, for example, the appointment of the members of the Constitutional Court by qualified majority, the nomination of members for the General Council of the Judiciary or the election of the ombudsman. Finally, it is important to remember that the majority electoral system that is used for the Senate election causes, in almost all the legislatures, the dominant party to obtain the absolute majority in the upper chamber.62 Although the powers of the Senate are reduced, it has a certain veto power over the bills passed by the Congress, which can be exerted to avoid the success of initiatives in which minority parties participate.

 



Article  of the Reglamento del Congreso de los Diputados (Official Bulletin  March ). It must be noted that the CC has never obtained five seats on its own, but other parties (the PP and PSOE) have “borrowed” some MPs to allow the CC to obtain its own group; parliamentary regulations have been openly interpreted in these cases. At the current moment, however, the situation is rather different. Although the PSOE was the first party in the  elections, the PP achieved a higher number of seats in the Senate, due to the majority and equalitarian system, which raises the representation of the less populated and more conservative provinces. Nowadays, the PP has close to absolute majority within the Senate.



Eduardo J. Ruiz Vieytez We can conclude by saying that the Spanish electoral system, which in fact is a quasi-majority system, reduces the parliamentary presence of minority parties with respect to its proportional weight. This tends to limit the political influence of these parties in the state, except for those legislatures in which one of the two main parties needs parliamentary support to govern. The limited constitutional influence of minority parties in decision-making at state-level must also be considered. V. Conclusions Spain is in fact one of the most diverse societies in Europe. However, the term national minority is hardly used within the political debate. Article  of the Constitution refers to a single Spanish Nation, as well as to the regions and ‘nationalities’ that shape it. Several political parties representing different national and regional identities represent this internal plurality within a given territorial scope. On the contrary, there is no political presence of other ethnic or cultural minorities. The electoral system of the lower chamber is to be proportional according to the Constitution. However, the adoption of a high number of constituencies and distribution of seats among them gives the system a quasi-majority character. Minority parties are in general underrepresented in terms of MPs, if compared to the share of votes really obtained. This consequence must also have an a priori effect on the voter. All this leads to the fact that minority parties enjoy a very limited influence in the political process. Only if there is no absolute majority in favour of the winning party do minority parties become relevant. Even then, some special decisions, such as constitutional reform or the election of members of the Constitutional Court, require qualified majorities and tend to diminish the capacity of national minority representatives to influence state-level decision-making. In fact, the electoral system helps the majority parties to control all the institutional keys of the state, while minority parties are in general underrepresented. In this respect, the system leans towards a two-party one and there is no promotion of political representation for national minorities. In parallel, the model of state, although highly decentralized, is built on a strong unitarian philosophy. Thus, the issue of constitutional reform is pending in the political debate. There is a never-ending request by several national minorities (mainly Basque Country and Catalonia) for constitutional recognition of the national plurality of the state. However, the electoral system does not promote the conditions for creating this kind of reform or a more accurate representation of these groups, both at the central and international level. Modifying an electoral system is, however, always problematic. “Change by reform is always difficult. Once an electoral arrangement is in place, its beneficiaries protect their vested interests and try hard to go on playing the game by the rules that they know.”63 The same affirmation is valid for constitutional reform. The present government claims to attempt the first serious constitutional reform of the Spanish democracy. However, the prevalent position of the central parties, reaffirmed by the electoral system, will not help to find an agreement able to satisfy the main minority parties of the Basque Country, Catalonia and Galicia too. 



Giovanni Sartori, Comparative and Constitutional Engineering. An Inquiry into Structures, Incentives and Outcomes (Macmillan, Basingstoke, ), .

Jérémie Gilbert *

Still No Place to Go: Nomadic Peoples’ Territorial Rights in Europe

I. Introduction Nomadism is often viewed as something from the past, a style of life that is gradually disappearing with development and ‘civilisation’. In this idea of so-called ‘civilisation’, nomadism represents a transition from the Neolithic hunter to the sedentary farmer. There is a very large body of literature, especially from the eighteenth century, regarding the virtues of the settled way of life; authors such as Vattel, Locke and Hegel have argued for what can be described as the ‘agricultural argument’.1 The agricultural argument that infused the development of international law was based on the idea that only agriculture could be regarded as a basis for a real land tenure system. Thus, nomadic peoples were not regarded as really occupying the land. Based on this idea, international law has been developed in a fashion that valorizes settled societies. Under international law, only states have a title to their territory as only states can exercise effective control over such territory.2 Nomadic peoples do not have a right over their territory as they just ‘wander’ over it, and therefore legally, nomadic societies have not been considered to effectively control their territories.3 A priori, it could seem paradoxical to claim that nomadic peoples should have a right over their traditional territories as they do not have a territory, as such, but move through different territories. However, for nomadic peoples, the possibility to travel through their traditional territory is central to their survival and, thus, the right to access such territory is crucial. At the heart of the issue of territorial entitlement is the fundamental issue of whether nomadic peoples have the right to remain nomads or whether they should settle down. Legally, one of the central issues is the right of nomadic peoples to have access to halting sites. The question is *

  

Lecturer, Transitional Justice Institute, University of Ulster. The author wishes to thank Professor Fionnuala Ní Aoláin, David Keane and Shane Darcy for their comments on a draft of this article. Thomas Flanagan, “The Agricultural Argument and Original Appropriation: Indian Lands and Political Philosophy”,  CJPS (), -. See Joshua Castellino and Steve Allen, Title to Territory in International Law: A Temporal Analysis (Ashgate, Aldershot, ). On this issue see ICJ, Western Sahara (Request for Advisory Opinion), ICJ Report (), , (Advisory Opinion of October ).

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 141-159. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Jérémie Gilbert to appreciate whether in Europe such a right for nomadic people exists, and whether under international and European human rights norms there is a right to halting sites or temporary transient halting sites for nomadic peoples. Nomadism has been present in Europe for centuries. The incursions of nomads into settled civilizations in Europe peaked with the Mongol incursions during the thirteenth, fourteenth and early fifteenth centuries. Once in Europe, these groups maintained their nomadic way of life and have continued to travel throughout different regions of Europe. Even though the origins of nomadism in Europe are often associated with the arrival of Roma/Gypsies from the East, it should be highlighted that present nomadic groups in Europe are not only the descendants of peoples that came to Europe in the fourteenth and fifteenth century – for example, the Irish Travellers are indigenous to the island of Ireland. There are several nomadic or semi-nomadic4 communities in Europe, such as the Nenets in Russia, the Sami in the Scandinavian countries, the Roma/Gypsies5 and the Travellers in Ireland. However, in most European states, there has been a large movement towards a policy of forced settlement of nomadic groups. Nomadism is certainly on the decline, but some groups in Europe want to maintain their way of life as nomadic or semi-nomadic peoples.6 For these disparate nomadic groups that still exist in Europe, one of the central issues is whether nomadic peoples have the right to move through territories as they traditionally have done.7 The purpose of the article is to focus on the role of European institutions working on human rights-related issues – such as the OSCE, the Council of Europe and the EU – in the protection of nomadic peoples’ way of life.8 In particular, the Council of Europe (CoE) has adopted several resolutions and recommendations specifically concerning nomadic communities in Europe.9 This article will focus on the situation of the Roma and the Travellers who are facing threats to their nomadic lifestyle, which often 



 







Semi-nomadic peoples are peoples who move seasonally but have permanent homes for part of the year, see for example, Recommendation Rec () of the Committee of Ministers, which refers to semi-nomadic peoples as peoples who set up their winter residence for a maximum period of six months and then move on. The term ‘Roma’ refers to the peoples that are often designated as ‘Gypsy’ or ‘Sinti’. For an informed discussion on this issue, see Jean-Pierre Liegeois and Nicolae Gheorghe, “Roma/ Gypsies: A European Minority”, MRG International Report / (). For example, regarding Roma/Gypsy communities, it is estimated that % to % of the Roma population in Europe retain a nomadic or semi-nomadic lifestyle, see ibid., at . Note in this regard that this article is dealing with peoples that have been traditionally regarded as nomadic peoples, thus not with the later phenomenon of new traveller communities. Regarding the terminology used in this article, it is important to point out that references to Europe are in the wide understanding of the concept of all the countries that are part of the Council of Europe. See Assembly Recommendation  () on the situation of Gypsies and other travellers in Europe; Committee of Ministers Resolution () on the social situation of nomads in Europe and Recommendation No. R () on stateless nomads and nomads of undetermined nationality; Standing Conference of Local and Regional Authorities of Europe Resolution  () on the role and responsibility of local and regional authorities in regard to the cultural and social problems of populations of nomadic origin.

Still No Place to Go: Nomadic Peoples’ Territorial Rights in Europe leads to violent confrontation with the settled communities of the different European countries.10 The Roma/Gypsies, especially, have been the victims of discrimination in several European countries. In , the Parliamentary Assembly of the Council of Europe (PACE) adopted a report highlighting that as “one of the very few non-territorial minorities in Europe Gypsies need special protection”.11 This article will then explore how European institutions working on issues related to minority rights are trying to establish a balance between the need to provide appropriate accommodation for nomadic peoples – while preserving their right to remain on the move – with the need for mechanisms to be in place to address illegal encampments. It will then be examined how these institutions have developed an approach based on a right to halting facilities under which states have a duty to ensure halting facilities for nomadic peoples. A Recommendation of the Committee of Ministers of the Council of Europe on the movement and encampment of Travellers in Europe highlights the dual legal approach to the right for nomadic peoples to remain nomads. The Committee’s Recommendation mentions the right to freedom of movement and the right to preserve and develop specific cultural identities as a basis for a right for Roma/Gypsies who wish “to continue to lead a traditional nomadic or semi-nomadic lifestyle”.12 The article explores how European institutions have developed such a dual approach to the right of nomadic peoples to remain on the move. It argues that a territorial right for nomadic peoples has been developed, firstl through references to cultural rights and, secondly, under the banner of freedom of movement. Thus, based on this assumption, the article will examine, first, the legal approach based on the right of nomadic peoples to enjoy their own way of life and, second, the interaction between freedom of movement and the right of nomadic peoples to remains nomads.

II. Nomadism as a Way of Life Human rights law usually supports the rights of cultural minorities to exercise their own traditional lifestyle.13 Accordingly, the European institutions working on human rights have developed a cultural approach to the rights of nomadic peoples to perpetuate their traditional way of life. Such protection comes under the banner of cultural 

  

See, for example, the case of the UK where some tabloid newspapers have incited people to “get rid of the gypsy invasion” or to “stamp on the camps”. See report of the events in The Guardian, “Gypsies: Out of Sites”, Saturday,  March , . Parliamentary Assembly, Recommendation  () on Gypsies in Europe, para. . Recommendation Rec (),  December . See, for example, Roger O’Keefe, “The ‘right to take part in cultural life’ under Article  of the ICESCR”,  ICLQ (), -, at ; see also Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, Manchester, ), - and -; Asbjørn Eide, “Cultural Rights and Minorities: Essay in Honour of Erica-Irene Daes”, in Gudmundur Alfredsson and Maria Stavropoulou (eds.), Justice Pending: Indigenous Peoples and Other Good Causes, Essays in Honour of Erica-Irene A. Daes (Martinus Nijhoff Publishers, Raoul Wallenberg Instititute, The Hague, Vol. , ), .



Jérémie Gilbert rights, under which nomadic peoples could claim their right to nomadism as part of their cultural identity. Cultural rights provide strong support for the idea that nomadic peoples have a right to remain nomadic. Yet, protection of nomadic peoples’ way of life is not limited to cultural rights – the European Court of Human Rights (ECtHR) has developed a jurisprudence on nomadic peoples’ right to maintain their own way of life under the right to private and family life. In this case, a central issue is the balancing of such a right with other societal interests, an exercise in which the ECtHR has become notorious.14 The following section will explore the cultural rights approach to the protection of nomadism and, subsequently, the approach developed by the ECtHR based on the exercise of the right to private and family life. A. Nomadism as a Cultural Right for Minorities As highlighted earlier, under international human rights law, minorities have a right to cultural identity. This flows from different instruments, one of the central provisions being Article  of the ICCPR. The Human Rights Committee, in its General Comment on Article , has pointed out that with “regard to the exercise of the cultural rights protected under Article , the Committee observes that culture manifests itself in many forms, including a particular way of life”.15 This reference to a particular way of life is significant in the case of nomadic peoples as nomadism is often perceived as “a particular way of life”. In the European context, the protection of minority groups’ specific way of life must be achieved in a positive manner, in order to protect nomadic peoples’ lifestyle. Norms regarding minority rights will usually apply to the situation of most nomadic groups in Europe.16 In its Recommendation  (), the Parliamentary Assembly on Gypsies in Europe stated: “the provisions of any additional protocol or convention relating to minorities should apply to non-territorial minorities”.17 The right of minorities to enjoy their traditional way of life finds some echoes in different texts coming from some of the European institutions. In , the European Commission against Racism and Intolerance adopted the General Policy Recommendation: “Combating racism and intolerance against Roma/Gypsies”. In this Recommendation, the Commission urged states “to ensure that the questions relating to ‘travelling’ within a country, in particular regulations concerning residence and town planning, are solved in a way which does not hinder the way of life of the persons concerned”.18 In Recommendation No. R ()  on the education of the Roma/Gypsy     



Michael Hutchinson, “The Margin of Appreciation Doctrine in the European Court of Human Rights”, () ICLQ (), . Human Rights Committee, General Comment No. : The Rights of Minorities (Art. ), UN Doc. CCPR/C//Rev./Add.. See Kristin Henrard, “The Building Blocks for an Emerging Regime for the Protection of a Controversial Case of Cultural Diversity: the Roma”,  IJMGR (), -. Recommendation  () () of the Parliamentary Assembly on Gypsies in Europe (th Ordinary Session – th Part – - February ). European Commission against Racism and Intolerance adopted General Policy Recommendation No.  of  on Combating racism and intolerance against Roma/ Gypsies, CRI ()  rev.

Still No Place to Go: Nomadic Peoples’ Territorial Rights in Europe children in Europe, the Committee of Ministers of the Council of Europe called for flexible educational structures that take into account the itinerant lifestyle of certain Roma groups.19 The OSCE High Commissioner on National Minorities (HCNM) has also focused on the situation of Roma/Gypsies in Europe and has adopted an approach based on the protection of nomadic peoples’ way of life. The  High Commissioner’s Report on the situation of Roma and Sinti in the OSCE Area stated: It must be emphasised that whether an individual is nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. The policies of some OSCE participating States have at times breached this principle, either by making a determination of a group’s fundamental lifestyle that is inconsistent with its members’ choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity.20

The report recommended that for those Roma who “maintained a nomadic or seminomadic lifestyle the availability of legal and suitable parking sites was a paramount need and precondition to the maintenance of their group identity”.21 This illustrates how an approach based on the protection of minorities’ way of life can result in a practical recommendation aiming at the protection of nomadic or semi-nomadic peoples’ access to halting sites that would allow the perpetuation of their nomadic lifestyle. The Framework Convention for the Protection of National Minorities (hereinafter Framework Convention) specifically refers to cultural rights for minorities. Under Article  of the Framework Convention: The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.22

The Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC) has included the protection of nomadism under the protection of minority culture. For example, in its opinion on Ireland’s report, the ACFC focused on the right of the Travellers to exercise nomadism as one of the essential elements of their culture and identity, thus protected under Article  of the Framework Convention.23  

  

Recommendation No. R ()  of the Committee of Ministers to Member States on the education of Roma/Gypsy children in Europe,  February . High Commissioner on National Minorities, “Report on the situation of Roma and Sinti in the OSCE Area”,  March , , at . Ibid. Article  of the Framework Convention for the Protection of National Minorities, adopted on  February , entered into force on  February , ETS No. . Advisory Committee on the Framework Convention on National Minorities, Opinion on Ireland, ACFC/INF/OP/I(), para. .



Jérémie Gilbert Similarly, in its Opinion on the United Kingdom, the ACFC notes “with concern the lack of adequate stopping sites for Roma/Gypsies and Irish Travellers and the effect that this has on their ability to maintain and develop their culture and to preserve the essential elements of their identity, of which travelling is an important element”.24 Therefore, the ACFC considers that providing sites for Roma and Travellers falls under the obligations of Article , i.e. as part of the right to maintain and develop their own culture. The interrelationship between minority rights protection and the rights of nomadic peoples to maintain their specific itinerant lifestyle is thus inherent in the approach developed by the ACFC at the national level and can be seen as an indicator of a European approach towards nomadism. In this regard, the dialogue between Ireland and the ACFC is particularly enlightening as to the practical implications Article  of the Framework Convention will have on the right of nomadic groups to perpetuate their nomadic lifestyle. Ireland, in its report to the ACFC, placed a significant emphasis on the situation of the Traveller community in the country.25 In its report, Ireland recognized Travellers as an “indigenous minority”,26 thus entitled to the protection offered by the Framework Convention. The report highlights that the Housing (Travellers Accommodation) Act  states that travellers are “persons who traditionally pursued or have pursued a nomadic way of life”.27 In its review of Ireland’s policy under Article , the ACFC affirmed that the government and the courts should bear “in mind that nomadism is one of the essential elements of the culture and identity of persons belonging to the Traveller community”.28 As part of Ireland’s obligation under the Framework Convention, Ireland has pointed out that: … the maintenance, preservation and development of Traveller culture is closely linked to the provision of suitable accommodation. This entails provision for a con-

 



 



Advisory Committee on the Framework Convention on National Minorities, Opinion on the United Kingdom, ACFC/INF/OP/I() ( November ), para. . Section  of the Equal Status Act  defines the Traveller community as: “the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland”. Housing (Travellers Accommodation) Act , Section . However, in its  report to CERD, Ireland does not recognize travellers as an ethnic group. For a discussion on the impact of such classification, see Joint Committee on Foreign Affairs Sub-Committee, Thursday th December ; and CERD Concluding Observations on Ireland’s Report, UN Doc. CERD/C/IRL/CO/, March . See also David Keane, “International Law and the Ethnicity of Irish Travellers”, () Washington and Lee Race and Ethnic Ancestry Law Journal (Winter ). Housing (Travellers Accommodation) Act , Section . Ibid., para. .

Still No Place to Go: Nomadic Peoples’ Territorial Rights in Europe tinuum of housing options ranging from service halting sites to integration into regular houses.29

Thus, Ireland’s policy is twofold: providing halting sites (including transient sites) and providing accommodation. However, the accommodation policy has been criticized as being clearly aimed at the integration and settlement of Traveller communities. Criticism of Ireland’s policy also came from the clear lack of appropriate halting sites coupled with the fact that an unauthorized dwelling is classified as a criminal offence. In its opinion on Ireland’s report, the ACFC expressed its concern over “the criminal law provisions linked to unauthorised dwellings and the impact this has on Travellers seeking to practice their nomadic way of life despite a lack of suitable halting sites”.30 Also, under Article , the ACFC raised the danger of ghettoization of Traveller communities under the current governmental policy. The ACFC highlighted that, in providing halting sites and housing, the government should ensure that no isolation from the main community takes place. Thus, under Article  of the Framework Convention, states have some obligations to protect the right for nomadic communities to maintain their nomadic way of life. As Ireland’s report to the ACFC illustrates, this right entails some very practical consequences, one being the establishment of halting sites for nomadic groups. The ACFC has not limited its approach to the protection of nomadic cultures to Article , as it has also pointed out that cultural aspects of the Traveller communities are to be protected under other parts of the Framework Convention. A crucial aspect of Traveller communities and their nomadic lifestyle was in relation to their work. The ACFC stated in regard to Ireland’s report: “Travellers have also seen their traditional areas of economic livelihood (scrap metal, horse trading, market trading, etc.) hit by changing economic and social climates”. On this issue, the ACFC pointed out that “certain aspects of changes in legislation (such as in the Control of Horses Act () and the Casual Trading Act ()) unduly hinder their ability to earn a living”. The ACFC invited the Government to “examine how to promote further both traditional and new economic activities of Travellers”.31 Overall, the ACFC’s report on the situation of the Travellers in Ireland underlines the fundamental interaction between the cultural rights of minorities and the protection and promotion of nomadism. Nomadic peoples have a right to maintain their nomadic lifestyle as part of a minority right to cultural identity but also as part of states’ obligations to promote cultural diversity. The report of the ACFC illustrates how states have to play a very active role in such cultural protection as they “shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect”.32 As the case of the Irish Travellers shows, such an obligation has far-reaching consequences for states – to promote activities that allow nomadic peoples to maintain a nomadic way of life. Thus, it could be    

Report Submitted by Ireland Pursuant to Article , Para.  of the Framework Convention for the Protection of National Minorities, ACFC/SR(). Advisory Committee on the Framework Convention on National Minorities, Opinion on Ireland, ACFC/INF/OP/I(), para. . Ibid., para. . Article  of the Framework Convention for the Protection of National Minorities.



Jérémie Gilbert argued that under the protection of cultural rights for minorities in Europe, there is a right for nomadic communities to exercise and maintain a nomadic lifestyle. B. Nomadism as a Right to Private and Family Life Under the European Convention of Human Rights (ECHR), there is no specific article protecting the cultural rights of minorities. Nonetheless, there is a large body of jurisprudence relating to nomadic peoples’ right to exercise their nomadic way of life stemming from the ECtHR under Article  of the ECHR. One of the first developments came from the now extinct European Commission on Human Rights in the  case of G. and E. v. Norway concerning a Sami community in Norway. The case highlighted that, although the ECHR does not provide specific protection for members of a minority group, Article  would afford protection for a member of a minority group’s specific way of life.33 Such an approach has also been adopted by the ECtHR. For example, the ECtHR has dealt with the issue of cultural way of life in the case of The Gypsy Council and Others v. the United Kingdom.34 In this case, the applicant claimed that the decision by the British authorities to prohibit an assembly during a horse fair was especially affecting the traditional lifestyle of the concerned communities. The horse fair was an annual event primarily attended by Gypsies and Travellers and, as the applicants highlighted, the fair had taken place for at least  years, but probably as many as  years. The applicants also pointed out that such an assembly was “a significant cultural and social event in the life of the Romany Gypsy community in the United Kingdom”.35 The authorities had prohibited any “trespassory assembly” within a five-mile radius around the traditional place for the fair. Such a prohibition was on the basis of public order-related matters (illegal parking of cars, antisocial behaviour, etc.). The applicants argued that the prohibition order was violating their rights under Articles ,  and  of the ECHR. The ECtHR found the case to be inadmissible based on the idea that a fair balance had been struck between the interest of the concerned individuals and the interest of society generally.36 As this case underlines, one of the central issues for the judges of the ECtHR is to balance, on the one hand, the right of nomadic individuals to have their private and family life respected (including the right to preserve their nomadic way of life) and, on the other, the competitive use of lands. One of the specific features of the ECtHR jurisprudence is the reference to a state’s margin of appreciation. This doctrine has been crucial in balancing the rights of nomadic peoples with states’ obligations under the ECHR.

   



ECommHR, Appl. No. /, G. and E. v. Norway, decision of  October ,  DR , -. ECtHR, Appl. No. /, The Gypsy Council and Others v. the United Kingdom, decision of  May . Ibid. However, the Court did not consider the applicants’ claims under Article . For an analysis of the case, see Alexander Morawa, “The European Court of Human Rights and Minority Rights: The ‘Special Consideration’ Standard In Light of Gypsy Council”,  IJMGR (), -.

Still No Place to Go: Nomadic Peoples’ Territorial Rights in Europe During the mid-s, the ECtHR received several cases from Gypsies based in the United Kingdom who were complaining against restrictions being placed on their nomadic lifestyle by planning permission. In these cases, the ECtHR looked at the strenuous issue of competitive use of land between nomadic communities and settled communities. One of the main issues was to appreciate whether government or local authorities could refuse planning permission to Gypsies based on concerns that lands were to be used for other purposes such as landscape conservation, green belts, or any other development. In the case of Buckley v. the United Kingdom, the ECtHR received its first case from a member of a Gypsy community.37 The applicant had been prohibited from living in a caravan on a piece of land that she had previously bought. The denial from the authorities was notably based on a ‘land-use factor’. The concerned land was protected by a structure plan, the aim of which was to protect the countryside from all but essential development and, thus, the occupation of the site by a Gypsy camp would “detract from the rural and open quality of the landscape”.38 National courts have previously admitted that a “change in use of land for the stationing of caravans can constitute a development”.39 The defendant also argued that the concentration of Gypsy caravan sites in the concerned area had reached “the desirable maximum”. Mrs. Buckley alleged that, by preventing her from living with her family in caravans on her own land, the state had violated Article  of the ECHR. The applicant claimed that the national legislation discriminated against Gypsies by preventing her from following her traditional lifestyle as a Gypsy. Previously, the ECommHR has pointed out that “since the traditional Gypsy lifestyle involved living in caravans and travelling, the applicant’s ‘private life’ and ‘family life’ were also concerned”.40 The Commission stated that forcing Gypsies to live in a designated area is equivalent to placing them or assigning them to a specific territory. The ECtHR acknowledged that the traditional lifestyle of minorities falls within the ambit of Article . The Court noted that the concerned land should be regarded as her “home” only on the basis that the applicant had demonstrated that she has lived on this land for a number of years. It is worth highlighting that the Court emphasized that this is a crucial requirement thus one can wonder what would be the Court’s view of nomadic Gypsies with no fixed basis. With regard to the potential violation of Article , based on the state’s margin of appreciation, the Court found that the interference was legitimate based on “public safety”, the economic wellbeing of the country, the protection of health and the protection of the rights of others.41 However, it is worth paying attention to the dissenting opinion of three of the judges, who all pointed out that the Court did not pay enough attention to the specific situation faced by Gypsy communities and that the

    

ECtHR, Buckley v. the United Kingdom, judgment of  September , Reports -IV, , . Ibid., para.  and para. . Ibid., para. . Ibid., para. . Ibid., para. .



Jérémie Gilbert Court should have followed the Commission’s reasoning.42 Judges Repik, Lohmus and Pettiti highlighted the fact that Gypsy communities deserve special measures, particularly in relation to their right to travel and access to halting facilities, and that the Court had missed out on its first opportunity to address the discrimination faced by Gypsy communities throughout Europe.43 The situation was particularly regrettable as the situation of Gypsy communities in the United Kingdom was deteriorating. As the HCNM pointed out in his  report: Under current law, Gypsies have three options for lawful camping: parking on public caravan sites – which the Government acknowledges to be insufficient; parking on occupied land with the consent of the occupier; and parking on property owned by the campers themselves. The British Government has issued guidance to local authorities aimed at encouraging the last approach. In practice, however, and notwithstanding official recognition of their special situation and needs, many Gypsies have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property.44

The ECtHR had the occasion to deal with the issue of Gypsy rights under Article  of the ECHR as, in January , the Court took four different decisions that all reached the same conclusion: that Article  does protect the traditional way of life of Gypsies, but that in all these cases the government had established a right balance between national interest and Gypsy rights.45 In the case of Chapman v. the United Kingdom, the applicant also argued that there had been a violation of Article  based on the refusal of planning permission to allow her to live in her caravan on her own land.46 The applicant and her family highlighted the fact that she had followed an itinerant lifestyle for many years but that, due to family health considerations and education of her children, the 











The Commission was asked to deal with a similar issue in the case of Carol and Steven Smith v. the United Kingdom. In this case the applicants complained that the government, by refusing to grant them planning permission to occupy their own land with their caravan, hindered them from pursuing their traditional way of life as gypsies. However, in light of the Court’s judgment in the case of Buckley v. the United Kingdom, the applicants agreed to their case being struck out. See ECommHR, Application No. /, Carol and Steven Smith v. the United Kingdom,  January . See Partly Dissenting Opinion of Judge Repik, Partly Dissenting Opinion of Judge Lohmus and Dissenting Opinion of Judge Pettiti. See also ECtHR, Application No. /, Varey v. the United Kingdom,  December . High Commissioner on National Minorities, “Report on the situation of Roma and Sinti in the OSCE Area”,  March , -, at . See ECtHR, Appl. No. /, Jane Smith v. the United Kingdom, judgement of  January ; Appl. No. /, Lee v. the United Kingdom, judgement of  January ; Appl. No. /, Coster v. the United Kingdom, judgement of  January ; and App. No. /, Beard v. the United Kingdom, judgement of  January . ECtHR, Appl. No. /, Chapman v. The United Kingdom, judgement of  January .

Still No Place to Go: Nomadic Peoples’ Territorial Rights in Europe applicant took the step of buying land on which to station her caravans with security. However, planning permission for this was refused and they were required to leave. As in the previous case, the Court admitted that this constituted a violation of her right under Article () but the Court appreciated that this was “in accordance with the law”, pursuing a legitimate aim or aims and as being “necessary in a democratic society” in pursuit of that aim or aims. Thus, the Court found that the restriction to Article  of the ECHR was proportionate to the legitimate aim of preservation of the environment (the applicant’s land was located on a green belt). The Court followed its own jurisprudence and found that the restriction was legitimate. The Court stated that: This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article  to make available to the Gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the framework convention, and domestic legislations in regard to protection of minorities, that Article  can be interpreted as implying for States such a far-reaching positive obligation of general social policy.47

However, seven of the judges expressed a different opinion in their joint dissenting opinion, stating: We would recall however that, although the essential object of Article  is to protect the individual against arbitrary action by public authorities, there may in addition be positive obligations inherent in an effective ‘respect for private and family life and home’. The boundaries between the State’s positive and negative obligations do not lend themselves to precise definition and, indeed, in particular cases such as the present, may overlap.48

Thus, based on Article , the judges stated that inaction from the government in this case failed to respect the balance between the interests of the individual Gypsy and the community. In their dissenting opinion, the judges highlighted that the applicant’s lifestyle gave a wider scope to Article  as her situation as a nomadic Gypsy invited special consideration.49 In the more recent Connors decision from , the Court refined its approach. In this case, which dealt with an eviction from a camp, the ECtHR stated: The Court would not under-estimate the difficulties of the task facing the authorities in finding workable accommodation solutions for the gypsy and traveller population and accepts that this is an area in which national authorities enjoy a margin of appreciation in adopting and pursuing their social and housing policies. The complexity of the situation has, if anything, been enhanced by the apparent shift in habit in the gypsy population which remains nomadic in spirit if not in actual or constant prac  

Ibid., para. . Joint Dissenting Opinion of Judges Pastor Ridruejo, Bonello, Tulkens, Stráznická, Lorenzen, Fischbach and Casadevall, ibid., at para. . On this issue, see Morawa, “The European Court of Human Rights …”.



Jérémie Gilbert tice. The authorities are being required to give special consideration to a sector of the population which is no longer easy to define in terms of the nomadism which is the raison d’être of that special treatment.50

Thus, regarding specific treatment or ‘special consideration’, the Court highlighted that national institutions could make a distinction between Gypsies who are still leading a nomadic lifestyle and those who have settled. However, in this case that once again involved the British authorities, the ECtHR pointed out that the legislation “places considerable obstacles in the way of gypsies pursuing an actively nomadic lifestyle while at the same time excluding from procedural protection those who decide to take up a more settled lifestyle”. Despite this recent case in which the government was found to be in violation of Article  (for an eviction), the fact that the Court took four decisions all going in the same direction shows that the Court was willing to establish a firm jurisprudence that leaves more space to consideration of national interest than the right of individual Gypsies. However, on the other hand, the fact that so many cases were brought to the Court proves the need for human rights protection of Gypsies’ way of life in the UK and elsewhere in Europe. Overall, in cases relating to nomadic peoples, the ECommHR has had a more progressive approach whereas the Court continues to regard states as enjoying a wide margin of appreciation. This approach seems to say that the public/general requirement (i.e. in a democratic society) is that nomadism should be controlled for the benefit of the general population. One can regret such a position as the European Court, the eldest and one of the most recognized regional human rights institutions, could have established a legal precedent in terms of nomadic peoples’ rights to follow their own way of life. Instead, the Court has used the smokescreen of the national interest to refuse to enter fully the debate on the right to follow a nomadic way of life in a society where the majority is settled. This raises questions regarding the adequacy of the European Convention in protecting the rights of Roma/Gypsies to follow a particular way of life. Even though the Convention was drafted in , the Court has shown that the text was alive and able to integrate issues that were not in existence at the time of its drafting. One of the best illustrations of such strength could be found in the ECtHR approach to environmental protection.51 Although the Court developed a broad approach to Article  in cases relating to environmental protection and adopted a large understanding of the concept of family and private life, the Court has missed this opportunity in cases involving nomadic peoples. As stated above, while there are no specific provisions dealing with the protection of minority groups’ way of life under the Convention, the Court has been able to ensure such protection through its dynamic interpretation of the text. However, the analysis of the very narrow interpretation of Article  by the Court when dealing with nomadic peoples shows that there is a lack of adequate protection for nomadic groups within the European Convention. In comparison, the approach developed under the Framework Convention seems far more adequate. In this respect, it is hoped that the ECtHR will develop a more forward look 



ECtHR, Appl. No. /, Connors v. the United Kingdom, judgement of  May , para. . See Richard Desgagné, “Integrating Environmental Values into the European Convention on Human Rights”, () AJIL  ().

Still No Place to Go: Nomadic Peoples’ Territorial Rights in Europe ing jurisprudence regarding the rights for nomadic peoples to maintain their traditional itinerant lifestyle. III. Nomadism as a Right to Freedom of Movement Nomadism is about moving freely; thus it seems logical that a central way to protect an eventual right to nomadism would come under the banner of a right to freedom of movement. In the European context, two issues relating to freedom of movement are relevant when exploring the right for nomadic peoples to freely move across Europe (either within the boundaries of one state or across the boundaries of different states). First, a central issue of concern for nomadic people is the discriminatory impact of migration policies, as most European countries’ migration polices put some restrictions on their freedom of movement. The second interesting development within Europe, regarding freedom of movement for nomadic peoples is the gradual evolution towards the recognition of a right to encampment for nomadic peoples. A. Limiting Nomadism under Migration Policies Recent policies at the European level regarding migration have greatly affected the freedom of movement of nomadic peoples within European countries. As Liegeois and Gheorghe highlight: It should be borne in mind that nomadism, sometimes in the form of ongoing migration, is a fundamental factor in the lifestyle of a significant number of Roma/Gypsy communities.52

According to the authors, there are two forms of nomadism in this regard: a ‘structural nomadism’ (due to certain forms of social and economic organization) and a ‘reactive nomadism’ that arises from outside factors such as eviction, regulations, economic opportunities, etc. They point out that these two sets of factors combine to determine the actual movement of nomadic peoples.53 Particularly with the enlargement of the European Union, there has been a phenomenon of fear of a ‘Roma/Gypsy invasion from the East’. In reaction to this – and despite the fact that Roma are often fleeing countries of origin, where they are the victims of particularly harsh and restrictive anti-migration policies,54 in order to escape discrimination and persecution – several countries of the EU have put in place specific restriction laws and policies regarding the migration of Roma communities from Central and Eastern Europe.55 The European Roma Rights Center (ERRC) has highlighted that Roma are facing discriminatory practices even   



Liegeois and Gheorghe, “Roma/Gypsies …”, . Ibid., . See European Roma Rights Center, “Protecting Romani Refugees around Europe: A Position Paper by the European Roma Rights Center”,  October , at . On this issue, see European Roma Rights Center, “Fortress Europe”,  Roma Rights Quarterly ().



Jérémie Gilbert tougher than those in the countries they are often escaping from, in which cases of serious harm by public officials or members of racist groups have been reported along with extreme levels of discrimination.56 For example, the ERRC reported that in the case of the Roma, the British authorities appeared to have additionally demanded from carriers the provision of information on race. As the report noted: “according to reports in the domestic and international media, in October , employees of Czech Airlines stated that British immigration officials had requested information on the ethnicity of Czech citizens travelling to Britain on Czech Airlines flights and they had been providing it, marking lists with ‘G’ for ‘Gypsy’, ‘for years’”.57 Such discriminatory practices were also extended to Roma communities fleeing Kosovo when they were facing ethnic cleansing. The UN High Commissioner for Refugees (UNHCR) has been advocating “the recognition of Kosovo Roma as refugees or persons in need of international protection”.58 Despite such calls, many countries have put in place specifically restrictive migration policies for Roma. For example, Cahn notes that Germany has put in place a policy of collective expulsion of Roma who came from the former Yugoslavia, as he points out that “every five Yugoslav citizens slated for expulsion from Germany are Romani, despite the fact that Roma comprise not more than  % of the general population of Serbia and Montenegro”.59 This phenomenon is a growing trend in all the European countries writes Cahn, and he concludes that this is mostly based on the fact that “Roma are widely perceived to be ‘nomads’, a mysterious wandering folk with no links or loyalties other than to kin and clan, and with a propensity to crime and fraud”.60 In , in its Concluding Observations on Germany’s report, the UNHRC expressed “its concern at reports that Roma are disproportionately affected by deportation and other measures to return foreigners to their countries of origin”.61 The Committee reminded Germany that the “State party should guarantee the principle of non-discrimination in its practice relating to deportation and return of foreigners to their countries of origin”.62 This practice of collective expulsion is not limited to Germany and several countries of the EU have embarked on such policies when dealing with Roma. It should be noted that Article  of Protocol No.  to the ECHR states: “Collective expulsion of aliens is prohibited”.63 This article has been tested in front of the ECtHR in a case in which the applicants, a family of Slovak nationals of Roma origin, alleged that the Belgian   



   



European Roma Rights Center, “Protecting Romani Refugees …”. Ibid. See United Nations High Commissioner for Refugees, “UNHCR Statement to the th Session of the Committee on the Elimination of Racial Discrimination: Thematic Discussion on Roma”,  August . Claude Cahn, “Racial Preference Racial Exclusion: Administrative Efforts to Enforce Separation of Roma and Non-Roma in Europe through Migration Controls”,  EJML (), -, at . Ibid., . Concluding Observations of the Human Rights Committee: Germany,  May , UN Doc. CCPR/CO//DEU, para. . Ibid. Protocol No.  to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS. No. , entered into force  May .

Still No Place to Go: Nomadic Peoples’ Territorial Rights in Europe authorities had violated Article  of Protocol .64 The applicants argued “that the orders for their expulsion reflected the authorities’ determination to deal with the situation of a group of individuals, in this instance Roma from Slovakia, collectively”.65 In this case, the ECtHR found that Belgium had violated Article  of Protocol . Overall, nomadic communities in Europe are increasingly facing some restriction of movement between the different countries of the CoE, and as highlighted above, such restrictions are often in violation of the principle of non-discrimination. The restriction of movement of nomadic peoples is not limited to movement across borders as nomadic peoples are often faced with restrictions of movement within the borders of the country in which they live. Several countries have imposed restrictions on the movement of nomads within their own territories. Even though these communities are often citizens of the state in which they reside, they are required to produce travelling documents. For example, in France, different laws targeting travelling communities (gens du voyage) impose an obligation for any nomadic family to attach itself to a specific municipality (commune de rattachment).66 In practice, such an obligation means that nomadic groups would have to settle down, as without such specific attachment to a municipality the authorities would not issue a title allowing circulation within the national territory.67 Such law is clearly a way of forcing nomadic groups to settle down and to control nomadism. This is part of a policy of assimilation, which is based on the idea that nomadic peoples have to settle down.68 European institutions have started to express their concern over such internal restrictions on the freedom of movement of nomadic groups. Paragraph  of Recommendation () of the Committee of Ministers held that member states should: … in the case of circulating on the national territory, refrain from requiring of national Travellers documents other than ordinary-law identity papers and/or documents authorising an itinerant economic activity (hawker’s professional card) in countries in which such papers are required.69

The Committee also invites states to allow nomadic peoples to have their official place of residence at the address of an individual or association.70 Another related issue comes from the fact that in several European countries it remains problematic for nomadic peoples to get access to full citizenship as national laws rely on permanent residency. In its Concluding Observations on the Russian Federation’s report, the CESCR expressed its concerns about reports that highlighted the fact that Roma “face particu      

ECtHR, Appl. No. /, Čonka v. Belgium, judgement of  February . Ibid., para. . See Les gens du voyage (Paris, Editions des journaux officiels, ). Violaine Carrère and Christophe Daadouch, “Les gens du voyage en mobilité surveillée”,  Plein Droit (Septembre ). Violaine Carrère, “Des papiers pour circuler, des papiers pour stationner …”,  Plein Droit (Septembre ). Recommendation Rec () of the Committee of Ministers to member states on the movement and encampment of Travellers in Europe, para. . Ibid., para. .



Jérémie Gilbert lar difficulties in obtaining personal identification documents, including registration of residence”.71 Several countries in Europe have a similar legislation that recognizes the rights of nomadic peoples only if they settle down. Thus, regarding the interaction between freedom of movement and nomadism, in general, nomadic peoples are facing a double burden on the exercise of their right to freedom of movement. First, externally through the specific restriction on movement across different countries and, second, internally as some states impose internal restrictions on nomadic peoples’ right to move within their own territories. Regarding their right to remain on the move, for nomadic peoples in Europe the issue is often that they have no place to go. In all European countries, the countryside and the outskirts of the cities have signs that emphasize that nomadic peoples are not welcome to stay. As a result, nomadic peoples are often confined to illegal encampments, which in many countries is classified as a criminal offence. Municipalities across Europe are relying on national legislation on urbanization to evict Roma or Travellers and to restrict nomadism.72 In response to this, one of the recent legal developments comes through the recognition of the right to encampment for nomadic peoples. B. Towards a Right to Encampment As highlighted above, one of the cornerstones of the European approach to the protection of nomadism is through the promotion of a state obligation to provide halting sites for nomadic communities. However, there is no right to halting sites as such under human rights law. So far, this article has argued that such rights flow from cultural rights, yet there is another facet to an eventual right to halting sites which is developing under housing rights. At first this could seem paradoxical as housing rights are synonymous with being sedentary and attached to one place and there is certainly a risk of pushing nomadic groups into a forcibly settled life by focusing on a narrow approach to housing rights. Yet recent practices of both European and international institutions demonstrate the emergence of a right to encampment as part of an enlarged right to housing for nomadic communities. The Committee on the Elimination of Racial Discrimination (CERD) has paid specific attention to housing rights for Roma in its General Comment . Of particular relevance is the right of the Roma to keep their traditional nomadic lifestyle, and the Committee recommends that states “take measures for offering Roma nomadic groups or Travellers camping places for their caravans, with all necessary facilities”.73 The Committee, in its Concluding Observations to the United Kingdom report, pointed out that the discrimination faced by Roma/Gypsies/Travellers was notably reflected 







Concluding Observations of the Committee on Economic, Social and Cultural Rights: Russian Federation, //. E/C.//Add. (Concluding Observations/Comments), para. . For an overview of national situations, see John O’Connell, “Roma/Gypsies/Travellers of Europe: An Examination of Discrimination and Racism”, Report for Conference in Leuven, Belgium, - January . CERD, General Recommendation XXVII, Discrimination against Roma, th Session,  August .

Still No Place to Go: Nomadic Peoples’ Territorial Rights in Europe by “poor housing conditions” and the “lack of available camping sites”.74 In its  Concluding Observations, the Committee noted: Special concern is also expressed for the Irish Traveller community, whose situation affects their right to public health care and social services under article (e). It is noted that the policy of designating land for the use of Travellers has contributed to their lower standard of living and has curtailed their freedom of movement by limiting the places which they might inhabit.75

In General Comment , the CERD also highlighted that states should develop and implement “policies to avoid segregation of Roma communities in housing”, and that states should “act against discriminatory practices by local authorities and private owners with regard to taking up residences and access housing, to act against local measures denying residence, and refrain from placing Roma in camps outside populated areas that are isolated and without access to healthcare and other facilities”. These concerns find some echoes in the Concluding Observations of the CESCR. In its report on Ireland it stated: The Committee is concerned that: (a) many new households cannot secure adequate and affordable housing; and (b) some , families of the traveller community are living in roadside encampments without access to water and adequate sanitary facilities, and are liable to be forcibly evicted.76

At the European level, the debate regarding the right of housing for Roma/Travellers communities has been much more developed. The European institutions have started to formally label a right to encampment as part of an enlarged approach to housing rights. The Committee of Ministers adopted a Recommendation “on improving the housing conditions of Roma and Travellers in Europe”.77 In the guiding principles, the Committee insisted that “Member states should affirm the right of people to pursue sedentary or nomadic lifestyles, according to their own free choice”. The Committee of Ministers invited states to establish a specific legal framework for housing rights for Roma/Travellers. Regarding the situation of nomadic communities, the Committee of Ministers stated:

  



CERD, UN Doc. CERD/C//CO/,  August , para. . CERD, Concluding Observations on the United Kingdom of Great Britain and Northern Ireland, th Session, , para. . CESCR, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Ireland,  June , UN Doc. E/C.//Add., para. . E/C.//Add.. (Concluding Observations/Comments). Recommendation Rec () of the Committee of Ministers to member states on improving the housing conditions of Roma and Travellers in Europe.



Jérémie Gilbert Member states should develop a comprehensive policy and legal framework related to housing, which is necessary for sedentary and itinerant people (in accordance with the geographical specificity) to exercise their right to adequate housing.78

Finally, regarding the specificity of housing rights for nomadic Roma/Travellers, the Committee highlighted that: Member states should ensure that an adequate number of transit/halting sites are provided to nomadic and semi-nomadic Roma. These transit/halting sites should be adequately equipped with necessary facilities including water, electricity, sanitation and refuse collection. The physical borders or fences should not harm the dignity of the persons and their freedom of movement.79

Similarly, Recommendation  of the Committee of Ministers affirms that member states should “provide for the right of encampment in their domestic legal system in instruments that are legally binding, treating it in the same way as the right to decent housing”.80 This last part of the sentence points towards an important aspect of housing rights that echoes comments from the CESCR. The CESCR in its General Comment on the right to adequate housing pointed out that: In the Committee’s view, the right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity.81

The Committee highlighted that it is the concept of adequacy, in particular, that should be taken into consideration. The Committee laid down seven criteria to ensure that the housing offered is adequate, and one of the criteria is particularly relevant in the case of nomadic peoples, namely: cultural adequacy of the housing available. In the words of the Committee, housing “must appropriately enable the expression of cultural identity and diversity of housing”.82 In this regard, and based on the preceding discussion on the interaction between cultural rights and a nomadic way of life, it could be argued that in the case of nomadic peoples the right to housing would refer to a right to a proper encampment site. From such a perspective it is submitted that there may be an emerging standard on a right to housing broadly framed to include the right to encampment for nomadic peoples. Based on the recommendations of the Council of Europe Committee of Ministers, such rights would include: the freedom of choice regarding the location of sites, access to proper and adequate sanitary conditions as well as easier access to exist    



Ibid., para. . Ibid., para. . Recommendation Rec () of the Committee of Ministers to member states on the movement and encampment of Travellers in Europe, para.  (emphasis added). The right to adequate housing (Art. ()): //. CESCR General Comment . (General Comments). Ibid., para. .

Still No Place to Go: Nomadic Peoples’ Territorial Rights in Europe ing health infrastructures and services. However, it has to be borne in mind that regarding such an evolution towards a right to encampment, the developments are recent and limited, for the most articulated policy comes from the Committee of Ministers of the Council of Europe in its recommendations in  and . Thus, it remains to be seen whether an evolution towards a right to encampment for nomadic peoples could be further developed legally by national and international courts. IV. Conclusion In the introduction to this article, a central question put forward was to determine whether in Europe there exists a right for nomadic peoples to perpetuate their nomadic lifestyle. The answer is not straightforward as there is no right to nomadism as such but, as demonstrated, such a right flows mainly from the protection of minority cultural identity. Yet, the specificity of the European protection for nomadic peoples comes from the emergence of a right to encampment. In this area, Europe is leading the way as nomadic peoples in other regions have not been recognized as having such a right. However, despite the existence of an emerging body of law from the European institutions, national implementation remains scarce and, in most situations, nomadic peoples are still under the constraint of abandoning their nomadic lifestyle. In the majority of the European countries, there are fewer and fewer legal camping spaces available for nomads and the political answer to this problem is to criminalize nomadic communities that are using illegal sites. As the HCNM stated in his report: “The effect is to place nomadic Roma in the position of breaking the law – in some countries, committing a crime – if they park in an unauthorized location, even though authorized sites may not be available”.83 As the  pre-election campaign in the UK has demonstrated, the issue of providing lands for nomadic peoples is still a burning issue that leads to high levels of intolerance between the different communities.84 Nomadic peoples in Europe – especially Roma/Gypsies and Traveller communities – are facing a high level of racism. A large part of such racism is embedded in the misunderstanding between nomadic and settled societies. This article has shown that, at the European level, there is an emerging body of law regarding the right of nomadic peoples to perpetuate their traditional way of life. It is certain that the implementation of the emerging body of European law will play a positive role in overcoming the general discrimination faced by nomadic groups. However, despite this slow legal evolution, the political will to put in practice such law is lacking in most of the countries of the CoE and most of the nomadic groups in Europe still have no place to go to.

 

HCNM, “Report and Recommendations on the Situation of Roma …”, . See reports of the events in The Guardian, “Gypsies: Out …”, .



B. SPECIAL FOCUS: OMBUDSMAN INSTITUTIONS

Andrea Krizsán*

Ombudsmen and Similar Institutions for Protection against Racial and Ethnic Discrimination

I. Introduction Article  of the  EU Race Directive1 defines the requirement for member states to designate bodies for the promotion of equal treatment for all without discrimination on grounds of racial or ethnic origin. The tasks the Directive attributes to such bodies include assisting victims in pursuing their complaints, conducting independent surveys on discrimination, publishing reports and making recommendations on issues relating to discrimination. The message conveyed by the Directive is that, in order to put the equal treatment principle in place, it is not enough to issue new legislation and leave it to regular judicial procedure for implementation, but that additional efforts are necessary. Bodies combating discrimination and promoting diversity are one major pillar of such additional efforts. One type of institution that clearly fits the Directive’s description of such bodies, which has been in place in some countries of Europe from before the document’s inception and has been working towards the above aims, is the ombudsman institution and, specifically, the ombudsman institution that specializes in minority or discrimination issues. Throughout the past few decades, starting perhaps with the creation of the Commission for Racial Equality (CRE) in the UK in , a variety of bodies combating racial discrimination and promoting equal treatment have been established. Some of them in the form of commissions with regulatory functions and complaint procedures, others as centres against racism, and others, since the mid-s, as specialized ombudsman institutions.2 Despite the undeniable differences between the dif*  

Research Fellow, Center for Policy Studies, Central European University, Budapest, Hungary. Council Directive //EC of  June  implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. See a report on bodies combating discrimination that existed before the Race Directive’s requirements went into force. European Commission Directorate-General for Employment and Social Affairs, Promoting Diversity:  Bodies Promoting Diversity and Combating Discrimination in the European Union (Office for Official Publications of the European Communities, Luxemburg, ), at . For an earlier review of the same bodies, see also European Commission Against Racism and Intolerance, “Examples of Good Practices: Specialised Bodies to Combat Racism, Xenophobia, Antisemitism and Intolerance at National Level”, CRI () , at . For a history of the ombudsman institution see Gerald E. Caiden, Niall MacDermot and Alec Sandler, “The Institution of Ombudsman”, in Gerald E. Caiden (ed.), International Handbook of the Ombudsman, (Greenwood Press, Westport Connecticut, ); Walter Gellhorn, Ombudsmen and Others: Citizen’s Protectors in Nine Countries (Harvard University Press, Cambridge, Massachusetts, ); Donald C. Rowat, The Ombudsman: Citizen’s Defender (George Allen and Unwin, London, ); Donald C. Rowat, The Ombudsman Plan (University Press of America, London, ); Frank Stacey, Ombudsmen Compared (Clarendon Press, Oxford, ); Bengt Wieslander, The Parliamentary Ombudsman in Sweden (The Bank of Sweden Tercentenary Foundation and Gidlunds Bokforlag, Stockholm, ).

Ombudsmen and Similar Institutions for Protection against Racial and Ethnic Discrimination power to investigate all public authorities upon individual complaints or upon his/her own initiative and to make recommendations, however, without having wide enforcement powers. Its means of enforcement are persuasion, conciliation and, if these do not work, publicity. The institution is a watchdog over justice and equity in the ways in which the state deals with its citizens. The second part of the twentieth century saw the spread of the institution all over Europe and the world. The definition of the ombudsman institution today is much looser and much more inclusive than it was  years ago. The adaptation of the original model to different political and legal systems widened several – until then unquestionable – elements of the definition. Today, the institution of the ombudsman reflects a set of principles with regard to appointment, scope and means of the institution. Along these principles, there are large variations among the ombudsmen of different countries. The first section will discuss these principles and show the possibilities for variation along them, with special emphasis on some of the particular elements that are relevant from the point of view of ombudsman institutions that work to combat discrimination. A. The Aim of the Institution The aim of the ombudsman institution is, as put by Caiden, MacDermot and Sandler, the protection of the dignity of man and the reduction of distance between rulers and ruled. As they write: The existence of an independent ombudsman office denotes a clear indication by the rulers that they recognize obligations and duties to the ruled, that the ruled should be treated justly, promptly and courteously, that they should be granted their due according to the law, and that public business should be conducted honestly and efficaciously.4

The ombudsman is an institution for the achievement of justice and equity. It can criticize illegal behaviour, but a breach of law is not necessary: unreasonable or unjust behaviour is sufficient grounding for the action of the ombudsman. Even if a decision is procedurally correct it can still be considered unreasonable, unjust or inhumane by the ombudsman if it is bad in its effects. The ombudsman will consider the quality of the decision.5 Thus, he/she not only provides for procedural justice but also for substantive justice. As such, the institution is a remedy for human rights violations, a remedy that works as a complement to courts and tribunals. In many cases, court procedures tend to be too slow, too costly, too formal and sometimes unnecessarily adversarial. The ombudsman institution fares better than courts with respect to these features as well. Finally, the ombudsman complements the work of the courts not only in the field of individual complaints but also through its strategic powers, using formal investigations as a means to revealing structural or institutional problems, or injustice about which for some reason no complaints were raised.  

Caiden, MacDermot and Sandler, “The Institution of Ombudsman …”, . Stacey, Ombudsmen Compared ....



Andrea Krizsán B. Independence One of the main features of the ombudsman institution is its independence from those investigated. However, this principle can be interpreted in different ways. The classical ombudsman model achieves its independence through its being appointed by the legislative power. In this interpretation, the ombudsman works as the eyes the parliament keeps on the executive power. A more extreme case is one that aims to achieve certain independence also from the legislative, by appointing the ombudsman for a longer period than the parliamentary cycle.6 In the s, however, despite the strong opposition of some experts on the institution,7 the principle of independence was widened to include also what we call today executive ombudsmen. Executive ombudsmen are not appointed by the parliament but by some part of the executive. Executive ombudsmen are usually responsible for the protection of special categories of rights or have the task of supervising compliance with an act concerning some right (e.g. consumer protection, freedom from ethnic discrimination, equality between sexes). Thus, the specialized ombudsmen are most often appointed by the relevant ministry or state department. The emphasis in the work of executive ombudsmen is on executive practice: on enforcement and implementation of laws, and on specialized know-how for dealing with a special field of human rights. An important part of the work of executive ombudsmen is policy-oriented strategic work. However, they also deal with individual complaints. In their case, the importance of the principle of independence is reduced: independence for executive ombudsmen means independence from the organization or institution investigated, rather than independence from state administration in general. C. The Scope of Investigations Another principle grounding the ombudsman institution concerns the scope of its investigations. The classical model of the ombudsman was created to investigate only public authorities. With the spread of the institution, however, this has widened too. A possibility for widening is moving from the original scope of investigation – public authorities – to investigation directed at the public sector in general, which includes bodies or organizations providing different goods and services for the public such as healthcare, education, insurance or financial services, regardless of whether the provider is entirely or partially state-owned, or even a church, in cases where it provides a public service.8 A more radical option for widening the scope of investigation of ombudsmen is the private sector ombudsman. It can be said that “the public sector has no monopoly



 

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Hungary is such a case. The ombudsman is appointed for six years based on the recommendation of the president. Thus, not every parliament has its own ombudsman. Act LIX. of  on the Parliamentary Commissioner for Civil Rights, Section . Caiden, MacDermot and Sandler, “The Institution of Ombudsman …”, . The Danish Ombudsman Act says in Section : “The jurisdiction of the Ombudsman shall extend to the Established Church, except in matters which directly or indirectly involve the tenets or doctrines of the Church”.

Ombudsmen and Similar Institutions for Protection against Racial and Ethnic Discrimination over bad decision-making and bureaupathologies”.9 Though fear exists that widening the scope of action of the institution to include the private sector might result in the dilution of the concept, at the end of the day if the private sector ombudsman is seen to have “as many as possible of the characteristics of the classical ombudsman”10 and, most importantly, is seen as independent from those being investigated, it can be considered an ombudsman. It seems that executive ombudsmen, as argued, being in most cases the specialized ones, tend to have a wider scope of action. Enforcement of a right, or an Act regulating one particular right, can rarely be effective if requested only by public authorities. However, in no case will private life fall within the scope of ombudsman action. The widening of the ombudsman’s remit extends only to the publicly performed activity of privately owned or managed bodies (e.g. employment practices of private companies, data processing of private banks, service provision by private hospitals). D. Powers and Instruments What makes the ombudsman institution truly specific besides compliance with the above-described principles of independence and control over public life is its powers and instruments. The ombudsman has power to investigate individual complaints of aggrieved citizens and has strategic powers to conduct investigations on its own initiative. Easy access is one of the main features of the institution with respect to individual complaints. Complaints are investigated free of charge and, in most cases, there is no formal requirement for making the complaint, meaning that the ombudsman will sometimes help in formulating the complaint itself. In general, it takes a much shorter time de facto for the ombudsman to resolve complaints than would be so in the case of court procedures. Also, the procedures conducted by the ombudsman are much less adversarial than court proceedings: firstly in the sense of focusing on investigation; and secondly in the sense that the aim of the institution is not to find and punish the wrongdoer but to make him or her understand the incorrectness of the respective action and to persuade this person that the highlighted action resulted in treating the victim inhumanly and unfairly, and thus reinstatement is due. Meanwhile, persuasion also has the advantage of preventing the wrongdoer from repeatedly committing the same action. These features make the institution one that is easily accessible for people who are disadvantaged, who cannot afford to start proceedings before courts, who cannot formulate their complaints or who just want to avoid for different reasons prolonged and costly adversarial procedures.11 Ombudsmen can start formal investigations, as mentioned, on their own initiative and can investigate individual cases. but can also be more general in the scope of their action and look at institutional problems or general failures in the workings of some field of the public sector. The ombudsman generally has access to all information, files and documents concerning the investigated case. Upon finding some injustice, the means the ombudsman can use are again characteristic. Conciliation, persuasion   

Caiden, MacDermot and Sandler, “The Institution of Ombudsman …”, . Mary Seneviratne, Ombudsmen in the Public Sector (Open University Press, Buckingham, Philadelphia, ), -. Caiden, MacDermot and Sandler, “The Institution of Ombudsman …”, .



Andrea Krizsán and mediation are the means available to the ombudsman. Its approach is not supposed to be adversarial and the institution has no effective power to enforce its opinion. However, recommendations can be made and, upon non-compliance, publicity can be used. The means available to ombudsmen for fighting against violations of rights show that the institution is to have an educational role even in the case of solving individual complaints. The aim is not necessarily only to settle the particular issue at stake but to make the ‘respondent’ learn from the mistake, to understand the inhumanity, unjustness or irrationality of the provision or criterion applied, or of the practice used. The recommendations of the ombudsman will thus aim on the one hand at the resolution of grievances and on the other hand, at a change of practices. Many ombudsmen recognize the educational role as one of their most important functions.12 Education occurs through individual persuasion but also through what Baroness B. Serota13 calls indirect impact: through annual reports presented to parliament or the appointing state department, through codes of practice and standards of good practice in the different fields that are provided for the employees of relevant bodies, offices or for any other concerned party. She argues that “the aim of indirect impact should be not just to improve practices in particular areas but to establish benchmarks to which authorities can relate their practices”.14 The annual reports presented to the appointing body will have the aim, on the one hand, of making public the activity and the findings of the ombudsman and, on the other hand, of making recommendations concerning legislation, policy and practices based on the individual complaints received by the ombudsman and the formal investigations conducted on own initiative. Thus, the institution provides some kind of feedback on how existing laws, policies and practices operate and where amendment or new legislation or policy is needed. Even though the ombudsman will not always have the power to make suggestions on the substance of change, it can yet signal its necessity and show the nature of the problem. This concise and descriptive discussion of the general ombudsman concept is not meant to do justice to the incredible richness and complexity of the ombudsman institution and its evolution. It is only meant to highlight some of the grounding features of the institution and some crucial points of flexibility connected to the concepts that are fundamental to specialized ombudsman institutions working to combat discrimination and, more widely, to specialized bodies combating discrimination. The next section will reflect on how each of these specific features gains relevance for the purposes of our argument here. III. Specialized Ombudsman Institutions Combating Discrimination Let us now examine what the main features of the specific ombudsman institutions working on combating discrimination are and, more widely, of the specialized bodies working in this field. Special emphasis will be given to two issues: first, how the above  



Larry B. Hill, “The Self-Perception of Ombudsmen: A Comparative Survey”, in Caiden (ed.), International Handbook …, -. Baroness B. Serota, “The Evolution of the Role of the Ombudsman. Comparisons and Perspectives”, in Caiden (ed.), International Handbook …, -. Ibid., .

Ombudsmen and Similar Institutions for Protection against Racial and Ethnic Discrimination described elements of the ombudsman idea inform the working of these institutions; and second, why such bodies are necessary for an adequate assurance of equal treatment without discrimination on grounds of race or ethnicity. Explanations will be grounded in a complex understanding of the nature of the phenomenon of racial discrimination and in a thorough understanding of some of the foundational ideas behind establishing such specialized bodies in relation to the phenomenon of discrimination. The specific need for specialized bodies to combat discrimination15 was first raised in  at the European level by the European Commission against Racism and Intolerance (ECRI) of the Council of Europe. The ECRI spoke about the need to establish specialized bodies to combat racism, xenophobia, antisemitism and intolerance at a national level. ECRI’s General Policy Recommendation No.  on the necessity of establishing such specialized bodies,16 directed at member states of the Council of Europe, states that these institutions may take the form of, among others, national commissions for racial equality, ombudsmen against ethnic discrimination, Centres/ Offices for combating racism and promoting equal opportunities or even bodies with the wider objective to promote and enforce human rights in general. The minority ombudsman or the ombudsman against ethnic discrimination is one form that fits the ECRI Recommendation, a form chosen by Sweden, Hungary and Finland. What are the crucial common features of these institutions, how do they relate to the ombudsman model and how do they serve the purposes of combating discrimination? A. The Aim of the Institution The objective of the specialized ombudsman institution is generally to work towards the promotion of ethnic justice and equality, a formula used by the Swedish Ombudsman against Ethnic Discrimination.17 Meanwhile, the ECRI Recommendation states that specialized bodies should have the responsibility to “work towards the elimination of the various forms of discrimination” and “to promote equality of opportunity and good relations between persons belonging to all different groups in society”.18 MacEwen argues that since racism and discrimination are pervasive in society and “include the way we look, behave, talk, react, socialize and mediate, conciliate and even judge”,19 enforcement agencies need to be established by the state. Through these agencies the  



 

The Paris Principles in  set out the principles for national institutions for the promotion and protection of human rights in general. ECRI General Policy Recommendation No.  of  on specialised bodies to combat racism, xenophobia, antisemitism and intolerance at national level, Council of Europe, CRI (). Peter Nobel, “Experience and Practice of the Ombudsman”, Proceedings of the nd Round Table of European Ombudsman, - June , Strasbourg, at . ECRI General Policy Recommendation No.  of . Principle (a). Martin MacEwen (ed.), Anti-Discrimination Law Enforcement: A Comparative Perspective (Ashgate, Aldershot, ), .



Andrea Krizsán state goes above the formal structures to dismantle not only social processes and personal mind-sets sustaining discrimination, but also to address the disadvantage (both economic and cultural) of a racially determined social underclass,20 that is to perceive and deal with racial discrimination within the framework of an anti-discrimination project21 not just an anti-discrimination law. Thus, the aim of specialized enforcement agencies is to promote substantive equality of opportunity instead of just formal equal treatment. The creation of an ombudsman combating discrimination has an even more important symbolic meaning than the existence of a general ombudsman. Having a specialized ombudsman for this field denotes the recognition by the state of its obligations towards a disadvantaged part of its population, namely citizens belonging to national, ethnic or racial minorities. It indicates, as in the case of the general ombudsman, that rulers “recognize obligations and duties to the ruled [meaning here those belonging to minorities]”,22 but it also indicates that this group of citizens has to be treated with special concern – their just and equitable treatment deserving special consideration. This consideration is especially justifiable since members of national, ethnic or racial minorities are generally more vulnerable to the abuse, unreasonable or irrational behaviour of rulers; their difference makes them more vulnerable to violations of their human dignity. Their relationship with the ‘rulers’ is in most cases even more unequal than in the case of the other categories of the ‘ruled’. In most cases, members of minorities are more dependent on the state than majority members: the state in their case will not only have to provide its regular service, but will also have to provide for the protection of the minority from the eventual abuses of the majority. As the Hungarian Minority Parliamentary Commissioner formulated,23 the minority ombudsman will not only be a mediator in the conflict between ‘rulers’ and this special category of ‘ruled’, but will also mediate between the two groups of ‘ruled’: the majority and the minority. The importance of the specialized ombudsman institution has to be regarded within this symbolic context. B. Independence As noted above, the specialized ombudsman may be either a parliamentary or governmental (executive) ombudsman. The Swedish Ombudsman against Ethnic Discrimination is a body dependent on the executive just as the CRE is. The justification for this lies with the importance of their strategic enforcement powers, the regulatory and policyshaping functions they play, and their promotional powers on the particular field of rights. Obviously, the specialized ombudsman stands as closely to the general ombudsman model as it stands to what MacEwen calls specialized enforcement agencies.24     



Ibid. Andrew Koppelman, Antidiscrimination Law and Social Equality (Yale University Press, New Haven, London, ). Caiden, MacDermot and Sandler, “The Institution of Ombudsman …”, . Interview conducted with Jenő Kaltenbach in April . According to MacEwen, specialized enforcement agencies belong to the larger category of nondepartmental public bodies. MacEwen, Anti-Discrimination Law …, .

Ombudsmen and Similar Institutions for Protection against Racial and Ethnic Discrimination It is an ombudsman in all its powers, means and instruments, and it is a specialized enforcement agency in not being restricted only to the review of state actors and public administration, and in having jurisdiction only over issues connected to one special field of rights. In the case of the executive model of the ombudsman, the relevant state department recognizes the role this institution can play, not only in handling individual complaints, but also in summarizing issues coming up in complaints or in investigations undertaken on its own initiative, in making recommendations concerning development of policies and legislation in the field, and also in the promotional work needed for efficient enforcement of the respective category of rights. The advantage of the executive ombudsman is being within the executive and thus having the necessary leverage, yet being outside it as well and, as such, dealing with the rights issues in a technocratic, expert way, thus separating them from the political realm. The independence of the institution still remains a crucial feature of these specialized ombudsman institutions, as well as of specialized bodies combating discrimination. However, this independence is operationalized through other means, not through the checks and balances between the legislative and the executive powers, as used by parliamentary ombudsman institutions. In the case of the parliamentary model of ombudsman, as used in Hungary or Finland, the emphasis is put on independence from the executive. In these cases too, being completely independent from the administration will not prevent the executive from consulting the ombudsman in important questions pertaining to policies concerning minority issues, yet, if dissatisfied with the work of the ombudsman (e.g. too severe criticism of administration), the executive will have no power to influence or eventually dismiss the ombudsman. Independence is an important component of the ECRI Recommendation. The document shows how independence can be secured differently than through the classical ombudsman solution. The Recommendation conceptualizes independence through three elements. The first element concerns funding: the specialized bodies “should be provided with sufficient funds to carry out their functions and responsibilities effectively, and the funding should be subject annually to approval by the parliament”. The second element that is considered to be important from the point of view of independence is the ability to function without interference from the state and the guarantees necessary for independence in appointing staff, managing resources and expressing views publicly. The third element concerns the appointment and dismissal of members or incumbents: guarantees shall be provided for preventing arbitrary dismissal, nonrenewal and appropriate guarantees for fair appointment. However, independence, as perceived along these three terms, can be realized with carefully designed legislation by executive ombudsmen or, eventually, by enforcement agencies just as well as it can be by the classical model of independent parliamentary ombudsmen.25 MacEwen argues that, even if enforcement agencies are acting on behalf of the central government, they are not part of the central government. Incumbents are most probably selected on the basis of their specialized expertise in the field, experience and skills shown in their previous work, and this tends to decrease problems with both accountability and with political bias. 

ECRI General Policy Recommendations No.  of . Principle , Sections -.



Andrea Krizsán No matter how it is conceptualized in the individual cases, the independence criterion is one of the foundational criteria for specialized bodies just as it is for ombudsman institutions. The ombudsman institution proved flexible enough to accommodate new forms of independence even in its country of origin.26 The focus seems to have shifted away from accountability to the parliament to the requirement of firm legal basis, clear mandate, budgetary guarantees and guarantees to prevent unfair dismissal. The importance of the criteria remain, however, unquestionable: in a Europe where the state is the largest employer and service provider and, therefore, most probably also the largest discriminator, independence from state intervention is a must for a body combating discrimination C. Scope of Action Despite the restrictive scope of action of the classical ombudsman model, consistent action to combat discrimination seems to require that the scope of action of the specialized ombudsman institution extends beyond public administration to public life in general; that is, to include private employers and private service providers as well. This can be justified by the aim of fighting discrimination and the special vulnerability of members of minorities, recognizing the fact that they will face very similar problems and types of discrimination coming from privately owned actors in public life. Even though the state is in most cases the largest employer and the largest service provider and covering the arbitrary and unjust activity of public administration will mean covering a large proportion of the violations of rights of minorities members, it will still exclude a large number of very similar violations committed by non-state actors. Once the aim of the ombudsman is the advancement of racial equality, or the fight against racial discrimination, it is very difficult to justify why this implies only investigation of abuses committed by state actors. The Hungarian Minority Ombudsman’s activity illustrates this case well. The Ombudsman, who has a mandate restricted to the public sector, has repeatedly tried to extend his actions indirectly to private employers and private service providers, in order to overcome the inconsistencies deriving from his limited mandate.27 There is also an efficiency argument in favour of extending the scope of action for minority ombudsmen to private actors. Investigation, proof of and evidence for discrimination cases requires special skills and know-how.28 However, this knowhow is similar for all cases of discrimination, regardless of whether it has been committed by a local government as employer or a privately-owned company as employer. Centralizing this expertise in dealing at a non-judicial level with racial discrimination cases will further the efficient handling of these problems. The minority ombudsman 







The parliamentary vs. executive ombudsman debate was resolved in Sweden by focusing rather on a firm legal basis for the institution and a legally defined mandate. See European Commission, Promoting Diversity:  Bodies …, . Andrea Krizsán, “The Hungarian Minority Parliamentary Commissioner and the Antidiscrimination Principle”, PhD thesis, Department of Political Science, Central European University, Budapest (), -. Commission for Racial Equality, Second Review of the Race Relations Act  (CRE, London, ), -.

Ombudsmen and Similar Institutions for Protection against Racial and Ethnic Discrimination seems to be one type of ombudsman institution for which the extension of the scope of action beyond public administration is justified by the nature of the specialization: combating discrimination on the grounds of race and ethnicity. D. Functions of the Institution The sets of functions that are attributed to specialized ombudsmen combating discrimination are truly specific. Functions attributed to other specialized bodies working in this field are also consistent with these. The Swedish Ombudsman against Ethnic Discrimination has three sets of duties: to strive to ensure that ethnic discrimination does not occur in working life or other areas of society; to assist anyone subjected to ethnic discrimination and safeguard their rights; and to initiate measures against ethnic discrimination and to promote good relationships between different ethnic groups.29 The Finnish Minority Ombudsman makes policy proposals and provides legal advice and juridical assistance to victims.30 The Hungarian Minority Ombudsman investigates individual complaints and initiates ex officio investigation of discrimination cases, reviews relevant legislation and policy, and comments on legislation and policy with relevance to the field that is in preparation, and raises awareness of issues related to minorities.31 Similarly, the CRE has three sets of functions defining its work: to work towards the elimination of discrimination; to promote equality of opportunity and good relations between persons of different racial groups; and, finally, to keep under review the Race Relations Act and to recommend amendments when necessary.32 As mentioned at the very beginning of the paper, the EU Race Directive also projects three main sets of tasks for bodies combating discrimination: assisting victims; conducting independent surveys on discrimination; and publishing reports and making recommendations on issues relating to discrimination. Similarly, the functions and responsibilities enumerated in the ECRI Recommendation33 can be grouped in three major clusters: policy-making and legislative functions; enforcement functions; and, finally, promotional and educational functions. The first group, the policy-making and legislative functions, include tasks such as the monitoring of the content and efficiency of the relevant existing legislation and governmental policies and making recommendations concerning their amendment or modification, as well as counselling the legislative and executive branches of government concerning improvement of legislation and policies in the field or concerning the making of new laws and policies. The second group of functions, enforcement functions, is aimed at the enforcement of the rights of individual victims and at the strategic enforcement of the rights of relevant minority 

   

Act Against Ethnic Discrimination , Sections -. The new Act on the Ombudsman against Ethnic Discrimination  adds to the above the task of preventing discrimination and supervising the workings of the Act on Measures against Discrimination on the Labour Market . European Commission, Promoting Diversity:  Bodies …, . Krizsán, “Ombudsman and Similar Institutions ...”. Race Relations Act , Section (). There are  functions mentioned altogether. ECRI General Policy Recommendation No.  of , Chapter C: Functions and responsibilities of specialised bodies, Principle .



Andrea Krizsán groups. The Recommendation includes here functions such as providing assistance and legal aid to victims, if provided for by the national legislation, support for or eventually bringing cases before the judiciary, hearing cases and seeking extra judicial settlements through conciliation, all of these supported by the powers to obtain evidence and all relevant information and documents from the concerned parties. Finally, promotional powers are understood by the ECRI document to include providing information and advice to relevant bodies and institutions, counselling actors in specific relevant areas on standards of anti-discriminatory practice, promoting and participating in the training of different key groups within society in tolerance, anti-racism and anti-discriminatory practices, promoting awareness of discrimination issues in society, including preparation and distribution of information and other materials and, finally, supporting and cooperating with organizations that have objectives similar to that of the specialized body. MacEwen, based on his examination of eight different anti-discrimination law enforcement agencies, identifies four groups of functions such agencies have to undertake. The first set consists of promotional functions, including issuance of guidance and codes of practice, education and training, networking, and research in the area. The second and the third set are enforcement powers, which he divides into two groups: investigation of individual complaints; and strategic investigations, pattern and practice cases and formal or ex officio investigations. The fourth group of functions he writes about include advising the government on law and practice, assessing the efficiency of existing law and policies, as well as previewing legislation and policies in the field and commentary connected to them.34 It is obvious from the clusters of functions attributed to minority ombudsman institutions that the aim of these institutions extends beyond simple individual enforcement of the right not to be discriminated against to a very wide understanding of enforcement, an understanding according to which in order to have a relatively full enforcement of this right more is needed than enforcement in individual cases of violation. The functions suggest that promotion of awareness within society concerning the problem of racism and its moral unacceptability, and of recognition and tolerance towards national, ethnic or racial differences, is part of the enforcement process and, moreover, that re-educating the public and changing prejudices and prejudiced mindsets is also part of it. They also suggest that often discrimination penetrates the structures of society and its systemic form cannot be addressed by enforcement only on the individual level, but only through careful assessment, with the help of system-wide remedies. Finally, the function to assess and evaluate relevant legislation and policy, to suggest amendments and new policy and legislation, shows that it is not enough to address the issue of racial discrimination in the different fields where it may occur, but that permanent coordination and supervision and evaluation of the efficiency of the overall anti-discrimination policy is needed, and that the special focus and expertise of the specialized ombudsman institution allows for doing this appropriately.





MacEwen, Anti-Discrimination Law …, .

Ombudsmen and Similar Institutions for Protection against Racial and Ethnic Discrimination E. Specialized Ombudsman Institutions for Combating Discrimination Having seen some of the cornerstone ideas defining the specialized ombudsman institution combating discrimination, the question is: how can these features be used for the special needs of combating discrimination on grounds of race or ethnicity? In the field of assisting individual complainants, the institution first of all has procedural advantages. The means available to the minority ombudsman institution, the ability to make complaints free of charge, the absence of formal requirements in pursuing a complaint, the fact that the ombudsman will assist the complainant in formulating the complaint if necessary and, finally, the fast and non-adversarial procedure, are all advantageous for victims of discrimination. These procedures will be advantageous for those who have a lower level of education and perhaps cannot formulate their complaint, who cannot afford to pay the costs of a judicial procedure or who lack the self-confidence to raise their voice.35 All of these factors – poverty, lower level of education, lower self-confidence – fall in most cases with a disproportionate impact on members of ethnic minorities. Thus, the access of groups such as the Roma in Hungary to the ombudsman will allow them to make complaints with respect to discrimination with far greater ease. The methods of investigation used by the specialized ombudsman – the specific methods of solving cases – such as persuasion, conciliation and the threat of publicity can, in many cases, provide an alternative to the protracted and costly adversarial procedures and to the mostly individualized remedies provided by the court procedure. Violations in this field are often committed out of ignorance; many times racism plays a role only unconsciously. Not many institutions, organizations or bodies want to see themselves being described as racist in the media. This is again a reason why the proceedings of minority – ombudsman – type institutions present a real alternative to the sanction-oriented judicial procedure. Persuasion will also further the education of ‘respondents’, convincing them of the abusive character of their procedure and sometimes showing them possible alternative good practices. Indeed, it has been shown in connection to the work of the CRE that institutions and employers are more willing “to accept advice and introduce widespread change when confronted privately with evidence of inequality, than they were after a more public and accusatory investigation”.36 Conciliation can often bring an easy remedy to the violation of the human dignity of the victims. Sometimes apologies and recognition of fault is what victims are looking for and the ombudsman is able to persuade the ‘respondent’ to provide it. The emphasis of the ombudsman’s procedure is more on compensating the victim, defining the problem and preventing its future occurrence than on blaming the wrongdoer. This is not to say, of course, that the ombudsman proceedings shall replace court procedures. Complainants may be motivated by different goals when they pursue their complaints: some of them see their cases as part of a political struggle, others want  

Laurence Lustgarten, Legal Control of Racial Discrimination (Macmillan Press, London, ), . Mary Coussey, “The Effectiveness of Strategic Enforcement of the Race Relations Act ”, in Bob Hepple and Erika Sczyczak, Discrimination and the Limits of the Law (Mansell Publishing Limited, London, ), .



Andrea Krizsán public acknowledgment of their ill treatment and others want their financial loss to be compensated.37 The specialized ombudsman cannot be an adequate instrument for all cases. Especially in cases of intentional direct discrimination (where a person intentionally treats another less favourably on racial grounds), the importance of “the threat of sanction, the deterrent effect that shapes behavior by making compliance more attractive than the financial costs or physical and psychological punishment that follows upon non-compliance”38 as used by courts and tribunals cannot be disregarded. However, the elimination of racial discrimination and achievement of equal opportunities regardless of race or ethnicity is what Lustgarten calls a more programmatic end, which requires changes in the actions of people in a systematic way, requires changing the mentality of people. As Koppelman wrote, it necessitates an anti-discrimination project, a project of social reconstruction.39 The anti-discrimination project has to proceed on three levels. The first is the level of racial meanings: that is, of racially biased beliefs and values shared by the members of society. The second level is the level of racially significant practices, meaning the discriminatory practices that are constructed by the beliefs and values attacked on the first level. The third level is called, by Koppelman “racially tainted distribution”: that is, the distribution of wealth and power that emerges from racially significant practices, which are addressed under the second level. Thus, the issue to be addressed becomes much wider than a procedural approach would suggest. The antidiscrimination project implies judicial work with adequate negative sanctions having a preventive effect, but it also implies shaping action in a specific direction, i.e. among others using directive remedies. In most cases, courts cannot provide such remedies.40 The ombudsman institution is allowed to provide such remedies either directly, in individual cases, or indirectly through its strategic powers. The direct remedies provided by the ombudsman may not be enforceable41 and are certainly disregarded in some cases but, in other cases where there is good intention, the expertise of the ombudsman is indeed appreciated and regarded as a help. The minority ombudsman may address the anti-discrimination project on all of its three levels: its powers of promotion, awareness raising and education of the public will attack the problem of racial discrimination on the level of racial meanings, of beliefs and values shared by the members of the society. Its enforcement powers and its powers to review policy and legislation and to recommend policies and legislation will act on the other two levels. The second level, that    





Lustgarten, Legal Control …, . Lustgarten, Legal Control …, . Koppelman, Antidiscrimination Law …, -. A successful exception is found in US jurisprudence and especially in the activity of the US Supreme Court. Despite its common law system, this was never adopted by British courts. Lustgarten argues that the CRE can make up for the failure of courts in providing directive remedies. Lustgarten, Legal Control …, . This is one of the major differences between specialized ombudsman institutions and some other specialized bodies combating discrimination. For example, two such specialized bodies even have the power to act as quasi-judicial bodies, which can issue formal rulings in cases of discrimination: the Dutch Equal Treatment Commission and the Office of the Director of Equality Investigations (ODEI) in Ireland. See European Commission, Promoting Diversity:  Bodies …, .

Ombudsmen and Similar Institutions for Protection against Racial and Ethnic Discrimination of racially significant practices, will especially be addressed by the wide enforcement powers the institution has, partly by its enforcement powers relating to individual complaints and partly by its strategic powers. The third level, that of racially tainted distribution, will mostly be addressed by the powers of the institution to issue guidance for good practices, codes of good practice, to recommend policies both for actors in society such as employers, local authorities, healthcare institutions, insurance companies and for the state. The ombudsman may be the most appropriate institution to work out guidelines for different forms of affirmative action programmes or other programmes for improving substantive equality of opportunity. Direct intentional discrimination cases are the least interesting ones for minority ombudsman institutions. Once proof of intent is available, or intent can be inferred, liability should be established and remedies made available for the victim. Direct discrimination cases, if brought, should always go before courts, which have the appropriate enforcement powers to handle them. The strategic powers and soft enforcement powers available to minority ombudsman institutions are mostly inappropriate and unnecessary for handling such cases. However, the support of the institution could eventually be useful in providing specialized help in gathering circumstantial evidence. The role of minority ombudsmen in dealing with indirect discrimination cases is much more extensive than is the case with direct discrimination. Even though the institution’s powers are not appropriate to compensate individual victims, its soft powers will certainly be very much appropriate for bringing about changes in systemically discriminatory practices. Also, the concentration of expertise in a specialized body like the minority ombudsman will be necessary to apply the sophisticated methods of proof, especially statistical evidence, required for showing discriminatory patterns and practices. Indirect discrimination cases are a field that exemplifies well how the special prerogatives of the institution can be used to combat discrimination. As the EU Race Directive defines it, indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.42 Analysis on the work of the CRE, a forerunner in Europe in the implementation of the concept of indirect discrimination, proves useful in understanding some of the advantages of the specialized ombudsman institution. Cases of indirect discrimination may occur without the intent to discriminate or to cause disadvantage to the members of a minority group and, as such, liability is problematic in such cases. In the absence of liability, judicial remedies can at best provide an injunction to cease the operation of the indirectly discriminatory practice or requirement: it is difficult, if not impossible, to argue for damages for the victims.43 Given the difficulties one faces when trying to prove indirect discrimination,44 and the lack of incentive for victims to bring the case (absence of damages), few indirect discrimina  

EU Race Directive, Article ()(b). Lustgarten, Legal Control …, . Lustgarten, Legal Control …, -. See also Geoffrey Bindman, “Proof and Evidence of Discrimination”, in Hepple and Sczyczak (eds.), Discrimination and the Limits …, -.



Andrea Krizsán tion cases can be brought before courts and even fewer can be successful. However, the specialized ombudsman institution does “not require adherence to formal rules of evidence and procedure. [It] may form an opinion favourable to the complainant on the basis of less weighty evidence than would be needed to establish a prima facie case in legal proceedings”.45 Investigation of indirect discrimination rather falls within the strategic powers of the specialized ombudsman institution. It can be achieved by using the ombudsman’s own data bank for proof, or collecting proof in its investigations or sometimes commissioning research from experts or research institutes working in the field. The specialized ombudsman institution’s support and involvement seems indispensable in addressing cases of indirect discrimination, at least at the moment when courts in most European countries are rather inexperienced and sometimes too conservative to deal with the phenomenon. There is a considerable variation between different specialized bodies, including specialized ombudsman, concerning their prerogatives with respect to individual complaints and with respect to their interference with judicial procedures. Some specialized bodies remain closer to the classical ombudsman model in that they do not have more power than to make recommendations and their recommendations have no binding force. At this end of the spectrum, the specialized institutions remain completely independent of the courts, they provide an alternative legal remedy – a soft one – besides the remedies provided by courts.46 Another possibility is that when specialized bodies have the mandate to bring cases before the courts, or at least participate in preparing important discrimination cases for court proceedings, i.e. by providing legal aid for bringing cases, providing expert opinions for the procedures, or writing amicus curiae on the cases.47 A mandate to bring cases before courts does not mean, however, that the specialized bodies will bring all their cases before the courts. Usually, the only cases considered for support and legal aid in court procedures are those that bring up some matter of principle, i.e. their appropriate presentation and success will result in the development of the legal approach towards racial discrimination. The other extreme of the spectrum is the already mentioned case when specialized bodies have quasi-judicial powers.48 Choosing one model or the other depends on the institutional culture and the political sensitivities of the given country. What follows necessarily from the objectives and advantages of this type of institution, however, is its capacity to provide expertise not only in offering alternative, extrajudicial solutions for cases of racial discrimination but also in preparing and bringing discrimination cases successfully before courts. This is important, not only from the point of view of the particular discrimination cases at issue, but also from the point of view of the development of judicial practice and the education and increased sensitivity of the judiciary regarding these matters. The expert knowledge input of specialized ombudsman and specialized bodies in judicial procedures dealing with discrimination is one of the most important profits flowing from the    



UK Home Office, “Racial Discrimination …’, Cmnd. , White Paper presented to Parliament in September  (HMSO, London, ), -. The Hungarian Minority Ombudsman falls into this category. Most specialized bodies fall under this category (e.g. the Swedish Ombudsman against Ethnic Discrimination, UK Commission for Racial Equality). For example, the Dutch Equal Treatment Commission and the ODEI of Ireland.

Ombudsmen and Similar Institutions for Protection against Racial and Ethnic Discrimination establishment of such institutions for handling individual cases of discrimination, and more widely for the process of combating discrimination. F. Strategic Powers However, beyond the advantages such institutions offer in addressing individual complaints of discrimination, the role they play in combating racial discrimination by means of their strategic powers is even more important. As Lustgarten rightly shows, the strategic powers of “a public body with unusual powers” are justified by the weakness of individual remedies as far as racial discrimination is concerned. He argues, with reference to employment discrimination, that “individual enforcement can at best produce an erratic series of changes in the behavior of individual employers”.49 On the other hand, “complaints are random in their incidence and significance. Most victims do not complain. Many do not know that they have suffered discrimination. Others are reluctant to complain because they do not want to relive the humiliation, which they have suffered, or because they have no confidence in the effectiveness of the complaint procedure and the redress, which it is likely to provide for them. Some complaints are trivial, others misconceived. Although it is necessary for the law to provide effective remedies for the individual victims, it is also essential that the application of the law should not depend upon the making of individual complaint”.50 Besides the questionable efficiency of approaching racial discrimination through individual remedies and the questionable significance and number of complaints, there is also the difficulty of proving discrimination, the necessity in many cases to use statistical data, which is usually only available (if at all) to the discriminator. These three factors make the strategic powers of the specialized ombudsman crucial for an effective fight against discrimination. The strategic powers of the ombudsman allow the institution to intervene when and where it deems necessary in the public interest. The ombudsman has the power to initiate formal investigations into specific institutions, bodies or into some general aspect of public life (e.g. minority education, discriminatory practices used by employment agencies). His targets can be chosen, based on the expertise of his staff and eventually on the signals coming from individual complaints, so that they can have long-term importance, so that “they make [a greater] general impact on the incidence of discrimination than even a substantial number of successful individual complaints will make”.51 Applebey and Ellis argue that formal investigations are especially important in the following four situations: ()

 



in cases of “victimless discrimination” – situations in which there has traditionally been discrimination and in which members of the victim groups do not even file complaints any more;

Lustgarten, Legal Control …, . See UK Home Office, “Racial Discrimination …”, , for an argument on the necessity of creating the Commission for Racial Equality in the UK. See also Hepple and Szyszczak (eds.), Discrimination and the Limit …. Lustgarten, Legal Control …, .



Andrea Krizsán ()

() ()

cases when too many people are affected by the discrimination and, in the absence of class action, it would be very resource and time consuming to have all victims start procedures individually; “where practices are very complicated and require the ascertainment of facts which are beyond the capacity and resources of an individual”; “where the individual who has been discriminated is in fact a member of a clearly defined group and the Commission [CRE] feels it essential to investigate further in the interests of the remaining members of the group”.52

The ombudsman institution also takes part in policy shaping through its strategic powers. The reports of its formal investigations, as well as annual reports, are presented before parliament or the government department appointing the ombudsman with relevant recommendations and suggestions concerning laws and policies in the field of anti-discrimination policy. The specialized ombudsman can also function as a kind of data bank concerning court and tribunal cases of discrimination, successful methods of proof, available data for evidence (for example, relevant statistical and demographic data), data concerning public interest law firms dealing with such cases and information concerning legal aid available for those who choose or have to choose litigation. The minority ombudsman will thus act as a mediator in many individual cases, will provide necessary information for going to court and eventually will transfer the complaint to the relevant body. It will also function as a centre for expertise in addressing complaints by members of minorities concerning the violation of their rights on grounds of race, national or ethnic origin. The minority ombudsman also conducts research into issues of racial discrimination or orders relevant policy-oriented research from specialized research institutes, researchers or experts working in the field. The institution and its experienced staff will probably have a quite good perspective in determining what kind of research is needed for the advancement of anti-discrimination policy and what research might further best the enforcement of the right not to be discriminated against. The strategic powers of the ombudsman institution will also have a role in defining and coordinating the anti-discrimination policy of a particular country and in finding an appropriate solution to address the issue as widely and as comprehensively as possible. By summarizing the issues brought up by individual complaints and looking at the general trends as shown by individual complaints and general investigations undertaken on its own initiative, the ombudsman will have the most refined image of the workings of the existing anti-discrimination policy of the country. Given the relatively recent developments of the right not to be discriminated against and the ambiguities about it even at the international level, the ombudsman will play an active part in finding an adequate solution for the implementation of this right at the national level. The power the institution has, to refer beyond national law to international documents, will give the specialized ombudsman an even better understanding of the potential for improve



George Applebey and Evelyn Ellis, “Formal Investigations: the Commission for Racial Equality, and the Equal Opportunities Commission as Law Enforcement Agencies”,  Public Law (), -.

Ombudsmen and Similar Institutions for Protection against Racial and Ethnic Discrimination ments in protection against racial discrimination at the national level. Channeling this expert information back into the policy-making process has great potential for continuously improving the policy-making process and policies in the field. G. Promotional Powers Underlying the entire idea of the ombudsman institution in general and the ombudsman institution that specializes in combating discrimination, in particular, is the task of educating the public. This task informs the way the ombudsman will try to solve individual complaints, but is also part of the strategic powers of the institution. The specialized ombudsman also has a role to play in initiating public debates concerning recognition of minorities and tolerance, can initiate campaigns to teach the public about the rights of minorities, but also educates by making public the results of its investigations, by eventually publicizing good practice and by criticizing abuse. Regular media appearances either connected to investigated cases or connected to relevant issues on the public agenda are used by both the Swedish Ombudsman against Ethnic Discrimination and the Hungarian Minority Ombudsman. Codes of practice showing good practice in important fields where discrimination can occur may be provided by the ombudsman to the relevant actors in the field. Good practice codes will, on the one hand, help actors to avoid racial discrimination and, on the other hand, may also provide guidance on how to improve equality of opportunity for the members of a disadvantaged minority, how to design appropriate and acceptable affirmative action programmes, and how to monitor policies. H. Balancing between the Different Functions of the Institution The specialized ombudsman institution, as presented here, is a rather pro-activist institution. It seems to be a hybrid between the general ombudsman institution, as it originated in Sweden, and a specialized regulatory agency. The argument is that an institution having the flexibility, powers and independence characteristic of the ombudsman institution and the expertise and specialization of specialized enforcement agencies plays a pivotal role in combating discrimination. A valid concern that comes up upon analyzing the extensive list of tasks such specialized agencies might have is that the extensive strategic powers and promotional powers as described here will conflict with the individual complaint-solving task of the institution and none of them will in fact be efficient enough. This strategically important point remains to be addressed by each institution. If all individual complaints are considered and dealt with in detail, much less capacity will remain for the use of strategic and promotional powers. The ombudsman must therefore strike a balance between the three groups of functions in a way in which the legislative intent standing behind the institution will best be reflected. The case of the CRE provides one solution: the equilibrium is reached by not considering all individual complaints but only those which raise a question of principle, those of a complexity that it is unreasonable to expect the complainant to deal with unaided or other cases chosen for any other special consideration.53 This shows that in the case of the CRE, at least 

Lustgarten, Legal Control …, .



Andrea Krizsán partly, individual complaints are also perceived as aiding the strategic powers. However, in order to choose this strategy there has to be available alternative remedy: courts and tribunals have to be accessible to the refused individual victims; they also have to be willing to adequately consider such cases and there must exist an adequate law regulating race relations with adequate sanctions, procedures of proof and evidence on the basis of which courts can make their decisions. In the absence of these conditions, the ombudsman will have to work as a proxy for the courts, meaning that the institution will have an immense individual caseload, leaving much less free capacity for exercising strategic and promotional powers. The Hungarian Minority Ombudsman institution’s work, for example, throughout its first eight years of activity served as a proxy for judicial work on discrimination cases in the absence of an appropriate legal framework regulating discrimination. In these circumstances, the Ombudsman has chosen to concentrate most of its capacities on addressing individual complaints and working towards the improvement of the legal and policy context, and consequently has allocated far fewer resources to promotional functions.54 IV. Why Do We Need Specialized Institutions for Combating Discrimination? A very important challenge that has to be addressed if writing about specialized bodies combating discrimination casts doubts on the grounding premises of the institution. This argument is: in a well-functioning constitutional democratic legal system, regular courts and tribunals and general administrative remedies will be sufficient to cope with the problem of racial discrimination; there is no need for a soft institution such as the specialized ombudsman, because it cannot add anything to the way the judiciary and the executive are addressing the problem.55 The question is: why should a state establish specialized ombudsman institutions or other specialized bodies in order to efficiently and comprehensively combat discrimination on grounds of ethnicity or race? Why not just leave it to the already existing and functioning institutions of the state? One short and pragmatic answer to this question is that all states with comprehensive progressive anti-discrimination legislation and policy use the specialized agency model.56 It seems that there are currently no viable alternatives to this model. Even in the legal context provided by countries such as the US, the UK, Sweden or the Netherlands, a specialized body for dealing with the enforcement of anti-discrimination law and policy is deemed necessary. Moreover, the Race Directive, along with the Council of Europe’s ECRI Recommendation, provides for it.

 





Krizsán, “Ombudsman and Similar Institutions ...”, -. This argument has been formulated by some of the experts working in the office of the Hungarian Minority Commissioner, among others. Behind the argument stood the presumption that the Hungarian legal system is not a mature one yet. Thus, the minority ombudsman institution temporarily has a role to play, but as soon as the deficiencies of the legal system are solved (a matter of years) the institution will basically cease to be functional. MacEwen, Anti-Discrimination Law …, .

Ombudsmen and Similar Institutions for Protection against Racial and Ethnic Discrimination There is a substantive answer to this question as well. As argued in the previous chapter, racial discrimination means more than the sum of individual discriminatory acts, it is a structural phenomenon that has its roots and effects in the personal mind-sets of people, in racially determined acts and decisions and in the racially tainted distribution of resources within society. If racial discrimination is perceived as such, the random decisions of courts and tribunals only address a few superficial manifestations of what racial discrimination is, leaving aside most of the structural, of the systemic problem. As MacEwen formulates: anti-discrimination law in itself has only a marginally ameliorative impact given the persistent and pervasive nature of racial discrimination; this is why anti-discrimination law has to be accompanied by other policies and strategies that have a more holistic approach to discrimination.57 Specialized bodies combating discrimination, among them ombudsmen, are part of such a holistic approach. The specialized ombudsman, due to its extensive powers, will promote a structural approach to the issue of racial discrimination and will address the problem at all three levels where it occurs. Class action is considered to be a legal instrument that makes up for some of these problems because it makes court procedures cheaper, it provides moral support for the complainant through creating a class and it sheds light on the size and importance of the racial discrimination issues. However, the introduction of class action seems to require major changes in European legal systems and, given its repercussions for other fields of litigation and the several procedural difficulties that go with it, its introduction has been treated very cautiously.58 Meanwhile, the specialized ombudsman institution, especially if provided with the tools to give legal support or assistance in court cases or to eventually bring cases before court, takes on some of the major advantages of class action: it makes up for the financial difficulties some litigants may have in suing, provides supportive solidarity and encourages complainants to come forward, and remedies to some extent the inequality of bargaining power between the complainant and the respondent. Through its investigations of systemic discrimination, the specialized ombudsman also points to the extent and importance of the problem of racial discrimination. Pannick argues, referring to specialized bodies combating discrimination in the UK, that “legal actions by the CRE or the EOC could achieve much of what the class action is designed to achieve, particularly if the CRE and the EOC were empowered to commence litigation without receiving a complaint from a victim and if the court were to be empowered to grant damages to a defined class of victims in addition to declaratory and injunctive relief ”.59 It is also important to mention that, unlike courts, on the one side, or government departments, on the other side, specialized agencies have access both to individual complaints, which often show the fallacies of laws and policies in place, as well as have the means to make recommendations regarding legislation and policy towards government departments and the legislative power. Thus, they are in an exceptional position to see the practical workings of the relevant existing laws and policies and also to intervene in

  

Ibid., . For advantages and disadvantages of class action see David Pannick, “Class action and discrimination law”, () New Community (), -. Ibid., .



Andrea Krizsán the policy-making process by recommending necessary amendments, thus channelling information between the enforcement of legislation and the legislative power. Another important advantage of the specialized ombudsman model is its specialization – the fact that it concentrates on a single issue area. Dealing permanently with the same type of problem – that of discrimination – will result, on the one hand, in specialized knowledge of the area and, on the other hand, in special sensibility towards a very complex problem. Neither of these is available to courts or other bodies providing administrative remedies because they only meet discrimination cases once in a while and thus do not have the opportunity to develop special sensitivity or know-how towards any particular issue, as it is only one of several others to be dealt with in everyday cases. This specialization is also economic from the point of view of efficient adjudication: it is more economic to develop specialization in one agency that will help in preparing cases or (if allowed under national legislation) eventually bring them before courts than to have a person who specializes in such issues at every body adjudicating such cases. Specialized bodies are cheap, informal, accessible and provide specialized expertise. This makes them suitable for participating in one way or another in the adjudication of discrimination cases. Another important advantage of these institutions is that they try to solve cases not by the adversarial approach of courts or tribunals but in a more conciliatory manner, aiming for the persuasion of the parties concerning the wrongness of discrimination and thus the prevention of reoccurrence, rather than blaming the wrongdoer. Finally, as mentioned in the examination of the general ombudsman model, the specialized ombudsman promotes a concept of justice and equity, which can be more extensive than the one codified in the laws. Sometimes the ombudsman might find abuse of constitutional or human rights also when the act is not prohibited as unlawful by statutory law. The specialized ombudsman thus has the opportunity to give a relatively wide interpretation to rights, sometimes using relevant international standards or good practices from other countries as reference points. Thus, to summarize, the ombudsman institutions that specialize in combating racial or ethnic discrimination complement the activity of courts and other bodies providing legal remedy first with their unique strategic enforcement powers, second by providing alternative methods for solving individual complaints and third by promoting a wider understanding of constitutional rights than is provided for by statutory law. These reasons together justify the establishment of such institutions for the better enforcement of the right not to be discriminated against on grounds of ethnicity or race. The new specialized institutions established under the Race Directive or earlier but with the same purpose in mind have clearly learnt a lot from the ombudsman model. Their independence, their emphasis on solving complaints by extrajudicial means, their aim of compensating for the inequality of bargaining power between victims and perpetrators, their capacity to uncover abuses even if there is no complaint, their focus on educating the public or the role they play in developing and improving the understanding of concepts of rights are all derived from the centuries-old idea of the ombudsman institution. The philosophy of ombudsman institutions, even if it has relatively little to say about specialization and expert work in the field of one particular human right, still provides the rationale for how these institutions are to function.



Mikko Puumalainen*

Building up a Specialized Body 1

I. The Origins of the Finnish Ombudsman for Minorities The Ombudsman for Minorities is, in its present form, quite a new organization. It was established in September , when the legislation enacted by the parliament – the Act on the Ombudsman for Minorities (hereafter the Ombudsman Act) – came into force.2 The Ombudsman for Minorities replaced the Ombudsman for Aliens by merging its tasks. The latter had been in existence since . There were three main reasons for the reform. First, Finland wanted to be prepared for the coming into force of the EU anti-discrimination directives.3 This was one of the many effects of the most substantial changes to the Finnish legal system in recent times, i.e. membership in the European Union. One of the guidelines in the directives was that “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”.4 More particularly, “Member States shall ensure that the competencies … include … providing independent assistance to victims of discrimination in pursuing their complaints about discrimination”. In addition, competencies should cover “conducting independent surveys”, as well as “publishing independent reports and making recommendations on any issue relating to such discrimination”.5 * 

 

 

Ombudsman for Minorities (-present), Office of the Ombudsman for Minorities in Finland, Helsinki, Finland. This article focuses on the experiences of creating a new office aimed at promoting ethnic equality and improving the status of ethnic minorities and foreigners in Finland. The operations – the results of this work – can be examined in the annual reports of the body, available in English at . Act /. 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. Article , Section . Article , Section .

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 185-206. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Mikko Puumalainen Obviously, the mandate of the Ombudsman for Aliens, as prescribed in law, concentrates on the questions of aliens and, as such, was not sufficient to fulfil the criteria of the directives. The reform of the Finnish Constitution in the mid-s had widened the fundamental rights that accrued to foreigners. Earlier, many such rights had been limited to Finnish citizens only. At the same time, a population change was taking place in Finland. Compared to the rather modest figures seen earlier, the number of foreigners in Finland had begun to increase dramatically. In the early s, the number of foreigners residing in Finland was around , – twenty years later, the figure was five times greater. Also, the number of new Finnish citizens increased rapidly. As a result of this, there was a strong argument that the status of the new generations of immigrants who had recently acquired Finnish citizenship needed improvement, as the status of immigrants does not necessarily improve radically upon acquiring citizenship. Secondly, the older traditional ethnic minorities, especially the Romani population, required severe attention. Thirdly, the whole of society needed to be targeted in anti-discrimination work and that work was to be enhanced. This broader view is more difficult to summarize, but it is linked to an emerging way of thinking of a modern society as a diverse, multifaceted and dynamic entity. In a country like Finland, where the homogeneity of the population has traditionally been seen as a strength and as securing a strong nation, this requires a change in thinking. In a society of this kind, equality is a two-way process requiring flexibility and openness from all. Thus, it is not only minority groups but society as a whole that would benefit from the expertise of a specialized body. In the end, the establishment of the Ombudsman for Minorities was fairly unproblematic. This was due to the fact that there was already a specialized body – the Ombudsman for Aliens – working in the field, that the European legislation posed new requirements for Finnish anti-discrimination policy that had to be addressed and, finally, that the level of equality of ethnic minorities in the country had become a growing cause of concern. The model of the ombudsman institution, including specialized ombudsmen, was also well-established in Finland. This meant that other models were not seriously discussed. II. The Legislation The most notable matters dealt with by the Ombudsman Act concerned the spheres of activity, duties, powers and the Ombudsman’s right to obtain the information necessary to fulfil its remit, as well as the establishment of an Advisory Board for the Ombudsman. A subsequent government decree dealing with administrative questions was also provided.6 According to the Ombudsman Act, the Ombudsman’s sphere of activity is to operate “with the purpose of preventing ethnic discrimination, promoting good ethnic relations, safeguarding the status and rights of ethnic minorities and foreigners, and





Government Decree on the Ombudsman for Minorities, /.

Building up a Specialized Body supervising compliance with the principle of non-discrimination of ethnic minorities”.7 The duties of the Ombudsman include – as enshrined in a slightly duplicative fashion – to: – supervise compliance with the Equality Act (/), as provided in that Act; – promote good ethnic relations in society; – monitor and improve the status and rights of foreigners and ethnic minorities; – report on the attainment of equality for different ethnic groups and on their circumstances and standing in society, and make proposals on how to remove any discrimination and remedy any grievances he has observed; – provide information on legislation pertaining to discrimination based on ethnicity and the status of ethnic minorities and foreigners, and on the practical application of such legislation; – carry out the duties assigned to the Ombudsman for Minorities under the Aliens Act (/).8 Looking at this, many of the activities of the Ombudsman for Aliens remain: the work for the rights of aliens, be it in the field of aliens law or administration or in other fields of society, such as employment, for example. However, the mandate was enlarged in two important new areas. The first was that the Ombudsman should now monitor and improve the status and rights of not only foreigners but ethnic minorities, as well. This enlarged the range of clients to newly settled ethnic communities as well as to traditional, more established ethnic minorities. The latter comprise, for example, the Romani population and the Sami. The second important amendment underlined the importance of working with the population as a whole. Fighting for better rights also involves influencing the opinions of the majority. This is mirrored in the duty to promote good ethnic relations in society. The law was amended in , as a result of the implementation of EU antidiscrimination directives.9 The most important change from the point of view of the Ombudsman’s role was the new task of supervising compliance with the Equality Act.10 The Equality Act contains the national provisions that resulted from the implementation of the two directives. Also, the Ombudsman’s powers to obtain information were strengthened, in particular through the power to impose a conditional fine. According to the Ombudsman Act,11 the confidentiality provisions notwithstanding, the Ombudsman for Minorities is entitled to obtain any information necessary to carry out the duties prescribed for him in this Act and the Aliens Act free of

    

Section , Subsection . Section , Subsection . Act on the Ombudsman for Minorities and the Discrimination Board, as amended by Act /. Act /. Section .



Mikko Puumalainen charge from other authorities.12 Subsection  stipulates that the Ombudsman (and the Discrimination Board) are entitled to obtain reports from authorities and establishments that fall within the scope of application of the Equality Act and from persons in their employ, on factors essential for supervising compliance with the prohibition of discrimination based on ethnicity laid down in the Equality Act and for assessing the planning and implementation of measures that promote ethnic equality. The right to obtain a report does not apply to information concerning which the person from whom the report is requested has the right to refuse to give evidence. III. The Institutional Framework The independent nature of the Ombudsman’s function is mirrored in three facts. Firstly, with regard to the Ombudsman’s administrative position, the Ombudsman Act states the following: “The Ombudsman for Minorities operates in association with the Ministry of Labour …”.13 In other words, the Ombudsman is not directly part of the government, nor subordinate to ministerial organization. The reason for the association with the Ministry of Labour is that the Ministry is, in Finland, responsible, among other things, for government policies concerning ethnic relations, as well as ethnic antidiscrimination. Secondly, the tasks of the Ombudsman are set out in the law passed by the parliament and only by that law. In other words, there is no other source of rules directing the work of the Ombudsman. The only exception is that the Ombudsman “shall submit a report on his sphere of activity each year to the Ministry of Labour”.14 This leads to the third point: the reporting duty of the actions of the Ombudsman is arranged through an annual report for the Ministry of Labour. In practice, reports are distributed widely to the public, municipalities, state authorities, NGOs and other specialist circles. In other words, no other reporting duties are imposed. The Ministry decides upon the annual budget of the Ombudsman, which is administered by the Ombudsman’s Office itself, under the budgetary rules of the Ministry. Administratively, the Office is quite self-sufficient. Its independence is reflected throughout the whole gamut of its operations, starting with its own distinct logo. The government appoints the Ombudsman for a fixed term of five years at a time. The Ministry hires the officials of the Office. In practice, however, the Office administers the recruiting procedure and makes the appointment proposals. The relationship with the Ministry is, however, not totally unproblematic. The Ombudsman works in the same field as the Ministry: that is, ethnic relations and antidiscrimination work. Also, the main field of the Ministry – i.e. employment – may raise conflicting interests. To participate in working life is, in real terms, the primary means of acquiring social and financial equality. Unemployment figures for the immigrant or Roma population are, on average, considerably higher than for the rest of the population. The improvement of the position of ethnic minorities and foreigners in this policy   



Subsection . Section . Government Decree on the Ombudsman for Minorities, /, Section .

Building up a Specialized Body area may require measures regarding which the Ombudsman and the Ministry may not be in agreement. Such differing views may be linked to the question of whether there is a problem concerning ethnic minorities at all and, if so, what are the remedies and who is responsible? Given a focus on often very big figures – the Ministry of Labour is struggling with over , unemployed, of whom more than , are long-term unemployed – the capacity to give attention to a few thousand Roma in need of possible special measures may be limited. There is very often a temptation to try to solve the problem by reference to general services that are uniformly available. The denial of other measures it thus grounded on formal, rather than factual, equality. Also, responsibility for larger problems may be seen to lie in other areas of administration, such as education. However, such a stance is likely to fail to match up to the complexity of ethnically specific circumstances and thus to suggest a possible ignorance of cultural questions, lack of mutual trust or ethnic prejudices. The previous example referring to the Ministry of Labour is of special interest due to the institutional framework. However, the argument made here may apply fully mutatis mutandis to other fields of work, both in the public and private sector. The small and sometimes alien minority groups are easy to forget under the pressure of large figures. The institutional aspect is but one side of the independence issue. The functional aspect is another. The Ombudsman institution lacks formal powers. Rather, the ways and means of influence are based upon lobbying and getting in contact with decisionmakers and other stakeholders. Sometimes, a message needs to be addressed through criticism. Lobbying is often a two-way process and, likewise, the Ombudsman may be subjected to influences itself. A delicate balance must be struck in being open to dialogue, being able to voice criticism and, at the same time, being able to motivate the addressee towards positive change. At the same time, there is, at least in theory, the possibility that the Ministry could try to influence the work of the Ombudsman, e.g. by manipulating budgetary arrangements. On the other hand, considering the wide range of the operations of the Ombudsman, a similar problem would arise in connection with any ministry. A bigger practical problem than active interference may be the consequence of becoming sidelined when the resources or overall development of administration is in question: A small unit that is trying to keep its independence can be easily forgotten when the needs of the Ministry at large are preserved by the Ministry itself. Nonetheless, the present institutional arrangement has its synergy benefits: there is the potential to exchange and share information when acting in the same field. Also, the institutional closeness may provide, in substantive issues, better access to the decision-making process than in the rest of administration. All in all, the Ombudsman does not fulfil all the independency criteria set out in the European Commission Against Racism and Intolerance (ECRI) General Policy Recommendation concerning Specialised bodies to combat racism, xenophobia, antiSemitism and intolerance at national level.15 For example, its principle  on independ-



Adopted by ECRI on  June .



Mikko Puumalainen ence and accountability provides, among other things, that the funding of the specialized bodies should be subjected annually to the approval of parliament. In the case of the Ombudsman for Minorities, compliance with the Recommendation should not be too difficult. The budget of the Ombudsman for Minorities could be handled by parliament directly without any ministerial filter. The few administrative services that cannot be provided internally could be bought outside, in parallel with the outsourcing of the Finnish administration in general. Thus, the added value provided by the ministerial association is limited, if not nonexistent. IV. The Relationship of the Ombudsman for Minorities to the Parliamentary Ombudsman and other National Specialized Ombudsmen16 A. The Parliamentary Ombudsman Although the Ombudsman for Minorities is a new organization, the models for it are well-established in Finnish society. The most well-known of these is the Parliamentary Ombudsman institution. This institution was created by one of the several documents that formed the Constitution of Finland and which entered into force in . It was modelled on the Swedish ombudsman institution, which had existed since . The Parliamentary Ombudsman reflects the idea of an independent public body acting on the behalf of individuals vis-à-vis the public administration. The Ombudsman exercises oversight to ensure that authorities and officials observe the law and fulfil their duties. The mandate of the Parliamentary Ombudsman also extends to other actors when they are performing tasks of a public nature. In spite of the fact that the remit is general, the Parliamentary Ombudsman has certain special areas of attention, namely the implementation of fundamental and human rights in general and, more specifically, the manner in which the police employ coercive measures affecting telecommunications and their conduct of undercover operations. The parliament may also express its concern that attention be paid to certain questions and has requested that special attention be paid to the implementation of children’s rights. Also, the division of power between the Chancellor of Justice and the Parliamentary Ombudsman highlights certain specific areas. The Chancellor does not oversee the Defence Forces, the Border Guard or peacekeeping personnel. Nor does he oversee prisons and other institutions where people are confined against their will. He has no duty to oversee the legality of various forms of deprival of liberty, such as arrests, remands in custody or imprisonment. All of these matters come under the Ombudsman’s oversight. The Parliamentary Ombudsman oversees legality principally by examining complaints received. She can also intervene in perceived shortcomings on her own initiative. The Ombudsman carries out inspections at offices and institutions, especially 



The descriptions in this chapter on the Offices concerned are based on the information provided on the websites of the Parliamentary Ombudsman, at and the Data Protection Ombudsman, at .

Building up a Specialized Body prisons, military garrisons and other closed institutions. This enables her to oversee the treatment of prisoners, persons confined to institutions, conscripts doing their national service and peacekeeping personnel. The tasks of the Ombudsman are defined in the Constitution and in the Parliamentary Ombudsman Act. In Finland, there are other, more specialized, ombudsmen, including those dealing with Data Protection, Consumer Protection, Gender Equality and Children’s Rights (recently established: active from autumn ). Of these, the Data Protection Ombudsman provides a suitable comparison to the Ombudsman for Minorities and the Parliamentary Ombudsman. B. The Data Protection Ombudsman The main duties of the Data Protection Ombudsman consist of giving general guidance on the processing of personal data, influencing compliance with legislation concerning the keeping of registers and making binding decisions, when necessary. The Personal Data Act emphasizes the self-regulation of register-keeping. Register keepers and those representing them can compile field-specific codes of conduct for the application of the Act and for promoting good data processing practices. The Data Protection Ombudsman provides guidance and consultation in the compilation and review of codes of conduct. The Data Protection Ombudsman exerts power in issues related to the implementation of the right of verification and the correction of personal data. He provides register keepers and data subjects with guidance and advice on request, and makes decisions pertaining to the compliance with legislation and implementation of the rights of data subjects. In matters concerning the implementation of the right of verification and the correction of personal data, the decisions of the Ombudsman are binding and subject to appeal. The Ombudsman also launches initiatives if necessary. The Data Protection Ombudsman must be heard in matters regarding the preparation of legislative or administrative reforms concerning the protection of personal rights and freedoms in the processing of personal data. In practice, this means that the Ombudsman provides statements and participates in working groups set up for the preparation and review of legislation. More particularly, the public prosecutor must consult the Data Protection Ombudsman prior to bringing charges based on violations of the Personal Data Act. Courts of law are also obliged to provide the Ombudsman with an opportunity to be heard in cases concerning related issues. In both cases, the Ombudsman provides statements. Supervision is carried out through a statutory duty of notification, yet notable exceptions may be accepted within the limits of the Data Protection Directive. The Data Protection Ombudsman has the power to make inspections, in order to assess compliance with the law of data processing, to guide register keepers, to improve the standard of systems and to prevent violations in advance. The Data Protection Ombudsman is a member of the consultative, independent working group of national Data Protection Ombudsmen provided for in the EU Data

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Mikko Puumalainen Protection Directive.17 In addition, the Data Protection Ombudsman is a member of the joint supervisory bodies included in the Europol and Schengen agreements. If measures of guidance and advice have failed to remedy a given situation, the Data Protection Ombudsman may, in certain cases, bring an act of violation to the consideration of the Data Protection Board. V. Similarities and Differences Some similarities, as well as differences, can be noted when comparing the Parliamentary Ombudsman, Data Protection Ombudsman and Ombudsman for Minorities. All three officials receive complaints from individuals and monitor certain subject areas of society. General consultative, advisory and steering tasks in the respective fields of action are part of the work. Inspections are an established working method for the first two. For the Ombudsman for Minorities, it is a conceivable method of operation, but has not yet been applied. As is common in the ombudsmen system, all of these ombudsman institutions are closely identified with a single figure having a prominent public profile. The tradition has been to underline the personal characteristics and commitment of the task rather than the organization itself. However, the extent to which the different ombudsmen exploit this feature varies. For example, the media approaches the Ombudsmen differently. The Minority Ombudsman is often seen as a person giving a particular group – the minorities – a voice and having information on their situation. The ethnic communities are not yet well-organized and do not have developed media relations themselves. The issues surrounding ethnicity and minorities are often contentious and the need to have wider perspective – according to sustainable media ethics – is pressing. Also the lack of formal powers or a well-established position leads the Ombudsman for Minorities to use the media more on his own initiative than is the case with other Ombudsmen and thus to attempt to compensate for the above-mentioned insufficiency through media pressure. When seeking important differences, the width of the mandate is the first matter to be noted. The Parliamentary Ombudsman’s remit is limited to public administration and functions. Moreover, the special focuses discussed earlier (e.g. police and prison authorities) emphasize the role of the Parliamentary Ombudsman in monitoring the legality of public administration. The other Ombudsmen act both in the public as well as the private sphere in their specific areas of competence. Ombudsmen do not generally have power to order authorities to act in any particular way. The means at their disposal have more to do with mediation and conciliation, making proposals, providing guidance and issuing reprimands. However, important differences remain. The Data Protection Ombudsman has powers to make binding decisions in its own field while the Parliamentary Ombudsman does not have such powers, for example, to get a decision that resulted in bad governance revoked. Nonetheless, a 

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Directive //EC of the European Parliament and of the Council of  October  on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

Building up a Specialized Body measure of corresponding nature held by the Parliamentary Ombudsman is the power to order that a criminal prosecution for malfeasance be launched. As an alternative to this, the Ombudsman can issue an official reprimand to the party concerned. In most cases, however, a view is expressed as to how the conduct of the authority represents bad governance and a reminder is issued to the party concerned of the correct way to act. Due to the authoritative position of the Parliamentary Ombudsman and the possible publicity for anyone serving in a public duty, even these more lenient measures have a strong effect. The formal powers or measures of the Ombudsman for Minorities are but few. They comprise access to information and a right to be informed on measures taken by the other party. If mediation or negotiation has failed, the Ombudsman can, in questions of ethnic discrimination, seek a binding decision from a particular body, the Discrimination Board or an ordinary court of law. Otherwise, the Ombudsman’s power lies in argumentation and convincing the other party and, occasionally, using the ‘shame-factor’ through media attention as a means of persuasion. As noted earlier, the position of the Data Protection Ombudsman is formally safeguarded by the right to be heard in criminal proceedings. There is no such right for the Ombudsman for Minorities. All Ombudsmen are consulted in the legislative procedures. For the Data Protection Ombudsman, this is even formalized in law. This kind of formalization would be unnecessary for the Parliamentary Ombudsman, due to her well-established position, but for the Ombudsman for Minorities it depends much more on the question of expedience. In the latter’s case, the ministries preparing legislative proposals have a wider margin of appreciation in assessing the necessity of consultation, even if the issue at hand closely concerns ethnic minorities. It is fully up to the ministry to bypass the consultation. All the Ombudsmen under discussion here participate in international fora and networks. It seems that these networks are most developed in the Data Protection Ombudsman’s case. European data protection legislation provides data protection ombudsmen with formal access to legislative procedures and they have an institutionalized status in the Council of Ministers of the European Union. VI. The First Years Four years is a short time to make an overview. However, some preliminary remarks on the functioning of the Ombudsman for Minorities may be discussed. The Ombudsman’s annual reports contain a summary of each year’s main activities.18 Here, the discussion is on considerations that have been prevailing since the work according to the new mandate has been launched. A. Own Distinct Role Must Be Built Up and Communicated The mandate of the Ombudsman for Minorities is very broad. It includes many tasks and functions, some of which already seem to be taken care of by other organs. In 

These can be accessed at .

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Mikko Puumalainen order to genuinely exploit one’s own resources most efficiently, one has to analyze one’s role and aims and decide upon specific areas to target. For example, what is the Ombudsman’s relation to NGOs dealing with similar issues? What would be cooperation and what duplication? At its best, the Ombudsman could undertake sensible proactive or lobbying work using its role as a public body to build up a distinctive approach. Compared to NGOs, the Ombudsman has good access to information and can ask officials to report on different matters. The Ombudsman presumably also has better access to official decisionmaking procedures. In individual client cases, the question of how the division of responsibilities vis-àvis individual cases should be allocated between the Ombudsman and lawyers or social workers often arises. There is little point in the Ombudsman duplicating these functions. Hence, ordinary lawsuits or welfare problems of ethnic minorities or foreigners are directed to advocates or local authorities. Naturally, the problem may be viewed in a different light if a structural problem like lack of legislation, resource allocation, training, etc. amounts to a more general problem in the system itself and prevents the clients from securing their rights. Here the crucial question is whether ethnicity plays a role. This analysis has to be done regularly – basically, in each individual case. A second group of questions are linked to choosing the right set of measures to take in individual problems. How exactly should the Ombudsman equalize the different dimensions of his broad mandate, balancing, on one hand, a preventive approach and, on the other, ex post legality control? What is the right approach: consultation, advice and mediation, or control and sanction? And what is the most efficient way: giving the right answers or asking the right questions? Where is the balance between policy-making and legal oversight? Is the most frequently asked question either what is the law or what should be done better and how? The Ombudsman’s role cannot be clarified without making compromises and disappointing some expectations. Some may think that the Ombudsman is a parallel or special track for formal procedures, such as aliens administration dealing with permissions, the expectation being that the Ombudsman speeds up the handling of applications or – even better – lobbies and exercises authoritative pressure for their positive result. Perhaps also, if the result were negative, act as an advocate on the client’s behalf. This is something for which the Ombudsman has not, as a rule, chosen to allocate resources. A more suitable question for the Ombudsman to consider is whether a distinctive problem, e.g. concerning the quality of administration, can be identified. When the mandate is as broad as it is – “… to monitor and improve the status and rights of foreigners and ethnic minorities”19 – the expectation may be that it is the Ombudsman’s duty generally to promote the wellbeing of clients in society, including assisting in individual cases, such as getting better housing or a job, etc. The simple answer is that it is not the Ombudsman’s duty to compensate or duplicate the services of social workers or other ordinary administrative functions, but to see that they live up to reasonable expectations and are not discriminatory. The trickiest question is whether in these sectors, as in others, discrimination or bad service that has amounted to discrimination, exists. It is then important to ask whether there is a real problem, whether 

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Section , Subsection , Act on the Ombudsman for Minorities.

Building up a Specialized Body it particularly concerns foreigners or ethnic minorities and whether it has resulted in discrimination. Some sectors of the administration may neglect their duties to arrange sufficient information services for clients as prescribed, for example, in legislation on good governance. This has been a chronic problem with aliens administration. It may be tempting for the Ombudsman to cover this discrepancy by his own efforts for the benefit of his clients. However, this would be a short-sighted solution benefiting only the most active clients and would not solve the structural deficit on duty to provide sufficient services. Finally, there is always the consideration that if you make an exception with one determined client’s expectations, you must then be prepared to make it a general rule of customer service. Many of the individual clients of the Ombudsman for Minorities are not familiar with the Finnish administrative and legal system but, due to their situation, are in need of its services. Indeed, this is one of the reasons for the Ombudsman for Minorities to exist. Some of them have an unrealistic view of the mandate or the powers of the Ombudsman and expect that the Ombudsman can formally revoke the decisions of other officials or interfere in individual cases. Even if it is known that this is not possible, they may yet overestimate the power of informal pressure. It is important not to confuse two things: what needs flow from the situation of clients and what the Ombudsman can and should do. The viewpoint of clients’ needs is certainly a characteristic of the Ombudsman’s field of work. The point, however, is, how to encourage those who are obliged to fulfil these needs to act properly and what the Ombudsman can do to secure this. The obvious conclusion to be drawn from these remarks is that the Ombudsman’s role should be actively communicated to clients in order to maintain realistic expectations. However, at the same time, it is crucial for the Ombudsman to be open to the needs of clients and not to take too formalistic an approach. B. Working in Both the Public and Private Sector – With Adequate Powers – Will Better Serve the Cause The Ombudsman’s mandate is very broad, but it has as its central feature the rights and the status of foreigners and ethnic minorities. In comparison to the Parliamentary Ombudsman, it is not linked either to certain interests (such as legality) or to fields of activity (such as public administration). Concentrating on clients’ situations as a whole has its evident strengths: an individual’s situation can be characterized by gross discrimination and can be problematic even if the authorities and officials have observed the law and fulfilled their duties. Ethnic minorities may be dependent on the services of public officials. However, this may not be the whole picture. For example, in housing, the supply of accommodation is only partly provided by the public services. As such, limiting scrutiny to public services alone might cloud a fuller view of the entire picture. The Ombudsman’s particular but broad viewpoint may make certain trends in society more visible and provide opportunities to connect trends from different sectors of society. Identifying discrimination itself is not simple, nor is the analysis of roots or causes of other grievances. A more structural approach may also be necessary to reveal 

Mikko Puumalainen indirect discrimination. This is even more important due to prevailing political correctness, where discrimination remains covert. One of the most striking observations of the new Ombudsman for Minorities has been the dramatically bad situation of the Finnish Roma population. Making such an identification would not have been possible without a structural approach – through having a client-based perspective upon different areas of society like employment, housing, social services, education, etc. One of the most important single consequences of the establishment of the Ombudsman for Minorities, with the help of the EUequality legislation, has been making visible and tackling seriously the very deep-rooted discrimination of the Finnish Roma population. Another example of the structural approach applies to bias resource allocation that may amount to indirect discrimination. Social services may be budgeted on a basis that does not identify the more specific needs of ethnic minority populations. For instance, the requirements for mental health counselling services may be severely underestimated. This would not be revealed without comparing population statistics, budgetary decisions, policy commitments, etc. In addition to identifying problems or trends, a broad mandate may also provide a flexible set of tools for resolving problems. Having a broader view also increases the range of solutions, whether they be legal or political. It is evident that the Ombudsman’s powers – access to information being the most important – have to be consistent with the content of the mandate. This was taken on board when the legislation concerning the Ombudsman for Minorities was amended. The right to obtain information was extended to cover not only authorities but private operators as well. Also, there is a certain strength in the ability to apply a combination of different approaches. Seeing an individual complaint as a potential symptom of a larger, structural problem is valuable. By taking this approach, one can analyze individual complaints in order to identify possible root causes or structural problems, whether they concern legislation, budgetary resources, training or the attitudes of those who provide services. Thus, in the framework of solving an individual problem a more general solution that may benefit others is often conceivable. At its best, a single complaint can be transformed to a new best practice but that requires determined and dedicated work to analyze the situation, form a new solution, convince the usually reluctant counterparts and monitor with patience the emergence of results. It is important to strike the right balance between the different functions of the Ombudsman. In the end, it is not the purpose of the Ombudsman to be a consultant for administrative improvements, but to fight for his clients. C. The Necessity and the Difficulty of Setting Priorities The broad mandate and dynamism of the Ombudsman for Minorities makes the prioritization of work a necessity and one has to be very strict when setting these. It may be a relief to note that whatever one does is usually useful. However, this notion is deceptive since it may lead to working in details without facilitating far-reaching improvements to the rights or status of foreigners or ethnic minorities. Assessment of the impact of

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Building up a Specialized Body one’s actions is necessary and has to be conducted on a regular basis in order to set optimal priorities and working practices. Even the short experience of the Ombudsman for Minorities has shown that priority setting has to be balanced. It has to include both resource allocations in customer service as well as general actions to improve the situation. Without a firm knowledge of individual clients’ problems, more general initiatives would lack credibility. On the other hand, concentrating only on solving clients’ individual problems would leave their root causes intact. Also, different ethnic groups have to be given different levels of attention. The biggest or most active groups should not necessarily be the only targets. The challenge is to also reach the silent ones. This requires effort. D. The Challenge of Good Customer Service Ethnic minorities and foreigners require, in many respects, special privileges in service. To begin with, the need to provide services in other languages is evidently higher for the Ombudsman for Minorities than for other organs of public administration. In addition to fluency in foreign languages, the Ombudsman’s staff needs to possess good multicultural and diversity management skills. Typically, those who contact the Ombudsman are less aware of the Finnish administrative or legal system and of their rights than the average client. This results, among other things, in problems being often multifaceted and complicated. While it was stated earlier that the expectations of some may be unrealistic, on the other hand, for many of those who face discrimination the threshold to make contact with the Office may be higher. One of the major challenges of the Ombudsman’s service is to find the clients who would be most in need of the Ombudsman’s services and ensure they have access to them. Dealing with clients is based less on written procedures and more on personal interaction than in administration generally. This requires a high level of communication and analytical skills from the staff. Some of the clients that the Ombudsman deals with may already have had negative experiences with public officials either in Finland or elsewhere and this may be reflected in their expectations. Addressing this problem requires the ability to both provide a realistic picture of the possibilities at hand and to build up the trust of the client – a delicate balance. Here, the range of roles of the Ombudsman, such as making public statements and appearances, is beneficial to client relations; as is contacting target groups in a proactive fashion. E. How to Keep Oneself in the Business Generally, the gap between the demand and supply of specialized advisory or supportive services in the field of alien’s legislation and ethnic anti-discrimination is striking. Either the viewpoint is specific – such as in administration – or general – such as in the work of NGOs. However, taking into consideration the challenging working environment, it is no wonder. The work is also very stressful and the risk of experiencing either a burnout, on the one hand, or cynicism, on the other, is real. There are not too many that are capable or willing to do it in the long run.

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Mikko Puumalainen In the Ombudsman’s working area, there are additional factors that make the work even more challenging: preserving independence very often means being alone. One cannot rely on other organizations or groups without jeopardizing one’s integrity. F. The Necessity for a Strong Legal Framework without Confining Oneself to Narrow Jurisprudence The main content of the work of Ombudsman is not litigation but a set of different functions: consultative, mediatorial, advisory, monitoring, etc. However, if there is no clear basis for legal actions when necessary, one may suffer from an overall credibility problem. The EU directives and the Equality Act transposing these directives have had a crucial role here: in particular, the extensive concepts of discrimination and the shared burden of proof. On the basis of domestic legislation alone, efforts to implement equality might have remained only partially fulfilled . However, legal action is, by its very nature, often reactive. Much of the work of the Ombudsman is in lobbying for better policy and legislation. In Finnish society, much of the policy orientations concerning ethnicity have to be assessed afresh. Without dynamism and ambition on this level, the society would lose track. As minority questions are very often not in the heart of the administration, they have to be imported there from above. This is also one way in which to tackle the problem of avoiding the responsibility to solve the problems of a particular sector of the administration. VII. Assessment and Trends Four years of operations is certainly too short a period to make a thorough assessment of the work of the Ombudsman for Minorities in Finland, but sufficient time to give inspiration to the following analysis. One of the central questions raised by the work of the Ombudsman so far is whether there is a need to redefine its mandate. For instance, some minority groups who currently fall outside the Ombudsman’s mandate, such as the handicapped or sexual minorities, have claimed the need to enhance their protection against discrimination. It has been proposed that the mandate of the Ombudsman should be enlarged to cover these groups and maybe other minorities as well. Should the mandate be broader? On the basis of experience in this work, it is clear that different minority groups would benefit from a special authority safeguarding their rights. Discrimination and other ill-treatment is part of their life. Many of their experiences are the result of a common pattern in reacting to diversity. Enlarging the mandate would mean a very challenging refocusing and allocation of resources. Without a substantial increase in resources this would lead to a representative, but empty result. It would necessarily entail also a narrower approach, concentrating more on acts of discrimination themselves and less on the overall situations of certain population groups. There are important differences between ethnic minorities and foreigners, on the one hand, and the handicapped and sexual minorities, on the other. The latter are already inside in the Finnish society: they know how to deal with authorities and the media; they speak the language, have their own networks and even strong interest organizations. As a general rule, the story is different in regard to foreigners or people having a 

Building up a Specialized Body recent foreign background. Also, some of the older ethnic groups – like the Roma – are in a corresponding situation. Thus, those who are covered by the present mandate are, perhaps, in a more fragile situation and are thus more in need of a special authority. On the other hand, between the Ombudsman for Minorities and the Parliamentary Ombudsman there is a division of tasks that sometimes can be drawn only with difficulty. Both of them handle complaints that concern the operations of public administration when dealing with foreigners. Both institutions have been concerned with the capacity of the Finnish administration of aliens’ rights to provide adequate service. Should the mandate therefore be more limited in this respect? The answer should perhaps be founded more on cooperation than on formally amending the mandate. Both of these authorities can have a useful influence on alien’s rights according to their respective roles. Expectations have grown regarding the manner in which the different human rights organizations should provide their services and coordinate their activities. Handling only claims is not sufficient. Organizations are expected to do research, educate the public and specialists, promote human rights generally, etc. Should the activities of the Ombudsman therefore be broader and more multifaceted? Basically, these functions are already included in the Ombudsman’s mandate. They are quite self-evidently exercised as a part of the overall task. However, there is always the functional aspect. Research and education are used not as elements in their own right but as part of the whole pallet. Broadening the mandate would decrease the potential for using these different functions. It was noted that the powers of the Data Protection Ombudsman were much stronger than those of the Ombudsman for Minorities. Should they be enhanced for the Ombudsman for Minorities as well? Ultimately, this raises the question of efficiency. Strong powers have to be exercised with legal safety, which could result in a reduction of the Ombudsman’s capability to react swiftly and in a multifaceted way to actual problems. These questions can also be asked of the role of the Ombudsman: is it a special authority on ethnicity, including anti-discrimination, or rather an authority on all kinds of equality? Another dimension is policy-making and legal: is its role to secure legal rectitude in some areas of society or to promote the position and rights of certain groups using different and more diverse methods? Is it a problem solver or a tribunal? The role of the Finnish Ombudsman for Minorities is, in fact, a combination of quite different elements. Its mandate is to work on a broad basis in all sectors of society for the benefit of one minority group – that is, foreigners and ethnic minorities. This includes monitoring legality both on its own initiative and sometimes in conjunction with other officials. It may also include generating policy recommendations or initiatives to improve legislation or governance, as well as influencing general attitudes and getting involved in public debates, etc. The multifaceted nature of the mandate is a strength but whether that leads at the end of the day to efficiency remains yet to be seen, the danger being the dispersion of resources. The Ombudsman originated as an answer to changes in Finnish society – that is immigration, multiculturalism and the need to implement more profound equality. Any possible reform of the mandate should be influenced by similar factors: that is, by a political assessment of the need to provide efficient protection and promotion of 

Mikko Puumalainen certain rights. Any reforms should not lose sight of this background, as its actuality and needs are as pressing as ever. This is also a strength of the Ombudsman for Minorities. The population change under way in Finnish society entails multiethnicity. A special authority can support this process and help to prevent it from becoming transformed into ethnic tensions, racism and discrimination.

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Building up a Specialized Body Act on the Ombudsman for Minorities and the Discrimination Board (660/2001; amendments up to 22/2004 included) Section  – Sphere of activity () The Ombudsman for Minorities operates in association with the Ministry of Labour with the purpose of preventing ethnic discrimination, promoting good ethnic relations, safeguarding the status and rights of ethnic minorities and foreigners, and supervising compliance with the principle of non-discrimination of ethnic minorities. () Provisions on the competence requirements for and appointment of the Ombudsman for Minorities shall be laid down by Government decree. Section  – Duties (/) () It is the duty of the Ombudsman for Minorities to: ) ) ) )

)

)

supervise compliance with the Equality Act (/), as provided in that Act; promote good ethnic relations in society; monitor and improve the status and rights of foreigners and ethnic minorities; report on the attainment of equality for different ethnic groups and on their circumstances and standing in society, and make proposals on how to remove any discrimination and remedy any grievances he has observed; provide information on legislation pertaining to discrimination based on ethnicity and the status of ethnic minorities and foreigners, and on the practical application of such legislation; carry out the duties assigned to the Ombudsman for Minorities under the Aliens Act (/).

() The Ombudsman for Minorities also has a duty to supervise the implementation of equal treatment irrespective of ethnic origin in cooperation with other authorities. Section  – Powers () If the Ombudsman for Minorities detects ethnic discrimination, he will issue guidance and advice with the aim of ensuring that it does not continue or reoccur. () The Ombudsman for Minorities may put forward initiatives and issue recommendations and advice aimed at enhancing good ethnic relations and promoting the status of ethnic minorities. 

Mikko Puumalainen () On matters concerning ethnic discrimination, legal action can be initiated through the Ombudsman for Minorities. With the consent of the person concerned, the Ombudsman for Minorities has the right to transfer or give notification of ethnic discrimination matters reported to him to the competent authority. The Ombudsman for Minorities may append his own statement on the matter to be transferred. The competent authority must notify the Ombudsman for Minorities of the measures taken in the matter. Section 4 – Legal assistance The Ombudsman for Minorities may assist, or appoint a subordinate official to assist, in securing the rights of a victim of ethnic discrimination or, if necessary, obtain legal assistance for the person for this purpose if he sees that the matter is of considerable importance for preventing discrimination. Section  – Advisory Board The Advisory Board for Minority Issues shall assist the Ombudsman for Minorities in promoting issues concerned with the prevention, monitoring and surveillance of ethnic discrimination and in enhancing cooperation between the different authorities. Further provisions on the duties, composition and work of the Advisory Board shall be laid down by Government decree. Section  – Office The Ombudsman for Minorities shall operate from office premises designated for the purpose. Within the limits of its budget, the office shall employ the necessary number of officials to act as presenting officials as well as other staff. Section  – Right to obtain information (/) () Confidentiality provisions notwithstanding, the Ombudsman for Minorities is entitled to obtain free of charge from other authorities any information necessary to carry out the duties prescribed for him in this Act and the Aliens Act. () The Ombudsman for Minorities and the Discrimination Board are entitled to obtain reports from authorities and establishments that fall within the scope of application of the Equality Act, and from persons in their employ, on factors essential for supervising compliance with the prohibition on discrimination based on ethnicity laid down in the Equality Act and for assessing the planning and implementation of measures that promote ethnic equality. The right to obtain a report does not apply to information on which the person from whom the report is requested has the right to refuse to give evidence.



Building up a Specialized Body Section a — Imposition of a conditional fine (/) The Ombudsman for Minorities and the Discrimination Board are entitled to impose a conditional fine to encourage compliance with the duty to provide a report referred to in section (). Payment of a conditional fine imposed by the Ombudsman for Minorities shall be ordered by the Discrimination Board. The imposition of conditional fines and ordering their payment are otherwise subject to the Act on imposition of conditional fines (/). Section b – Discrimination Board (/) In addition to the Ombudsman for Minorities, the Discrimination Board also operates under the Ministry of Labour to carry out supervisory duties laid down in the Equality Act. Section c – The duties of the Discrimination Board (/) It is the duty of the Discrimination Board to consider and resolve those matters which are intended for its consideration and resolution under the Equality Act. Section d – The composition of the Discrimination Board (/) () The Discrimination Board shall comprise a chairman, six other members and a secretary. The chairman and secretary may be appointed full-time. In addition, the Board may have one or more part-time presenting officials. () The Government will appoint the chairman and designate the other members, including their personal deputies, to serve for a term of four years at a time. One of the members shall be appointed vice-chairman. If the chairman, a member or a deputy resigns or dies during tenure, the Government will appoint or designate another person as replacement for the remainder of the term. () The part-time members, deputy members and secretary of the Discrimination Board, experts heard by the Board and parties submitting opinions will be paid a fee in accordance with the principles confirmed by the Ministry of Labour. Section e – Qualification requirements of members (/) The members and their deputies and the secretary of the Discrimination Board shall be familiar with the activities of the Board. In addition, the Board’s chairman and at least three members and their deputies and the secretary shall possess the qualifications required of a judge. Finnish citizenship is not required for appointment or designation as member, deputy member or secretary of the Board. 

Mikko Puumalainen Section f – Responsibilities and impartiality of members (/) () The members and secretary of the Discrimination Board shall be responsible for the legality of their actions. () The grounds for disqualifying a judge shall apply to the disqualification of members and presenting officials of the Discrimination Board. Section g – Presence of a quorum on the Discrimination Board (/) () The Discrimination Board shall be quorate when the chairman of the meeting and at least half the other members are present. The provisions of Section  of the Administrative Judicial Procedure Act (/) shall apply to voting at meetings of the Discrimination Board. () The standing orders of the Discrimination Board may stipulate that the Board has subcommittees. Subcommittees shall be considered quorate when all members are present. () The chairman may make decisions on the Board’s behalf concerning the preparation of business, as laid down in more detail in the standing orders. () The chairman may act alone in resolving matters which are manifestly groundless or which have be dismissed without investigation under Section () of the Equality Act. Section h – Commencing an action (/) () Section  of the Equality Act stipulates who is entitled to commence an action with the Discrimination Board. () Actions can be commenced either in writing or electronically. Applications must include: ) ) ) )

the detailed claim made by the applicant; the detailed grounds of the claim; where possible, the report that the applicant intends to present and what the applicant intends to prove with it; and details of any other authority considering the matter referred to in the application.

() In addition, applications must include the names, occupations and domiciles of the parties involved or those of their legal representatives or proxies, the phone numbers of witnesses and other persons who are to be heard, and the postal address to which summonses, requests and notifications may be sent. If the applicant does 

Building up a Specialized Body not know the address of the respondent, he must give an account of the actions he has taken to discover the address. The application must be signed by the applicant or, if it was not drawn up by the applicant, by the person who drew it up. The person who drew up the application must provide his occupation and domicile. () If an application is defective, the applicant shall be requested to provide the missing information within a specified period of time if this is deemed necessary for continued processing of the application. The applicant must at the same time be told why the application is defective and that it may be dismissed without investigation or rejected if the applicant does not fulfil the request. () The Discrimination Board may for a special reason extend the period referred to in subsection . Section i – Processing matters (/) () The opposing party must be asked to respond to the application. This, however, is not necessary if the application is deemed manifestly groundless. () The Discrimination Board is entitled to hear experts, obtain opinions and reports and arrange inspections. () Matters will be resolved on submission during sessions of the Board. The chairman or vice-chairman of the Board shall chair its sessions. Matters shall be presented by the Board official so assigned. Section j – Other provisions to be observed in processing matters (/) () With regard to the burden of proof, Section  of the Equality Act shall apply. () Provisions on the convening of the Board, submissions, minutes, the signing of judgements and appointing the secretary shall be laid down by Government decree. The organization of work within the Board shall be provided for in greater detail in the Board’s standing orders, confirmed by the chairman after having heard the views of the other members and presenting officials. () The provisions of the Administrative Procedure Act (/) shall apply insofar as this Act does not provide otherwise. Section k – Costs of processing (/) () Copies of the Discrimination Board’s documents and judgements shall be provided free of charge. () The parties concerned shall be responsible for the costs they incur in having a matter considered by the Board. 

Mikko Puumalainen Section  – Further provisions Further provisions on the implementation of the present Act may be given by Government decree. Section  – Entry into force () This Act enters into force on September , . () This Act repeals the Act of March ,  on the Ombudsman for Aliens (/), as amended. () Measures necessary for the implementation of this Act may be undertaken before the Act’s entry into force. () The officials acting as presenting officials and the other staff in the Office of the Ombudsman for Aliens may, at the time this Act enters into force, transfer to equivalent duties in the Office of the Ombudsman for Minorities without the posts being advertised as vacant. Transfers are subject to the decision of the Ministry of Labour.



Philip Giddings *

The Ombudsman as Advocate

I. Introduction The proliferation of ombudsman schemes in the last quarter of the twentieth century gave further stimulus to the debate about the essential characteristics of the ombudsman institution. The setting up of a variety of forms of ombudsman in different states and parts of states showed how the concept could be adapted to contrasting circumstances, economically and socially, and to different constitutional contexts. Adoption in different circumstances has also meant adaptation to different requirements. The question arises as to what features of the ombudsman concept are essential and what can be changed to reflect different circumstances without sacrificing the basic concept. Is the institution that began as an impartial investigator reporting with recommendations on remedies for maladministration recognizably the same genre as the champion for human rights with an advocacy role on behalf of the exploited and oppressed? Where countries are in transition from an authoritarian to a liberal democratic form of political culture, as in Central and Eastern Europe following the collapse of the Soviet Empire, the question is acute: what is the role and image of the ombudsman institution to be? Citizen’s defender? People’s advocate? Human rights commissioner? Or simply, but not very revealingly, ‘ombudsman’. This article will examine the role of the ombudsman using the example of institutions in Georgia, Poland, New Zealand, Slovenia and Hungary. It will examine how these institutions have moved beyond the remit of the classical ombudsman model of investigating maladministration to adapt to the specific needs of the minorities and the countries they serve. II. The Classical Tradition The classical parliamentary ombudsman institution which developed in Western Europe in the third quarter of the twentieth century was focused on remedying maladministration, either generically, as in the United Kingdom legislation, which deliberately did not define that term,1 or stereotypically, as in the New Zealand Act, which set out the categories of decisions which could be admitted for investigation. Significantly, in terms * 

Director, Centre for Ombudsman and Governance Studies, University of Reading. United Kingdom Parliamentary Commissioner Act .

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 207-219. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Philip Giddings of later developments, these categories explicitly included ‘discrimination’. In full, they allow an investigation into a complaint about a decision that: – appears to have been contrary to law; – was unreasonable, unjust, oppressive or improperly discriminatory; – was in accordance with a rule of law or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory; – was based on a mistake of law or fact; or – was wrong.2 Similarly, the UK Parliamentary Commissioner for Administration, Sir William Reid, included the substance of discrimination in his elaboration of the well-known ‘Crossman catalogue’ of what constitutes maladministration.3 Reid’s list included: “showing bias re colour, sex, or any other grounds”.4 The inclusion of discrimination within the category of maladministration should not be surprising, since there is a clear connection between the concept of the ombudsman as an institution remedying defects in public administration and the task of defending citizens’ rights. Complaints about defects in public administration, which are the basic stock of much ombudsman work, often include allegations of an abuse of rights and the expectation that the ombudsman will act to defend those rights. Thus, Dr. Marten Oosting, the Netherlands Ombudsman, writing in  about the work of his own Office said that, “[it] helps to ensure that fundamental rights are respected by the authorities”.5 This view had been clearly reflected in the founding documents of the Spanish and Portuguese Ombudsman Offices in the s. The first Article of the Portuguese statute provides that the main function of the Office “shall be to defend and promote the rights, freedoms, safeguards and legitimate interests of citizens and secure through informal means that the exercise of public powers shall abide by justice and the law”. More succinctly, the Spanish statute provides that the Office is established “to protect citizens’ rights and … to supervise the Administration’s activity”.6 Therefore, conceptually, there should be no difficulty in including within an ombudsman’s office’s remit both human rights issues generally, and minority rights issues in particular. A breach of human rights by a public authority is without question a matter of maladministration, but in most jurisdictions it will also be a breach of the law. The practical issue that arises is whether techniques by which ombudsman offices deal with maladministration are appropriate to allegations of a breach of human rights.  

  



New Zealand Parliamentary Commissioner (Ombudsman) Act . Crossman’s catalogue was “bias, neglect, inattention, delay, competence, inaptitude, perversity, turpitude, arbitrariness and so on” (House of Commons Debates,  October , Vol. , cols. -). United Kingdom Parliamentary Commissioner for Administration, Annual Report , para. , HC , -. Marten Oosting, “The National Ombudsman of the Netherlands and Human Rights”,  The Ombudsman Journal (), -. Law No. / (Portugal); Organic Act /, Art.  (Spain). See Philip Giddings and Roy Gregory, Righting Wrongs: The Ombudsman in Six Continents (IOS Press, Amsterdam, ), -.

The Ombudsman as Advocate At what point, if at all, does the ombudsman become the advocate or champion of the aggrieved citizen or complainant? Even in the classical ombudsman tradition of dealing with maladministration, the office can become the citizen’s advocate. In the generic work of dealing with citizens’ complaints in the initial stages of screening, investigation and generating findings, the ethos of the ombudsman office is to act as a thorough and impartial investigator and adjudicator. Once the ombudsman has determined that a citizen has been a victim of injustice in consequence of maladministration, then the ombudsman becomes the citizen’s advocate, seeking to persuade the administration not only to accept his findings, but also his recommendations for a remedy. Moreover, in conducting systemic investigations and commenting upon policy and legislative proposals the classical ombudsman acts as the citizen’s champion, seeking to ensure that the interests of the individual citizen, the service user, are fully respected as policy and legislation are developed. Taking action to improve administrative systems, screening legislation for potential problems is good preventive work, designed to reduce the possibilities of maladministration and thereby contribute to good governance. In that process, the ombudsman, even in the classical tradition, acts as the citizen’s advocate. III. The Human Rights Ombudsman When we turn to human rights ombudsman offices, we see significant parallels with the work of the classical ombudsman and, in terms of advocacy, this is particularly apparent regarding minority rights. In what follows, we shall look at examples of the work of ombudsman offices in five states, with different contexts but each developing an advocacy role in respect of human rights generally and minority rights in particular. We begin with the most difficult context for human rights, that of Georgia emerging from the collapse of the Soviet Union and confronting serious internal conflicts. New Zealand and Poland have had longer experience of the ombudsman institution but in both cases there is a need to ensure that minorities have effective access to the services the institution can provide. Slovenia and Hungary, which, like Poland and Georgia, have emerged from a period of authoritarianism, illustrate the point that, in order to make a reality of access to justice-dispensing mechanisms for minorities, it may be necessary to generate a significant shift in cultural values to support constitutional and statutory provisions. A. The Need to Act as an Advocate for Human Rights: The Case of Georgia Georgia has had a difficult history since emerging as an independent state following the collapse of the Soviet Union, including civil war, attempted secession and a further revolution in November . Such a conflict-ridden context is deeply problematic for the setting up of an effective ombudsman institution. Constitutional and statutory provisions may be made, but implementing them is another matter. Georgia’s postSoviet constitution was adopted in August  and included provision for a ‘public defender’ and for the protection of human rights. In fulfilment of that provision, the Georgian parliament adopted an ombudsman statute (The Law on the Public Defender of Georgia) the following May. According to Article () of that statute, the Public 

Philip Giddings Defender “supervises the protection of human rights and freedoms on the territory of Georgia, elicits the facts of violation of human rights and freedoms and assists in rehabilitation of those rights”.7 However, NGOs and external monitoring bodies, such as the UN and the USA’s State Department, were very critical of the initial ineffectiveness of the public defender’s office. The first ombudsman, a former head of the State Revenue Service and a former MOI official, was appointed to the position in November , but resigned in August  to run in the parliamentary elections for an opposition party. The US State Department’s Human Rights Report on Georgia for that year noted that he had disappointed both local and international human rights groups. While in office, ... he chose to focus the office’s attention on social and economic issues, especially the status of the country’s refugees, rather than on defending political and civil rights, according to local human rights groups. Local human rights groups claimed that the ombudsman’s agenda was dictated to him by the executive branch. They charge that the ombudsman has legal standing with the Constitutional Court and could have brought individual violation of human rights to the court for consideration. However, he did not choose to do so.8

Although the position seems to have improved since the  revolution, the most recent State Department report concluded that “The Government’s human rights record remained poor; although there were improvements in some areas, serious problems remained”.9 The current human rights ombudsman, Sozar Subari, has acknowledged how much remains to be done, and how crucial is the role of his office in tackling human rights issues. He told a recent seminar in Tbilisi that human rights violations were “still very frequent”10 – his office had received four times as many complaints in  as in . In addition to violations in the private sector, there were illegal arrests, torture and violence on the part of the police. Several detainees had been beaten up.11 Mr. Subari has also been concerned about protecting the rights of religious minorities. At a presentation by the newly created religious coordination council attended by representatives of the Patriarch’s Office and other religious organizations, members of the executive and legislature, diplomatic heads of mission and international donor organizations, he stated that, although the situation in Georgia had changed dramati 



 



Law on the Public Defender of Georgia, signed by the President on  May , Art. (). US Department of State, Country Report on Human Rights Practices for : Georgia, released by the Bureau of Democracy, Human Rights and Labor, February , Section , para. , Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights, at . US Department of State, Country Report on Human Rights Practices for : Georgia, released by the Bureau of Democracy, Human Rights and Labor, February , Introduction, at . Kavkasia-Press News Agency, Tbilisi,  June , per BBC Monitoring Service. Ibid.

The Ombudsman as Advocate cally since the revolution and open persecution of religious minorities was now a thing of the past, “… this does not mean that a tolerant culture has come into existence in our country. Religious minorities should feel themselves just as protected as the majority”.12 He considered that the Patriarch’s Office had taken an important step in this direction when it created the coordination council and felt that it would play an important role in protecting human rights.13 In other words, in addition to putting in place a constitutional and legal framework to protect minorities, steps also have to be taken to change the culture. In the case of Georgia, therefore, we see that the role of ombudsman has to be exactly as the official title of the office indicates, that of ‘Public Defender’. That role is to advocate, indeed to champion, the rights of individuals and groups. Working with NGOs and international bodies, the ombudsman’s task is to challenge government and state bodies to fulfil their statutory and constitutional obligations to respect the rights and liberties of all citizens. However, as will be examined in the section below, the minorities in need of an advocate must first be made aware that such an advocate exists. B. Advocacy in the Community: Promoting Awareness and Enhancing Access Legal provisions for the defence of minority rights needs to be bolstered in a number of ways. To begin with, there are issues of awareness and access,14 which we can illustrate with two contrasting examples – Poland and New Zealand. 1. Poland In Poland, the Office of the Commissioner for Civil Rights Protection is well established, having its legal basis in the Commissioner for Civil Rights Protection Act of  July , passed soon after the adoption of the new constitution.15 The legal structure for minority protection is therefore in place, but how is it used? The answer appears to be – very little by the minority communities. The current Commissioner recently commented on the low number of complaints concerning discrimination against nonPolish nationals when compared to the overall quantity of the letters he receives – .% of ,. He remarks that only those who are aware of his existence are able to seek help from his office – in other words, a lack of awareness is a significant barrier to access and the protection the law could offer. The Commissioner notes that progress is continuing on the long-awaited legislation to provide greater legal guarantees for national and ethnic minorities. Such guarantees, he comments, are particularly needed by the Roma community, a point made by the Commissioner on a number of occasions.16     

The Messenger, Tbilisi,  June , per BBC Monitoring Service. Ibid. See in this volume, Marnie Lloydd, “Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution to Vulnerable Communities”, -. The Commissioner for Civil Rights Protection Act of  July , at . Information from the Commissioner for Civil Rights Protection along with the conclusions regarding the activity of the office in , presented to the Sejm and the Senate, in



Philip Giddings 2. New Zealand In New Zealand, the Office of the Ombudsmen has been established even longer, since , and yet the same issue is being addressed – the particular obstacle facing minority groups of access, both physical and linguistic. The total number of complaints to the Office of the Ombudsmen is now running at between , and , a year, but the perception is that minority and socially disadvantaged groups make little use of the Office. Hence, the Office has been making a determined effort for a decade or more to reach out to all citizens, particularly those belonging to minorities, by means of ‘clinics’ held in cities and towns around New Zealand. In the Office’s  Annual Report, it was explained that the Ombudsmen: … maintain offices in Auckland, Wellington and Christchurch. We attempt to visit most regional and rural centres including satellite cities within the major population at a two or three yearly frequency to provide an opportunity for people to discuss their concerns directly with an Ombudsman or a member of our staff.17

The following year’s annual report noted that: Our clinic visits to smaller communities throughout New Zealand are often the subject of local press and radio media attention. The clinics enable people living outside of the major metropolitan centres to have their complaints heard by an Ombudsman or staff. We take the opportunity provided by these clinics to meet with executive staff of local councils to discuss general issues within our jurisdiction or specific complaints. When time permits we also visit other organisations such as Citizens Advice Bureaux and Community Law Centres.18

Recently retired Ombudsman Judge Anand Satyanand, himself of Indo-Fijian parentage, has commented that the clinics are very often held in council offices, public libraries or hotel conference rooms, and sometimes in community centres and even more informal settings, such as pubs.19 In some parts of New Zealand, such as the northern part of the North Island (in places like Kaitaia and Kaikohe) or on the East Coast (in a place like Gisborne), the percentage of non-European people – i.e. the Maori – will be higher. In South Auckland, in Manukau City for example, there are large numbers of Polynesian people as well as Maori. The people visiting clinics held there will tend to be from ethno-minorities. Sometimes, an issue relating to, for example, immigration and the processing of applications to enter New Zealand (say by Somali people)









accordance with Art.  of the Constitution of the Republic of Poland, point  and page , at . Report of the Ombudsmen for the year ended  June  (New Zealand Government Publications, Wellington, July ), , at . Report of the Ombudsmen for the year ended  June , (New Zealand Government Publications, Wellington, July ), -, at . Private communication to author, June .

The Ombudsman as Advocate may result in a number of clinics being attended by large numbers of people from that community. On the linguistic front, the New Zealand Chief Ombudsman, John Belgrave, recently announced completion of a ‘plain-language English’ version of the Office of the Ombudsmen’s publications and that work was advanced on producing Maori, Samoan and Mandarin Chinese versions. Mr. Belgrave is also extending the list of venues for ‘regional clinics’, noting that, “the people who come to these clinics are probably those who wouldn’t approach us in writing”. His office already has several Maori or Asian investigators but the hope is that, by having material translated into other languages, staff will become more attuned to different cultures.20 Together, the examples of Poland and New Zealand show two things: first, how lack of awareness can impede the ombudsman’s role of advocate for the rights of minority groups; second, what measures can be taken to remedy this in order to bolster national legislation at the community level. This second role, in particular, is one of championing minority rights in the public forum in order to bring pressure upon governmental and administrative bodies at the local level to fulfil their obligations to respect the rights of all members of the local community, not just those who are politically, economically or socially dominant. From the example of these two states we also see that this advocacy role is not incompatible with the traditional role of an ombudsman office in investigating and seeking remedies for classical maladministration. C. Advocacy in the Wider Community: Generating a Cultural Shift A second aspect of bolstering national legislative provision for the defence of minority rights is the need to apply and extend its provisions and ethos to all levels of government and administration, and to achieve the necessary cultural shift in the attitudes of politicians, administrators and citizens from all parts of the community. We can illustrate the scale of this task in Central Europe with two examples, Slovenia and Hungary. 1. Slovenia In Slovenia, the institution of the human rights ombudsman was introduced in the new constitution, adopted in ,21 and is currently dealing with over , cases a year. Implementing legislation was adopted in December  in the form of the Human Rights Ombudsman Act. The first ombudsman, Ivan Bizjak, was appointed by the National Assembly at the end of September , three deputy ombudsmen were appointed later and a fourth added in . In July , the National Assembly finally accepted the Ombudsman’s suggestion of the setting up of an internal unit within the Office to monitor all forms of discrimination and tolerance. The current ombudsman, Matjaz Hanzek, has been actively pursuing minority rights issues generally as well as on two particular fronts: the Roma and the ‘erased’. Although the Slovenian Constitution provides that the position and special rights of  

Mathew Dearnaley, “Ombudsmen take message to people”, New Zealand Herald,  March , at . The Constitution of the Republic of Slovenia, adopted on  December , Art.  (Ombudsman for Human Rights and Fundamental Freedoms).



Philip Giddings the Roma community in Slovenia shall be regulated by law, Mr. Hanzek pointed out in  that this constitutional provision had been inadequately fulfilled by individual sectoral laws and municipalities. What was needed was a comprehensive, special law that would “embrace all the areas of Roma issues, and precisely demarcate the powers and obligations of the state and local communities – including financial”.22 In his visits, the Ombudsman had found that the Roma population faced two particular problems: arranging basic accommodation and employment. The Ombudsman commented that, “no marked shifts could be discerned in this area on the part of state bodies and local community bodies. We believe that there is not the proper will to settle this particular issue. This is also because of the ‘differentness’ of the Roma and the consequent resistance and discriminatory attitude of nearby residents and even of certain local organisations”.23 In short, there was a serious cultural issue to be addressed. In an interview in May , Mr. Hanzek returned to the issue by pointing to the lack of commitment to making a reality of minority rights. He commented that he found it “problematic that the constitution can be changed within a few weeks, if this is a prerequisite for accession to NATO, while years of concerted efforts by many people and funds are wasted and nothing happens when a law is being adopted for any marginalized group, [such as] the Roma”. He again urged the need for a common policy for the whole of Slovenia – the need to fill in the legal and administrative provisions at all levels of government and administration. However, the underlying obstacle was the social and political culture. In vivid terms the Ombudsman put it this way, “The case of the Roma is indicative of a Slovene feature that is typical of most human rights violations – that is ignorance, passive intolerance and the failure to help marginalized groups out of their situation and integrate them in the society”.24 The following month, Mr. Hanzek sent to Prime Minister Janez Jansa a proposal to establish a national agency for the promotion and protection of human rights. Without a national agency, those tasks were either not carried out or could only be carried out in a limited volume by some government offices, ministries and the Ombudsman Office. What was required was an agency which would deal with human rights’ implementation, promotion of anti-discriminatory policies, follow the relevant legislation, propose ratification of international human rights documents from the UN, Council of Europe and the like, and facilitate international cooperation in the area of human rights protection.25 Mr. Hanzek stated his case powerfully and then continued to campaign, as we shall see below. The issue was not confined to the Roma question; it also affected the ‘erased’ – the citizens from former Yugoslav republics who were unlawfully erased from the Slovene population register in . During his visit to Slovenia in November , the Council of Europe’s Human Rights Commissioner Alvaro Gil-Robles urged that the government must resolve this issue “without hesitation” and called for a more effective policy

   



Eighth Annual Report of the Human Rights Ombudsman of Slovenia, June , . Ibid. STA News Agency, Ljubljana,  May , per BBC Monitoring Service. STA News Agency, Ljubljana,  June , per BBC Monitoring Service.

The Ombudsman as Advocate for improving the status of Roma people.26 This plea was echoed by Mr. Hanzek when he presented his  human rights report to the Slovenian Parliament in April  and was heavily critical of the authorities’ inactivity. The problem was that “a vague and elusive response of the government led to more confusion and increased intolerance … the government has not yet worked out an anti-discrimination strategy”, for which reason the Ombudsman again proposed that a national human rights institution should be established.27 The Ombudsman’s remarks led to a heated debate in parliament lasting almost five hours, at the end of which, apart from the opposition National Party, all parties agreed with the report and it was endorsed by  votes to . Parliament also backed the Ombudsman’s initiative to set up, within his own office, a unit that will specialize in monitoring discrimination and intolerance.28 Six months later, the Ombudsman met the Prime Minister to discuss again the issue of the Roma and the ‘erased’. The Prime Minister had promised to expedite the adoption of amendments to the law on the Roma and encourage institutions to respond positively to the ombudsman’s or citizens’ interventions. The issue of the erased would appear to require a constitutional law, which would need a two-thirds majority in the legislature.29 However, when the Prime Minister and the ombudsman met again in June to discuss the Ombudsman’s tenth Annual Report, the Prime Minister accepted that the status of minorities from the former Yugoslav region had still to be resolved. Although Mr. Hanzek’s tenth Annual Report recorded fewer human rights problems than in the previous year, the nature of the problems was the same as before.30 In April of that year, the Ombudsman had criticized the education minister for producing an experimental education plan that segregated Romany children from other children.31 2. Hungary Slovenia is not alone in having to grapple with these difficult issues. An estimated  million Roma live in Central Europe, between , and , of them in Hungary. In October , when the EU allocated USD . million for the Hungarian Roma community under the Phare programme, the Parliamentary Commissioner for Ethnic and Minority Rights, Dr. Jeno Kaltenbach, told the parliamentary human and minority rights committee that the amount of funds needed to solve the Roma issue could not be predicted and drew attention to the challenge of the fact that much of the public did not support such programmes. Dr. Kaltenbach has been a vigorous campaigner on this issue. The following month, when he presented to the committee a draft bill to “fight against racism and xenophobia and for securing equal treatment”, his proposals received some support from most of the parties, but also vigorous opposition from others, particularly      

BBC Monitoring Service,  November . STA News Agency, Ljubljana,  April , per BBC Monitoring Service. STA News Agency, Ljubljana,  July , per BBC Monitoring Service. Television Slovenia website, Ljubljana,  January , per BBC Monitoring Service. Television Slovenia website, Ljubljana,  June , per BBC Monitoring Service. Television Slovenia website, Ljubljana,  April , per BBC Monitoring Service. See also, “Slovenian ombudsman condemns segregation of Roma”, Insight Central Europe News,  April , at .



Philip Giddings the far right Hungarian Justice and Life Party.32 Dr. Kaltenbach argued that legislation should be enacted as soon as possible to provide for parliamentary representation of the minorities in Hungary and, in particular, it should be in place before Hungary joined the EU. He underlined that it was “a key issue – the elimination of discrimination is good not just for the minorities but for all of society”.33 The problem is, however, to convince both elite and mass opinion of the truth of that proposition. A case illustrating the issue in Hungary was reported in February  following the Ombudsman’s investigation into reports of discrimination against Roma students. A primary school in the northeastern town of Bogacs was said to be “teaching Gypsy students in segregated classes” and requiring them to use separate dining and toilet facilities. Non-Roma parents told a television news reporter that they feared a drop in standards at the school if classes were integrated, while Roma parents said the situation was unacceptable. The Ombudsman described what was happening as “unlawful” and “intolerable”.34 A similar case arose in February  in Patka, Western Hungary, which the Ombudsman put down to the absence of a minority self-government in the village concerned and the Romanies’ fear of acting against segregation.35 In a television interview the following month, Dr. Kaltenbach acknowledged that there were many violations of the law: “We described this at the time. It is also a fact that these violations of the law have not been remedied. Most recently there was a court ruling on the demolition of a home whose illegality is not disputed by anyone … Nonetheless, no-one involved in the action has been called to account”. His interviewer enquired what happened when the Ombudsman drew parliament’s attention to such cases. Dr. Kaltenbach responded that “there are consequences in most cases. These consequences serve in part to remedy the situation and they in part are measures aimed at preventing further legal violations”. However, he then added, “the ombudsmen do not have the means of power whereby they could force implementation of the measures they have presented. But this is [the] case everywhere in the world”.36 Nevertheless, despite Dr. Kaltenbach’s advocacy, later that month the parliamentary committee rejected his proposed bill, arguing that a more comprehensive anti-discrimination law was needed than the one drawn up by the ombudsman.37 The following month (April ), the Hungarian Government was embarrassed when the European Court of Human Rights granted refugee status to  out of  Roma who had left Hungary the previous year. They told the court they had fled their village after municipal authorities had torn down their homes. Speaking to Reuters    

 



Hungarian Radio,  November , per BBC Monitoring Service. Duna TV satellite service, Budapest,  November , per BBC Monitoring Service. Hungarian TV Satellite Service,  February , per BBC Monitoring Service; “School segregates Gypsy students”, The Budapest Sun,  February , Vol. IX, Issue . Hungarian Radio,  February , per BBC Monitoring Service. For more on the Parliamentary Commissioner’s stance on Roma education, see Report on the Activities of the Parliamentary Commissioner on the Rights of National and Ethnic Minorities,  January- December , Chapter , at . Hungarian TV Satellite Service,  March , per BBC Monitoring Service. Hungarian Radio,  March , per BBC Monitoring Service.

The Ombudsman as Advocate news agency, Dr. Kaltenbach said, “If we had had at the time anti-discrimination legislation, that mayor could have been punished … We could have had a criminal trial, but there were no sanctions available”. He added that  % of the discrimination complaints he had received the previous year were from Roma.38 He returned to the issue in a speech and a radio interview in June, arguing that “there is no national unity without solidarity” and that anti-Romany employment discrimination was “particularly worrying”39 and, in July, intervened to prevent a local authority handing over its school building to a planned private school until it had reached agreement with the local minority self-government.40 Despite this vigorous advocacy, in October the Hungarian Parliament’s Human Rights Committee refused to support his recommendation that the Penal Code be amended to allow punishment of incitement to racial hatred. Dr. Kaltenbach had pointed out that in a recent case in which he had initiated proceedings, the prosecutor’s office had advised that there was no hope of a successful prosecution following a  Supreme Court ruling. The case proved, in his opinion, that, “the current Penal Code is impossible to apply and, practically speaking, it exists only on paper”.41 That conclusion clearly points to the need to change the culture and, thus, public and governmental attitudes and opinions. Another issue that has created considerable controversy in Hungary has been the provision for minority local government elections. The electoral law governing these elections has, in the opinion of the Ombudsman, become unconstitutional as representatives of different minorities and, in some cases, the majority population become members of autonomous minority governing bodies. When this had first happened it had been considered something of a freak occurrence, but, in , it occurred in all of the  minorities in Hungary. In Jaszladany, four of the five members of the Roma autonomous governing bodies were not of Roma origin.42 In a press briefing in March , the Ombudsman pointed out that in the  elections, of the  minority selfgovernment candidates only  belonged to a minority community. Moreover, minority self-governments were not getting the support and resources they needed and were not being involved by local governments in minority-related decisions. The situation was worst, he added, for Romany self-governments, one in seven of which had no infrastructure whatsoever, not even an office, address or telephone.43 The Parliamentary Commissioner’s report for  includes a comprehensive survey of the experience with minority self-governments and the report for  covers in detail the tangled story of parliament’s attempt to update the statute on the rights of national and ethnic

     

Reuters news agency,  April . Hungarian Radio reports,  and  June , per BBC Monitoring Service. Hungarian TV Satellite Service,  July , per BBC Monitoring Service. Hungarian Radio,  and  October , per BBC Monitoring Service. The case concerned published article attacking the Romanies of Jand. Hungarian TV satellite service,  October , per BBC Monitoring Service. Hungarian Radio,  March , per BBC Monitoring Service.



Philip Giddings minorities.44 Dr. Kaltenbach concluded the introduction to the latter report with this rather pessimistic assessment of his campaigning: Finally, we must separately mention the acceptance of the measures taken by the ombudsman. We regret to find that the reception of our initiatives, recommendations and legislative proposals still gives rise to concern. Even though there are a number of positive examples to the contrary, the response of the relevant authorities is often not only delayed but also unreceptive and resentful. Such uncalled-for emotional response to a document produced in the course of an administrative procedure may have the long-term effect of undermining the prestige of the institution and, eventually, of Parliament.45

The Slovenian and Hungarian examples show how difficult the protection of human rights can be when they run up against deep-seated attitudinal obstacles within the population as a whole. Passing laws does not by itself change people’s values and attitudes. The ombudsman office, established on the foundations of independence and impartiality and with a constitutional responsibility to protect human rights, can play a key advocacy role in encouraging the cultural shift, which is often needed to ensure that minority rights are fully respected at all levels in the community. The public nature of the office provides a platform for setting the public agenda and helping to shape the evolution of public and private opinion. Conclusion The examples we have examined – Georgia, Poland, New Zealand, Slovenia and Hungary – show two things. First, that there is more to the remedying of injustice and the protection of citizens’ rights than putting in place national constitutional and legal frameworks, important as those are. To make a reality of those rights it is also necessary to make equivalent provision at regional and community levels and to create an appropriately supportive political culture, a set of opinions and attitudes widely shared across all segments of the community, particularly in the institutions of government and administration. Second, that the ombudsman, acting as the advocate of minority rights, can play a key role in the battle to achieve that subnational bolstering of legal and institutional provisions and, even more significantly, the change of attitudes and opinions within them which must occur if citizens of every group within society are to be able to make a reality of their constitutional and legal rights. The classical ombudsman, seeking to achieve remedies for injustice in consequence of maladministration, becomes the champion of the ‘little guy’, the individual citizen locked into an unequal battle with the powerful and well-organized institutions of the state. Similarly, the human rights ombudsman champions the cause, and cases, of individuals and minorities who cannot  



The Parliamentary Commissioner for National and Ethnic Minority Rights, Ombudsman’s Report for  and , at . The Parliamentary Commissioner for National and Ethnic Minority Rights, Ombudsman’s Report for , Introduction, at .

The Ombudsman as Advocate achieve justice because they face a severe power imbalance with dominant social groups who, in majoritarian democracies, can so easily, even inadvertently, discriminate against them and deprive them of their social, economic and political rights. In both cases, the ombudsman has a crucial advocacy role to complement the important work of conducting thorough investigations of citizens’ complaints against the public administration.



Marnie Lloydd *

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution to Vulnerable Communities

Democratic governance is undermined where access to justice for all citizens (irrespective of gender, race, religion, age, class or creed) is absent. Access to justice is also closely linked to poverty reduction since being poor and marginalized means being deprived of choices, opportunities, access to basic resources and a voice in decision-making.1

I. Introduction An ombudsman institution2 is an alternative justice mechanism, often excluded from ‘access to justice’ debates, which tend to focus on formal judicial processes and legal aid. However, an ombudsman or a complaints-receiving human rights institution can provide flexible and less formal remedies to the public – services particularly suited to issues faced by vulnerable and disadvantaged groups, including ethnic, national and linguistic minorities. As such, ombudsman and national human rights institutions (NHRIs), by their very nature, already break down many of the prohibitive barriers inherent in the formal justice system, such as excessive costs, complexity and delays. Despite this, significant barriers hindering effective access to justice and service equity also exist in relation to ombudsman institutions and NHRIs on the side of both the institution and the public. The extent of those barriers and, on the more positive side, the level of general effectiveness or ‘success’ of an ombudsman or NHRI, is difficult to measure. A number of criteria, such as the levels of independence, accountability, impartiality and competence of the institution, as well as the powers of investigation, are used as standards marking the ‘quality’ of the institution. Certain other indicators are more easily verifiable, such as the speed of taking action on a complaint or the rates of public authority compliance with the institution’s recommendations. *

 

Former Research Associate, European Centre for Minority Issues. LL.B.(Hons) and B.A. (Victoria University of Wellington, New Zealand), European M.A. in International Humanitarian Assistance (Ruhr University Bochum, Germany). United Nations Development Programme, Access to Justice Practice Note,  March , , at . The words ‘ombudsman’ and ‘ombudsperson’ are used interchangeably in this article and no implication of gender is intended in the use of these terms.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 221-245. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Marnie Lloydd One important criterion for effectiveness is the level of visibility and accessibility of the ombudsman institution to the public; a criterion also claimed as an “effectiveness factor” applicable to all NHRIs by the United Nations High Commission for Human Rights.3 It may seem obvious that a public complaints mechanism or monitoring body must be accessible by the public: if the public does not know that the institution exists, or does not understand its function, the institution will lose its operative purpose; and certainly, most institutions dedicate some resources to this ‘marketing’ function. Nevertheless, given the fact that increased accessibility leads to a greater workload and potentially more difficult cases to deal with, newly established and underresourced institutions may be reluctant to seek that extra challenge by improving their visibility. Many institutions already face huge numbers of complaints without sufficient human and financial resources to deal appropriately and efficiently with the workload. This is particularly so for recently established institutions, for example in the South Caucasus, the Central Asian Republics and South East Europe. Similarly, although most institutions recognize the need for a presence in remoter areas in the form of local offices, the most appropriate way to structure the relationship between national and regional offices, both legally and operationally, remains an open question for many countries.4 As the role of the institution is to protect the public from maladministration and human rights abuses, and given that complaints often concern a lack of effective accessibility to the public authorities, it becomes even more essential that ombudsmen and NHRIs have carefully considered and implemented operational plans, ensuring that their own services are accessible while also guaranteeing service equity. Service equity comprises more than just non-discrimination. Just as human rights must be able to be effectively enjoyed, it is important that there is effective access to the ombudsman’s services. In this sense, arguments in support of positive discrimination to ensure that members of minorities effectively enjoy the same level of rights as the majority population, also apply to having effective remedies for breaches of those rights. An ombudsman office or NHRI can provide a remedy for human rights violations, and as such, is an important aspect of the implementation of human rights. In practice, equitable service is different than equal service. In order to ensure equitable service, it will generally be insufficient for an ombudsman institution to act without discrimination between persons; instead, special policies and operational procedures, with an emphasis on proactive solicitation of complaints and information, will be necessary to ensure that vulnerable groups are reached and heard. In the words of the Finnish 





Roy Gregory, “Building an Ombudsman Scheme: Statutory Provisions and Operating Practices”, in Linda C. Reif (ed.), The International Ombudsman Anthology (Kluwer Law International, The Hague, ), -, at ; United Nations Centre for Human Rights, National Human Rights Institutions: A Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights (United Nations, Geneva, ), , cited in Linda C. Reif, “Building Democratic Institutions: The Role of National Human Rights Institutions in Good Governance and Human Rights Protection”,  Harvard Human Rights Journal (), -. Comments of international ombudsman consultant Dean Gottehrer, UNDP Ombudsman Roundtable, Karlovy Vary, - May , notes on file with the author.

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution Ombudsman for Minorities, “[t]he ethnic well-being of society – good ethnic relations and the absence of discrimination – are also based on strengthening the opportunities of the people actually affected by these issues to have a say and be heard. … With respect to ethnic well-being, it is imperative to strengthen the participation of the ethnic minorities themselves”.5 Such an approach should include a critical examination of current practices that may appear neutral and non-discriminatory, but may indirectly disadvantage certain groups. The importance of service equity can be seen internationally. Requirements of accessibility are included in European standards for specialized bodies to combat racism, and in international standards for NHRIs, being two institutional categories into which many ombudsman institutions fall. International organizations such as the Organization for Security and Cooperation in Europe (OSCE) and the United Nations Development Programme (UNDP), as well as several NGOs, have focused on setting good practice standards for ombudsman institutions, covering visibility, accessibility, and ensuring a local presence and capacities for minority issues. This article considers the importance of ensuring effective accessibility and the methods employed by ombudsman institutions to improve their visibility and accessibility to minority and other vulnerable communities, as well as how the institutions themselves have analyzed or worked with the results of such initiatives. It begins by examining agreed standards for accessibility (Section II), then looks at geographical and operational considerations, including regional and local ombudsmen and field offices of national institutions (Section III), the ombudsman’s general procedures and activities (Section IV), and finally, relations with the media and good practices for ethnic data collection, confidentiality and statistical reporting (Section V). Case examples, including Kosovo, Slovenia and Hungary, are used for illustration. It is hoped that the discussion and examples from offices in the wider European region will be useful to both institutions and practitioners in their work, breaking down barriers to accessibility while strengthening, developing and supporting these institutions. II. The Requirement of Accessibility – Basic Principles A. Good Practice Standards The European Commission against Racism and Intolerance (ECRI) General Policy Recommendation No.  on specialised bodies to combat racism, xenophobia, antisemitism and intolerance at the national level requires that “[s]pecialised bodies should be easily accessible to those whose rights they are intended to protect”. 6 The Council of Europe (CoE) has also recommended that ombudsman institutions ensure:  

Ombudsman for Minorities, Report of Operations Ombudsman for Minorities  (Helsinki, ), . ECRI General Recommendation No. : Specialised bodies to combat racism, xenophobia, antisemitism and intolerance at national level, CRI ()  of  June , Principle (), at .



Marnie Lloydd –

–

public accessibility (in terms of both availability and comprehensibility) of information on the existence, identity, purpose, procedures and powers of the ombudsman, along with wide and effective publication of information on the institution’s activities, findings, opinions, proposals, recommendations and reports; application procedures which are easily and widely accessible, simple and free of charge, and which convincingly establish their confidentiality in all cases.7

On the universal level, the Principles relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights (a category into which ombudsmen fall), approved by the UN General Assembly, (‘the Paris Principles’),8 also contain many relevant principles, relating to, for example, the publicizing of recommendations and reports, having suitable infrastructure and funding, and establishing working groups and local sections to assist the institution in discharging its functions. International and non-governmental organizations have also advocated for best practice standards related to service equity. The reception of complaints, service equity, physical access and protection against retribution for complainants were considered important enough to be subjects dealt with in the first UNDP ‘Guidelines for Ombudsman Institutions’ published in late .9 The topics of those guidelines were developed in response to the needs expressed by ombudsman institutions in UNDP’s ombudsman network as well as by UNDP practitioners. Other international organizations also recognize the importance of accessibility to the strengthening of an office; for example, the OSCE Mission to Croatia has commissioned an independent evaluation of the ombudsman institution in Croatia, the final report of which recommended the establishment of an office presence in major population centres and more active engagement with the public.10 The European Centre for Minority Issues has published a ‘Guide to Good Practice’ for ombudsman institutions covering foundational criteria, strategic development and operational issues in relation to minority protection.11

 



 



Council of Europe Parliamentary Assembly Recommendation  () on the Institution of Ombudsman,  September , at (x) and (xi). Endorsed by the Commission on Human Rights in March  by Resolution / and the UN General Assembly by Resolution A/Res// of  December , at . See, in particular, Principles (a) and (g) under “Principles relating to the status of national institutions”, and Principle (e) under “Methods of operation”. Dean M. Gottehrer and Sheila K. Gottehrer, Guidelines for Ombudsman Institutions ‘How to Handle Complaints’ Part : Reception of Complaints, Personnel and other Procedures, Confidentiality, Bias, Service Equity, Physical Access and Protection Against Retribution (Bratislava Regional Centre, United Nations Development Programme, ). At and l. Marnie Lloydd (ed.), Ombudsman Institutions and Minority Issues: A Guide to Good Practice. Foundational Criteria, Strategic Development and Operational Issues (ECMI, Skopje, ).

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution B. The Importance of Accessibility The above-mentioned principles and guidelines reflect the fact that, as a public body funded by tax revenues, the ombudsman institution must be accountable to the whole of the general public.12 Members of the public may feel unempowered against the administration when a country’s complex web of laws and regulations are disregarded or misinterpreted by civil servants, or when standards of treatment are not maintained. Accessibility is vital, firstly because it ensures that the services are available to the whole population that the office is designed to protect, without discrimination. “The Ombudsman receives complaints only from the most literate, aware or energetic and courageous of our citizens.”13 Society’s most vulnerable groups – including the elderly, children and minorities – often do not approach the institutions able to provide remedies. This may be due to their being uninformed of their rights, being unfamiliar with the mechanisms, not being able to afford the service or the travel to where the mechanism is based, or simply because they do not trust the authorities.14 A European Ombudsman Conference has concluded that at least four conditions must be met to ensure that a member of the public can lodge a complaint: . . . .

an awareness of one’s own rights and the rights of others; knowledge of the existence of complaints procedures; “the absence of fear regarding potential negative consequences of complaining”; and “the confidence that the system is capable of correcting violations”.15

These ideas have been reiterated by ombudspersons: the Parliamentary Commissioner for National and Ethnic Minorities Rights in Hungary has said: “[h]ardly any other public institution has more to do with the idea that the weak are in need of protection against the strong and powerful, than the Ombudsman. There are hardly any bigger  





Ibid., . Julius Nyerere, Freedom and Development/Uhuru na Maendeleo: A Selection of Writings and Speeches - (Oxford University Press, Dar es Salaam, ), , cited in Jeremy Pope, Confronting Corruption: The Elements of a National Integrity System (Transparency International Source Book ), , at ; “One of the basic duties which ombudsmen at all levels should perform is to protect the weak, those who do not have the means of defending themselves against administrative wrongdoing, let alone obtain legal remedies for injury already done to their legitimate rights and interests.” Gaetano Silvestri, “Speech: The Mediator at Regional Level”, in Council of Europe, Making the Protection of Rights More Accessible to Citizens: the Ombudsman at Local and Regional Level, Proceedings, Messina, - November , Studies and Texts No.  (Strasbourg, ), -, at . See generally Ulziibayar Vangansuren, “The Institution of the Ombudsman in the Former Communist Countries”, International Foundation for Election Systems, Paper, July-August , , at . Vangansuren, “The Institution of the Ombudsman …”, , citing Conclusion of the European Ombudsmen Conference, Vilnius, Lithuania, - April , .



Marnie Lloydd differences between positions of power than the difference found between that of a citizen belonging to a minority community and the almighty bureaucracy of the nation state.”16 Secondly, ensuring as wide accessibility as possible allows the institution to collect information (in the form of complaints or queries, as well as investigations) from as wide a sector of society as possible, thereby obtaining an accurate overview of issues faced in the country in question, and in turn being able to report on problems, providing important sources of information to policy makers, researchers and practitioners. Thirdly, ensuring that all members of society can access the ombudsman’s services, and that complaints from all sectors of society are heard, supports public confidence, not only in the ombudsman as an impartial and trustworthy institution, but also in the long term in the functioning of the public authorities as a whole, which is critical in countries having suffered crisis or conflict. C. Specialist Mandates for Vulnerable Communities While the classical ombudsman institution has a mandate as watchdog for general cases of maladministration, the institutions that have been established more recently, and especially following periods of conflict, for example in the countries of the former Yugoslavia, the South Caucasus and the Central Asian Republics, generally focus more directly on human rights issues. This is sometimes referred to as a ‘hybrid’ institution – having features of an ombudsman institution and an NHRI.17 In Europe, there are only two countries with specialized ombudsmen in the area of the protection of minorities: the Hungarian Parliamentary Commissioner for National and Ethnic Minorities Rights, and the Finnish Ombudsman for Minorities. Sweden has an Ombudsman against Ethnic Discrimination; Germany has established a Commissioner for Matters Related to Repatriates and National Minorities at the federal level and, in the state of Schleswig-Holstein, a Commissioner of the Minister President for Minority Affairs. Other countries, including Belgium, Denmark, the Netherlands, Norway and the United Kingdom, have specialized bodies for combating racism or ethnic discrimination, not based directly on an ombudsman model but with some similar functions. In some of these countries, these discrimination bodies can already accept individual complaints, or are developing their mandate so as to be able to. While there are few institutions specializing in minority rights, the mandates of human rights institutions do sometimes place specific value on ethnic issues within their general mandate. For example, the Ombudsperson Institution in Kosovo gives significant attention to the issue of minority protection, particularly as its mandate 





Jenö Kaltenbach, “Special Protection Requirement of Minorities”, in European Ombudsman Institute, Protection of Minorities and Ombudsman Reality, Contributions to the Working Session in Budapest,  May , . For a more detailed description, see Linda C. Reif, The Ombudsman, Good Governance and the International Human Rights System (Martinus Nijhoff Publishers, Leiden and Boston, ), -. See also in this volume, Philip Giddings, “The Ombudsman as Advocate”, .

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution focuses expressly on the receipt of complaints from minorities,18 and on promoting human rights by working on ethnic reconciliation.19 The Human Rights Ombudsman in Bosnia and Herzegovina is instructed with a similar mandate to give “particular priority to allegations of especially severe or systematic violations and those founded on alleged discrimination on prohibited grounds”.20 Another example is the Polish Ombudsman regulation, which “talks in principle about the protection of freedoms and rights, but also adds ‘violation of the principles of co-existence and social justice’”.21 Such a mandate resembles aspects of that of a specialized ombudsman institution for minority issues. As a comparison, the Finnish Ombudsman for Minorities is tasked with promoting good ethnic relations and improving the status and rights of ethnic minorities and foreigners in society, as well as monitoring the realization of equality and non-discrimination.22 Express duties of supporting ethnic reconciliation or promoting good ethnic relations and coexistence show clearly that an ombudsman must offer more to society than simply a complaints-handling mechanism. It has been recommended that the mandate of a NHRI should include “the power specifically to promote and protect the rights of those sections of society which are particularly at risk of violations of human rights, for example, … ethnic minorities … . It should promote the right not to suffer discrimination, as this is often the source and motivation of other human rights violations, such as torture”.23 How exactly an institution should ensure its capacity and mandate to undertake these tasks must be determined by the state in question, and having regards to the situation in its own territory. Whether a separate, specialized institution to protect minorities should be established; whether an institution should be mandated to establish a specialized department or to appoint a deputy for minority rights; or whether such issues should be dealt with generally by a single, national office, are highly debated questions.24  

  

 

Jonas Nilsson, “The Ombudsperson Institution in Kosovo and the Protection of Minorities”,  EYMI (/), -, at . UNMIK Regulation / On the Establishment of the Ombudsperson Institution in Kosovo, Section .. See Christopher Waters, “Human Rights in an International Protectorate: Kosovo’s Ombudsman”, in Linda C. Reif (ed.), The International Ombudsman Yearbook Volume  (Kluwer Law International, The Hague, ), -, at . See also, Ombudsperson Institution in Kosovo, Quarterly Information Sheet, July-September ,  and , in relation to regular meetings between ombudsperson staff and minority representatives. See Reif, The Ombudsman, Good Governance …, . Andrzej Zoll, “The Tools of the Ombudsman Required for Realization of Protection Needed”, in European Ombudsman Institute, Protection of Minorities, . As set out in legislation: Act (/) and Decree (/) on the Ombudsman for Minorities, and Aliens Act (/). For a summary, see Ombudsman for Minorities, Report for the First Year of Operations (Office of the Ombudsman for Minorities, ), . See also in this volume, Mikko Puumalainen, “Building up a Specialized Body”, -. Amnesty International, “Amnesty International’s Recommendations on National Human Rights Institutions”, October , AI Index: IOR //, . See, for example, Marnie Lloydd, “Minority Ombudsperson Project Network Conference Report”, Berlin, - October , -, at .



Marnie Lloydd On the one hand, specialization allows highly focused and skilled work on issues that can be vital for stability and post-conflict development. As court procedures can take a significant length of time, be costly and “often do not lead to satisfactory settlements of conflicts”, “so especially with respect to the prevention of conflicts the establishment of a special mechanism in the form of a minority ombudsman for the protection of minorities against infringements of their rights by political institutions or public authorities seems to be recommendable.”25 On the other hand, it has been argued that specialization of offices can ‘weaken’ the national institution in the eyes of the public, leading to confusion about jurisdiction; it may also simply be financially impossible. Having deputies assigned to separate thematic specializations (e.g. minorities, children, gender) could lead to uneven workloads between the sections of staff. Even where some element of specialization is included in an institution’s mandate, complaints may not be directly about the rights of a minority group or about discrimination. Instead, a more general problem with the authorities (for example, concerning housing, utilities or social rights such as pensions), may affect a particular group disproportionately. Despite these arguments, it is submitted that, at the very least, a special focus on minority communities, and sufficient capacity for dealing with issues affecting them within the mandate of a general, nonspecialized ombudsman institution, is deserved amongst other reasons because of the more vulnerable position in which minority groups often find themselves in. “Their relationship with the rulers is in most cases even more unequal than in the case of the other categories of the ruled.”26 III. Regional Ombudsmen, Field Offices and Having a Local Presence Depending on the geographical size or population of a particular country, as well as on its political structure and extent of decentralization, there may be ombudsman or human rights institutions established in the federal states or provinces as well as at the national level. Alternatively, or additionally, the national institution may establish suboffices in other municipalities. Both arrangements can dramatically increase the contact of communities living outside the capital city with the services of the institution. Most institutions recognize the need for a local presence and allowing face-to-face meetings between the public and representatives of the institution. Certainly, achieving the correct level of representation is considered best practice. Principle () of the ECRI General Policy Recommendation No.  on specialised bodies states that “[s]pecialised  



Christoph Pan, “About the Concept of Minority”, in European Ombudsman Institute, Protection of Minorities ..., . Andrea Krizsán, “Ombudsmen and Similar Institutions for the Protection of Racial, Ethnic or National Minorities: The Case of Discrimination”, unpublished paper, Center for Policy Studies, Central European University, . As the institution is impartial, it is important to acknowledge here that even where an institution places special focus on minority communities, the ombudsman generally does not legally represent the complainants, or in this case, the minority person or group; they are not a ‘client’ of the ombudsman. Instead, the ombudsman is generally a mediator, acting as a go-between for each side of a dispute, but may ‘represent’ the interests of the victims if a complaint has been upheld and implementation of the ombudsman’s recommendations is being sought.

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution bodies should consider, where appropriate, setting up local offices in order to increase their accessibility and to improve the effectiveness of their education and training functions”.27 But difficulties are faced in terms of financial resources, operational and hierarchical structures between head offices and local offices, as well as those between national institutions and regional institutions. Whatever operational structure is used, proper legislative ‘flow’ is required, both vertically and horizontally, to ensure workable and efficient chains of command and control and the sharing of tasks between, for example, headquarters and field offices. For example, it must be decided whether local deputies will have investigative or decision-making capabilities, or merely complaint-processing functions. With regional ombudsmen, who may be established under local government legislation and have therefore no official connections to the national institution, there can be particular problems of jurisdiction, standing or coordination between the institutions. A regional ombudsman’s mandate will generally cover only the local government authorities, whereas the jurisdiction of a field or regional office of the national institution will cover the national authorities’ activities in the region in question. It may be possible for both institutions to cooperate and for the division of competencies to be set out in regulations. Federal states face other difficult structural decisions. For example, in Bosnia and Herzegovina there are currently three separate institutions: the Ombudsman in Republika Srpska, the Ombudsman of the Federation of Bosnia and Herzegovina, and the state as a whole is covered by the Human Rights Ombudsman. However, it has now been proposed that the laws on the two entities’ ombudsman institutions should be revoked, with those offices effectively merging into the one state human rights ombudsman institution.28 This is partly due to public confusion about the areas of responsibility of the different institutions.29 In his previous role as Ombudsman of the Voralberg Region of Austria, Nikolaus Schwaerzler, the former president of the European Ombudsman Institute, has explained that in terms of quantity, it is misguided to have only one ombudsman available for all citizens, or for each village to have its own ombudsman – in both cases, the population would be left without effective access to the ombudsman’s services. He argues that the “ombudsman’s territorial area should be small enough to ensure that each citizen … at least on one occasion for each application may be given an appointment for a personal consultation with the ombudsman. If citizens come up against resistance from the administrative authorities, they should not have to endure the same treatment from the ombudsman. … The ombudsman’s area must be at least big enough to allow, as a general rule, for a qualified ombudsman to be recruited from among its population or

 



ECRI General Recommendation No. : Specialised bodies to combat racism, xenophobia, antisemitism and intolerance at national level, CRI ()  of  June , Principle (). The proposal would see the merged institution being operational from  January . Human Rights Ombudsman of Bosnia and Herzegovina, “Organisation and Functioning of the Ombudsman Institutions in Bosnia and Herzegovina”, , on file with author. Informal comment made by participant from Bosnia and Herzegovina, UNDP Ombudsman Roundtable, Karlovy Vary, - May , notes on file with the author.



Marnie Lloydd to enable the local or regional authority to appoint a highly qualified person as ombudsman, which become less feasible the smaller the area is.”30 In terms of physical or geographical accessibility, it has been suggested that “[t]he maximum distance between citizens and their ombudsman should be no greater than what can comfortably be managed in a return journey in one day and should not present any unreasonable costs for the average citizen.”31 Yet, in many countries the reality is far removed from this ideal and the public can only rely on post, phone, fax or email contact to communicate with the institution, assuming they are informed of its existence in the first place. To put practical arrangements such as the size of the community being serviced by the institution into perspective, it is interesting to consider the difficulties faced in some countries. India provides an extreme example: the Human Rights Commission of India, with its head office in New Delhi, must serve a population of  billion.32 There are also state human rights commissions in  of India’s  states. Complainants can telephone, email or fax a complaint to the National Commission; however, there is no regional representation of the national office.33 In relation to Italy’s regional ombudsman institutions, it has been argued that “the Italian experience of regional ombudsmen shows the importance of their choice of headquarters. The further away they are from the area of action (e.g. communal authorities vis-à-vis the regional ombudsman’s HQ) and from the citizens (e.g. in remote communities), the less effective their work and their requests for action become.”34 This point of view is echoed by a Swiss regional ombudsman who states that “local ombudsmen receive the largest number of complaints [compared to a national institution], partly because they are better known and more directly accessible.”35 Schwaerzler points out that in Austria, the regional ombudsmen (in Voralberg and Tirol – the other seven federal Länder have declared the federal ombudsman board in the capital competent for regional affairs) is called upon to assist . times more frequently than the Austrian ombudsman board in Vienna, even though that body holds regular consultations in the Länder.36 It can also be argued that a locally based ombudsman, whether regional or national, will have the benefit of familiarity with local conditions, languages and/or cultures, which can reinforce the levels of trust between citizen and ombudsman. To

    







Nikolaus Schwaerzler, “Speech”, in Council of Europe, Making the Protection of Rights More Accessible to Citizens ..., -, at . Ibid., at . UN, , cited at . See . Francesco Trimarchi, “Speech: The Ombudsman at the Local Level”, in Council of Europe, Making the Protection of Rights More Accessible to Citizens …, -, at , referring to the  report by the regional ombudsman for Liguria. Andreas Nabholz, “Speech: The Function of the Local or Regional Ombudsman in Switzerland”, in Council of Europe, Making the Protection of Rights More Accessible to Citizens …, -, at . Nikolaus Schwaerzler, “Speech”, in Council of Europe, Making the Protection of Rights More Accessible to Citizens …, -, at .

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution provide some examples within the wider European region, the institutions in Kosovo, Slovenia and Hungary are described below. The Ombudsperson Institution in Kosovo has four field offices (Gjilan/Gnjilane, Peja/Peč, Mitrovica and Priszren), as well as a suboffice in Mitrovica in the northern part of the city, servicing the Serb community there. According to their agreed schedule, the lawyers based in the field offices (usually two per office) visit municipalities, enclaves and other areas with a substantial percentage of non-Albanian ethnicities on at least a monthly basis.37 There are also many open days scheduled each year in these field offices, so that the public can speak directly with the Ombudsman (or his deputy). In the headquarters in Pristina, such an open day occurs twice monthly.38 Lawyers also make visits to regions without field offices to talk with the communities there and collect complaints.39 The latest annual report from the Ombudsperson Institution explains the importance of reaching minority communities: “Since the conflict in , it has not been possible for members of certain non-Albanian communities, in particular the Serbian and Roma communities, to move freely in Kosovo. Instead, they have been confined to their homes, relying most on escorted transport for occasional visits to other places in Kosovo populated by minority ethnicities or to the administrative border with Serbia proper. … At the same time, Serbian enclaves often do not have sufficient means of communication, ordinary forms of communication such as a proper postal service or telephone lines are often non-existent or interrupted.”40 In the former Yugoslavia, the size of the states means travelling distances are not unreasonable. However, for many geographically larger countries it is not possible, for both financial and geographical reasons, to have a local office in all communities. It is difficult to decide which communities should benefit from having an office established in their area and it is not always possible to assume that people will be able to travel to the nearest office in order to meet with ombudsman staff. Even where local offices exist, underresourcing of institutions can mean that it is difficult for staff to get into more remote areas of the field to undertake investigations.41 As such, one useful solution that institutions need to consider is having mobile offices, which tour communities on a pre-advertised schedule. Some institutions have started using such a working method. Although it does not operate with permanent local offices, the Human Rights Ombudsman of Slovenia has explained the importance of having a local presence in the following way: In our desire to be more accessible to people who live in remote parts of the country, we have introduced ‘location work’ away from the office as a regular form of work. In  

  

Ombudsperson Institution in Kosovo, Fourth Annual Report -, ; Jonas Nilsson, “The Ombudsperson Institution in Kosovo …”, at . Ombudsperson Institution in Kosovo, Fourth Annual Report -, . See also Ombudsperson Institution in Kosovo, Quarterly Information Sheet, July-September , . Ombudsperson Institution in Kosovo, Fourth Annual Report -, . Ibid., . Informal comment made by participant from South East Europe, UNDP Ombudsman Roundtable, Karlovy Vary, - May , notes on file with the author.



Marnie Lloydd this way the opportunities of talking to the ombudsman or his deputies have been increased. The aim of our work away from Ljubljana is to ensure the ombudsman’s presence throughout the whole of Slovenia. Work on location has several advantages. The first is the fact that it makes it possible for individuals living a long way from Ljubljana to have a personal conversation with the ombudsman, or a member of his team and explain their problems in more details. The second is that some problems relating to unsuitable work by state bodies and local bodies in the places visited can be remedied through immediate intervention during the visit itself. The visit also has a preventive effect on the work of state bodies and local bodies in the locality in question.42

The Slovenian ombudsman makes use of premises in the visited municipalities that are made available to it free of charge.43 The Hungarian Parliamentary Commissioner also does not have field offices, but does try to visit regions of the country when possible. The  Annual Report explains that “[i]n the absence of personal and material resources, we are unable to conduct national surveys. However, following on the examples of previous years, we found opportunities in  as well to look at some regions of the country on a random basis. This year we visited Gyõr-Moson-Sopron County, … in particular to find out how and at what standards they perform their tasks of assuring the enforcement of minority rights …”.44 The Report continues: “… our primary objective was not to write a report but to establish personal contacts with the beneficiaries and obliges of minority rights. We were able to find out about their problems, achievements and everyday lives. … at our on-site visits we could engage in the exchange of experiences and conversations with the representatives of the minority self-governments and local governments and the heads of minority educational institutions.”45 The National Commission on Human Rights in Mexico recognizes the clear need to be present with communities in order that their grievances may be heard: The strategy employed by the National Commission to investigate human rights violations of the indigenous groups differs from that followed for all other complaints. It is wishful thinking to consider that the indigenous population will send their complaints by mail or come personally to the [National Commission for Human Rights] offices in Mexico City to file a complaint. This is why … inspectors assigned to the Coordination of Indigenous Affairs Office directly visit the various communities in the country and there, in situ, receive complaints and evidence, whereafter they immediately seek conciliation with the authorities and act as witnesses to put an end to conflicts.

   



Human Rights Ombudsman of the Republic of Slovenia, Ombudsman Newsletter No. , December , . Ibid., . Parliamentary Commissioner for National and Ethnic Minority Rights, Annual Report  January- December , at . Ibid.

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution There are at least fifty-six different ethnic groups living in various areas of Mexican territory. It will take time before all of them can be visited, but efforts have begun and results will become apparent.46

In certain circumstances, the ombudsman may feel it necessary to travel outside of the territory of his or her state or region in order to reach all persons within the institution’s mandate. For example, the Ombudsperson in Kosovo has relied on a provision allowing him to offer the services of his office to Kosovars living outside of the territory, in order to visit and intervene with those living and working outside of Kosovo, and the displaced in refugee or internally displaced persons camps.47 Perhaps the most vulnerable to the actions of the authorities are those who have been detained in prisons or hospitals, or those living in refugee camps, as well as children in shelters or asylums. If the ombudsman is to take a proactive role, it is essential that visits are made to such detention centres or hospitals to allow the detained the opportunity to speak privately to the ombudsman or a deputy. To give one example, in , the newly established ombudspersons office in Azerbaijan sent a delegation to some prisons and police facilities, and a hotline for complaints about detention and torture was established following this visit.48 The Public Defender’s office in Georgia has also had significant impact with a prison monitoring initiative beginning in .49 All of these examples highlight the personal and ‘intimate’ nature of the ombudsman’s work, where face-to-face and confidential communication is all-important. Where it is not possible to have local offices or to undertake regional visits, a minimum alternative is to establish connections with other local community organizations, which could at least provide a link between an individual and the ombudsman. An example is the Citizens’ Advice Bureau in many countries.50 Another example are Community Law Centres or law clinics, sometimes attached to university legal departments, which can offer free legal advice to those who cannot afford professional legal representation and which can explain how to access the ombudsman.51





   

Jorge Madrozo, “New Policies on Human Rights in Mexico: The National Commission for Human Rights -”, in Reif (ed.), The International Ombudsman Anthology …, , at -. UNMIK Regulation / on the Establishment of the Ombudsperson Institution in Kosovo, Sections . and .. See Jonas Nilsson, “The Ombudsperson Institution in Kosovo …”, at , citing the First and Second Annual Reports of the Ombudspersons Institution in Kosovo. International Helsinki Federation for Human Rights, Human Rights in the OSCE Region: Europe, Central Asia and North America, Report  (Events of ), Azerbaijan. Informal comment made by participant from Georgia, UNDP Ombudsman Roundtable, Karlovy Vary, - May , notes on file with the author. See, for example, Scottish Public Services Ombudsman, ‘Outreach’, at . Zoll, “The Tools of the Ombudsman Required …”, . Such a suggestion was made during the Scottish Executive Consultation on Proposals for Public Sector Ombudsmen in Scotland. Scottish Executive, “A Modern Complaints System: Consultation on Proposals for Public



Marnie Lloydd IV. General Operating Procedures which Assist with Accessibility A. Operational Regulations It is important for institutions to have their own operating guidelines and manuals, which set out in greater detail than the legislative act establishing the institution how the office is to function. The establishing legislation for the institution often gives the ombudsman the power to draft their own operational guidelines, making it easier for the institution to update them to take into account new conditions as required. B. Modern Operations and Communication Tools The ombudsman is a key institution in a democratic society because it is able to offer flexible, less formal and often tailored solutions to people’s complaints of maladministration by the authorities or of human rights abuses. As such, it can offer a remedy for people’s problems where other mechanisms, such as bringing court proceedings, may be too expensive, adversarial, complicated or frightening. Even leaving aside the proactive role of an ombudsman or NHRI, the traditional reactive role as a solver of public complaints has several features that aid accessibility. First, an ombudsman’s services are free; secondly, the procedures are flexible and there are usually few formal requirements for the submission of a complaint. This flexibility means that the investigation process is also generally much faster than the course of a judicial process. To ensure that people without writing skills or without the majority language are also protected, the institution should offer a service where staff members can help a person formulate their written complaint, or offer translation. Some institutions allow complaints to be lodged orally, by way of telephone call or in person, presumably noted by the officer of the ombudsman52 and then formulated in writing for the complainant to approve and sign. Many institutions facilitate access and information by having an info-line or free telephone service, or even an email address where people who are considering making a complaint can discuss their concerns and receive information about the ombudsman’s services or be directed to a more appropriate institution or service.53 Some institutions’ websites include a sample complaint form. Where a complaint is to be laid by such communication tools, ombudsman staff will nevertheless have to establish the identity of the person calling or emailing.54 In order to be able to offer such telephone services and assistance with translating or formulating complaints, the ombudsman office must



 



Sector Ombudsmen in Scotland”, July , at , Chap. , para. . See, in general, Hans Gammeltoft-Hansen, “The Ombudsman as a Non-Traditional Tool for Citizen Participation”, in Reif (ed.), The International Ombudsman Yearbook …, -, at -. See also, “Information Sheet on Parliamentary Commissioner for National and Ethnic Minority Rights”, at . For example, the Ombudsman for Minorities in Finland. See Ombudsman for Minorities, Report for the First Year of Operations (Office of the Ombudsman for Minorities, ), . Gottehrer and Gottehrer, Guidelines for Ombudsman Institutions ..., .

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution ensure that its staff is representative of the whole society, including having staff members from minority communities.55 The language policy of the office should be inclusive to ensure that minority communities are able to approach the ombudsman office using the language they feel most comfortable in.56 The explanatory report to the FCNM stipulates that Article (), which safeguards the right to use a minority language in relations with administrative authorities, must be interpreted so as to include ombudsmen.57 In terms of staffing, it is not only necessary that the office itself reflects the ethnic diversity of the community but, in addition, that the office consults regularly with representatives of civil society, representing the interests of more vulnerable groups.58 An important difference in procedure in comparison with judicial proceedings is also that the complainant can potentially be more directly involved in all stages of the complaint and investigation. Personal contact between the ombudsman (or his or her officer) and the complainant, as well as between the ombudsman and the body being investigated are key to the operations of the ombudsman institution. Submitting a complaint often involves face-to-face discussions with the ombudsman or their staff members, who can also help the complainant to formulate their complaint in writing. Copies of all information and correspondence should be sent to the complainant, who, ideally, may then assist in directing the ombudsman’s activities or investigations to some extent, voicing preferences for steps to be taken.59 As such, the ombudsman’s procedures have an immediacy, which other remedies may not be able to offer. C. Restrictions on Accessing the Ombudsman’s Services Many institutions impose a number of basic conditions before a complaint can be accepted. It is often a condition of a complaint being accepted by the ombudsman that all other legal measures available to the complainant are first exhausted, or that such measures do not exist, are unduly prolonged or are ineffective.60 Authorities should have their own internal complaints procedures, and the ombudsman will often direct a complainant to go through these procedures before submitting a complaint to the ombudsman. Most institutions would allow complaints to be lodged directly with the ombudsman without prior screening, although depending on the institution’s mandate, this does not necessarily mean that the complaint will eventually be accepted as admissible.      

See Lloydd (ed.), Ombudsman Institutions and Minority Issues …, -. Ibid., -. CAHMIN () , th Meeting, - October , Meeting Report, dated  October , para. . Amnesty International, “Amnesty International’s Recommendations …”, . See also, Lloydd (ed.), Ombudsman Institutions and Minority Issues …, -, - and . See, in general, Gammeltoft-Hansen, “The Ombudsman as a Non-Traditional Tool …”, -, at - and . For example, in Cyprus, Malta, Slovenia, Hungary and Estonia. See Zoll, “The Tools of the Ombudsman Required …”, . See also, Alexander H. E. Morawa and Marnie Lloydd, “Ombudspersons and Minority Rights – A Sketch”, Background Paper for the Minority Ombudsperson Project (ECMI, Flensburg, ), .



Marnie Lloydd A few countries require a complainant to raise his or her complaint first with a member of parliament, who may then lay the complaint formally with the ombudsman.61 Generally, however, it is now strongly advised against such a prerequisite, as it weakens the independence of the institution and the public’s willingness to confide in it. Time restrictions for making a complaint are common; there may be, for example, no jurisdiction for acts occurring before the establishment of the institution, or for complaints laid after more than  months. 62 There may also be restrictions in mandate, covering the persons from whom the ombudsman may accept complaints, as well as the public bodies that can be investigated. Anonymous complaints are often not allowed (although generally the ombudsman could take up an own-initiative investigation if the information presented so warranted). Often national regulations do not set out specifically who the protection is to cover: whether only private individuals, i.e. that the complaint be submitted by the person directly affected by the action complained of; or whether complaints can be made by a close representative of the person affected,63 corporate bodies, local self-government authorities or by an NGO or group;64 and whether only citizens can access the ombudsman as opposed to any person present in the state.65 The Hungarian Parliamentary Commissioner for National and Ethnic Minorities has said: “Accessibility can also be defined in terms of permitting the broadest spectrum of persons to make complaints to the ombudsman. For example, lack of citizenship or residency status should not be barriers to access”.66 Again, one solution to such a restraint on the mandate of the institution is for the ombudsperson to use their right of an own-initiative investigation, to ensure that the complaint is examined appropriately.67







   



This is the case, for example, for ombudsman institutions in the United Kingdom and France. See, for example, Daisy de Asper y Valdes, “The Self-Perception of the Ombudsman: A Comparative and Longitudinal Survey”, in Reif (ed.), The International Ombudsman Yearbook …, . For example, the Hungarian Parliamentary Commissioner for National and Ethnic Minorities cannot accept complaints about matters initiated before its establishment on  October  or if the complaint concerns a legal decision that is over  months old. “Information Sheet on Parliamentary Commissioner for National and Ethnic Minority Rights”, at . For example, the Indian Human Rights Commission, which states “Complaint may be made to the Commission by the victim or any other person on his behalf.” See . Ombudsperson Institution in Kosovo, Rules of Procedure, Definitions Section, : ‘Applicant’, adopted  November .. Zoll, “The Tools of the Ombudsman Required …”, . See Reif, The Ombudsman, Good Governance and the International Human Rights System … , . See ibid., in relation to the European Ombudsman.

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution D. Powers, Independence, Integrity, Standing In order to have the respect of the population, the ombudsman must have sufficient powers to carry out his or her work effectively, including carrying out investigations properly, and have the necessary independence and status so that recommendations are not ignored by the authorities. The effectiveness of the ombudsman in this regard is hard to measure; however, the proportion of his or her recommendations followed by public bodies and the level of attention devoted by parliament to the institution’s annual or other reports can be indicators. In addition, the trends seen in the number of public complaints made, as well as in their geographical, ethnic or subject matter spread can show how the general public generally has knowledge of, access to, rates or trusts the institution.68 Although difficult to measure, it is crucial that the general public has faith in the ombudsman’s ability to bring about positive results to remedy their concerns. In countries going through or having recently been through a democratization process, the institution must work towards rebuilding society’s trust in the public authorities.69 Principle () of the ECRI General Policy Recommendation No.  on specialised bodies provides that “[s]pecialised bodies should operate in such a way as to maximize the quality of their research and advice and thereby their credibility both with national authorities and the communities whose rights they seek to preserve and enhance”. As a general rule, there is an obvious correlation between the respect shown to the ombudsman institution by the authorities in following the institution’s recommendations, and the level of respect held for the institution by the general public. In certain post-conflict situations, an international ombudsperson will be appropriate if all communities are to feel that they can turn to the services of the institution. For example, both the Ombudsperson Institution in Kosovo and the Human Rights Ombudsman of Bosnia and Herzegovina have made use of international ombudsmen.70 To provide some balance to this, and to ensure that the institution represents the ethnic mix of the community it is intended to serve, deputy ombudsmen and other staff are often appointed with an appropriate balance from the various ethnic groups within the country.71 

 



See, for example, Ivan Bizjak, “Effectiveness of an Ombudsman Institution”, Paper for th UNDP International Workshop on Ombudsmen and Human Rights Institutions, Almaty, - November , at . See also, Christopher Waters, “Human Rights in an International Protectorate: Kosovo’s Ombudsman”, in Reif (ed.), The International Ombudsman Yearbook …,-, at . See generally Reif, “Building Democratic Institutions ..., - and id., The Ombudsman, Good Governance and the International Human Rights System …, -. The Polish human rights lawyer Marek Antoni Nowicki was appointed the first Ombudsperson of Kosovo and is still currently serving in this role. The former Speaker of the Swiss parliament and former Swiss Permanent Representative to the CoE, Dr. Gret Haller was appointed first Human Rights Ombudsman in Bosnia and Herzegovina, and former Swedish Ombudsman against Ethnic Discrimination and judge Frank Orton was the second. Orton completed his duties in January . For example, there are three ombudspersons in the federal ombudsman institution of Bosnia and Herzegovina and Art. , Chapter II.B of the Constitution of the Federation of Bosnia



Marnie Lloydd Having the ombudsman offices in a separate building or at least a building with no other government agencies aids confidentiality and helps to ensure that the public do not fear retribution if they are identified as visiting the ombudsman.72 “Commentators have also stressed the importance of seemingly minute details of an Ombudsperson’s independence, including the physical separation of Ombudsperson offices from government buildings. As well as maintaining an image of independence from the government, this also helps to ensure that members of the public do not feel threatened or ‘observed’ if visiting the offices of the Ombudsperson. This is even more important in transition states where trust of authorities and administration may need rebuilding.”73 “NHRI offices must be stationed in appropriate places – unfortunately Amnesty International has received reports of NHRI offices being located near military installations or police stations. In such cases, potential complainants may fear being noticed or monitored by the security forces if they bring their complaints. Amnesty International has received other reports or offices being intimidatingly smart or located in very upmarket areas, so that the poor and other disadvantaged groups feel too uncomfortable and conspicuous to be seen going there.”74 V. Media Relations, Reporting and Ethnic Data Collection A. Media Strategies and Reporting … citizens are not properly aware of their rights, and they do not know which authority or institution is competent to deal with the problem. Hence, the ombudsman institutions and civil society organizations in the former Soviet countries need to educate the public about their rights.75

A physical or geographical presence is only valuable if people living in the particular region are aware of the institution and its services and have faith in its ability to help them. This makes a media or publicity campaign essential. Many ombudsman institutions recognize the educative role as one of their important functions, and this in all its facets – initiating public debates, teaching about the rights of minorities and about racism, making public the results of investigations and studies, establishing codes of good practice, as well as educating the public authorities about the ombudsman institution and about human rights and social equity. The media can also be used as a tool to achieve an institution’s work and put some pressure on certain agencies by threatening publication of the complaint against them, or of their failure to comply with the ombudsman’s recommendations or acknowledge his correspondence. However, more directly, the ombudsman must educate the public about its own role, their rights

   



and Herzegovina requires one Bosnian, one Croat, and one “Other”. Gottehrer and Gottehrer, Guidelines for Ombudsman Institutions ..., . Morawa and Lloydd, “Ombudspersons and Minority Rights …”, citing also Vangansuren, “The Institution of the Ombudsman …”. Amnesty International, “Amnesty International’s Recommendations …”, . Vangansuren, “The Institution of the Ombudsman …”, .

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution and how they can access the ombudsman’s services. What is important to recognize is that the public needs information on what the ombudsman institution can do, as well as what it cannot do.76 In her first annual report, the Ombudsperson of Azerbaijan reported , submissions between October  and December , only  % of which were declared admissible.77 Similarly, the Ombudsperson in Armenia received , complaints in , with only  of those being accepted for attention by the institution.78 It is not only the newly established institutions such as those in Azerbaijan and Armenia where this can become an issue; rather, all ombudsman institutions need to be aware of the need for a continuing media strategy. In , the number of cases taken on by Hungary’s Parliamentary Commissioner for Minorities jumped significantly from  and  cases in  and  respectively, to  in . However, it is interesting to note that in ,  cases ( %) did not fall under the scope of the Parliamentary Commissioner’s jurisdiction (compared with  % such cases in ,  % in  and  % in ).79 It could be surmised from such figures that public awareness of the Commissioner has certainly grown, given the larger number of complaints being made. However, since many institutions have to operate with limited human and financial resources, a media and information strategy needs to include information on the scope of the services that can be provided, as well as explaining what falls outside of the admissibility criteria. The institution’s media strategy forms part of its mandate to communicate with society, to share information about human rights violations, about the protection of rights and about its own functions. The strategy should envelop not only the provision of relevant information but also seek feedback from the public in order to gather information, for example, undertaking surveys to gauge public knowledge, opinion, or seeking feedback about the ombudsman’s reports. A public survey carried out by the Seimas Ombudsmen’s Office in Lithuania in  found that over  % of the respondents were of the opinion that there was no use in defending violated rights in their country. This opinion group was disproportionately represented by the elderly and those from rural areas. They also found out which percentages and what sections of society would be more likely to use the court system or to approach the ombudsman.80 There are multiple ways a public information campaign can be undertaken: brochures, information sheets, posters, a website, newsletters, magazines, books, stickers, flyers, special reports. Many institutions emphasize the ombudsperson as a trusted    



See Lloydd (ed.), Ombudsman Institutions and Minority Issues …, . International Helsinki Federation for Human Rights, Human Rights in the OSCE Region: Europe, Central Asia and North America, Report  (Events of ), Azerbaijan. International Helsinki Federation for Human Rights, Human Rights in the OSCE Region: Europe, Central Asia and North America, Report  (Events of ), Armenia, . Source: Annual Report of the Parliamentary Commissioner for National and Ethnic Minorities,  January- December ,  January- December ,  January- December ,  January- December . Here the percentages are taken from my own calculations based on the raw data given in the annual reports, as the percentages provided in the annual reports do not always seem to match the data tables. Seimas Ombudsmen of the Republic of Lithuania, Annual Report of : Summary (Vilnius, ), .



Marnie Lloydd community figure, always showing a photo of him or her on the homepage of the institution’s website and at the front of annual reports, and providing some biographical information. Many ombudspersons are involved directly with the media, for example, both the Ombudsperson in Kosovo and the Slovenian Ombudsman have regular newspaper columns, discussing topics of relevance to their work in society.81 The ombudsperson may be involved with radio broadcasts, giving interviews or having a weekly slot. Radio can be an important tool to reach certain people who do not have written language skills or access to television or Internet. Institutions may also make use of the media to educate and release information on current events or about issues important to society, for example, television or print news media, but also television documentaries or films. On a more practical level, even the position of the building and its signage can be important for the institution’s image in the community, and staff should make use of business cards and letterhead writing paper. A publicity campaign can raise the profile of the ombudsman inside the country and internationally, and gives the ombudsman a ‘public face’. Reports and newsletters allow the public to see that their ‘peers’ are using the service, or that their own complaint is not too ‘small’ or ‘trivial’ to be brought to the attention of the ombudsman. While such publicity will undoubtedly increase the number of complaints or enquiries made to the ombudsman and, therefore, the office’s workload, such growth must be taken into account by the ombudsman’s operational plan and financial budget. The ombudsman institution can use the experience and knowledge gained from the individual complaints to apply to its activities seeking to improve matters generally. Certain reporting is compulsory and set out in the institution’s founding legislation, for example, having to submit an annual report to parliament. Thus, the information contained within such a document can be utilized to provide information to the public, summarized into an appropriate form. Even with this starting point, media campaigns can be very expensive and it is likely that financial resources for the costs of planning and production may be an issue for many institutions. In , the National Ombudsman of the Netherlands implemented an information strategy and publicity campaign, being awarded a supplementary budget for such initiatives by the government.82 Some institutions have secured funding for information materials from international organizations such as the OSCE or UNDP, either as a separate project or as one component of a general programme supporting an institution. For example, the OSCE Spillover Mission in Skopje and the OSCE Mission to Croatia have both been involved in ombudsman initiatives to assist with outreach campaigns and trying to ensure a regional presence.83 Such projects have the benefit of being able to include evaluation elements into the overall project, undertaking public knowledge surveys before and after a campaign to gauge the impact of an initiative. In certain circumstances, generally post-conflict, international organizations may also be involved with media campaigns to raise public awareness of human rights generally, including the   



Electronic versions of the Ombudsperson in Kosovo’s “Off the Record” column are available at . The National Ombudsman of the Netherlands, Annual Report : Summary (The Hague, March ), . At and .

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution ombudsman’s office as a part of that overall democratization and rule of law campaign.84 In order to create synergies, ombudsmen and NHRIs can also make good use of partnerships with appropriate civil society organizations, which may be able to disseminate information about the institution. All such public information should be made available in the official languages of the state, as well as in as many of the languages of the various communities living in the state as possible. To give an example, the office of the Local Government Ombudsman in England produces information in ten languages as well as English.85 Certain parts of the website of the Swedish Ombudsman against Discrimination are translated into  different languages, and although the complaint forms are only available in Swedish, the website makes clear that the complaint does not have to be written in Swedish.86 B. Data Collection, Confidentiality and Statistical Reporting As set out above, almost all institutions are compelled by their founding legislation to submit regular reports, generally in the form of an annual report submitted to parliament. Reports generally outline the activities and focus areas of the institution, including relations with the media, staff developments, international engagements such as conferences attended etc., summarize interesting cases dealt with, recommendations made and the authorities’ reactions to them, including legislation commented on, and possibly also an assessment of the human rights situation in the country. Financial information will generally also be given. Such reports provide an excellent opportunity for the institution to set out valuable information, not only about their activities and the complaints dealt with, but also providing data about the nature of complaints received, the ethnic communities complaints are received from, their geographical spread, the authorities complained about and so forth. The collection of statistical data including personal information such as age or ethnicity is a very polarizing topic. In relation to ethnic data, while some human rights practitioners consider such data essential for the planning of future projects and policies to improve protection for minority groups, some minority representatives feel the collection of such data is in itself a breach of privacy, and find the classification of people into ethnic or cultural groups threatening. Each country will therefore have its own law about the collection of such information. It is submitted that ethnic data collection is necessary if cases of discrimination are to be properly identified and the extent of social discrepancies are to be properly recorded. Although the ombudsman will not be collecting ethnic data for the sole purpose of collecting such data (which would normally   

Christopher Waters, “Human Rights in an International Protectorate: Kosovo’s Ombudsman”, in Reif (ed.), The International Ombudsman Yearbook …, -, at . Patricia A. Thomas, “Speech”, in Council of Europe, Making the Protection of Rights More Accessible to Citizens …, -, at . See also . Additionally, the complaint form does not have to be used – a letter will suffice provided the identity of the complainant is clear, as is who or what is being complained about, the situation that occurred and why this concerns ethnic discrimination, as well as what the complainant wants the ombudsman to do. See “This is How the DO Works” at .



Marnie Lloydd be undertaken by an executive agency), nevertheless it will collect such information in the normal course of its work. “Collection of data should be a by-product of day to day work, rather than an aim in itself.”87 The Hungarian Parliamentary Commissioner for National and Ethnic Minorities does record the ethnicity of persons involved in its cases, as well as reporting on the territorial breakdown of cases by county (although percentage population figures are not given). In , from the  cases dealt with, those concerning Roma made up  % of all cases. The next largest set of cases involved Germans ( %). These figures were very similar in  and  ( % Roma and  % German from  total cases, and  % Roma and  % German from  total cases respectively). As many of the institutions in Europe are still relatively young, it is not yet possible to analyze or compare a full set of annual statistics over, say, a ten-year period. Often the first year of operation is, out of necessity, focused on setting up the institution, establishing internal procedures and raising public awareness about the office.88 Different institutions face different hurdles during this establishment period, often operating with a limited budget, an overwhelming stream of complaints and sometimes an unsupportive government. However, certain institutions do include well-illustrated basic statistics about complaints and investigations in their annual reports. Statistics must be meaningful and comparable. While it is useful to have a geographical breakdown of the source of complaints, without statistical information about the populations in each region or town, the numbers can only provide a certain level of information – for example, a short manual about the work of the Ombudsman of the Republic of Macedonia provides clear and detailed statistical information about the state bodies complained about, the subject matters of complaints, and the number of cases completed, pending, rejected or resolved in other ways. It also provides a breakdown of complaints according to location of the complainant. Population figures for the cities and towns listed are, however, not provided.89 Figures can be misleading because the largest population figures are generally in the capital city. For example, the Report for the First Year of Operations of the Ombudsman for Minorities in Finland informs us “[m]ost customers come from the Helsinki metropolitan area”.90 The Slovenian Ombudsman’s Annual Report for  provides a good example of how statistics can be presented. It provides statistical tables and graphs, as well as a brief narrative explaining how the figures can be read and/or interpreted, and noting any additional relevant information. It also makes comparisons of figures from previous years. The Report provides useful data by analyzing the number of cases not only by region but also in terms of the number of cases per , inhabitants. The figures show that the capital city Ljubljana had the highest number of cases (. per thousand inhabitants) indicating the greatest level of accessibility.91     



Amnesty International, “Amnesty International’s Recommendations …”, . See, for example, Ombudsman for Minorities, Report for the First Year of Operations (Office of the Ombudsman for Minorities, ),  and . “The Ombudsman of the Republic of Macedonia”, Manual, undated, -. Ombudsman for Minorities, Report for the First Year of Operations (Office of the Ombudsman for Minorities, ), . Human Rights Ombudsman of the Republic of Slovenia, Annual Report , -.

Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution The general subject matter of complaints should also be recorded in annually comparable categories. Some annual reports in fact show very few complaints directly related to the rights of members of minorities. For example, Macedonia notes only one such complaint about “the rights of members of the non-majority communities” in , and five complaints in .92 Similarly, the  Annual Report of the Human Rights Ombudsman of Slovenia states that it received fewer complaints in  than in the previous year relating to the rights of ethnic and other minorities. It also did not receive one single complaint of discrimination on the basis of nationality or ethnicity, although it is quick to point out that “[t]his does not mean, however, that [it] did not receive such cases in connection with the violation of rights in other areas under the ombudsman’s jurisdiction.”93 Therefore, it seems clear that issues affecting minority communities are often included within other topics, such as housing, social rights, police activities, or employment. However, even so, the Slovenian Annual Report continues: “… even after checking key words in the complaints, [it] could not find many that might indicate discrimination based on nationality, race or ethnicity in the claiming of various social and other rights”.94 Yet, the introduction to the report mentions, specifically, issues of “intolerance towards those who are different” and issues affecting the Roma community as something that the ombudsman has constantly drawn attention to, repeating the proposal made in its  Annual Report that Slovenia requires a national institution for monitoring discrimination and intolerance.95 There is a clear indication, therefore, that in this case the recorded complaints do not reflect the reality of issues faced. This supports the argument that special attention is required to ensure that communities facing discrimination or other issues are able to access the ombudsman’s services. Such statistical information can be effectively used for the future development and strategic programming of the institution. When analyzed and reported on appropriately, such information can also be of great use to policy makers to ensure that policy to combat such problems will be effective and efficient. The institution’s reports can provide a wealth of information for researchers and practitioners involved with the human rights environment of a country, in democratization and rule of law projects, and those examining ethnic relations. The ombudsman can also be an excellent source of information for international human rights mechanisms, such as the Human Rights Committee or the Advisory Council for the FCNM.96 Data that is comparable across different countries can provide insight into regional issues. While such information should be collected and reported on, confidentiality of actual identity remains a key tenet of the ombudsman’s work. Some institutions will contact the complainant by mail, telephone or email, while email is prohibited by some     

“The Ombudsman of the Republic of Macedonia”, Manual, undated, . Human Rights Ombudsman of the Republic of Slovenia, Annual Report , . Ibid. Ibid., Introduction, . See Rianne M. Letschert, “Ombudsman Institutions and International Minority Rights Mechanisms”, Paper presented at the Ombudsman Institutions and Minority Rights Workshop, European Centre for Minority Issues, Ohrid, – October . See also in this volume, Letschert, “Towards Increased Cooperation between National Ombudsman Institutions and International Minority Mechanisms”, -.



Marnie Lloydd institutions on grounds of confidentiality and the risk that the message can be read by others.97 As a comparison, it is interesting to note that the website of the Swedish Ombudsman against Discrimination warns expressly that “[a]s a rule complaints that are submitted to the DO become public documents which means that anyone who asks can see the complaint”.98 In this regard, the CoE has recommended: “guaranteed confidentiality and, when publicised, anonymity of investigations”.99 Similarly, the Ombudsman Legislative Resource Document published by the International Ombudsman Institute recommends legislative language that assumes confidentiality “except as the Ombudsman deems necessary to discharge [his] duties … and to make reports … ”.100 Also, it has been recommended that “[a]lthough there should be an assumption in favour of transparency, particularly in reports and the findings of investigations, in such publicity, care should be taken that sensitive details which could lead to complainants, their families, witnesses and human rights defenders being put in danger, or which leads to an invasion of their privacy should not be released.”101 Confidentiality allows the public to have confidence in the institution and to overcome the fear of retaliation or further problems if they make a complaint. The right of confidentiality can be waived, and at times must be, in order for a complaint to be able to go ahead, and so that the person or authority complained about can provide a proper response to the allegations laid against it. A good office confidentiality policy can also be used as an argument to encourage complainants to ‘open up’ to intake officers more freely and provide more information. VI. Conclusion The real ‘success’ of an ombudsman institution is extremely difficult to evaluate, as are projects undertaken by organizations to support an office or a particular aspect of its work. On a short-term basis, a verifiable indicator for a project seeking to improve an institution’s accessibility may in fact be that the number of complaints received increases, as the public becomes more aware of its rights and the role of the office, and as the office becomes more accessible to the public. In the longer term, however, it would be hoped that the human rights situation in the country improved, and that the operations of the national authorities fall more and more in line with the rule of law, with the ultimate result that less complaints would be submitted.



See, for example, the Swedish Ombudsman against Discrimination, “This is How the DO Handles a Complaint”, at , which specifically states that email will be used. Compare Gottehrer and Gottehrer, Guidelines for Ombudsman Institutions ..., , which explains that ombudsmen often warn complainants using email that email is not secure and confidentiality cannot be guaranteed.  Swedish Ombudsman against Discrimination, “Making a Complaint”, at .  Council of Europe Parliamentary Assembly Recommendation  () on the Institution of Ombudsman,  September , at (xii).  Gottehrer and Gottehrer, Guidelines for Ombudsman Institutions ..., .  Amnesty International, “Amnesty International’s Recommendations ...”, .



Removing Barriers – The Accessibility of an Ombudsman or National Human Rights Institution Recalling the four conditions required for public access to the ombudsman institution mentioned earlier, it can be seen that the first two – having an awareness of one’s own rights and the rights of others, and having knowledge of the existence of the complaints procedures – rely heavily on the ombudsman institution itself and its media and public information strategy. The latter two – the absence of fear regarding the negative consequences of complaining, and having confidence that the system is capable of correcting violations – are more difficult to implement and rely to a greater extent on development within society as a whole. Nevertheless, an ombudsman institution – and/ or an organization involved in its support – should remain aware of steps that it can take to review processes and operational set-up, in order to enhance independence, respect from government and society, and proactive structural work. Accessibility encompasses all of these. Accessibility is vital for the implementation of human rights and for access to justice, albeit from an alternative source to the traditional judicial system – but often a source well-suited to reaching vulnerable groups. Accessibility encourages citizen participation, giving members of minority groups a voice in their state; having important issues recorded and documented, and with time, faced up to by the authorities. While a consideration of accessibility issues by ombudsman and human rights institutions, as well as by organizations working in the human rights field, can therefore only be of benefit to improving the daily operations of an institution, crucially, projects must also focus on educating the government about the role of and need for the institution. Although politically difficult in some circumstances, the reviews and good practice mentioned in this article cannot succeed effectively without sustainable and stable financial support from the state.



Rianne Letschert *

Towards Increased Cooperation between National Ombudsman Institutions and International Minority Rights Mechanisms

I. Introduction In his second reform report to the General Assembly on the Strengthening of the United Nations of September , United Nations Secretary-General Kofi Annan highlighted the importance of building strong human rights institutions at the country level. He underlined that the emplacement or enhancement of a national protection system in each country, reflecting international human rights norms, should be a principle objective of the organization. The Secretary-General noted that this is what in the long run will ensure that human rights are protected and advanced in a sustained manner.1 Many countries have indeed established ombudsman institutions or national human rights institutions (including both ombudsmen and human rights commissions) entrusted with the task, among other things, to ensure that human rights are respected and protected at the domestic level.2 Ombudsman institutions in general may take different forms. “Some would narrow the label of ‘ombudsman’, applying it only to a national parliamentary ombudsman; others would widen the definition so as to also include human rights commissions, petitions committees and private sector ombudsman structures. Given the multitude of different forms, an exact definition of ‘ombudsman’ is difficult to provide.”3 Only ombudsman institutions that are competent to address human

* 

 

Rianne Letschert works as senior researcher and general manager of the International Victimology Institute Tilburg . Strengthening of the United Nations: an Agenda for Further Change, Report of the SecretaryGeneral to the General Assembly,  September  (A//). See also the Paris Principles Relating to the Status of National Institutions for the Promotion and Protection of Human Rights, GA Resolution / of  December , annex, which provides minimum guidelines for the establishment, competence, responsibilities and composition of national human rights institutions. This article will use the term “ombudsman institutions”. Marnie Lloydd (ed.), Ombudsman Institutions and Minority Issues: A Guide to Good Practice, Foundational Criteria, Strategic Development and Operational Issues (ECMI, Flensburg, ), .

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 247-267. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Rianne Letschert rights issues are of relevance for this article. More particularly, the emphasis will be on a specific category of human rights, namely minority rights. The continuing emergence of minority problems in numerous countries, coupled with social tension and violence, requires that ombudsman institutions pay specific attention to minority rights issues. Most ombudsman institutions are competent to deal with minority rights issues within their general human rights mandate. Note, however, that some countries have established specialized minority ombudsman institutions (e.g. Hungary, Finland and Germany).4 Their mandates enable these institutions to devote all their time to minority issues and to develop the required expertise in this particular field. For larger general institutions, this might be more difficult to realize, considering their broader mandate. Nevertheless, general institutions in countries with minority groups could be confronted with specific minority issues and should therefore have the relevant expertise and knowledge to address such issues. A way to achieve this is by appointing an officer or specialized department entrusted with the task of carrying out activities in the field of minority protection.5 The reasons why ombudsman institutions (general or specific) are well-suited to addressing specific minority rights issues is that national institutions “are able to communicate directly with marginalized communities and state authorities on key concerns”. Moreover, “as an independent advisory authority vis-à-vis government in respect of human rights at the national and/or international level, a national institution can systematically review the government human rights legislation and policy in order to suggest ways of improving it”. Lastly, “a national institution’s ability to initiate inquiries and campaigns on its own behalf allows it to engage effectively in major human rights concerns”.6 The specific functions of ombudsman institutions, through which they can contribute to the promotion and protection of the rights of persons belonging to minorities have been enumerated as follows: – Advisory functions: advice and recommendation on legislation and/or policy relating to minorities (policy/legislative function); – Promotional activities: enhancing public awareness/education on the rights of minorities (educational function);



 



I will not further address differences between general national institutions and specialized minority institutions, considering that my remarks will be relevant for both types of institution. See, for more information on different forms of ombudsman institutions, Marnie Lloydd and Alexander H. E. Morawa, “Ombudspersons and Minority Rights, a Sketch”, Background Paper for the Minority Ombudsperson Project, ECMI, available at , and Andrea Krizsán, “The Role of Specialized Bodies in Regulating Racial Discrimination: The Special Case of the Hungarian Minority Ombudsman”, Paper presented at the conference Voice or Exit: Comparative Perspectives on Ethnic Minorities in th Century Europe, - June , Humboldt University, Berlin, . See also Lloydd, Ombudsman Institutions … . See also M. Lloydd, Ombudsman Institutions … , . Enumerated in the th Draft Pamphlet to be included in the United Nations Guide for Minorities, disseminated at the th UN Working Group on Minorities, , on file with the author.

Towards Increased Cooperation between National Ombudsman Institutions –

Remedial actions: complaint handling and quasi-judicial functions (investigative/ enforcement function).7

In exercising these tasks, it is argued that ombudsman institutions could benefit from activities carried out by international minority rights mechanisms. This article will explore the relationship between what I consider the three core international minority rights mechanisms – the UN Working Group on Minorities, the OSCE High Commissioner on National Minorities and the Council of Europe (CoE) Advisory Committee under the Framework Convention – and national ombudsman institutions. The aim is to demonstrate how ombudsman institutions and international mechanisms working in the field of minorities could make use of each other’s activities in order to effectively carry out their own tasks. The role of ombudsman institutions in promoting and monitoring the implementation of minority rights on the domestic level must not be underestimated. Together with the international mechanisms that aim to promote the implementation of minority rights, they serve as an important catalyst towards the actual realization of minority rights at the domestic level.8 International mechanisms and ombudsman institutions thus have partly similar aims and should therefore increase cooperation to achieve the aims set. The three international minority rights mechanisms have a variety of approaches and working methods at their disposal to carry out the mandates given. The common denominator of the approaches and working methods seems to be their non-judicial nature.9 A short overview will first be given of the development of the mandate and







Ibid., . For a further elaboration of these functions, see also the Conference Report from the Minority Ombudsperson Network Conference, - October , ECMI, , at . Note the st conclusion of the Chairman following the consultation of ombudspersons on the enhancement of minority issues in Europe through ombudsmen institutions: “While emphasizing the need to consolidate and continue the development of such standards and best practices, it was noted that significant steps should also be taken to strengthen mechanisms supporting their implementation. Ombudspersons’ institutions, or commissions exercising a similar remit, play an important role in that respect, complementing other implementation mechanisms”. Gwendolyn Sasse, “Chairman’s Conclusions of the Consultation on Ombudspersons and Minority Issues in Europe”, Meeting Report,  September , Flensburg, Germany, , at . See also Lloydd and Morawa, “Ombudspersons and Minority Rights … ”, , where it is stated that “as the network of international legal obligations relevant to minority issues has grown even denser in Europe, the need to ensure that these can be implemented effectively at the domestic level has increased”. This article will not address cooperation with international judicial bodies such as the Human Rights Committee (HRC) or the European Court of Human Rights (ECtHR). What could be noted here is that the ombudsman should promote the use of the international individual complaint mechanisms. Furthermore, the ombudsman could give legal advice on how to submit a claim. Moreover, the ombudsman could play a role in the implementation of the decision made by the international mechanism and should have knowledge of judgments of international judicial bodies. See also Rianne M. Letschert, “Ombudsman Institutions and International Minority Rights Mechanisms”, Paper pre-



Rianne Letschert working methods of the three minority mechanisms.10 Secondly, an analysis will be made of areas in which ombudsman institutions and the three mechanisms could benefit from each other’s work. II. The High Commissioner on National Minorities The instrument of the High Commissioner on National Minorities (hereafter High Commissioner or HCNM) was established at a time when Europe was witnessing dramatic intra-state conflicts resulting from different minority tensions. The OSCE participating states believed that adopting an instrument specifically devoted to minority tensions could prevent the outbreak of such conflicts in the future. The HCNM was therefore established as an instrument of conflict prevention, not as a mechanism to monitor the implementation of minority rights provisions within the OSCE participating states. Hence, the mandate contains no provision stating that the High Commissioner should promote the application of OSCE commitments, either those regarding national minorities or other OSCE norms. However, his work should be “based on CSCE principles and commitments”.11 The first High Commissioner has developed the practice of frequently referring to minority rights provisions when urging governments to implement and comply with minority rights legislation and related policies. Among these provisions are documents concerning specific minority rights such as the OSCE Copenhagen Document, the UN Declaration on the Protection of Persons Belonging to National or Ethnic, Linguistic or Religious Groups and the CoE Framework Convention for the Protection of Minorities. He also referred to other more general international human rights law, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. He used these documents to support his recommendations to, for instance, allow the establishment of schools in which the minority language would be taught.12 His engagement with minority rights norms is further demonstrated through the elaboration of the various guidelines initiated by his Office. These guidelines serve as a further clarification of existing norms, aiming to guide states in the implementation of minority rights and policies. These guidelines are the Hague Recommendations









sented at the Ombudsman Institutions and Minority Rights Workshop, - October , Ohrid, at . For a thorough overview of the aims, working methods and shortcomings of these three mechanisms and their ability to exert an influence on the implementation of minority rights see Rianne M. Letschert, The Impact of Minority Rights Mechanisms (Asser/Cambridge University Press, Cambridge, ). See Paragraph II. Helsinki Decisions, contained in the document of the Helsinki Followup Meeting, The Challenges of Change, which was adopted on  July  by the OSCE Summit in Helsinki. The document consists of two main parts: the Summit Declaration and the Helsinki Decisions. All subsequent references to paragraphs will be references to the Decisions part, unless otherwise indicated. He frequently made reference to Article  () of the International Covenant on Economic, Social and Cultural Rights, which states, among other things, that states should “not interfere with the liberty of individuals and bodies to establish and direct educational institutions”.

Towards Increased Cooperation between National Ombudsman Institutions Regarding the Education Rights of National Minorities, the Oslo Recommendations on the Linguistic Rights of National Minorities, the Lund Recommendations on the Effective Participation of National Minorities in Public Life13 and Guidelines on the Use of Minority Languages in the Broadcast Media.14 The High Commissioner thus saw an indispensable interrelation between the implementation of minority rights and the prevention of conflicts.15 The High Commissioner’s mandate specifies in which situations the High Commissioner could become engaged – situations regarding tensions involving national minority issues that have not yet developed into conflict – in which he cannot – regarding situations involving terrorism and individual situations – in what ways – independent and confidential – and when – when situations have the potential to develop into conflict.16 What is most unique in the High Commissioner’s mandate is the fact that an external third party – a non-state entity – can become involved at its own discretion; even the approval of the OSCE Permanent Council is not needed. In order to effectively carry out its mandate, the High Commissioner is dependent on reliable information. Information gathering and analysis is therefore crucial. To perform his task properly, the High Commissioner may collect and retrieve information from any source, including media and NGOs, with the exception of “any person or organization which practices or publicly condones terrorism or violence”.17 He may also receive specific reports from parties regarding situations involving national minorities. The mandate further allows the High Commissioner to pay on-site visits in order to obtain first-hand information from the parties directly concerned.18 The parties who are directly involved that may submit reports and with whom the High Commissioner may enter into contact include governments, representatives of associations, NGOs, religious groups and other groups of national minorities directly concerned in the area of tension.19 While other mechanisms receive state reports (such as the Advisory Committee under the Framework Convention) that provide the mechanisms with all kinds of information (e.g., statistical, legislative, policy and practical information), the High Commissioner and his advisors need to seek the information themselves. The High Commissioner’s advisors therefore put much time into collecting and reading information on specific country situations. After the High Commissioner has collected information, establishing dialogue between the parties involved becomes one of the 



    

The Lund Recommendations have been further elaborated in the Warsaw Guidelines that were adopted in January  and contain recommendations to assist national minority participation in the electoral process. The Hague Recommendations (), the Oslo Recommendations (), the Lund Recommendations (), the Warsaw Guidelines () and Guidelines on the Use of Minority Languages in the Broadcast Media () are all available at . See also Steven Ratner, “Does International Law Matter in Preventing Ethnic Conflict?” () NYUJILP (), -. The High Commissioner’s mandate is described in Chapter II of the Helsinki Decisions. Ibid., para. II..a. Ibid., para. II..c. Ibid., para. II., .a, .b.



Rianne Letschert main purposes when he is visiting a country.20 Indeed, promoting dialogue would seem to be a first step in preventing existing minority tensions from bursting into conflict. The idea of dialogue promotion has been incorporated in the mandate because of its confidence building aspect; parties get to know each other, their fears and wishes, which could ultimately improve their relationship. In the first year of the High Commissioner’s existence, the first High Commissioner, Max van der Stoel, had to deal with and solve certain ambiguities and contradictions in his mandate while addressing various situations.21 This led to a further elaboration and development of the mandate. Through his flexible interpretation of the mandate, the first High Commissioner has developed several specific working methods, under which he has issued recommendations.22 The High Commissioner developed the practice of submitting country recommendations to the government concerned in which he urged the government to adopt or change minority policies and legislation. He decided to write down his recommendations in letters submitted to governments when he realized that he could gain greater backing from the participating states when his suggestions were written down.23 The practice developed that the High Commissioner also submitted his recommendations to the OSCE Permanent Council once he received an answer to his recommendations from the government concerned. Until that time, the recommendations remained confidential. The responses to his letters became an important tool in the sense that they contained the official positions of the government regarding the issues addressed. This became even more important when it became known that these exchanges would be circulated among other states (through the Permanent Council) and later even made public. The letters could consequently be used to hold authorities to their word. By discussing the recommendations in the Permanent Council, the High Commissioner tried to gain support for them.24 Therefore, as Kemp accurately notes, this tool could also be regarded as an “informal early warning mechanism”.25 Another advantage is that governments realized that they did not only have to take into account the vision of the HCNM but that the recommendations would be supported

  

  



OSCE Helsinki Decisions, para. II.. For instance, the terms ‘early warning’ and ‘early action’ are not defined in the mandate, nor is the term ‘national minority’. For a thorough analysis of the specific working methods see Walter Kemp, Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities, (Kluwer Law International, The Hague, London Boston, ). Chigas has put it as follows: “In practice, the first High Commissioner … has chosen to view the mandate as a living mandate and to develop a customary practice where the mandate is silent or insufficient to deal with the situation at hand”, Diana Chigas, “Preventive Diplomacy and the OSCE”, in Abram Chayes and Antonia Handler Chayes (eds.), Preventing Conflict in the Post-Communist World, Mobilizing International and Regional Organizations (Brookings Occasional Papers, Washington, DC, ), at . Kemp, Quiet Diplomacy …, . Van der Stoel went to Vienna where he tried to get support for the recommendations a few days before the actual discussion in the Permanent Council. Kemp, Quiet Diplomacy …, .

Towards Increased Cooperation between National Ombudsman Institutions by a number of OSCE states, which strengthened the position of the HCNM.26 The discussions in the Permanent Council could have led to further pressure on states to implement the High Commissioner’s recommendations. Moreover, discussing the recommendations in the Permanent Council kept the participating states informed about the activities of the HCNM. The country-specific recommendations have evolved into one of the most important tools of the HCNM, providing important guidance for governments and a valuable reference source for those involved in minority rights law. It appears that the second High Commissioner, Rolf Ekéus, makes less use of the tool of recommendations as developed by the first High Commissioner (through official letters) and, consequently, is not involved in the same practice that developed around the issuance of recommendations under the first High Commissioner (e.g. trying to gain support in the Permanent Council, readdressing the issue in repetitive recommendations). The monitoring function that was gradually incorporated in the activities of the first High Commissioner is thus slightly disappearing in the work of the second High Commissioner. The second High Commissioner still addresses recommendations to governments but in a less formal way, which are also not later made known to the ‘public’. Instead of drafting recommendations, the second High Commissioner’s activities are sometimes posted on the HCNM website where an overview is given of the issues discussed in the countries visited and the steps that should be taken. On some occasions, he has made statements on the minority policy of the countries where he is involved, some of which can also be found on the website.27 Nevertheless, the way the first High Commissioner addressed recommendations to governments (in formal letters) is no longer being followed in a similar way. This might be convenient for governments, since the official correspondence is no longer discussed in the Permanent Council where the first High Commissioner tried to get as much support as possible (and could use the government’s official reply to hold the authorities to their word). The increasing project work carried out by the HCNM Office is another aspect of the High Commissioner’s activities not foreseen in the mandate. Various projects have been initiated in the field of education, envisaging the improvement of minority education, including the training of teachers and the publication of schoolbooks or raising funds for the establishment of a university.28 Other projects focused on providing information, such as those in Estonia and Latvia relating to citizenship issues. Interesting 





See Cees Homan, “Interview with Max van der Stoel, former High Commissioner on National Minorities”, () HM (), at . Note that the comments and statements issued in the Permanent Council were also often formalized, circulated and made public, because of which it was well known what was going on. On  June , the High Commissioner issued a statement regarding the Hungarian Status Law where he noted that “the Act on Hungarians Living in Neighbouring Countries has tended to strain otherwise good relations between Hungary and some of its neighbours. In the spirit of friendly relations, earlier and fuller consultations and better use of existing bilateral instruments and mechanisms might have reduced misunderstandings about the intentions behind the Act”. Statement by Rolf Ekéus on  June  in relation to the adoption of the Hungarian Status Law. In Macedonia, the HCNM took the initiative to establish the South East European University, see OSCE Newsletter, November/December , Vol. VIII, No. , at .



Rianne Letschert to note is that the HCNM has also undertaken projects to develop mechanisms for early warning and early prevention on the local level. For example, in Kazakhstan, Kyrgyzstan and Georgia, projects have been established that monitor interethnic relations in these states, which give governments and the OSCE detailed information on interethnic relations.29 Next to this, projects have been developed that aim to strengthen national, regional and local capacity building by training local officers, minority and NGO representatives. Other, more procedural, requirements provided in the mandate were circumvented by the HCNM, without being called back to Vienna. For example, according to the mandate, the HCNM was supposed to consult the Chairman-in-Office (CiO) before he visited a country. Van der Stoel only informed the CiO before he visited a country for the first time. He, however, put a heavy accent on submitting confidential reports after he visited the country, reports that were different from the recommendations because they were less diplomatic and more outspoken.30 III. The UN Working Group on Minorities 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, which was adopted in . The Working Group’s mandate was originally set at three years, but was extended in  on a permanent basis.31 A Commission on Human Rights Resolution enumerates the tasks of the Working Group, namely: () reviewing the promotion and practical realization of the Minority Declaration; () examining possible solutions to problems involving minorities, including the promotion of mutual understanding between and among minorities and governments; and () recommending further measures for the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities.32 By pursuing these three tasks, the Working Group attempts to bring the protection of minorities to a higher level, not only within the UN (which is an aim on its own), but mostly within the UN member states. This is not an easy task, considering that minority situations differ from one region to another, or even from one country to another. Tackling minority issues at a global level requires a broad focus, in order not to lose sight of the peculiarities of each particular situation. Each year, the Working Group organizes a one week meeting in which minorities, government representatives, NGOs, international agencies and academics discuss issues of mutual concern and seek solutions to problems involving minorities. Participation is open to all NGOs and has thus not been limited to NGOs in consultative status with the UN Economic and Social Council (ECOSOC). At these meetings, NGOs or minority associations can make oral statements or otherwise submit information about the situation of minorities in a specific country. Subsequently, government observers    



See Sally Holt, “The Activities of the OSCE High Commissioner on National Minorities, January –May ”,  EYMI (/), -, at . Kemp, Quiet Diplomacy …, . See Commission on Human Rights Resolution /. Resolution /, para. .

Towards Increased Cooperation between National Ombudsman Institutions are given the opportunity to respond or provide additional information. In some cases, this has led to an extensive dialogue in which the participants have a chance to bring all perspectives forward. In the beginning of the Working Group’s existence, the attendance of government observers was relatively high. In recent years, the Working Group has lost much attention, as can be inferred from lower attendances and less government reaction to NGO interventions.33 Members of the Working Group are entrusted with the task of playing an active role in the deliberations by seeking clarifications and concrete proposals and responses from speakers at the meetings. In-between sessions, they attend regional seminars and are sometimes asked to write thematic reports to be discussed at Working Group sessions. At several sessions, the Chairman stated that the Working Group is not an individual complaints mechanism, simply because it was not intended to play that role. Most of the individual issues raised are therefore placed in a general thematic framework, which is subsequently discussed at the sessions. The Working Group members decided early on to initiate the drafting of reports concerning different thematic issues that would be discussed during the sessions.34 These papers are drafted by Working Group members or outside experts. The emphasis on thematic issues can furthermore be witnessed from a proposal made at the th session. Working Group member Kartashkin launched the idea of drafting general recommendations or comments on particular aspects of the Minority Declaration, such as educational rights, citizenship and religious intolerance but also self-determination vis-à-vis autonomy and the forced assimilation of minorities.35 He believed that such comments could achieve great authority. The idea was supported by various participants and later adopted by the Working Group.36 It was felt that the Working Group, as the only UN forum specifically dealing with minority rights, should take up this task. The mandate of the Working Group does not provide for the possibility of country visits. However, in , a first visit was made to Mauritius after an official invitation from the government. Finland was the second country to be visited and, in , the government of Switzerland invited the Working Group.37 Since the mandate remains silent on this issue, it seems the Working Group needs an invitation from governments. The visits to Mauritius and Finland have turned out to become important monitoring 



  

The st Session was attended by  government observers and the th Session by  (note that the final reports of the Working Group listed the names of the countries present until the th Session, afterwards no names were mentioned anymore). The lowest attendance was  (th Session). See Asbjørn Eide, “The Role of the United Nations Working Group on Minorities”, in Mechanisms for the Implementation of Minority Rights (Council of Europe Publishing, Strasbourg, ), -, at , where an overview is given of the major issues identified by the Working Group. See Final Report of the th Session, para. , E/CN./Sub.//. See report of the th Session, Decision (b). The Decision also notes that the first general comment will be on the protection of minorities from forced assimilation. The visit to Mauritius was made - September ; see for the report E/CN./Sub./ AC//,  April . The visit to Finland was made - January , see for the report E/CN./Sub.///Add..



Rianne Letschert tools. That is possibly also the reason why states are reluctant to invite Working Group members; discussing minority issues in Geneva is one thing, bringing it back home is another. The regional seminars coorganized and attended by Working Group members were also not foreseen in the mandate and yet have proven to be a valuable tool in achieving the aims of the Working Group. These seminars have provided a more indepth opportunity to establish dialogue between minorities and government observers. Issues raised at the annual Working Group sessions are discussed in more depth, most of the time by the same participants. Since the scope of discussion is narrower than at annual sessions, further dialogue is more easily achieved. At the end of each Working Group session, the Working Group adopts recommendations and conclusions. These are directed towards various UN bodies such as the Sub-Commission on the Promotion and Protection of Human Rights (hereafter Sub-Commission), the Commission on Human Rights and specialized agencies. They are furthermore directed to governments. Recommendations for governments concern issues such as “revising any programme for good governance to make sure that guidelines on civil society participation acknowledge explicitly that minority groups are a vital part of civil society, whose participation should actively be sought; any programme for good governance should address the issues of minority representation in the political, judicial and public institutions of the State”.38 The recommendations directed towards governments adopted at the th and th sessions contain specific minority rights governments should consider implementing, compared to the previous recommendations adopted at the st till th sessions that were more general.39 The recommendations directed towards the Sub-Commission (e.g., relating to the need to create additional minority mechanisms within the UN) need to be endorsed by the latter, which will subsequently submit them to the Commission on Human Rights, which ultimately decides whether recommendations made by the Working Group will be followed up. For several years, the Sub-Commission, composed of independent experts, has endorsed the recommendations of the Working Group. However, the Commission on Human Rights, a political body, was for a long time reluctant to take any real steps forward, resulting in repetitive Working Group recommendations year after year.40 For instance, the Working Group’s successive recommendations to establish a special rapporteur or a special representative on minority issues were consistently ignored.41 However, in , the Commission on Human Rights decided to adopt a resolution in which it requests the establishment of an independent expert on minority

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Recommendation  (e), th Session. See, for instance, Recommendation  (o) adopted at the th Session: “providing access to all levels of education for minority children, ensuring that educational establishments and research institutions respect the cultures and histories of minorities … ”. See Rianne M. Letschert, “Will Further Progress Be Achieved This Year: Review of the th and th Session of the United Nations Working Group on Minorities”,  EYMI (/), -, at . See also R. M. Letschert, “Towards a UN Special Representative on Minority Issues – Drawing upon the Experiences of the OSCE High Commissioner on National Minorities”, () HM (), -.

Towards Increased Cooperation between National Ombudsman Institutions issues for a period of two years.42 After many years of intensive debate, the establishment of this expert has been applauded.43 The independent expert should promote the implementation of the Declaration, engage in dialogue with governments, as well as other interested actors on the effective implementation of the rights of persons belonging to minorities, and identify best practices and possible solutions for technical cooperation by the Office of the High Commissioner for Human Rights at the request of governments. The independent expert has to submit annual reports on his/her activities to the Commission, including recommendations for effective strategies for the better implementation of minority rights. The resolution also addresses the relationship between the independent expert and the Working Group. In the Resolution, the Commission on Human Rights commends the role of the Working Group as an important forum for dialogue and for examining solutions to problems involving minorities.44 Nevertheless, the Commission has decided to amend the mandate of the Working Group with a view to holding one session of three working days during the time of the Sub-Commission’s annual session. It should receive conceptual support of and remain in dialogue with the independent expert, who shall participate as an observer.45 The establishment of the independent expert thus has immediate consequences for the Working Group. IV. The Advisory Committee Under the Framework Convention The provisions in the Framework Convention for the Protection of National Minorities (hereafter Framework Convention or FCNM) make clear that the Committee of Ministers (hereafter CM) shall monitor the implementation, that there shall be periodical reports as well as ad hoc reports and that in evaluating the adequacy of the measures taken, the CM shall be assisted by an Advisory Committee (hereafter AC), composed of  members. The AC’s competences and limitations can be found in Resolution () . In addition, many questions regarding the monitoring and especially the functioning of the AC, not yet resolved by Resolution () , are addressed in the AC’s Rules of Procedure, adopted during its first session on  October , after being first submitted and accepted by the CM.46

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See the original proposal in E/CN.//L.,  April , which was amended by Draft Resolution L., submitted by Austria. The renewed resolution is E/CN.// L./. See, for instance, the press release of MRG on  April , describing the role of the independent expert as a “valuable addition to the resources required to meet the challenge of widespread and ongoing minority rights violations”. The resolution furthermore requests the High Commissioner to strengthen the technical cooperation programme of her office regarding minorities and to seek voluntary contributions towards participation of representatives of NGOs and minorities in the work of the Working Group. Note that the Commission on Human Rights Resolution still has to be adopted by ECOSOC in July . Para.  of Resolution ()  instructs the AC to draft its rules of procedure. Rules  to  concern the organization and functioning of the Committee, such as the election of the



Rianne Letschert The states parties are obliged to file a report within one year of the entry into force of the Convention, with full information on legislative and other measures that were taken to give full effect to the principles contained in the Convention. Further reports will have to be submitted on a periodical basis (every five years) and whenever the CM so requests. State reports will first be considered by the AC. At one of its first meetings, the AC decided to establish country-specific working groups of four persons for the examination of state reports. After the AC has formulated its opinion, it will submit it to the CM, which will consequently adopt a resolution. Practice has shown that the CM has been very supportive in adopting the AC’s opinions in its resolutions. The conclusions and recommendations are made public upon adoption. The same applies for the opinions of the AC and the comments of the state party, although they are not made known upon adoption but at the same time as the conclusions and recommendations of the CM.47 The large number of country opinions has led to a collection of texts with a significant legal and political value. When the state report does not provide sufficient information, the AC may request additional information from the state party whose report is under consideration. The AC soon concluded that it needed information from other sources, such as other international organisations, ombudsmen and minority NGOs. Despite the absence of a reference to country visits in the Rules of Procedure of the AC, it has developed the practice of visiting states when examining a state report to obtain further information on the situation of minorities. The AC needs an invitation from the government concerned. However, when the AC has sought an invitation, such an invitation has always been received, with the exception of Spain. During these visits, members of the AC meet with representatives of the government, minority associations, international organisations engaged in the country and NGOs. While the visits in the beginning were mostly limited to the capitals, the AC soon realized that, in order to get a clear picture of the implementation progress of the Framework Convention, the visits must include other regions of the country where minorities reside in a substantial number. The country visits have turned out to become an important tool in the monitoring process and has turned the mechanism into “the first human rights treaty monitoring mechanism based on State reports which has country visits as a regular element of monitoring”.48 The provisions on follow-up provide that the AC shall be involved in the monitoring of the follow-up to the conclusions and recommendations on an ad hoc basis, as instructed by the CM.49 In reality, the AC is engaged with follow-up activities on its own initiative or on the initiative of states parties and only informs the CM of its intention to do so. The CM has supported this, as can be shown from the country reso-

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members and president and vice president. From Rule  on the working methods of the Committee are described. Some governments have chosen to make the opinions of the AC and the state comments public at an earlier date, before the adoption of conclusions and recommendations by the Committee of Ministers. Rainer Hofmann, Filling the Frame, Five Years of Monitoring the Framework Convention for the Protection of National Minorities, “The Framework Convention at the End of the First Cycle of Monitoring”, in (Council of Europe Publishing, Strasbourg, ), -, at . Committee of Ministers, Resolution (),  September , para. .

Towards Increased Cooperation between National Ombudsman Institutions lutions in which the CM invites states to continue the dialogue in progress with the AC and to keep the AC regularly informed of the measures it has taken in response to the conclusions and recommendations set out. One observer therefore noted “that … states parties are not only obliged to report periodically, but are under a legal duty to maintain a continuous dialogue with the Advisory Committee”.50 A number of states parties have organized, in cooperation with the CoE, follow-up seminars where government representatives and AC members, together with NGOs and minority representatives, come together to discuss the implementation of the first results of monitoring the Framework Convention. There is one follow-up seminar held per monitoring cycle and per country.51 Through these seminars, participants are able to continue dialogue on the proper implementation of the FCNM and promote the further implementation of the Convention. It also keeps the AC updated on any legislative or policy changes made. In addition, the seminars make it possible to discuss issues in a less formal setting. The latter aspect, especially, has proven to be very useful; the formal monitoring meetings are held in close session pursuant to Res. ()  whereas the seminars can be organized in a more transparent way, in which representatives of other international organizations may also participate.52 The start of the second cycle of the monitoring procedure will also serve as an important follow-up. The Outline on the Submission of Second State Reports indicates that states should provide the AC with information on follow-up activities.53 The role of NGOs has been very important to the work of the AC. Not only did they provide information when the AC requested such information, they also drafted shadow reports seeking to give a clear and independent picture of the imple 

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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 . See for an overview of the follow-up activities: (last checked April ). At that time  countries had organized a follow-up seminar. Note that the AC’s Fourth Activity Report states that the seminars have, in certain cases, “revealed that the value of the Framework Convention and its monitoring is not yet fully embraced by all sectors of the public administration and that additional awareness-raising activities are needed”. Fourth Activity Report,  June  to  May , ACFC/INF () , at . Outline for the Submission of Second State Reports, ACFC/INF(). The Outline notes, among other things, the following requirements: “a. please indicate the follow-up activities organized at national, regional and local level, the persons and authorities implicated, the conclusions adopted and their dissemination to interested parties (including publication, where appropriate); b. please indicate what steps have been taken to publicize the results of the first monitoring cycle, as well as the impact of these steps; c. please indicate the steps taken and the outcome of these steps, in order to improve participation by members of civil society in the process of implementing the Framework Convention at the national level; d. please indicate what steps have been taken to continue the dialogue in progress with the Advisory Committee, including those taken to keep it regularly informed of any action taken in response to the results of the first monitoring cycle”.

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Rianne Letschert mentation progress of the FCNM. They also contributed to the awareness-raising of the Convention, by organizing events to promote the FCNM in society. International NGOs such as Minority Rights Group International supported them by, among other things, organizing, together with the Secretariat, annual NGO trainings on the use of the FCNM. The participation of non-governmental actors in the monitoring procedure counters the possible negative effects of the reporting procedure. States are not always willing to surrender themselves to self-criticism, which sometimes leads to uncritical reports. A combination of state and shadow reports enables the monitoring mechanism to discover discrepancies in the information presented, on the basis of which it can continue further investigation. In addition, the AC is dependent on information from NGOs and minority representatives on the implementation of the opinion to effectively carry out follow-up activities. Considering that the AC has no field missions in the countries concerned, it needs to rely on civil society to present such information. Whereas the Working Group has a more general approach towards minority rights issues, the AC has attempted to put the norms of the FCNM into practice by interpreting them against the background of each particular situation. This approach was considered satisfactory for many years. However, after five years of monitoring the FCNM, the AC members acknowledged that some issues are of general importance and occur in almost all states parties. These issues have been collected in the opinions of the AC and serve as an important reference tool and, according to some, have acquired the status of soft law. Notwithstanding the usefulness of the opinions, the AC has decided to, in addition to the country-opinions, start drafting general comments on issues such as effective participation and citizenship, considering that these would provide a better guidance for states than the individual country opinions. Furthermore, the AC is considering advising governments on draft minority legislation, an issue also not regulated in the mandate. V. International Minority Rights Mechanisms and National Ombudsman Institutions In the “Guide to Good Practice” with regard to ombudsman institutions and minority issues, a group of international experts has presented examples of good practice and experience from various countries. This resulted in rules on the mandate, powers, functions of ombudsman institutions, establishment, foundational criteria, operations and organization of ombudsman institutions.54 Some of the observations in the guide are of relevance in the discussion on cooperation between ombudsman institutions and international mechanisms. For instance, one of the rules notes that, “the ombudsman should draw on higher international standards, and have the duty to promote ratification and implementation of international instruments”.55 Further, “the ombudsman should have a role in monitoring progress of governmental action programmes and policy”.56 With  

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Lloydd, Ombudsman Institutions …, . Ibid., . Note further that under the section “key organizational and operational issues” it is mentioned that “the ombudsman must keep abreast of developments in international standards and law in the minority protection field”, at . Ibid., .

Towards Increased Cooperation between National Ombudsman Institutions regard to these two functions, cooperation with international mechanisms is imperative, which is also explicitly referred to in the “Guide to Good Practice”.57 The necessity of increasing cooperation has become particularly apparent, taking into account the conclusions following from two case studies (regarding Macedonia and Croatia) on the implementation of the recommendations and opinions of the three core minority mechanisms. Both governments have implemented the recommendations of the High Commissioner at a relatively slow rate and, when other factors started to play a role (such as the prospect of EU accession), the implementation speed accelerated. The Framework Convention provisions have to a large extent been implemented in both countries’ domestic legislation. However, it was also determined that the opinions of the AC as to the practical realization of the provisions have not yet been implemented. The influence of the Working Group on implementation on the domestic level has also been relatively limited.58 These conclusions underline the necessity of having national institutions addressing minority issues and cooperating with existing international mechanisms. The following subsections will address the way ombudsman institutions could support international mechanisms in the exercise of their tasks (section A) and the way that international mechanisms have promoted the establishment and functioning of ombudsman institutions (section B). A. Supporting International Mechanisms in the Performance of Their Tasks Both the High Commissioner and the AC try to convince governments to implement their recommendations and opinions in domestic legislation and policies (the lack of country-specific involvement and recommendations has made it more difficult for the Working Group to influence implementation of minority rights at the domestic level). In the process of drafting the country recommendations and opinions, ombudsman institutions are a perfect source of information regarding the situation of minorities at the domestic level. As mentioned before, access to reliable information is of the utmost importance for both the High Commissioner and the AC in order to be able to formulate an adequate recommendation or opinion. The advisory function of the ombudsman may thus not only advise the government, but also international mechanisms that need proper information in order to perform their tasks. In addition, in the process of persuading governments to implement the recommendations and opinions, the ombudsman institution could support the High Commissioner and the AC by confronting the authorities with a similar message. This would enhance proper follow-up, which would have added value on top of follow-up activities carried out by the HCNM and the AC. Furthermore, once the recommendations and opinions are implemented, ombudsman institutions have an important role to play in monitoring compliance.59   

Ibid., . Letschert, Impact of Minority Rights …, Chapters  and . Compliance requires more than implementation. Shelton has stated that “implementation of international norms refers to incorporating them in domestic law through legislation, judicial decision, executive degree, or other process”. Compliance, on the other hand, “includes implementation, but is broader, concerned with factual matching of state behavior and international norms: compliance refers to whether countries in fact adhere to the provi-

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Rianne Letschert However, with regard to the High Commissioner, a marginal comment must be made. The recommendations of the High Commissioner are only made public after a considerable amount of time (and the second High Commissioner appears to submit fewer recommendations compared to the previous one). This follows from the specific nature of the instrument, where key characteristics such as confidentiality, impartiality and quiet diplomacy play an important role. When parties know that the conversations and correspondence with the High Commissioner remain confidential, they are more inclined to act frankly and freely. Especially in sensitive situations where parties are just about to talk to each other again, any public statement on the content of the discussions could reawaken existing tensions. In situations where more governments are involved (so-called kin-states), which have an explicit interest that the issues in which the HCNM is involved are being solved, the silent diplomacy approach seems most appropriate. However, the High Commissioner has also been involved in situations where tensions are less severe. Regarding these situations, the High Commissioner should try to find a balance between involving ombudsman institutions and safeguarding the specific characteristics of the instrument. This involvement should encompass more than just requesting information. Once the recommendations are made public, the ombudsman institution could also be involved in monitoring the implementation of the recommendation and subsequently the government’s compliance.60 Ombudsman institutions have a particularly important role to play in the work of the AC. This role encompasses various stages. The ombudsman could encourage the government to ratify the Framework Convention when this has not yet taken place. After ratification, the ombudsman institution should encourage the government to promptly submit the state report.61 Further, it should provide the government with information for the preparation of the state report on the implementation of the Framework Convention. Relating to the educational function, the ombudsman should inform NGOs and minority associations of the possibilities to write shadow reports to be submitted to the AC next to the official state report. As to the advisory function, ombudsman institutions should contact AC members in advance of a country visit to organize a meeting. To a certain extent, this is already practice. Through these meetings, the institution could provide AC members with additional information on the situation of minorities in the country. Ombudsman institutions also play an important role in the follow-up stage, where it could initiate the organization of follow-up seminars or act

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sions of the accord and the measures they have instituted”. Dinah Shelton, “Introduction, Law, Non-Law and the Problem of ‘Soft Law’”, in Dinah Shelton (ed.), Commitment and Compliance, The Role of Non-Binding Norms in the International Legal System (Oxford University Press, Oxford, ), -, at . The Guide to Good Practice also noted that ombudsman institutions should have a role in monitoring the progress of governmental action programmes and policy, Lloydd, Ombudsman Institutions… . Note that the AC may now adopt its opinion even without a state report, in order to prevent states from escaping from the monitoring procedure. This will, however, run counter to the cooperative and nonconfrontational approach of the AC and will most probably impede constructive dialogue. In addition, it may be wondered whether a state, in such a scenario, will even take note of the AC opinion.

Towards Increased Cooperation between National Ombudsman Institutions as one of the participants. Whereas the High Commissioner stays in a more constant dialogue with the parties involved (and his advisors and OSCE missions keep him updated) in order to monitor the implementation of the recommendations, the AC is dependent on ‘others’ to send information to Strasbourg regarding non-implementation (it has no field presence in the countries concerned) or on the follow-up seminars. Ombudsman institutions thus have an important role to play in informing AC members of cases of nonimplementation. Moreover, they should remain in contact with the government to closely monitor the implementation of the AC opinion. As mentioned before, participation in Working Group sessions is open to all sorts of participants. Ombudsman institutions should consider sending representatives to attend the annual sessions in order to provide the Working Group with objective, accurate and up-to-date information on the situation of minorities in the respective countries. The intervention of ombudsman institutions should, however, not jeopardize constructive contacts with the national authorities that might react negatively to the institution’s intervention at a public forum. Here also, a balance must therefore be sought between providing information at the international level and maintaining good contacts at the national level. On the other hand, if a government is consistently refusing to cooperate with the ombudsman institution, presenting such information to an international forum might induce the government to change its attitude. The independent expert on minority issues should also cooperate with national ombudsman institutions. These institutions can provide information on the practical implementation of the Minority Declaration. B. International Support for the Establishment and Functioning of National Ombudsman Institutions The importance of the establishment and proper functioning of ombudsman institutions has been widely addressed by the three mechanisms. The High Commissioner has promoted the establishment of ombudsman institutions on many occasions.62 For instance, in Romania he recommended that the government establish an Advocate of the People, which should contribute to the strengthening of the rule of law. In Estonia,

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The High Commissioner addressed the establishment of ombudsman institutions in his speech to the OSCE Human Dimension Implementation Review Meeting held in September , where he stated that “guaranteeing anti-discrimination may be done on a law-by-law basis or through comprehensive law on anti-discrimination. In 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, for example by means of a specialized Ombudsman or Ombudsman-like Institution, an equality commission or commissioner, or similar institution. Such institutions should be mandated to be pro-active in implementing the law, not only in terms of receiving complaints, but of initiating action including legislative reform as may be necessary. Of course, these institutions must become publicly well-known and accessible to merit and build public confidence, and so they will evidently require the provision of adequate human and material resources”. Speech by Rolf Ekéus at the OSCE Human Dimension Implementation Review Meeting, Warsaw  September .

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Rianne Letschert he influenced the establishment of the Ombudsman Office.63 In Macedonia, he urged the government to increase the capacity of the Public Attorney. He continued to follow the activities of the Public Attorney and the government’s attitude towards this institution during his years of involvement (starting from ). After the adoption of the Ohrid Framework Agreement, the name of the Public Attorney was changed to National Ombudsman and, in , a Law on the Ombudsman was adopted. Next to encouraging the establishment of ombudsman offices, the High Commissioner has an important task in monitoring whether these institutions are receiving enough support from governments.64 The HCNM has developed projects to enhance the effectiveness of ombudsman institutions, for instance in Georgia and Uzbekistan.65 That the Working Group considers the establishment of ombudsman institutions important is clear from successive discussions at Working Group sessions. At the th, th and th Working Group sessions, the leader of the UN National Human Rights Institutions Team gave a presentation on the role of national human rights institutions in promoting and protecting minority rights. This team was established to provide practical advice to the growing number of countries requesting it, to improve UN systemwide coordination in providing assistance to national institutions, and to improve the participation of national institutions in appropriate UN human rights and other international fora. The programme regarding national institutions encourages the sharing of best practices among national institutions and facilitates their access to relevant information.66 One of the specific themes of the team is the protection of minorities. The team was involved in the drafting of a pamphlet to the present United Nations Guide for Minorities on the work of national human rights institutions regarding the promotion and protection of the rights of minorities.67 The pamphlet on national human rights 

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Margit Sarv, “Integration by Reframing Legislation: Implementation of the Recommendations of the OSCE High Commissioner on National Minorities to Estonia, -”, CORE Working Paper , Hamburg, , . According to the  Annual Report of the Ombudsman of Macedonia, “the Ombudsman still faces unfriendly and uncooperative behaviour from certain civil servants, head officials, even high-ranking officials who are in charge of the highest bodies of state administration”. Ombudsman of Macedonia, Skopje, Annual Report , March , . Note that the EU Stabilisation and Association report of  regarding Macedonia contains a paragraph related to the protection of human rights and minorities in Macedonia where reference is made to the poor follow-up of Ombudsman decisions. Stabilisation and Association Report  FYROM, COM ()  Final, March , at . Note that the OSCE has been supporting ombudsman institutions, both financially as well as through training. For instance, on  March , the OSCE signed two Memoranda of Understanding with the first Armenian Ombudsperson Larisa Alaverdyan, who will receive training through exchange visits with the Polish and Lithuanian ombudsman offices. The training will include a two-week study visit for two staff members of the Armenian Ombudsman Office to Poland and Lithuania, respectively. The four trainees will in turn host their training partners from the Polish and Lithuanian ombudsman institutions in Armenia and evaluate the results of the training. See . The UN Guide contains a series of pamphlets providing members of minorities with practical information on the mechanisms and procedures of the UN, its agencies, and on regional

Towards Increased Cooperation between National Ombudsman Institutions institutions and minority rights will be the th pamphlet to be included in the Guide and has been adopted at the th session of the UN Working Group on Minorities held from  May to  June . Besides supporting the drafting of the pamphlet on national human rights institutions and minorities, the Working Group has also encouraged governments to establish such institutions.68 The Working Group further aims to promote wider participation by representatives of ombudsman institutions at Working Group sessions, partly to provide the Working Group with information on minority issues, but also to make sure that these institutions will learn from the experiences of participants at the sessions and will learn from current issues in the field of minority protection. In order to properly exercise the advisory function towards national authorities, it is imperative that ombudsman institutions have enough knowledge on minority issues and on current issues in that field, issues that are discussed at Working Group sessions. Knowing more about the activities of the Working Group will also enable ombudsman institutions to refer minorities to this forum of dialogue in line with the educational function. When conducting country visits, the Working Group has discussed the situation of minorities with the ombudsman institution of the country concerned. For instance, during the visit to Finland, the Working Group met with the Finnish Ombudsman for Minorities. The Ombudsman for Minorities Office was established in  to promote good interethnic relations and to monitor the status of and respect for the rights of foreigners and persons belonging to minorities in Finland. The Ombudsman briefed the Working Group on the main activities carried out since the establishment of his Office. They included participating in the preparation of periodic reports to various international and European human rights treaty bodies on minority protection, promoting minority issues in public debate, providing legal assistance to minorities regarding their residency status, monitoring the Aliens Act and tackling discrimination. In various Opinions, the AC makes reference to the important role of ombudsman institutions and the need to cooperate with these institutions. To illustrate, the Opinion on Macedonia refers to the establishment of the Ombudsman Office, which acquired new competences through the Ohrid Framework Agreement. The AC finds “that the Ombudsman has an important role to play in identifying and combating discrimination, including through its decentralized offices and considers that it is important that the work of the Ombudsman be given adequate recognition and follow-up”.69

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mechanisms that have been established in Africa, the Americas and Europe. For the text of the pamphlet see also, Minorities and National Institutions, Note by the Secretariat, E/CN./ Sub./AC.//. Working Group Recommendation (i), adopted at the th Session, states that governments should consider establishing national human rights institutions and where appropriate, special institutions or ombudspersons for the protection of minority rights, E/CN./Sub.//. AC Opinion on Macedonia, adopted  May , published on  February , ACFC/ INF/OP/I(),  and . The rd ECRI Report on Macedonia notes that “public institutions do not respond appropriately to requests from the Ombudsman. For instance, when the Office of the Public Attorney requests information from them, often public institutions do not respond at all, and, if they do, they answer in an inappropriate manner”, rd

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Rianne Letschert Regarding the functioning of the People’s Advocate in Romania, the AC acknowledged that the People’s Advocate is a recent institution. Nevertheless, the AC regretted “that many of his requests for information from state bodies and services have gone unanswered, or have received only late or incomplete answers. The AC considers that … the institution of the People’s Advocate must have the cooperation of all the authorities. It is also important for minorities to be informed of the work of this institution, including in minority languages”.70 Regarding Croatia, the AC noted in its second opinion that “the important work of the Ombudsman’s office in the field of discrimination and other human rights issues linked to the implementation of the Framework Convention needs to be better recognised. The office should be provided with additional support and its presence in the regions where minorities reside compactly should be consolidated”.71 On other occasions, the AC welcomed an ombudsman decision that was based on the FCNM.72 VI. Concluding Remarks Kofi Annan rightly noted that the emplacement or enhancement of a national protection system in each country is what in the long run will ensure that human rights are protected and advanced in a sustained manner. Ombudsman institutions have an important role to play in this regard. Even more when we realize that international mechanisms that aim to further elaborate and promote the rights (and duties) of minorities at the domestic level are not always successful in this task, due to a number of reasons.73 International mechanisms and ombudsman institutions should therefore acknowledge the mutual benefit from increased cooperation. The following areas of cooperation could be further promoted. In performing advisory, educational and investigative functions at the domestic level, it is important that ombudsman institutions follow the developments and discussions taking place at the international level. Ombudsman institutions first of all serve as an objective source of information for national governments and parliaments in the development of national legislation and policies pertaining to minority rights. Furthermore, the specific expertise of ombudsman institutions should be used

   

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ECRI Report on Macedonia, . Note that ECRI has drafted a General Recommendation in which it recommends governments of member states “to consider carefully the possibility of setting up a specialised body to combat racism, xenophobia, antisemitism and intolerance at national level, if such a body does not already exist”. The Recommendation also contains an appendix of Basic principles concerning specialised bodies to combat racism, xenophobia, antisemitism and intolerance at national level. ECRI General Policy Recommendation No. , Specialised bodies to combat racism, xenophobia, antisemitism and intolerance at national level, adopted on  June . AC Opinion on Romania, adopted on  April , ACFC/INF/OP/I(). AC Second Opinion on Croatia, adopted on  October , ACFC/INF/OP/ II(), para. ; see also paras. -. See AC Opinion on Norway, adopted on  September , ACFC/INF/OP/I(), paras.  and . See Letschert, Impact of Minority Rights …, Chapter .

Towards Increased Cooperation between National Ombudsman Institutions for the preparation of state reports under the various human rights treaties, including the Framework Convention for the Protection of National Minorities. If authorities refuse to consult the ombudsman institution, it should consider drafting its own report providing information regarding issues falling under its mandate that need to be covered in the state report. Whereas ombudsman institutions have an advisory role to play on the national level, they also have a significant role to play at the regional and international levels, advising these bodies on specific policies to pursue.74 With their specific knowledge on the situation of minorities, they serve as an important source of information for international mechanisms. Ombudsman institutions should therefore strengthen cooperation with the regional and international mechanisms by attending their meetings or organizing meetings in the country with representatives from the various organizations to provide information on the situation of minorities and to promote the use of these mechanisms, if appropriate, by minorities (in line with the educational function).75 Conversely, the three core minority rights mechanisms that have been established within the OSCE, the UN and the CoE should make more use of the knowledge of ombudsman institutions and put more emphasis on the involvement of these institutions in their activities. An advantage of operating on an international and regional level is that it could enhance the profile of the ombudsman institution at the national level, which might lead to increased cooperation between the institution and the authorities and further implementation and compliance with the institution’s recommendations. If the government is continuously refusing to implement the recommendations of the national institution it should consider invoking the support of international mechanisms that could subsequently confront the government with this information. The continuing emergence of minority problems in numerous countries should inspire national ombudsman institutions and international minority mechanisms to combine their efforts and strengthen cooperation aimed at positively influencing the performance of states regarding the implementation of and compliance with minority rights.





The annual reports that various ombudsman institutions provide could serve as an important source of information. See for example, the  Report of the Ombudsman of Macedonia, which describes various human and minority rights concerns where further progress is needed. The report of the Macedonian Ombudsman explicitly refers to cooperation with international organizations, acknowledging the importance of such cooperation for the development of the institution. The report refers to several seminars and meetings that were organized by the European Ombudsman Institute, the International Ombudsman Institute, the CoE and the EU. The report also lists the meetings that were held at the Ombudsman Office with representatives of various international organizations under the UN and the OSCE. Ombudsman Macedonia “Annual Report”, , .



Bill Bowring *

Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine: A Failure of Local Institution-building?

I. Introduction Both the Russian Federation and its neighbour Ukraine have their fair share of ethnic conflicts, or, at any rate, the makings of them. In Russia, the second Chechen War is still reaping a shocking harvest of death and destruction,1 while in Ukraine the problems of the Crimean Tatars have, on many occasions, threatened to escalate into violent conflict.2 This article explores the following paradox. Since the collapse of the USSR, both Russia and Ukraine have been experimenting with ombudsman institutions. Indeed, Russia can be said to have experienced a flowering of such bodies at both the national and regional level. Yet, the homegrown ombudsmen – with the controversial exception of Sergei Kovalyov – have played only a minor role in providing an effective response to problems concerning minorities. Instead, the most important intervention for Ukraine *

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Professor of Human Rights and International Law, London Metropolitan University. Prof. Bowring is also Director of the Human Rights and Social Justice Research Institute and Academic Coordinator of the European Human Rights Advocacy Centre (EHRAC) at LondonMet. He is an Executive Committee member of the Bar Human Rights Committee of England and Wales, and frequently acts as an expert for DGs I, II and IV of the CoE, as well as for the EU, UN and other international organizations. Prof. Bowring is grateful for the assistance given by Aleksandr Guessel, of the Office of the Commissioner for Human Rights of the CoE. The views expressed in this article are the author’s alone, and he is solely responsible for any errors that may appear. See Bill Bowring, “Systematic Violations of Human Rights: The Case of Russian Human Rights Violations in Chechnya”, unpublished paper presented at the th Conference on Theory and International Law: International Human Rights Law - the State of the Art, British Institute of International and Comparative Law, April . See Bill Bowring, “The Crimean Autonomy: Innovation or Anomaly?” in Marc Weller and Stefan Wolff (eds.), Autonomy, Self-governance and Conflict Resolution: Innovative Approaches to Institutional Design in Divided Societies (Routledge, London, ), -; id., “Between a (Russian) Rock and a (Crimean Tatar) Hard Place? Ethnic, Linguistic and Minority Issues”, in Ann Lewis (ed.), Ukraine and the EU: Neighbours, Friends, Partners? (The Federal Trust, London, ).

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 269-294 © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Bill Bowring has been that of an international official of a quite different type, Max van der Stoel, the OSCE’s High Commissioner on National Minorities (HCNM) from January  to July .3 In order to unravel this paradox, I will analyze in turn the respective complexities of Ukraine and Russia. In each case, I start by outlining the ethnic and demographic developments in each country and then go on to describe and evaluate the national ombudsman institutions created in both countries – the Commissioner in Ukraine and the plenipotentiary in Russia. I describe in some detail Ukraine’s Crimean predicament and the activities of the previous HCNM, Max van der Stoel in Ukraine, and, to a limited extent, in Russia.4 I then turn to Russia’s Chechen conflagration, and the extraordinary role played by Sergei Kovalyov, Russia’s first plenipotentiary (ombudsman) for human rights, and also first Chairman of the President’s Human Rights Commission. His involvement in Chechnya led directly to the loss of both these posts. This is perhaps a reason why his successors, Oleg Mironov and Vladimir Lukin have distanced themselves from minority rights issues. Russia has also encouraged the creation of a large number of regional plenipotentiary (ombudsman) institutions, and I analyze and criticize this phenomenon, which, like the federal ombudsman, has not yet made a contribution in the field of minority rights. One exception, however, is the recently established plenipotentiary for human rights in Chechnya. The recent sorry story of this institution leads me to my conclusion, which is to confirm the subtitle of this article. II. Ukraine, Crimea and the HCNM A. Ukraine, the Crimean Tatars and the HCNM Ukraine, even more than Russia, has experienced rapid demographic change in recent years. The results of a census, which took place in December ,5 showed not only an inexorable decline in the population of Ukraine as a whole (from ,, in , the last census, to ,,; a . % decline) but a sharp fall – a drop of  % – in the numbers describing themselves as Russians.6 There was a corresponding rise in the numbers describing themselves as Ukrainian and speaking the Ukrainian language. Taras Kuzio has pointed out that today’s Ukrainian and Russian ethnic shares (. % and . %, respectively) have reversed the trend of the Soviet period, and returned

  





The author of this article had the honour to work as an expert with Mr. van der Stoel on a number of occasions in Russia, Ukraine, and Kazakhstan. The author participated in a number of these activities. Oleh Wolowyna, “ Census results reveal information on nationalities and language in Ukraine”, The Ukrainian Weekly,  March , at . See also, Askold Krushelnycky, “Ukraine: First Post-Soviet Census Results Sparking Controversy”, Radio Free Europe - Radio Liberty,  January , at .

Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine Ukraine to the position recorded in the  census.7 The fact that  % of education is now delivered in Ukrainian returns schools to the levels of the s prior to the mass ‘russification’ campaigns of Khrushchev and Brezhnev. The number of ethnic Russians has declined by  million: a  % fall in their share of the population, but a  % decline in their absolute numbers. The position of Crimea is also paradoxical. Since the beginning of their ‘return to the homeland’ in the late s, the Crimean Tatar population has grown while the Russian population has decreased due to many Russians leaving Crimea. Thus, the share of ethnic Russians in the Crimean population has declined from . % in  to . % in the most recent census. Crimea’s overall population has declined slightly, by  %, from ,, in  to ,,. Of these, ,, are Russians, , are Ukrainians (a decline from . % in  to . % today), and , are Crimean Tatars – a dramatic increase from . % in  to  % as at the date of the census.8 The numbers of returning Crimean Tatars peaked at , in , and have been rapidly falling in each year since.9 Nevertheless, Kuzio notes that if these trends continue, by the next census in , Crimea will have lost its position as the only Ukrainian region with an ethnic Russian majority.10 This majority was the only substantial reason an exception was made when the status of Crimea was upgraded from an oblast to “Autonomous Republic” in the new Crimean Constitution.11 A package of agreements on the principles of stationing the Russian Black Sea Fleet on Ukrainian territory was signed by Russia and Ukraine in May . According to these agreements, Russia’s Black Sea Fleet has the right to be based in Sevastopol’s bays for  years, until .12 

 

 

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Taras Kuzio, “Census: Ukraine, More Ukrainian”, () Russian and Eurasia Review ( February ), at . Ministry of the Interior figures show that the numbers of Crimean Tatars may well be larger: , persons returned, of whom , were Crimean Tatars. The figures are  – ,;  – ,;  – ,;  – ,;  – ,;  – ,;  – ,;  – ,;  – about ,. See Irina Pribytkova, “Vliyaniye Instituta Grazhdanstva po Protsessi Vozvrashcheniya i Obustroistva Raneye Deportirovannikh v Krymu” (The Influence of Citizenship on the Processes of Return and Settlement of Previously Deported People in Crimea) UNHCR Kiev (); also cited (without publisher) in Valery Tishkov, “Local Self-Government in the Newly Independent States”, Open Society Institute (), , also in () Grazhdanin (), . See also Irina Pribytkova, “Examination of the Citizenship Issue on the Return and Reintegration of the Formerly Deported Peoples of Crimea”, UNHCR (), cited in Oxana Shevel, “International Influences in Transition Societies: The Effect of UNHCR and Other IOs on Citizenship Policies in Ukraine”, Rosemarie Rogers Working Paper Series, Inter-University Committee on International Migration (august ), at . Kuzio, “Census: Ukraine, More Ukrainian”… . The Supreme Council of the Autonomous Republic of Crimea (ARC) adopted the Constitution of the ARC on  October , which was then approved by parliament on  December  and entered into force on  January . .

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Bill Bowring A very large number of Crimean Tatars were excluded from the voting population for the parliamentary elections of  and the presidential elections of  by virtue of the fact either that they were not citizens, or that they have not yet been able to return to Crimea. According to research carried out in  by the Uzbek Centre for Sociological and Marketing Research “Expert”, there were still , Crimean Tatars living in Uzbekistan, at least  % of whom intend to move to Crimea. There are a number of reasons why they have not yet done so:  % of those intending to return cite the absence of anywhere to live in Crimea, while  % fear unemployment. As many as  % of them declare that their main problem in life is the impossibility of returning to their homeland, to rejoin their family and their people. Approximately  % of those who have returned to Crimea do not have their own home (, people, , families), of whom , are in the process of constructing their own homes, and the rest are on housing waiting lists. In  % of the approximately  existing ‘compact settlements’ of returnees, there is no running water, while  % have no electricity, and none of them have any drainage at all. Unemployment among the Crimean Tatars in Crimea stands at . %.13 The largest concentrations of Crimean Tatars are to be found in Belogorskii Raion ( %), Sovetskii Raion ( %), and Simferopol (. %), while the smallest is in the predominantly Russian resort city of Yalta (. %). B. THE OSCE’S HIGH COMMISSIONER ON HUMAN RIGHTS (HCNM) Max van der Stoel, the OSCE’s HCNM from  to 14 has played a key role – a part of his ‘quiet diplomacy’ – in helping to prevent these problems and tensions from breaking into an open conflagration.15 The HCNM is, of course, not an ombudsman, nor is it his role in any sense to represent the interests of national minorities. Instead, his function is, as summarized by Diana Chigas: … not to “resolve” complex ethno-national disputes. Instead, he has seen his main task to be in the realm of short-term conflict prevention, to prevent acute escalation of tensions, and, looking to the longer term, to help set in motion a process of dialogue

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All these figures are taken from Liliya Budzhurova, “Citizenship is a fundamental human right, since it is nothing other than the right to have a right”, Politika, - September . Max van der Stoel took up his functions in January . In December , the OSCE Ministerial Conference in Budapest decided to renew his mandate until  December . In July , it was decided to further prolong his mandate to  December . At the Istanbul Summit of December , it was decided to ask him to continue in office. The th OSCE Ministerial Council in Vienna, - November , appointed Mr. Rolf Ekéus as High Commissioner on National Minorities for a period of three years with effect from  July . See John Packer, “Making International Law Matter in Preventing Ethnic Conflict: A Practitioner’s Perspective”, () New York University Journal of International Law and Politics (), -; Walter Kemp (ed.), Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities (Kluwer Law International, the Hague, ).

Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine between the government and minority that will address the long-term relationship between them and deal with the root causes of the tensions.16

Steven Ratner has argued that the role of the HCNM can best be understood by turning to mediation theory, a branch of political science.17 As he explains, the basic premise of mediation theory is quite simple: outside parties who involve themselves in settling disputes – intermediaries – can and do make a difference in outcomes, even when they lack any legal or coercive power over the disputants.18 John Packer, his legal adviser for several years, emphasizes the importance of the fact that it has served the HCNM well to “follow a principled approach” by relying on international standards: ‘hard’ law – i.e. UN and CoE treaties; and ‘soft’ law – i.e., OSCE documents, charters, etc.19 Moreover, he has developed his own normative documents, merging ‘hard’ and ‘soft’ law – the Hague Recommendations Regarding the Education Rights of National Minorities (),20 the Oslo Recommendations Regarding the Linguistic Rights of National Minorities (),21 and the Lund Recommendations on the Effective Participation of National Minorities in Public Life ().22 Finally, as Packer points out: “Unless the HCNM can establish a causal link between the situation of a particular minority and a reasonable prospect of violent conflict, the matter falls outside his mandate”.23 This last observation separates the HCNM from all ombudsmen. Nevertheless, I argue in this paper that the HCNM has, in the case of Ukraine and Crimea, proved more effective than the ombudsman or, indeed, any other domestic mechanism. C. The HCNM in Ukraine An important part of Max van der Stoel’s activity as HCNM took place in Ukraine.24 He first visited Ukraine at the invitation of the Ukrainian government in February , and began actively to promote political solutions based on the implementation of OSCE principles as contained in its documents, especially the Copenhagen docu-

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     

Diana Chigas et al., “Preventive Diplomacy and the Organisation for Security and Cooperation in Europe: Creating Incentives for Dialogue and Cooperation”, in Abram Chayes and Antonia Chayes (eds.), Preventing Conflict in the Post-Communist World: Mobilizing International and Regional Organisations (Brookings Institute, Washington, DC, ), , cited in Steven Ratner, “Does International Law Matter in Preventing Ethnic Conflict”, () NYUJILP (), -, at . Steven Ratner, “Does International Law Matter …”, . For a different – realist – perspective, see Saadia Touval, “Does the High Commissioner Mediate?”, () New York University Journal of International Law and Politics (), . Packer, “Making International Law Matter …”, . . . . Packer, “Making International Law Matter …”, . Described in detail in Kemp, Quiet Diplomacy …, -.

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Bill Bowring ment of .25 His strategy was to see the inclusion of provisions within the new Ukrainian and Crimean constitutions, which would adequately reflect the peninsula’s autonomy within Ukraine.26 Thus, he recommended that the reference in the Crimean Constitution to “Republic of Crimea” should be changed to “Autonomous Republic of Crimea”, and – for the sake of legal correctness – that “citizens of Crimea” should become “citizens of Ukraine residing in Crimea”.27 Further, he recommended that the Crimean Constitution should recognize Ukrainian as the state language and Russian and Crimean Tatar as official languages on a par with Ukrainian. He wanted Ukrainian flags and symbols to be used alongside those of Crimea. Most importantly, he recommended that Crimea should end its pursuit of a separate Crimean citizenship.28 Some, but by no means all, of these proposals are to be found in the Constitutions of Ukraine and the Autonomous Republic of Crimea.29 His interventions on the issue of Ukrainian citizenship for Crimean Tatars, too, were judicious and effective.30 On becoming independent of the USSR in , Ukraine had adopted an admirable ‘zero option’ with regard to its new citizenship. According to the Law of  October  On the Citizenship of Ukraine, all those resident in Ukraine on  November , when the law came into force, who were not citizens of another state, and did not declare themselves against receiving citizenship, became citizens of Ukraine automatically, regardless of origin or any other distinction. However, many Crimean Tatars arrived after this date, and many of them had been granted – without their consent – citizenship of Uzbekistan in . There were, therefore, many Crimean Tatar residents of Ukraine without citizenship, many stateless, still more had become citizens of another state. Ukraine prohibited dual citizenship, and to lose Uzbek citizenship was complex and expensive. Non-citizens are excluded not only from the right to vote in elections, but many civil and political rights, and – of crucial importance to Crimean Tatars – participation in land privatization.31 This problem was in part resolved in August , as a direct result of the HCNM’s recommendation, by the Agreement on the Prevention of Dual Citizenship signed by the Ukraine and Uzbek governments, which allowed for an accelerated and simplified procedure for renouncing Uzbek citizenship and acquiring Ukrainian citizenship.32 As Belitser has pointed out:     

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OSCE document of the Copenhagen meeting of the conference on the human dimension of the CSCE, at . See Natalie Mychajlyszyn, “The OSCE and Regional Conflicts in the Former Soviet Union”, () RFS (), -, at . Letters from the HCNM to the Minister for Foreign Affairs of Ukraine,  October ,  April , at . Ibid. See also, Packer, “Autonomy within the OSCE: The Case of Crimea”, in Markku Suksi (ed.), Autonomy: Applications and Implications (Kluwer Law International, Dordrecht, ), . See Bowring, “The Crimean Autonomy: Innovation or Anomaly?” …, -. See Bill Bowring, “New Nations and National Minorities: Ukraine and the Question of Citizenship”, in Peter Cumper and Steven Wheatley (eds.), Minority Rights in the ‘New’ Europe (Kluwer Law International, Dordrecht, ), -. UNHCR Press Release,  June , at .

Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine … the two successive new versions of law on Ukrainian citizenship of  and then of  January  provided a simplified procedure for gaining Ukrainian citizenship by affiliation for those persons and their first and second-degree descendants, who were forcibly displaced from Ukraine by the Soviets. As a result, and due to generous financial and organisational support from the UNHCR, this difficult problem was solved successfully by the time of elections of  March .33

D. The HCNM in Ukraine and Russia – The Problem of ‘Low Quality Music’ The HCNM also played an important role in Ukraine and Russia, helping to resolve tensions concerning the substantial minorities in each state of persons linked by birth or language to the other. In one case, these led to bloodshed. Following a seminar held in Odessa in September  on linguistic and educational rights, with representatives of Russian, Romanian and Hungarian minorities, and the Ukrainian and Crimean governments,34 the HCNM received requests from the Russian Government to investigate the situation of Russian language education in Ukraine, and a similar request from the Ukrainian Government to make an investigation of Ukrainian language education in Russia.35 From  to  June , he travelled to Ukraine and flew to Kharkiv, Lviv, Odessa, Simferopol and Kyiv.36 The visit turned out to be especially timely, since on  May , the Ukrainian composer Ihor Bilozir died in Lviv, some five weeks after being beaten by two youths after an argument in an open-air café in central Lviv. The brawl erupted when he complained about the loud playing of Russian pop music by the café’s loudspeakers. In response to Bilozir’s death and subsequent demonstrations, the Lviv city and oblast administrations passed resolutions on - June  that sought to limit the use of the Russian language in the region, including encouraging vigilantes to stamp out the sale of books in Russian, and forbidding the playing of ‘low quality’ (i.e. Russian pop) music in public places. The Russian government complained noisily about more discrimination against Russian minorities,37 and President Kuchma responded when in a speech on  July  in Sevastopol he criticized the lack of Russian government support for the development of the Ukrainian culture in Russia. He said: “Please give me an example from Russia – where more than  million Ukrainians reside – of at least one school, one newspaper, one radio or TV programme in the Ukrainian language”.38 The HCNM was able to intervene effectively, persuading the Ukrainian Foreign Minister to make a statement, and ensuring, by a second visit to Lviv, that the resolutions 

    

Natalie Belitser, “Crimean Autonomy: Positive and Negative Aspects in Terms of Ethnic Conflict”, Paper delivered at the International Conference on Regional Autonomy of Ethnic Minorities, Uppsala University, Sweden, - June  (in possession of the author), . The seminar was organized by the Foundation on Inter-Ethnic Relations. Kemp (ed.), Quiet Diplomacy …, -, at . The author had the honour to be one of two experts who accompanied the HCNM, flying from city to city in a privately rented Yak , the Soviet business jet. See “: The Year in Review”, The Ukrainian Weekly,  January , at . Ibid.

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Bill Bowring were not implemented. On his recommendation, the Ukrainian Government repeated its commitment to implementation of Article  of the Ukrainian Constitution guaranteeing the free development, use and protection of the Russian language in Ukraine.39 The second phase of this work comprised a visit to Russia in August . The HCNM and his team visited Moscow, St Petersburg and Tyumen (in Siberia – many Ukrainians work there in the oil and gas industries).40 On  January , he wrote to the Foreign Ministers of both Ukraine and Russia with his recommendations on minority language education. In respect of Ukraine, he recommended retaining parental choice of language of instruction; a clear threshold of - children for setting up a Ukrainian language class in a Russian language school or vice versa; and ratification of the CoE’s Charter for Regional or Minority Languages41 as soon as possible. In respect of Russia, he recommended setting up more Ukrainian language classes in Russian schools; providing a clear threshold; increasing funds for National-Cultural Autonomies;42 and also ratification of the Charter. Both the Ukrainian and Russian governments responded positively.43 E. The Continuing Travails of the European Languages Charter – in the Absence of the HCNM Russia signed the EChRML on  May ,44 but has not yet ratified,45 while Ukraine’s signature of  May  has, despite two attempts, not yet been transformed into ratification. On  May , the Ukrainian parliament (Verkhovna Rada) voted to ratify the EChRML.46 In fact, the Ukrainian parliament had already voted to ratify the Charter in December , but the Constitutional Court ruled its provisions were unconstitutional. One of the reasons for the delay in the ratification is apparently fear   



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Constitution of Ukraine, adopted at the Fifth Session of the Verkhovna Rada of Ukraine on  June , Article (). The author once more served as one of the two experts accompanying the HCNM. The Charter is intended to ensure, as far as is reasonably possible, that regional or minority languages are used in education and in the media, to permit and encourage their use in legal and administrative contexts, in economic and social life, for cultural activities and in transfrontier exchanges. For a critical analysis of this phenomenon, see Bill Bowring, “Burial and Resurrection: Karl Renner’s Controversial Influence on the ‘National Question’ in Russia”, in Ephraim Nimni (ed.), National-Cultural Autonomy and its Contemporary Critics (Routledge, London, ), -; and id., “Austro-Marxism’s Last Laugh?: The Struggle for Recognition of National-Cultural Autonomy for Rossians and Russians”, () Europe-Asia Studies (March ), -. The reports, recommendations and responses are to be found at (Ukraine), and (Russia). See . The author will participate in a CoE seminar on the Charter in Abakan, Khakassia (Siberia), in September . .

Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine of Ukrainian speakers that the Charter would primarily promote Russian (the major minority language in Ukraine) or that the linguistic rights of Ukrainophones living in eastern Ukraine and Crimea would be ignored.47 A group of deputies appealed to President Kutchma to veto the ratification because, in their opinion, it is aimed against the Ukrainian language and protects languages that do not need any protection, namely Russian, Hungarian and Bulgarian. The Charter will, when an instrument of ratification is finally deposited at Strasbourg, apply to the languages of the following national minorities: Russians, Belorussians, Bulgarians, Crimean Tatars, Gagauz, Germans, Greeks, Hungarians, Jews, Moldovans, Poles, Romanians and Slovaks.48 On  June , the Ukrainian Deputy Foreign Minister told an OSCE conference that the President had recently signed the law, but no instrument of ratification was deposited.49 On  March , the CoE’s parliamentary monitors hoped that the new government would speed up final accession to the Charter.50 The EChRML, which was designed specifically for Western Europe – where it is, ironically, relatively little known – has achieved great symbolic significance in Ukraine and Russia. It is unfortunate that, unlike Max van der Stoel, none of the ombudsman institutions in the two countries has appreciated its importance for resolving ethnic conflict. F. The Ukrainian Commissioner (Ombudsman) Ukraine enacted a Law “On the authorised human rights representative of the Verkhovna Rada of Ukraine” on  December .51 On  April , Nina Karpachova was elected Ukraine’s first Parliamentary Commissioner for Human Rights (human rights ombudsman). Her first Annual Report of the “On the situation with observance and protection of human rights and freedoms in Ukraine” for the period from  April  till  December , was prepared on the basis of her activities.52 This first report contained no section on rights of ethnic minorities. Her second and third reports have not yet been translated into English. She has submitted two reports,53 the second, a speech to parliament, on  April ,54 on the status of observance and protection of the rights of Ukrainian citizens abroad. She also has published on her website translations into English of her first four Bulletins, but these contain no reference to rights of minorities. On  May , the Verkhovna Rada failed to re-elect her to the position 

      

The author participated as an expert at a CoE seminar “Helping Ukraine to ratify Regional or Minority Languages Charter” held in Kyiv on - October ; for commentary see Taras Kuzio “Charter on minority languages a subject of debate in Europe” The Ukrainian Weekly,  December , at . . . . No. / – BP, at . First Annual Report of the Ukrainian Parliamentary Commissioner for Human Rights, at . The report is at . .

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Bill Bowring of ombudsman.55 However, in the absence of another candidate, she was re-elected, and remains the ombudsman. Despite (or perhaps because of ) the fact that she was an elected deputy of the Crimean Parliament, she has apparently taken little or no interest in the problems of Crimea, relations between Russians, Ukrainians and Crimean Tatars, or minority rights at all.56 III. Russia, Chechnya and the Plenipotentiaries A. The Ombudsman Institution in Russia The word ‘ombudsman’ has a Scandinavian origin, and comes from the Swedish word signifying representative, delegate or agent.57 The first official ombudsman in the modern sense emerged in the Regeringsform (Swedish constitutional law) of  June , but the antecedents of the Swedish institution were to be found in the post of ombudsman, with its roots in the Chancellor of Justice, created in the eighteenth century by the Swedish Crown as the King’s representative for the supervision of administrative officials.58 Ironically, in view of the Soviet rejection of the ombudsman model, this official was the model for Peter the Great who, by ukaz of  January , created the post of Procurator-General59 “as an official independent of local influence to act as “the eye of the Tsar” in supervising the conformity to law of all government departments, officials and courts”.60 After the  Revolution, Lenin argued for the continuation of the centralized Procuracy. In a letter of  to Stalin, he wrote that: ... the law must be uniform, and the root evil of our social life, and of our lack of culture, is our pandering to the ancient Russian view and semi-savage habit of mind, which wishes to preserve Kaluga law as distinct from Kazan law ... The procurator has

 

 

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

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“…but fail to reappoint ombudsman”, RFE/RL Newsline,  May , at . This is confirmed by the author’s recollection of his attendance, on behalf of the HCNM, at a seminar on problems of citizenship, with the Commissioner and her staff, in Kyiv in . The seminar produced no tangible results. Hector Fix Zamudio, “A Global Survey of Governmental Institutions to Protect Civil and Political Rights”,  Denver JILP (), -, at . André Legrand, L’ombudsman scandinave: études comparées sur le contrôle de l’administration, (thèse pour le doctorat en droit, Lille, ) (Librairie Générale de Droit et de Jurisprudence, Paris, ). See Vasilii Klyuchevsky, Peter the Great (Beacon Press, Boston, , ), cited in Zigurds L. Zile, Ideas and Forces in Soviet Legal History (Clarendon Press, Oxford, ), ; and Colin T. Reid, “The Ombudsman’s Cousin: The Procuracy in Socialist States”, Public Law (), -, at . According to Klyuchevsky, contrary to his usual practice of leaving the elaboration of new laws to his Senate, Peter worked on this innovation himself, studying many drafts and foreign precedents. William Butler, Soviet Law (Butterworths, London, st ed., ), .

Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine no administrative powers ... his rights and duties are reduced to one function, viz., to see that law is really uniformly interpreted throughout the Republic, notwithstanding differences in local conditions, and in spite of all local influences ... .61

A new Procuracy, acting both as guardian of legality and as public prosecutor, was established by the Statute on Procuratorial Supervision62 of  May  for the Russian Republic, and in  for the USSR as a whole. Little changed over the years. Article  of the  Law on the Procuracy of the USSR contained identical powers and duties.63 An indication of the degree to which the reality of procuratorial practive diverged from the statutory provision is to be found in one of the proposals made by Sakharov, Turchin and Medvedev in their famous letter to Brezhnev of  March . They called for “other measures to improve the work of courts and procurators’ offices, and to establish their independence from the executive power, local influence, prejudice, and connections.”64 The word ‘connections’ has especially dirty connotations in Russian. The institution of ombudsman was disparaged in the Soviet legal press as late as ; their “insignificant effectiveness was pre-determined by law”.65 Meanwhile, the supervision exercised by the Swedish Ombudsman had developed rapidly from its original  duty of supervision of the function of the courts, to supervision of administrative authorities and, from , even of military affairs. Other Scandinavian countries adopted the institution during this century, and it is a hallmark of the system that citizens have direct access. The idea of an ombudsman was first put forward in the Declaration of Rights and Freedoms of the Person, adopted on  November  by the ‘supreme soviet’ of the Russian Federation.66 Article  stated that “Parliamentary control over the observance of human rights and civic freedoms in the RSFSR shall be exercised by a Parliamentary Commissioner for Human Rights”.67 However, a draft law to realize this proposal was 

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Vladimir Lenin, “‘Dual Subordination’ and Legality” (Letter to Stalin in ), in id., Collected Works, Vol.  (Progress Publishers, Moscow, th ed., ), ; and see Gordon Smith, The Soviet Procuracy and the Supervision of Administration (Kluwer, Alphen an der Rijn, ), . Decree of the All-Russian Central Executive Committee,  May , SU RSFSR , No. , item , set out in Zile, Ideas and Forces …, -. Vedemosti SSSR , No. , item ; () No. , item , translation in William E. Butler, Basic Documents on the Soviet Legal System (New York, ); cited in Reid, “The Ombudsman’s Cousin …”, . Andrei Sakharov and Harrison E. Salisbury (eds.), Sakharov Speaks (Vintage Books, New York, ), , in Zile, Ideas and Forces …, -. Jury. S. Shemshuchenko and Gennadi A. Murashin, “Institut ombudsmena v Sovremennom burzhuaznom gosudarstve” (The Institution of the Ombudsman in the Contemporary Bourgeois State)”, Sovetskoye Gosudartsvo i Pravo (), No. , , . See Alexandra Chistyakova, “The Russian Bill of Rights: Implications”, Columbia Human Rights Law Review (-), -. Cited in Mariana Katzarova and Antti Korkeakivi, The Price of Independence: The Office of Ombudsman and Human Rights in the Russian Federation (Lawyers Committee for Human

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Bill Bowring never completed, nor was any such provision included in the amendments to the  Soviet or Russian Constitutions, which remained in force until October . When the draft “Law on the Ombudsman” was under consideration in Russia, information was sought on all functioning ombudsman systems in the world, with particular reference to societies that were living or had lived through a transformation of their political regime. Special attention was paid to the experience of Poland, Slovenia, and post-Franco Spain. There was also consultation with the UN Centre for Human Rights in Geneva, the CoE and working ombudsmen from a number of countries. The drafting team were aware, according to the Explanatory Note to the draft law, that it would not be fruitful simply to transplant68 foreign experiences to Russia, and sought to work from the concrete conditions of Russia and the existing legal system.69 This is part of the reason why the Russian ombudsman, as conceived in the draft law, was to be very much more powerful and wide-ranging than those of other states. The Russian Constitution of  December  made indirect and highly unsatisfactory provision for a plenipotentiary (ombudsman) for human rights. Article  gave the State Duma jurisdiction over “the appointment and dismissal of the Plenipotentiary for Human Rights acting in accordance with the Federal Constitutional Law”.70 There was no federal law until , and the constitutional provision says nothing about the ombudsman’s powers, duties or terms of employment. B. Sergei Kovalyov, the First Plenipotentiary (Ombudsman) Sergei Kovalyov, the first ombudsman, had a long and honourable history as a dissident during the Soviet period. A particular focus of their activities concerned the rights of the peoples deported from their homelands by Stalin in  – the Chechens, Crimean Tatars, Volga and other Germans, and many others. He and his fellow human rights activists assisted Mustafa Dzhemilev, the leader of the Crimean Tatars, in , in their fight for return. In December , he was sentenced to seven years strict regime camp and three years of internal exile, for “Anti-Soviet activities”.71 On  March , he was elected a Deputy to the ‘supreme soviet’ for the party Democratic Russia, on a human rights platform.72 In June , at the request of Boris Yeltsin, he accepted election as the Chairman of the first ever Human Rights Committee of the ‘supreme soviet’ of the USSR. Up until, and for a short period after, Yeltsin’s forcible and unconstitutional dis-

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Rights, New York, ), . See, for a discussion of ‘transplantation’ in the Russian context, Bill Bowring, “Rejected organs? The efficacy of legal transplantation, and the ends of human rights in the Russian Federation”, in Esin Orucu (ed.), Judicial Comparativism in Human Rights Cases (United Kingdom National Committee of Comparative Law, British Institute of International and Comparative Law, London, ), -. Explanatory Note to the draft Federal Law, “On the Plenipotentiary of the Russian Federation on Human Rights”,  Russian Bulletin for Human Rights (), . For an English translation, see . Emma Gilligan, Defending Human Rights in Russia: Sergei Kovalyov, Dissident and Human Rights Commissioner, - (RoutledgeCurzon, London, ), . Ibid., -.

Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine solution of the ‘supreme soviet’ on  September , Kovalyov was one of his strongest supporters. The first war in Chechnya was a decisive turning point for him. However, immediately after the dissolution of the ‘supreme soviet’, Kovalyov was rewarded for his support. On  September , President Yeltsin signed a decree establishing a “Human Rights Commission attached to the President of the Russian Federation”.73 According to Kovalyov, he heard that he had been appointed Chairman of the Commission by reading the newspapers.74 The Commission was established as a department of the President’s Administration, with an office in the former CPSU Central Committee buildings in Old Square. Kovalyov, on his own admission, had no administrative or organizational skills, and the office never functioned properly as a source of effective remedies for complaints.75 This was, of course, not the plenipotentiary referred to in the Constitution – what was intended there was a parliamentary ombudsman. He remained Chairman until his resignation on  January .76 On  January , Kovalyov became the first Human Rights Plenipotentiary,77 but not as anticipated in the Constitution.78 The Federal Law referred to in the Constitution had its first reading in the State Duma on  July , but did not proceed further. Kovalyov was elected by the Duma as part of what became known as the ‘gentleman’s agreement’ between the various fractions and groups in the State Duma for distribution of posts.79 He was the representative of Russia’s Choice.80 Despite the fact that he and his advisers prepared a draft law which was published in , and approved by the State Duma at first reading on  July ,81 the law envisaged by the Constitution “On plenipotentiaries for human rights in the Russian Federation” was not enacted until March . Even then, Oleg Mironov, a member of the Communist Party of the Russian Federation, was not elected until  May .82 This law was preceded, surprisingly, by President Yeltsin’s Decree of  June  “On various measures for state support of the human rights protection movement in Russia”, in accordance with which the heads of some regions began to create     

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No. . Sergei Kovalyov, “On the New Russia”, The New York Review of Books,  April , . The author visited the office in . It was inaccessible to the public, and there were literally two people working there. He was appointed by Presidential Decree No. , which also established the Commission. See Bill Bowring, “Sergei Kovalyov: The First Russian Human Rights Ombudsman – and the Last?”, in Rein Müllerson, Malgosia Fitzmaurice and Mads Andenas (eds.), Constitutional Reform and International Law in Central and Eastern Europe (Kluwer Law International, The Hague, ), -, at -. See “Sergei Kovalyov pervyi ombudsman Rossii (Sergei Kovlayov, First Ombudsman of Russia)”, Izvestiya,  January , . Gilligan, Defending Human Rights in Russia …, . Politika “Upolnomochenniy po pravam cheloveka v Rossiisskoy Federatsii (Plenipotentiary for human rights in the Russian Federation)” at . Bowring, “Sergei Kovalyov …”, . See .



Bill Bowring Commissions for Human Rights (see below). More than  subjects of the Federation created Commissions attached to the organs of executive power. These mostly deal with citizens’ complaints and have no right to undertake independent research. They are completely dependent on the executive power, that is, the Governors or Presidents. C. Chechnya and the Apotheosis of Sergei Kovalyov The Chechens were the most intransigent opponents of Russian imperial expansion in the eighteenth century. The Chechens fought bitterly during their unsuccessful s rebellion against the Russian Empire, led by their hero, Imam Shamyl. The territory was contested during the Civil War: the Bolsheviks seized the region in  but were dislodged in  by White forces under General A. I. Denikin. After Soviet rule was re-established, the area was included in  in the so-called Mountain People’s Republic. The Chechen Autonomous Region was created in , and, in , it became part of the Chechen-Ingush Region, which was made a republic in . After Chechen and Ingush units collaborated with the invading Germans during World War II, most Chechens were brutally deported in  to Central Asia, mainly to Kazakhstan. As with the Crimean Tatars, who were deported at the same time to Uzbekistan, some  % of the population died: a real genocide, and the source of continuing bitterness. The deportees were only repatriated in , and the Chechen Republic was reestablished, as part of the Russian Socialist Federation of Soviet Republics (RSFSR) within the USSR, in .83 The First Chechen War of -, and the Second Chechen War of  to the present day have been the occasion for the utmost brutality and violation of human rights, by the Russian armed forces and law enforcement agencies, and by the Chechen resistance forces. Until late , the general public had not really heard of Kovalyov or his activities. All this was changed by the war in Chechnya, which catapulted him into public prominence. After several abortive attempts, Kovalyov, accompanied by an all-party team of MPs and human rights experts,84 arrived in Grozny, Chechnya’s capital, on  December , and spent several days in the bunker beneath the Presidential Palace, shelled by Russian troops. On  December, he went public, in the press and on radio: he said that the intervention in Chechnya was no longer Russia’s internal affair, given the massive loss of life –  civilian deaths the previous day as a result of Russian bombing – and appealed to Yeltsin to stop the bloodshed, renounce official misinformation, and start political dialogue with President Dudayev. Unfortunately for Yeltsin, the mass media in Russia were probably, at that moment, remarkably independent, and Kovalyov received more airtime for the truth than all the President’s men with their lies. On  December , Yeltsin responded by setting up a parallel shadow “Temporary Commission to Monitor Civil Rights and Liberties in Chechnya”, headed by a conservative (indeed communist) lawyer, Valentin Kovalyov, to further confuse the issue, although he was not  



. Mikhail Molostvov of Russia’s Choice, Valerii Borshchov of Yabloko (Grigory Yavlinsky’s party), Leonid Petrovsky of the Communist Party, and Oleg Orlov of the Memorial human rights group.

Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine related to the ombudsman.85 This Commission reported that there had been no human rights violations by the Russian Army in Chechnya. At Christmas, a number of Russian newspapers, including Izvestiya, named Kovalyov “ Man of the Year”. On  January , he met Yeltsin, who hardly replied to Kovalyov’s impassioned verbal report, save to confirm that he trusted Kovalyov and to say that he would sack Oleg Poptsov, the head of Russian TV, for “distorting the position of both sides”. Kovalyov later told a news conference that Yeltsin had denied having poor knowledge of the real situation in Chechnya, but then contradicted himself trying to persuade Kovalyov that there were no bombings in Grozny. The Russian military could, after a while, contain themselves no longer. On  January , Defence Minister Pavel Grachev addressed a televised news conference at the Russian campaign headquarters of Mozdok. His uniform unbuttoned, and stumbling over his words, Grachev told the newsmen: “This – what’s his name – Kovalev, there’s nothing about him that’s decent, he is the enemy of Russia, a traitor to Russia”.86 Despite this, an opinion poll showed that only  % of Russians agreed with him, while over  % supported Kovalyov. Nevertheless, on  January the military prevented Kovalyov from accompanying the OSCE mission on a tour of Grozny,87 but on  January  he was able to address the PACE of the CoE in Strasbourg, where the notorious Vladimir Zhirinovsky attacked him, calling him “a scum”, and saying he belonged “in a concentration camp”.88 At the same time, Deputy Prime Minister Sergei Shakhrai called Kovalyov a “religious fanatic”, because he had said that, “as long as blood is being spilt in Chechnya, it is absurd, immoral and blasphemous to discuss Russian membership”.89 At that time, Kovalyov was also a Russian representative on the United Nations Human Rights Commission, and in mid-February travelled to Geneva as Head of the Russian Delegation to try to persuade the Commission to pass a statement condemning the war. As he told them, he estimated that some , people in Grozny and the surrounding area died between  November  and  January . Most of those were unarmed civilians, including , children under the age of .90 An 



 





Valentin Kovalyov’s reward was that in January  he was appointed Minister of Justice. On  June , he was dismissed as the result of a wonderfully colourful sex scandal. See . Julia Wishnevsky, “Grachev attacks Yushenkov, Kovalev lambastes Yeltsin”, OMRI Inc, RFE/RL Newsline,  January , at . Michael Mihalka, “OSCE mission tours Grozny”, OMRI Inc, RFE/RL Newsline,  January , at . Robert Orttung, “Rybkin denounces Zhirinovsky’s behaviour”, OMRI Inc, RFE/RL Newsline,  February , at . Mihalka, “Council of Europe to debate Chechnya in special session”, OMRI Inc, RFE/RL Newsline,  February , at . Sergei Kovalyov’s speech is published in  Pravo Zashchitnik (Rights Defender) (), .



Bill Bowring estimated , people had been displaced by the war in Chechnya. Interviewed by The Observer, he said: “I reported on everything I saw – and what I see, I see”. For example, an old woman begging for money to bury the two corpses beside her; a hospital burnt to ash;  orphans hiding in a cellar; and a Second World War veteran abandon his paralyzed wife in their burning home.91 In the event, he was unsuccessful in Geneva. Kovalyov attacked the Commission for adopting an attitude of “indifferent cynicism” towards the war; he is preparing for another trip to the republic.92 He further inflamed nationalist sentiments with a lecture delivered on  March  to the Graduate Institute for International Studies in Geneva, entitled “It is impossible to wage a civil war and simultaneously promote democratic reform”.93 D. The End of Kovalyov’s Official Activities During , Kovalyov suffered more serious setbacks, finally leading to his downfall. On  March , the State Duma passed a motion, moved by Sergei Baburin of the nationalist Russian Way group, to remove him from his position. The motion secured  votes to , with three abstentions. Russia’s Choice, Kovalyov’s own party, commented that this placed the Duma on the same moral level as the Communist regime which imprisoned Kovalyov in  for his defence of human rights. Despite these events, Kovalyov stated to Russian TV that he was not distressed, since he had a “higher mandate”;94 not least, he still retained his post as Chairman of the President’s Human Rights Commission. His dismissal by the Duma was condemned by leading human rights activists in Russia and abroad. However, he continued to speak out on Chechnya. On  April , he blamed the Russian government for consistently rejecting peace initiatives and warned that violence in Chechnya could continue for years if a settlement was not reached soon.95 Shortly afterwards, on the night of  April , Russian troops carried out a massacre in the Chechen village of Samashki, and Kovalyov, together with other members of the human rights organization Memorial, told Russian independent television that the number of those killed was at least  and might be as high as . On  April, Stanislav Govorukhin, Chairman of the State Duma’s commission on Chechnya, called for the prosecution of Kovalyov and other Memorial members for “slanderous and provocative information” taken almost verbatim from pro-Dudayev propaganda pamphlets.96 Colonel-General Anatoly Kulikov told reporters that even Chechen fighters consid 

   



Victoria Clark, “One man’s mission to tell Chechen truth”, The Observer,  February . Sergei Kovalyov, “The interests of states are represented at the UN, not the interests of law”  Pravo Zashchitnik (), -. This is taken from an interview with the ITAR-TASS correspondent at Geneva on  February . Ibid., -. Laura Belin, “Duma removes Kovalev as Human Rights Commissioner”, OMRI Inc, RFE/ RL Newsline,  March , at . Id., “Duma passes draft law on Chechnya settlement”, OMRI Inc, RFE/RL Newsline,  April , at . Id., “Govorukhin urges criminal proceedings against Samashki critics”, RFE/RL Newsline,  April , at .

Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine ered Kovalyov to be a “political prostitute”.97 In response, Kovalyov asked the Duma, on  April, to adopt a special resolution depriving him of parliamentary immunity, so that he could be put on trial if anyone dared. A pattern began to establish itself. Abroad, Kovalyov was treated with honour, received by Polish President Lech Walesa on  June, accepting a human rights prize in Prague on  June, after having volunteered to be one of the hostages accompanying the Chechen gunmen out of the southern Russian town of Budyonnovsk.98 At home, however, newspaper reports appeared, which were designed to place him in an odious light. On  June, the newspaper Komsomolskaya Pravda, which had previously been supportive, reported that, in a speech of  June, Kovalyov had condemned Russian special forces much more strongly than the Chechen fighter Shamil Basaev, whom he said to have called “not so bad” and “a remarkable personality”, and had called for an amnesty for Basaev and the other fighters.99 On  July , Kovalyov compounded his unpopularity on all sides by appearing as a witness, called by the Communist deputy Anatoliy Lukyanov (former Gorbachev associate, speaker of the ‘supreme soviet’, and prisoner for a year following the August  Putsch), in the Constitutional Court, considering the legality of the November and December  decrees authorizing the military campaign in Chechnya.100 He argued that the decrees had led to thousands of deaths and clear violations of human rights, and that this violated Article () of the Constitution, which provides that “Generally recognised principles and norms of international law ... are a constituent part of [Russia’s] legal system”.101 The hearing before the Constitutional Court began on  July , and the Court decided – by a majority of  out of  – that the President’s decrees on the suppression of Chechen resistance were lawful. According to one report, and as if to confirm Kovalyov’s worst fears, the Chairman of the Court Vladimir Tumanov explained on  August  that the real basis for the decision was the raison d’état doctrine that the president has the right to do anything he desires, with no legal limitations, and no accountability to the legislature, where he unilaterally determines that the ‘integrity’ of the country is in danger.102 President Yeltsin himself was not slow to take his revenge on Kovalyov. On  July ,103 it was announced that Yeltsin was planning to demote his Presidential Human Rights Commission to a section of the presidential administration dealing with citizen correspondence; the radio station Ekho Moskvy described this new status as that

      

Ibid. Gilligan, Defending Human Rights in Russia ..., . Laura Belin, “Kovalev reported to push amnesty for Basaev”, OMRI Inc, RFE/RL Newsline,  June , at . Id., “Kovalev testifies in Chechnya case”, OMRI Inc, RFE/RL Newsline,  July , at . Constitution of the Russian Federation. “Constitution Watch: Russia”, () EECR (), . The author interviewed Kovalyov at his home the morning of that day.



Bill Bowring of a “trash can”.104 On  August , the newspaper Sevodnya quoted Sergei Filatov, the presidential chief of staff, as saying that the President had decided to disband the Commission after Kovalyov called the President a “constitutional criminal”105 during the Constitutional Court hearings. Kovalyov told the newspaper that only an organization completely independent of the state could defend individual rights, and did not exclude the possibility that he would set up such a group. IV. Plenipotentiaries in the Russian Regions A. The Creation of Regional Ombudsmen On - March , Sergei Kovalyov’s successor, Oleg Mironov, published a report on his activities in  in Rossiiskaya Gazeta. In this report, he encouraged the establishment of ombudsman institutions in the regions.106 Laws on the formation of ombudsman institutions were passed in a number of Russian regions, a mix of ethnic republics, federal cities, oblasts and krais: Republic of Bashkortostan (on //); Sverdlovsk Oblast (on //); Arkhangelsk Oblast (on //); Krasnoyarsk Krai (on //); Primorskiy Krai (on //); City of St Petersburg (on //); Smolensk Oblast (on //); Saratov Oblast (on //); Astrakhan Oblast (on //); and in , Volgograd and Kaliningrad Oblasts. These are only  of  subjects of the Russian Federation. It has been noted that the creation – or not – of an ombudsman institution in a particular subject of the Russian Federation depends to a very large extent on the interest and support of the president or governor concerned, and not on the special needs of the population. In , at the time of publication of the widely distributed comparative analysis by Aleksandr Sungurov and Aleksander Shishlov,107 ombudsmen had been elected only in  of the  regions with laws: Bashkortostan, Volgograd, Sverdlovsk, Saratov, Smolensk, Astrakhan, while laws were being worked on in another . These included the Republics Komi, Sakha (Yakutiya), and Tatarstan; the Krais Altai and Khabarovsk; and the Oblasts Volgograd, Vologda, Kaliningrad, Kaluga, Murmansk, Novosibirsk, Omsk, Pskov, Ryazan, Tambov; and the Evenskiy autonomous okrug.  “Yeltsin to disband Human Rights Commission”, NUPI,  August , at .  Ibid.  See, for example, Tatyana Gladkova, “Institut regionalnovo Upolnomochenovo po pravam cheloveka: Sovremenniye realii I perspektivi razvitiya” (The institution of regional plenipotentiaries for human rights: Contemporary reality and perspectives for development), in Andreas Umland (ed.), The Implementation of the European Convention on Human Rights in Russia: Philosophical, Legal and Empirical Studies (Proceedings of an International Conference Held at Yekaterinburg on - April  (ibidem-Verlag, Stuttgart, ), -.  Aleksandr Sungurov and Aleksandr Shishlov, “Sravnitelniy analiz zakonodatelstva ob upolnomochennom po pravam cheloveka v nekotorykh subyektakh Rossiiskoi Federatsii” (Comparative analysis of legislation on ombudsmen in some subjects of the Russian Federation),  State and Law (), -; at .



Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine Most laws provided for a separate, independent structure, except for Bashkortostan, where the ombudsman is effectively part of the administration of the legislature. Only three required legal education or experience. As to the appointment of regional ombudsmen, in Bashkortostan and Volgograd the right to propose is held only by the chairman of the legislature or head of administration, while in Sverdlovsk, it is the Governor and Chairman of Oblast Court. In Tatarstan, the President of Republic and deputies of the legislature have this right. There are now ombudsmen or similar in  of the Russian regions (out of ). They were elected from  onwards, with the largest number being elected in . It appears that no new ombudsmen have been elected (or appointed) since , with one notable exception, the Chechen Ombudsman, discussed below. Nevertheless, the number has doubled in the space of four years. However, there is some confusion as to how many regional ombudsmen there are now in Russia. The usually reliable Russian website Human Rights Online has a special ombudsman website,108 but its list of regional ombudsmen and their contact details lists only ,109 including some, for example, the Samara Oblast Ombudsman, who have now been replaced, in his case in .110 This may be due to the fact that the list was compiled by the previous Human Rights Plenipotentiary for Perm Oblast, now himself replaced. The website of the present Russian Ombudsman, Vladimir Lukin, has a list of  ombudsmen and their details.111 However, Aleksandr Guessel, of the Office of the Council of Europe’s High Commissioner for Human Rights, believes there are now .112 There are eight ombudsmen in the  ethnic republics, five in the six large krais (Russian for “edge”), and  in the  oblasts. The quality of these regional plenipotentiaries (ombudsmen) for human rights is highly variable. One of the most successful, according to Aleksandr Sungurov, was Aleksandr Lando, a legal academic, and his team in Saratov Oblast (on the River Volga).113 A Commission for Human Rights was established by the Saratov Governor in July . Mr. Lando was the Chairman of the Commission from  to . A law on creation of a plenipotentiary (ombudsman) was placed before the Oblast Duma on  September , and elections took place on  January . The candidature of Mr. Lando was supported not only by the Governor but also by human rights NGOs in the region. However, according to Sungurov, most of his – highly effective – work was focused on human rights violations in penitentiary institutions and the judicial system, and protection against official arbitrariness. His term came to an end on  January  .  .  He was the historian Vladimir Balandin, with whom the author worked on a DFID project; in May , he was removed and replaced by Irina Skupova – she has a new website at .   Interview with the author,  June .  Aleksandr Sungurov, “Aleksandr Lando i yevo komanda: Nezakonchennaya istoriya Saratovskovo Upolnomochennovo po pravam cheloveka” (Aleksandr Lando and his team: the unfinished history of the Saratov Plenipotentiary for human rights),  Pravozashchitnik (), at .



Bill Bowring , and Nina Lukashova,  years old, a head of department in the Prosecutor’s Office of Saratov Oblast, and a serving investigator and prosecutor all her working life, was elected.114 This recent tendency, to elect representatives of the authorities to the position of human rights ombudsman, is not limited to Saratov Oblast. On  May , Yurii Saltykov,115 a retired Major-General of Police was proposed by Governor Aleksandr Zhilkin as the new plenipotentiary for human rights for Astrakhan Oblast, and was elected. The only other nomination was Sergei Sychev, the chairman of the local branch of Russian National Unity, an extreme right-wing party.116 Major-General Saltikov’s predecessor was Vladislav Vinogradov, also a legal academic, elected in .117 It came as no surprise to me that, on reading the reports of these regional ombudsmen, there was no reference to minority rights, although each ombudsman has had – by necessity – to consider the problems of refugees and forced migrants. I should mention one positive note: there are now seven female plenipotentiaries, an increase in the last few years. Indeed, it remains the case that Russia has no ombudsman for minorities. Only Hungary and Finland have specialized ombudspersons for the protection of minorities.118 In Hungary, on  January , a new anti-discrimination authority started work to exercise the regulatory powers under the Act on Equal Treatment.119 Sweden has an Ombudsman against Ethnic Discrimination, established in .120 Germany has a Federal Commissioner for Matters Related to Repatriates and National Minorities in Germany, presently Hans-Peter Kemper (since  November ), as part of the Ministry of the Interior.121 When in February  he visited the Danish minority in Germany and the German minority in Denmark, the Frisian ethnic group and the Roma and Sinti, Mr Kemper’s predecessor, Jochen Welt, declared: “As a delegate for national minorities I understand my task as being a fellow minority supporter”.122 There is as yet no such person in Russia. B. The CoE and Regional Ombudsmen The CoE’s Office of the Commissioner for Human Rights (OCHR) was established in  as an independent institution within the CoE.123 In accordance with his man Her website is .  .  .  .  Finland: .  Hungary: .  Sweden: .  Germany:.  .  .

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Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine date, the Commissioner focuses his activity on four main areas: the promotion of the education in and awareness of human rights; the encouragement for the establishment of national human rights structures where they do not exist and facilitation of their activities where they do exist; the identification of shortcomings in the law and practice regarding human rights; and, lastly, the promotion of their effective respect and full enjoyment in all the member states of the CoE. The first Commissioner, elected in , was Mr. Alvaro Gil-Robles. Until , the CoE’s Directorate for Human Rights (DG II) organized a round table with European Ombudsmen every two years. Since , this activity has been transferred to the OCHR.124 On - July , the OCHR organized the first round table of European Regional Ombudsmen, in Barcelona.125 The OCHR has paid special attention to the creation of regional ombudsmen in Russia, and has been the beneficiary of substantial financial support for this purpose. From  February  to  February  there was a Joint Programme of the CoE and EU, 126 which included the following objective: Promoting the creation of new regional ombudsmen and facilitating their integration into a coordinated network of regional ombudsmen. The project will encourage and promote the creation of the institution of Regional ombudsman in most of the subjects of the Russian Federation; this institution already exists in more than  Russian regions, and in at least  other regions the law on Regional ombudsman has already been adopted. Where the Regional ombudsman institution exists, the project will encourage greater professional cooperation, both horizontally and vertically, among regional ombudsmen, and between regional ombudsmen and the Federal ombudsman. In addition, guidelines and examples of best practice will be developed in respect of processing of individual complaints and treatment of general issues of concern on the basis of experiences of existing regional ombudsmen in the Russian Federation and others from member States of the Council of Europe.127

A number of activities have taken place. On - October , there was a seminar in Astrakhan on ‘The Institution of Ombudsman in the South of Russia: problems of formation period, experiences of the cooperation with governmental authorities, perspectives of development’.128 On - March , the OCHR organized a round table of Russian Regional Ombudsmen in Strasbourg.129 On - July , a conference took place in Irkutsk on ‘The Institution of Ombudsman in the Siberian and Far East regions of Russia: problems of formation period, experiences of the cooperation  Details at  Report at .  Joint Programme Russian Federation VI, at .  Ibid.  .  .

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Bill Bowring with governmental authorities, perspectives of development’; on - January , the new Chechen Ombudsman visited Strasbourg. On - February , there was a round table in Bryansk on ‘The Institution of Ombudsman in Central Russia: problems of formation period, experiences of the cooperation with governmental authorities, perspectives of development’ and, - February , the OCHR organized a week-long training programme for the staff of the Chechen Interim Ombudsman, Lema Khasuev, in St Petersburg and attended in person. The seminar aimed to introduce the staff of the new institution to the activities and practises of other Regional Ombudsman institutions. On - June , a final round table of Russian Regional Ombudsmen took place in Russia. On  April , Mr. Gil-Robles published his Report on his visits to the Russian Federation in July and September .130 Part V deals with “Rights of National Minorities” (pages  to , in a Report of  pages). He had visited Tatarstan, Chechnya and the autonomous okrug of Khantiy-Mansiisk. This part of Mr. Gil-Robles’ Report contains, for the most part, unqualified praise for the Russian ratification of the FCNM, legislation on National-Cultural Autonomies and the practice of the Russian authorities. It contains no reference to national or regional ombudsmen or any role for them in preventing ethnic conflict. Part VII deals with “The situation in the Chechen Republic” (pages  to ). I turn now in more detail to the establishment of a human rights plenipotentiary for Chechnya. C. The Ombudsman for Chechnya On  September , a conference on human rights in Chechnya was held in Grozny,131 attended by Mr. Gil-Robles, as well as Vladimir Lukin, the Federal Plenipotentiary for Human Rights (ombudsman),132 Ella Pamfilova, the Chairman of the Commission for Human Rights attached to the President of the Russian Federation,133 the recently (and controversially) elected President of the Chechen Republic Alu Alkhanov, and others. According to the Second Report of Russia to the FCNM, Lema Khasuev was appointed as the acting Ombudsman by Decree No.  of the President of the Chechen Republic “Ombudsman in the Chechen Republic” of  October . That is, the appointment of Lema Khasuev was the act of President Alkhanov after the conference.134 On  October , the State Council of Chechnya approved the decree.135 Of course, such an ombudsman should be a parliamentary ombudsman, approved by  Alvaro Gil-Robles, Report of the Commissioner for Human Rights on his Visit to the Russian Federation on - July  and - September ,  April , CoE doc: CommDH (), in English at .  Report at .  His Reports do not contain references to minority rights as such.  She is a strong supporter of Russian government policy in Chechnya, as confirmed by her vehement contribution to a recent seminar in London attended by the author.  .  .



Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine the parliament. There are, therefore, serious doubts as to Mr. Khasuev’s legitimacy. The Russian authorities, however, take a different view. According to the recent Russian report to the FCNM: Activities of the acting Ombudsman in the Chechen Republic is also of great importance to the implementation of the Framework Convention … During the antiterrorist operation carried out in the Chechen Republic it is very important that the Ombudsman has the right to settle problems of citizens of the republic in different spheres and to use diverse mechanisms of protection of human rights and freedoms. The main task of the Ombudsman in the Chechen Republic is to create and consolidate a new State institution of protection of civil rights and freedoms which has never existed in the history of the Chechen people and which should protect rights of the population of the Republic and will take measures to make authorities more transparent and State officials more responsible. Today the main directions of activities of the Ombudsman in the Chechen Republic are being formed to ensure on territory of the Chechen Republic the unconditional rule of law and the imminent punishment for all crimes, especially those connected with violation of such fundamental human rights as the right to life, freedom and personal integrity.136

Mr. Khasuev’s appointment immediately came in for sharp criticism from, amongst others, the Chechen human rights activist Ruslan Badalov. According to Badalov, Lema Khasuev had already, in his role of Deputy Special Representative of the President of the Russian Federation for protection of human rights and freedoms in Chechnya, demonstrated his complete loyalty to the authorities, which violates those rights. He added that he could not understand the role of Mr. Gil-Robles in the appointment.137 On  January , the CoE’s Committee of Ministers published their joint reply to two resolutions of the Parliamentary Assembly of the Council of Europe (PACE).138 They emphasized that: … in a letter of  December  addressed to the Secretary General and to the Commissioner for Human Rights, the President of the Chechen Republic requested specific assistance in developing the institution of the Ombudsman. He also asked for cooperation in the following areas: the search for abducted and missing persons, the training for law enforcement officers on methods of work against impunity for

 Report of the Russian Federation on the progress of the second cycle of monitoring in accordance with Art.  of the Framework Convention for the Protection of National Minorities ACFC/SR/II(), received on  April , .  Joint reply from the Committee of Ministers, adopted at the th meeting of the Ministers’ Deputies ( January ), Doc. ,  January , at .  The Political Situation in the Chechen Republic: Measures to Increase Democratic Stability in Accordance with Council of Europe Standards (Recommendation  ()), and The Human Rights Situation in the Chechen Republic (Recommendation  ()).



Bill Bowring human rights violations, social rehabilitation, improving the image of the Chechen people.139

Strangely, the news of Lema Khasuev’s appointment did not seem to have reached the leadership of the CoE. On  February , the recently elected Secretary General of the CoE was reported to have told the Russian daily newspaper Kommersant that he was aware of the initiative to introduce the post of regional ombudsman in Chechnya and his mediation of contacts between local government and separatists, but he had not studied the details. Whether the post is introduced or not, he said, a dialogue should be established between various political forces in Chechnya, without which the crisis cannot be overcome.140 Meanwhile, Mr. Gil-Robles did not refer to the appointment in his Report of  April  on his visits to Russia on - July and - September .141 He confirmed that the conference was organized by his office together with the State Council of the Chechen Republic. There were  participants, including members of government, and representatives of federal human rights NGOs, especially Memorial (Oleg Orlov, its Chairman), International Helsinki Federation (Liudmila Alekseeva, Chairman of the Moscow Helsinki Group), and Memorial’s affiliate “Law and Migration” (Svetlana Gannushkina), and Chechen NGOs, including the local Memorial offices, “Echo of War” and “Mothers of Chechnya”. He refers to a lively debate on the closing resolution of the conference, including “the very nature and main directions of work of the future Plenipotentiary (ombudsman) on Human Rights, and the future law and period for creating this organ in the republic.”142 He said nothing at all concerning Lema Khasuev. D. The Chechen Ombudsman Attacks the Human Rights NGOs Nevertheless, one of Mr. Khasuev’s most controversial actions was not to attack the human rights violations of the Russian Government. Instead, he turned his guns on the Memorial Society. On  June , he was reported as having said that he had refused to cooperate with Memorial, which happens to be not only a leading participant in the September conference, but Russia’s oldest and most authoritative human rights organization.143 “Memorial’s policy is ‘the worse for Chechnya, the better for Memorial’,” he  See .  .  Alvaro Gil-Robles, “Report of Alvaro Gil-Robles, Commissioner for Human Rights on his Visit to the Russian Federation on - July  and - September ” (Council of Europe, Strasbourg,  April ), CommDH (), .  Ibid., para. .  The Memorial human rights centre is the oldest and most respected in Russia, with branches, research and educational centres in many regions, with libraries and museums. The Memorial movement dates back to the age of perestroika, when its main task was keeping alive the memory of severe Soviet political persecution. Memorial Moscow concentrates on human rights violations in zones of armed conflicts in Russia, so called ‘hot spots’, and on the protection of refugees and victims of discrimination and political persecution. The



Ombudsman Institutions and Ethnic Conflict in Russia and Ukraine was quoted by Interfax as saying at a meeting in the Chechen State Council. “This is why I do not cooperate with them [Memorial’s activists],” he added. “Memorial’s managers have only one aim – to work off the money that they received from Western structures …”.144 At the same time as launching his attack on Memorial, Mr. Khasuev announced that human rights commissioners will be appointed in all Chechen regions, and their aides will be appointed in every village including remote highland settlements. “It is necessary to react operationally to the situation, primarily to solve the problem of abductions,” he emphasized. According to Mr. Khasuev, the Kurchaloi region was the first where a district human rights commissioner began working that week. Human rights commissioners would be appointed in other  Chechen regions in the next few weeks. Memorial’s reaction was rapid and forthright. On  June , Oleg Orlov and Svetlana Gannushkina issued an application to President Alkhanov, criticizing Mr. Khasuev’s refusal to work with Memorial.145 They contrasted his position with the support given to Memorial and other human rights NGOs by President Alkhanov. V. Conclusion As far as the author of this article is aware, there has been no discussion to date on the appointment of an ombudsman for minority rights in either Ukraine or Russia. Ratification of the FCNM has been an important stimulus for debate, but both Ukraine and Russia seem to be determined to pursue Russia’s experiment in reviving the AustroMarxist concept of National-Cultural Autonomy.146 Ukraine is presently considering a draft law, which would essentially follow the Russian model.147 It is highly likely that the experience of Sergei Kovalyov in the first Chechen conflict has disinclined his successors in Russia and counterpart in Ukraine from getting involved in the problems of ethnic conflict and the rights of national minorities. Russia’s experiment with regional ombudsman institutions appears to have foundered in recent years, and the tendencies identified in this article are for the most part negative. The most recent attacks by the Chechen ombudsman on respected Russian human rights NGOs seem to confirm the trend.

  



author and colleagues at London Metropolitan University have established with Memorial the European Human Rights Advocacy Centre (EHRAC), which is assisting applicants in some  cases against Russia at the European Court of Human Rights, and on  February  won the first six Chechen cases against Russia. On  July , the Grand Chamber of the Court refused to entertain an appeal by Russia, and the decisions became final. See . . See Bill Bowring, “Burial and Resurrection: Karl Renner’s Controversial Influence on the ‘National Question’ in Russia”, in Ephraim Nimni (ed.), National-Cultural Autonomy and its Contemporary Critics (Routledge, London, ), -; and id., “Austro-Marxism’s Last Laugh? The Struggle for Recognition of National-Cultural Autonomy for Rossians and Russians”, () Europe-Asia Studies (March ), -. The author is a CoE expert considering this draft.



Bill Bowring Instead, it is Max van der Stoel, the exemplary first HCNM, who emerges as the only ombudsman-like figure to have achieved surprising results in preventing the outbreak of interethnic violence. Sergei Kovalyov may be criticized on several grounds: his headstrong contempt for diplomatic and political niceties; his continued involvement in party politics despite the provisions of his own draft law; and his (self-confessed) inability to cope with the organizational and administrative requirements of his posts. Yet, it is hard to escape the conclusion that at least some of Kovalyov’s boldness and courage would greatly strengthen the work of Mrs. Karpachova and Mr. Lukin – and the Russian regional ombudsmen.

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C. SPECIAL FOCUS: THE EU AND MINORITY PROTECTION

Birgit Weyss* and Alexander Lubich**

Minority Protection and Anti-discrimination Policies: Synergies and Challenges at the EU Level

I. Introduction From a European Union perspective, the following paper undertakes to foster two arguments: first, that the Racial Equality Directive1 will have a positive impact on the situation of both historic and new ethnic minority groups in the member states, but second, that this effort will still not be enough in terms of achieving sustainable minority protection.2 In the course of this article it is attempted to explore the common ground and the main rifts between the concept of traditional minority protection and anti-discrimination policies and to reveal the implicit strengths and weaknesses of both approaches, while bearing in mind their independent historical development. After describing the existing legal framework and the European Union’s powers as well as sketching out the major challenges encountered by the practical operation of both concepts, the analysis focuses on the methodological issues of positive action and special measures, collective and individual rights, and state obligations in the context of human rights. Finally, the concluding chapter offers suggestions on how the European Union can and should apply the two regimes in a complementary fashion on the basis of European law as it stands.

*

**

 

Birgit Weyss, legal researcher and project co-ordinator at the Ludwig Bolzmann Institute of Human Rights, legal expert of the Austrian RAXEN Focal point of the European Monitoring Centre on Racism and Xenophobia. Alexander Lubich, assistant lawyer, researcher at the Ludwig Bolzmann Institute of Human Rights in Vienna, assistant to Prof. Novak for the EU Network on Independent Fundamental Rights Experts. Council Directive //EC of  June  implementing the principle of equal treatment between persons irrespective of racial or ethnic origin: OJ  L , -. Given that the Racial Equality Directive is broader in scope than the Employment Equality Directive and seems to be more relevant in the context of minority protection, the authors decided not to elaborate separately on the sister directive, which prohibits discrimination on the grounds of religion or belief, disability, age or sexual orientation in the area of employment and occupation. See Council Directive //EC of  November  establishing a general framework for equal treatment in employment and occupation: OJ  L , -.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 297-320 © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Birgit Weyss and Alexander Lubich II. Minority Protection in the European Union3 A. Internal Affairs In the EU member states, the field of minority protection is politically highly disputed prohibiting any consensus so far. Given that state of affairs, the question arises whether there is any possibility for the EU as a supranational organization to contribute to a better and possibly more coherent protection of minorities in its member states. Is the EU equipped to make any progress in the field of minority protection? The Treaties do not confer any lawmaking competence on the EU as regards traditional minority protection.4 This is an area that falls exclusively within the jurisdiction of the member states which are, at least under EU law, free to decide for themselves whether to acknowledge the existence of minorities on their territories at all, and, if so, what rights and entitlements they should attach to the status of a recognised minority group. Inserted by the Maastricht Treaty , the only provision of Community law that directly allows the EU institutions to become active in addressing minority issues in member states is Article  EC, which reads in paragraph : “The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.”5 Following the co-decision procedure with the European Parliament and after consulting the Committee of the Regions, the Council acting unanimously may thus adopt measures to promote and financially support cultural activities and projects of minority groups in order to achieve the goal of maintaining and furthering regional diversity. Pursuant to paragraph , however, the Council must not impose the harmonization of the member states’ legal and administrative provisions. Article  EC is reproduced in almost identical terms in Article III- of the Treaty establishing a Constitution for Europe,6 even though importantly the unanimity requirement was dropped. It also inspired Article  of the as yet not legally binding EU Charter of Fundamental Rights, now forming part II of the Constitution, which concisely holds that “[t]he Union shall respect cultural, religious and linguistic diversity.” 



 

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Over the last few years academics have increasingly started to research the topic of minority protection within the legal and political framework of the European Union, see in this regard e.g. Bruno de Witte, “Politics versus Law in the EU’s Approach to Ethnic Minorities”,  EUI Working Paper RSC (); Gabriel Toggenburg, “A Rough Orientation Through a Delicate Relationship: The European Union’s Endeavours for (its) Minorities”, () European Integration online Papers (EioP) (), at ; Niamh Nic Shuibhne, EC Law and Minority Language PolicyCulture, Citizenship and Fundamental Rights (Kluwer, The Hague, ); Peter Hilpold, “Minderheiten im Unionsrecht”,  Archiv des Völkerrechts (), -. For the purpose of this chapter possible measures under Article () EC implementing the non-discrimination principle are not considered as falling under traditional minority protection. Non-discrimination issues are dealt with in chapter III below. Emphasis added. OJ  C , .

Minority Protection and Anti-discrimination Policies Interestingly, in Article I- the Constitution for the first time explicitly refers to respect for the rights of persons belonging to minorities as being one of the values on which the Union is founded. This can be understood as a clear statement, which seems to indicate that in the future the Union will show a stronger commitment to the protection of minority groups in its member states when pursuing its policies. Indeed, some of the programmes running under the aegis of the DG Education and Culture already take into account the special situation of minority groups. Regarding the safeguarding of regional and minority languages and cultures, the European Commission issued a call for proposals in the framework of the Culture  agenda that triggered a range of projects in various member statesk,7 and recently a Community action programme was established to promote bodies active at the European level in the field of culture which, among other issues, subsidizes the European Bureau for Lesser-Used Languages and other independent, nonprofit-making organizations of European interest.8 Article  EC is thus already taken by the EU institutions as a legal basis for co-financing projects having positive effects on the situation of minorities in the member states.9 Moreover, the state of minority protection in the EU member states might become an issue to be observed in the context of Article  EU when there are serious concerns that a particular member state persistently falls short of the common basic European standard in the areas of freedom, democracy, the rule of law and human rights. Provided that the mandate of the future Fundamental Rights Agency of the European Union, which was conceived to build on the European Monitoring Centre on Racism and Xenophobia (EUMC), is to include the ambit of Article  EU,10 the agency may also be tasked with collecting relevant data on the situation of minority protection in the member states in a wider field than that presently covered by the EUMC in its regular reports.11 Alternatively, the EU Network of Independent Experts in Fundamental Rights could be tasked with monitoring the different systems of minority protection in the member states and providing the Commission with a legal analysis upon which a comprehensive EU policy on minority groups within the Union could be elaborated.12

  

 



OJ  C , . Decision //EC of  April  of the European Parliament and of the Council: OJ  L , . However, if creatively applied it could also operate as a ‘diversity filter’ for checking the conformity of secondary EC legislation, as suggested by Gabriel Toggenburg, “Minorities … the European Union: is the missing link an ‘of ’ or a ‘within’?”, () Journal of European Integration (), -, at . See the Communication from the European Commission on the Fundamental Rights Agency COM()final of  October . The Bolzano/Bozen Declaration on the Protection of Minorities in the Enlarged European Union, adopted on  May , , at . A first step was undertaken by commissioning the Network of Independent Experts in Fundamental Rights to dedicate its Thematic Report  on the Protection of National Minorities in the European Union. The document is published on the website of the Network at .

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Birgit Weyss and Alexander Lubich Finally, pursuant to Article  EC the Committee of the Regions, which works as an institutional link between the EU and the subnational regions since the Maastricht Treaty entered into force in , shall be consulted on policies that affect specific regional interests. However, this institution is not specifically designed to protect the interests of minority groups, as it is for the member states to decide what constitutes a region and which representatives are to be included in the Committee. A region may thus coincide with a territory where a minority group resides like the Basque or Catalan autonomous regions in Spain or simply mirror the administrative (federal) organization of a member state without any minority connection like the Austrian and German Länder. Thus, it can be concluded that Article  EC is currently the most relevant legal basis for EU action for the promotion of minority groups. B. External Relations In its external relations the EU has a long history of addressing the issue of minority protection as part and parcel of its general policy of exporting democracy, the rule of law and human rights to third countries. Since the early s the EU has included so-called human rights clauses in bilateral trade agreements with third countries basing economic cooperation on a certain minimum degree of respect for human rights. In the area of development cooperation, the EU concluded the Cotonou Agreement with  African, Caribbean and Pacific states, which foresees a specific procedure to follow in case of a violation of human rights, including the rights of minorities or indigenous people.13 As was first formulated at the  Copenhagen European Council, candidate countries wishing to join the EU are obliged to meet several accession criteria including among others respect for and protection of their national minorities. The progress made by those countries on accomplishing all mandatory goals is documented by the Commission in Regular Reports. Much criticism has been voiced over the application of these criteria exclusively to the candidate countries, whereas the old member states do not have to undergo a similar monitoring. The charge of double standards weighs particularly heavily in the context of minority protection, where on the one hand France, as one of the founding member states, manages to maintain its ‘minority blind’ position as a matter of principle and refuses to accept being bound by Article  of the International Covenant on Civil and Political Rights (CCPR) and to sign the Framework Convention for the Protection of National Minorities (FCNM), and on the other, all ten candidate countries of the last round of enlargement were required to become party to the FCNM before accession to the EU. It must be noted, though, that these conditions are generally not considered as strictly legal in the sense that the final decision on whether or not a country wishing to join the EU will be admitted on the basis of its human rights record remains essentially 



See in more detail Kyriaki Topidi, “European Union Standards and Mechanisms for the Protection of Minorities and the Prevention of Discrimination”, in European Centre for Minority Issues (ed.) Mechanisms for the Implementation of Minority Rights (Council of Europe Publishing, Strasbourg, ), -.

Minority Protection and Anti-discrimination Policies a political one. It follows that applicant states have to abide by the Copenhagen criteria about as much as member states have to comply with the values on which the EU is founded in order not to trigger an Article  TEU procedure: ,.e. overall compliance will suffice. Nevertheless the EU should strive to overcome the imbalance by dedicating equal weight to these issues in internal and external affairs.14 C. Three Hot Spots of Minority Protection in the EU Member States The following paragraphs highlight three major challenges member states are currently confronted with: the questions of definition, new minorities and the protection of Roma. 1. Definition Various multilateral agreements confer rights upon persons belonging to a minority group or introduce state obligations for their benefit. The question arises – how does one define such a group and its members? So far none of the international agreements on minority rights has come up with a generally accepted definition of what constitutes a minority groups due to the widely differing positions of the states on that subject, including in particular the question on the status of aliens and the aspect of stability. The Advisory Committee of the FCNM has constantly held that, although states enjoy a fairly wide margin of appreciation as regards their minority policies, the existence of minorities cannot be denied arbitrarily. It is a matter to be assessed under the provisions of international law and not open to national legal definition.15 On the regional European level there is as much disagreement regarding the question of defining a national minority as is the case on the international level. EU member states have very different standpoints on the question of the existence of minorities and their definition. France, for example, denounces the whole concept of minority protection altogether as contravening the ‘one-nation-principle’ and the principle of equality laid down in its constitution, and is the only EU member state that did not sign the FCNM.16 All other member states recognise at least to some extent the existence of minorities on their territories, although rather few provide for a general definition. Even in member states that have a definition of national minority contained in their domestic law official recognition remains a political decision and cannot be legally enforced by an aspirant group. Take, for example, the Austrian Ethnic Groups Act of 

 

See in this regard also Frédéric Van den Berghe, “The European Union and the Protection of Minorities: How real is the alleged double standard?”,  The Yearbook of European Law (), -. See, for example, ACFC, opinion on Croatia of  April  (ACFC/INF/OP/I()), para. . Similarly, when acceding to the FCNM, Luxembourg (see Declaration contained in a letter from the Permanent Representative of Luxembourg, dated  July , handed to the Secretary General at the time of signature, on  July ) and Malta (see Declaration contained in the instrument of ratification, deposited on  February ) declared that there were no national minorities living on their respective territories in the meaning of the Framework Convention.



Birgit Weyss and Alexander Lubich  (Volksgruppengesetz) which holds in section  paragraph  that “[e]thnic groups in the sense of this federal law are the groups of Austrian citizens with a non-German mother tongue and own cultural tradition residing and being rooted in parts of the federal territory” but subsequently provides for the government to determine those groups in a special statutory regulation.17 On the basis of a comparative view, five key elements may be pinned down that regularly, but not necessarily always, feature in such definitions: the requirement of a non-dominant group whose members possess a specific common feature that distinguishes them from the majority (ethnic origin, language, culture and tradition), the requirement of citizenship, the requirement of long-established links to the state, the requirement of a traditional residential area in a particular part of the country, and the subjective requirement of a common motivation found in the members of a group to be regarded and treated as a minority. The question therefore arises if against this background the EU should develop its own working definition in order to pursue a common minority policy. 2. New Minorities Given that the existence of minorities is a matter of international law and not of national choice, minority protection is necessarily dynamic by nature, as new minorities may emerge out of new factual situations over time. Until the mid-twentieth century, minority issues in Europe mainly arose because of moving borders, but today we are faced far more with moving people. While new immigrants are generally ruled out from the minority protection regimes for lack of citizenship and/or for not being established long enough as a group, the situation of second- and third-generation immigrants may well be assessed differently. Among some member states there appears to be a tendency to adopt a broader view on minority protection, which includes also non-citizens, as an increasing number provides information on members of minority groups irrespective of their nationality in their reports to the Advisory Committee on the Framework Convention.18 Sometimes the problem with minority rights being attached to citizenship is reinforced by the operation of strict naturalization laws demanding that candidates have a good command of the official language, the provision of certain mandatory documents, and the proof of long periods of residence. Despite some progress made recently, difficulties with access to citizenship can still be observed, for example, in connection with the Russian-speaking population in Estonia and Latvia.19

  



Federal Law Gazette No. /, authors’ translation. See, for example, ACFC, opinion on Estonia of  September  (ACFC/INF/OP/ I()), para . Cf. EU Network of Independent Experts on Fundamental Rights, “Synthesis Report: Conclusions and Recommendations on the Situation of Fundamental Rights in the European Union and its Member States in ”, , at .

Minority Protection and Anti-discrimination Policies 3. Roma Throughout the European Union Roma20 are faced with political and social exclusion. Often they are not even recognised as a minority group of their own, as, for example, in Denmark, Greece or Ireland with all the ensuing negative consequences on their effective participation in public life and their involvement in decision-making affecting them. But structural social disadvantages as regards access to housing, education and employment weigh at least equally heavily, as can be observed also in member states where Roma enjoy official recognition like in Austria. What makes the case of Roma special and predestined for a concerted European effort is that they constitute a European minority in the sense that a sizeable population of them exists in almost all member states, and each of the former suffers from similar forms of discrimination, segregation and exclusion.21 Precisely for this reason the EU Network of Independent Experts in Fundamental Rights recently proposed to adopt a directive based on Article  EC, which ought to address the specific situation of Roma and provide effective accommodations of their needs including the use of positive action.22 III. Anti-Discrimination Legislation in EU Member States A. The Emergence of EC Anti-Discrimination Legislation While in many common-law countries such as America and the UK, anti-discrimination legislation emerged in the context of combating racism, in most European states the development of this legislation started with the promotion of equality between women and men.23 The same is true in regard to policy development within the European Community. Article  of the Treaty of Rome24 had already included the principle of equal pay for men and women for equal work. Even though this principle was introduced for economic reasons instead of primarily promoting gender policies, this provision can be seen as the starting point for the European Community’s involvement in anti-discrimination legislation. By adopting several directives25 which specified and broadened the  

 

 

For the purposes of this contribution the term Roma shall be used without prejudice as an umbrella term for all groups of Roma, Gypsies, Sinti and Travellers. This has been highlighted most recently by the report on “The Situation of Roma in an Enlarged European Union” of , commissioned by the DG Employment and social affairs of the European Commission, at . EU Network of Independent Experts on Fundamental Rights, “Report on the Situation of Fundamental Rights in the European Union in ”, -. See John Solomos, Race and Racism in Britain (Macmillan, London, ) as cited in Michael Connolly, Townshend-Smith on Discrimination Law: Text, Cases and Materials (Cavendish, London, ), at . Now Article  EC. See e.g. Council Directive //EEC of  February  on the approximation of the laws of the member states relating to the application of the principle of equal pay for men



Birgit Weyss and Alexander Lubich principle of gender equality in the field of employment and social protection as well as through the extensive case law of the European Court of Justice (ECJ)26, a complex legal corpus of anti-discrimination provisions on the grounds of gender developed. With the adoption of the Racial Equality Directive, however, it has been argued that anti-racist policy has surpassed gender-equality regulations in the hierarchy of equality.27 At the beginning of the s, with the increase of racist and xenophobic incidents in some of the former  member states, civil society organizations and other interest groups increased activities to press for some kind of policy reaction by the European Community.28 Following the so-called  Kahn-report commissioned by the European Commission, the subsidiarity argument, according to which anti-discrimination measures are being best dealt with at the national level, lost relevance.29 As a consequence policy makers at the European as well as at the national level started recognizing that racism and xenophobia might in fact pose a threat to the Community’s aims of social cohesion, full market integration and a common labour market. In order to provide the EC with the power to take action against various forms of discrimination, Article  was included in the Treaty of Amsterdam. On the basis of this primary law provision:





 



and women: OJ  L , ; 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: OJ  L , ; Council Directive //EEC of  December  on the progressive implementation of the principle of equal treatment for men and women in matters of social security: OJ  L , ; Council Directive //EC of  December  on the burden of proof in cases of discrimination based on sex: OJ  L , ; Directive //EC of the European Parliament and of the Council 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: OJ  L , . See e.g. ECJ, case C-/, Gabrielle Defrenne v. Société anonyme belge de navigation aérienne Sabena, judgment of  April , [] ECR . ECJ, case C-/, Gabrielle Defrenne v. Société anonyme belge de navigation aérienne Sabena, judgment of  June , [] ECR . ECJ, case C-/, M. H. Marshall v. Southampton and South-West Hampshire Area Health Authority, judgment of  February , [] ECR . EJC, case C-/, Bilka v. Kaufhaus GmbH v Karin Weber von Hartz, judgment of  May , [] ECR . ECJ, case C-/, Eckhard Kalanke v. Freie Hansestadt Bremen, judgment of  October , [] ECR I-. See e.g. Lisa Waddington and Mark Bell, “More Equal Than Others: Distinguishing European Union Equality Directives”,  CMLR (), -; Matthias Mahlmann, “Gleichheitsschutz und Privatautonomie. Probleme und Perspektiven der Umsetzung der RL //EG gegen Diskriminierungen aufgrund von Rasse und ethnischer Herkunft”,  Zeitschrift für Europäische Studien (), -. Mark Bell, Anti-Discrimination Law and the European Union (Oxford University Press, Oxford, ), -. Consultative Commission on Racism and Xenophobia, Final Report, (), at .

Minority Protection and Anti-discrimination Policies the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

The ‘materialization’ of this empowering provision lacking any direct effect happened in record time with the speedy adoption of the Racial Equality Directive on  June . The Austrian coalition government, which was formed in February  between the conservative People’s Party (Österreichische Volkspartei, ÖVP) and the right-wing Freedom Party (Freiheitliche Partei Österreichs, FPÖ), triggering diplomatic sanctions, functioned as a catalyst in regard to the adoption process.30 During the period of sanctions the issues of racism and xenophobia were at the centre of political debate and media attention, which made it hard for member states’ governments to oppose respective countermeasures. In the context of these developments it took the former  member states less than  months to achieve a unanimous decision on one of the world’s most rigid anti-discrimination regimes. B. The Transposition Process – A Cumbersome Project Since  July , respectively  May , the minimum standards of the Racial Equality Directive are supposed to apply in all old and new member states. Even in those countries where the transposition process has not been completed yet, the directive yields direct effect. The Racial Equality Directive obliged all member states to become active. Even countries like the UK or the Netherlands, which already had comprehensive anti-discrimination legislation in place, had to take action to adjust their legal systems to the directive’s requirements. Generally speaking, the transposition process proved to be rather cumbersome and slow. In fact only very few countries managed to transpose the Racial Equality Directive in time. In July  the European Commission initiated infringement procedures against Greece, Austria, Finland, Germany and Luxembourg.31 At the time of writing the ECJ had ruled in the case of the latter four countries that they had breached EU law by failing to transpose fully the Racial Equality Directive.32



 

Andrew Geddes and Virginie Guiraudon, “Anti-discrimination Policy: The Emergence of a EU Policy Paradigm amidst Contrasted National Models”, paper presented at the workshop Opening the Black Box: Europeanisation, Discourse, and Policy Change, - November , Oxford, England, , at . Equal Rights in Practice, Newsletter, Issue , Spring , , at . ECJ, case C-/, Commission v. Finland, judgment of  February ; case C-/, Commission v. Luxembourg, judgment of  February ; case C-/, Commission v. Germany, judgment of  April ; case C-/, Commission v. Austria, judgment of  May .



Birgit Weyss and Alexander Lubich Given the extensive scope of the Racial Equality Directive, which covers the private and public sector, employment and non-employment related issues, and touches upon procedural law and institutional settings, many member states faced a number of challenges in transposing the standards into their national legal frameworks. In most member states the adoption of new anti-discrimination legislation was not handled as a political priority, nor did it manage to enter broader public debate or national media coverage. This situation is particularly deplorable as the directive itself requires member states to disseminate information about equality laws to all persons concerned.33 A country where the transposition process is still far from being completed but, however, is intensively debated in the media is Germany. The proposed anti-discrimination bill provoked heated debate mainly led by opponents focusing on the fact that the bill exceeds the minimum requirements outlined within the two anti-discrimination directives and would thereby negatively affect the general employment situation.34 Whereas some member states, particularly the newer ones, used the transposition process as a chance to adopt a comprehensive anti-discrimination act, others introduced the directive’s wording in already existing legislation, which led to a scattered structure of anti-discrimination provisions in various statutes. Effectiveness of equality legislation, however, heavily depends on its high profile among the general population. A special law devoted to equality legislation and protection against discrimination increases its accessibility while at the same time pointing out the state’s rejection of discriminatory practices and attitudes.35 C. The Minimum Standards Set Forth by the Racial Equality Directive The Racial Equality Directive outlaws any discrimination based on racial or ethnic origin in areas such as employment, access to goods and services, and other essential areas of life such as social security, healthcare and education. The protection against discrimination conferred by the Directive applies to all persons that are on the territory of one of the EU member states irrespective of their nationality.36

 

 



Article , Racial Equality Directive. Heiner Bielefeldt and Petra Follmar-Otto, “Diskriminierungsschutz in der politischen Diskussion”, Deutsches Institut für Menschenrechte, Policy Paper No. , February , , at . Isabelle Chopin, Janet Cormack and Jan Niessen (eds.), The implementation of European anti-discrimination legislation: work in progress (Migration Policy Group, Brussels, ), . The directive however leaves no doubt that it does not apply to discrimination on the basis of nationality, which de facto means that third country nationals cannot claim on the basis of this Directive that they are discriminated against on the grounds of their nationality. However, systematic discrimination of third country nationals might amount under certain conditions to indirect discrimination on the grounds of ethnic origin. See Strategic litigation of race discrimination in Europe: from principles to practice (European Roma Rights Center, INTERIGHTS, Migration Policy Group, Nottingham, ), , at .

Minority Protection and Anti-discrimination Policies Given the Directive’s extensive scope covering the public as well as private sector, the principle of equal treatment basically applies to everyone: private parties, public authorities and bodies, natural as well as legal persons. The material scope covers areas of employment, vocational training, membership and involvement in organizations of workers and employers, education, social protection (including social security and healthcare), social advantages as well as access to goods and services, including housing. The Directive, inspired by the ECJ case law on gender equality, defines four different forms of discrimination: direct and indirect discrimination, discriminatory harassment and instruction to discriminate. Intention to discriminate is no element of any of these definitions. The wording “on grounds of racial or ethnic origin discrimination” in Article  further indicates that also perceived characteristics are covered by the protection against discrimination.37 Drawing from earlier experience in connection with legislation on equality between women and men, the Racial Equality Directive has a strong focus on enforcement. In cases of infringements of the principle of equal treatment, member states have to provide victims of discrimination with the right to make a complaint through a judicial and/or administrative procedure. Furthermore, states have to foresee effective, proportionate and dissuasive sanctions. In order to facilitate the enforcement of these rights the Directive foresees procedural as well as institutional mechanisms. Recognizing the difficulties in providing sufficient evidence of discrimination, member states have to enact a shift of burden of proof in favour of the discrimination victim obliging the respondent to prove that he/she has not discriminated. Acknowledging the importance of support of victims when claiming their right not to be discriminated against, the Directive further obliges member states to designate or establish a specialized equality body. The body’s mandate shall encompass independent assistance to victims of discrimination in pursuing their complaints, independent research, publication of related reports and the development of recommendations on issues relating to discrimination. Given that NGOs and other interest groups are on most occasions the first contact point for victims, the Directive provides organizations with a legitimate interest in compliance with the principle of equal treatment with the right to bring enforcement actions on behalf or in support of the complainant. A precondition for organizations to engage or initiate such proceedings is that the alleged victim consents to the related action.38 The Directive’s wording in regard to positive action is very weak, as it does not even encourage, far less oblige member states to adopt positive action.39 It merely clarifies that the principle of equality specified in the Directive shall not prevent member states from maintaining or adopting measures to prevent or compensate for disadvantages linked to racial or ethnic origin. The Directive’s focus on individual legislation, while neglecting the preventive potential of positive measures, is probably its greatest  



Ibid., . This means that the Directive does not foresee an autonomous right of action for trade unions or other relevant organizations to bring discrimination cases in their own name. See Bell, Anti-Discrimination Law …, . See Gabriel N. Toggenburg, “The Race Directive: A New Dimension in the Fight against Ethnic Discrimination in Europe”,  EYMI (/), -, at .



Birgit Weyss and Alexander Lubich deficiency.40 In this regard gender equality has gained more political support, the active promotion of equality between women and men being defined as one of the European Union’s objectives.41 Finally, the Directive aims to foster interaction and exchange between different stakeholders. On the one hand it foresees that member states shall promote dialogue between the social partners in order to foster equal treatment in collective agreements and codes of conduct, and on the other, member states shall additionally encourage dialogue with NGOs active in the area of anti-discrimination. This state obligation recognizes the pivotal roles of such organizations in enhancing the protection against discrimination and in supporting victims of discrimination in their access to justice. NGOs as well as the social partners can therefore call upon governments to interact with them and, for example, to take into account their expertise in regard to drafting and mainstreaming anti-discrimination policies. D. Aspects of the Directive’s Transposition Process Relevant for the Protection of National Minorities It is without doubt that the Racial Equality Directive significantly raises legal protection against racial and ethnic discrimination in all  EU member states. However, it should not be overlooked that it only provides a fragmentary framework for combating discrimination. As a consequence of the unanimity requirement of Article  EC, the Directive’s wording only mirrors the smallest common denominator that member states’ governments could agree upon, partly leaving much space for state interpretation and, for instance, lacking any concrete conditions for positive measures. Only a few member states, such as Belgium, the Netherlands, Hungary or Finland, have shown their own initiative and creativity in implementing a comprehensive system of equality law. In contrast, other countries like Spain and Italy have more or less reproduced the Directive’s texts – often almost word for word – in their national legislation.42 Member states have followed very different approaches when transposing the Racial Equality Directive into their national legal frameworks. France, for example, used its Penal Code to implement important parts of the Directive. Spain implemented the directive by adopting an amendment to a law on fiscal administrative and social measures. Other states amended their Labour Codes to implement the principle of equality in employment, whereas the nonemployment-related scope of the Directive was regulated in specific acts applying only to racial or ethnic discrimination like in Denmark, or general acts applying to other grounds as well, like in Ireland. Countries such as Finland or Belgium adopted new Equality Acts following a horizontal approach prohibiting various grounds of discrimination in one single act. Austria as well as Lithuania belong to those countries that built upon already existing gender equality acts by introduc  



See Bob Hepple, “Race and Law in Fortress Europe”,  Modern Law Review (), . Article I-, Treaty on the Constitution of the European Union, OJ  C , . See country reports from independent legal experts on the implementation of anti-discrimination laws as of April , at .

Minority Protection and Anti-discrimination Policies ing other grounds of discrimination and by partly extending their scope beyond the employment sphere. Given the limited scope of this article the following paragraphs will only describe common approaches and major differences in the way of how member states tackled the transposition process of the Racial Equality Directive. 1. Extending the Scope of the Protection against Discrimination The implementation of the Racial Equality Directive led to the extension of the material as well as the personal scope of the prohibition of racial and ethnic discrimination in all member states. Even though EU member states – except the UK and Denmark – are bound by their constitutions to prohibit discrimination by public authorities, the prohibition of racial and ethnic discrimination between private contract partners was a rather new concept to many civil law countries such as Austria and Germany.43 Several countries went beyond the minimum standards of the directive and prohibited discrimination on additional grounds with Finland, Hungary and the Czech Republic even introducing a non-exhaustive list of prohibited grounds of discrimination. The latter countries together with Cyprus have explicitly prohibited discrimination on the criteria of language. Ireland’s Employment Equality Act and Equal Status Act regulate membership of the Traveller Community as a specific ground of discrimination. Other states, like the UK, Belgium, Spain or Poland, explicitly outlaw direct discrimination on the basis of nationality. 2. Improving Access to Justice Following a rights-based approach the Racial Equality Directive foresees several mechanisms for promoting access to justice, which is a precondition for the effectiveness of equality legislation. One of the major issues in this regard is the institutional support the Directive foresees by obliging member states to name or establish equality bodies and to implement rules on legal standing for organizations. Under the Directive, the promotion of equal treatment may be entrusted to national agencies charged with the defence of human rights. The majority of member states, however, mandated specialized equality bodies and ombuds institutions for this task.44 The implementation process has further shown the tendency that most states chose the model of one comprehensive institution covering all grounds mentioned in Article  EC.45 A number of states also foresee specific extrajudicial procedures promoting conciliation and mediation while attempting to settle a dispute before it goes to court. Examples for institutions that provide such mechanisms are the Equality Tribunal in Ireland, the Employment 

 

Per Johansson, “Comparing National and Community Anti-Discrimination Law”, in Jan Niessen and Isabelle Chopin (eds.), The Development of Legal Instruments to Combat Racism in a diverse Europe (Martinus Nijhoff Publishers, Leiden, Bosten, ), -, at . For a critical view on the Directive’s limitation to the principle of freedom of contract see inter alia Eduard Picker, “Antidiskriminierung als Zivilrechtsprogramm?”, () Juristenzeitung (), -. Jan Niessen and Janet Cormack, National specialised equality bodies in the wake of the EC Anti-Discrimination Directives (Migration Policy Group, Brussels, ), . Ibid., .



Birgit Weyss and Alexander Lubich Tribunals in Great Britain, and the Equal Treatment Commissions in Austria and the Netherlands. In adopting a statutory basis for granting legal standing to specialized NGOs and trade unions, member states have followed very different approaches. Some states have left a wide range of organizations whereas others assigned the Ministry of Justice (Luxembourg) or the Ministry of Labour and Equal Opportunities (Italy) to approve a list of eligible organizations. The Austrian Equal Treatment Act explicitly names the Litigation Association for the Defense of the Rights of Victims of Discrimination as the only institution to have legal standing before court, provided that the person concerned gives his or her consent.46 The Czech draft Act on Anti-Discrimination goes the furthest, providing NGOs with an independent right to sue in class actions. This right would provide victim support organizations to take discriminators to court without the consent of the person concerned. 3. Providing Equality Legislation with ‘Teeth’ Obliging member states to adopt effective proportionate and dissuasive sanctions, the Directive leaves it to the states’ discretion whether they implement criminal or administrative sanctions, civil law compensation claims, community service, withdrawal of subsidies and suchlike. Most countries chose the payment of material and immaterial damages as sanctions applicable to infringements of the principle of equal treatment. Most EU member states had ratified the Convention on the Elimination of All Forms or Racial Discrimination already in the s by enacting criminal law as a means to fight racist and ethnic discrimination.47 The implementation of the Racial Equality Directive therefore introduced a shift from criminal to civil law remedies. Providing victims of discrimination with the right to claim material as well as immaterial damages not only better serves the victims’ interest in compensation, but also strengthens their procedural rights, which in criminal proceedings are normally reduced to that of witnesses. Furthermore, in accordance with Article  of the European Convention on Human Rights and Fundamental Freedoms (ECHR) the shift of burden of proof in favour of the persons claiming their right to non-discrimination can only apply in civil law procedures. 4. Implementing Positive Action The Directive only allows but does not oblige member states to establish positive actions in order to prevent or compensate for disadvantages linked to racial or ethnic origin. A reason for the absence of any clear state obligation might be the lack of a common understanding regarding the definition of positive actions, their aims and purposes. Most of such measures presently implemented in EU countries cover the areas of education and employment.48 Whereas in the s most positive actions were pri  



The Litigation Association is a body set up by several NGOs dealing with different grounds of discrimination. See . Rainer Nickel et al., European Strategies to Combat Racism and Xenophobia as a Crime (ENAR, Brussels, ), . María Miguel Sierra et al., Towards Equal Treatment. Transposing the Directive – Analysis and Proposals (ENAR, Brussels, ), .

Minority Protection and Anti-discrimination Policies marily targeted to compensate for disadvantages associated with race or ethic origin, in recent years the preventive aspect of such actions has become more important.49 Unfortunately, only very few countries foresee statutory regulations that specify the practical implementation of such positive measures. A positive example in this regard is Finland’s Equality Act, which requires all authorities to elaborate action plans on how they intend to promote the realization of de facto equality in their activities. In Sweden, employers are obliged to take active measures to prevent ethnic discrimination in regard to access to employment, working conditions, career development and so on.50 Given that the collection of data on a person’s ethnic origins is prohibited in many countries, positive action programmes are often formulated in ethnically neutral ways, targeting socially disadvantaged groups or persons facing difficulties in finding jobs. There is a growing trend among member states to require public bodies to take equality considerations into account in all areas of their work. In this context, it is hoped that member states will explore the use of equality clauses in public contracts, as this can be an effective complement to legislative non-discrimination guarantees.51 5. Improving Dialogue and Bringing Stakeholders Together By obliging member states to promote dialogue between social partners and with NGOs active in the area, the Directive acknowledges that implementing equal treatment measures requires the active involvement of all stakeholders. The increased networking at the national as well as European level in the course of the transposition further promoted the sharing of experiences and ideas, as well as the exchange of good practice examples among governmental as well as non-governmental actors. Additionally, the Directive attracted the attention of the academic world, which promoted the development of a considerable pool of expertise and a remarkable body of academic literature.52 6. EU Complementary Actions Supporting Measures to Combat Discrimination The transposition process of the Racial Equality Directive was accompanied by the Community action programme to combat discrimination on the grounds of race, ethnic origin, religion or belief, disability, age and sexual orientation.53 By establishing this programme with a EUR . million budget for the period  to , the Commission recognised the fact that legislative measures are not sufficient to eliminate discriminatory attitudes and mechanisms. The programme includes three main strands focusing   





Ibid. Articles -, Law on Measures for Combating Ethnic Discrimination in Working Life. See “Study of the use of equality and diversity considerations in public procurement: Final Report” (European Community, ), at . For an extensive bibliography see Mark Bell et al., “Critical Review of Academic Literature Relating to the EU Directives to Combat Discrimination”, (European Commission, DG for Employment and Social Affairs Unit D., ), at . Discrimination between women and men is tackled by a separate programme; see “Community Programme on Gender Equality (-)”, at .



Birgit Weyss and Alexander Lubich on evaluating the effectiveness of policies and practice, on promoting capacity and networking between relevant stakeholders and on supporting information and awarenessraising activities. Financial support for measures to combat all forms of discrimination and inequalities in connection with the labour market is further available through the EQUAL programme located at the European Social Fund. This programme emphasises transnational cooperation and innovative approaches involving associations and organizations in the public and private sectors. Given that national funds for these issues were rather limited, if existent at all, civil society organizations working in these areas have profited greatly from related EU funds. Both programmes made a great contribution to the increasing awareness of measures to combat discrimination among private as well as public actors. IV. Analysis A. Different Historical Development of Minority Rights and Anti-Discrimination Legislation Traditional minority protection as a concept of international law is much older than classical non-discrimination instruments. To some extent it can be traced back to various peace treaties of the seventeenth century, which granted religious rights to Protestant or Catholic minority groups living on the territories that were ceded to the opponent. Then, in the nineteenth century, the field of protection extended or even switched to groups that following a war suddenly found themselves under the rule of a state with a different ethnic majority. However, it was not before the League of Nations’ regime following World War I that a systematic protection of minority groups evolved in international law, which can be seen as a direct consequence of the large-scale redrafting of the European map resulting in new borders and creating new minority-majority constellations. In the framework of the League of Nations, however, minority rights did not become a generally applicable concept of international law, but were rather instrumentalized by the victorious nations and imposed exclusively on states required to sign an international agreement or peace treaty. The end of World War II is regularly referred to as the starting point of international human rights law. In the aftermaths of the horrors of the Nazi regime, the UN placed the fight against racism and discrimination at the centre of its human rights activities. By contrast to the League of Nations, the UN regime initially refrained from laying down special rights for persons belonging to minority groups, thereby avoiding differential treatment of the nations in the field of minority protection. Rather, it emphasised the individual rights of every person based on the fundamental notions of freedom and equality. The principle of non-discrimination forming an intrinsic part of every human right is enshrined in practically every international human rights treaty. The wording of the grounds on which discrimination is prohibited differs from one instrument to another, but repeated references to race, colour, culture, language, religion and national and ethnic origins cover all minority situations.54 



Gudmundur Alfredsson, “Non-Discrimination and Minority Rights”, in Jan C. Joerden (ed.), Diskriminierung – Antidiskriminierung (Springer, Frankfurt/Oder, ), -, at .

Minority Protection and Anti-discrimination Policies Whereas specific measures to prevent ethnic and racist discrimination were already adopted in the s and s, the first UN document specifically devoted to minority issues was adopted in . The Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities was an expression of the importance of minority rights for the development of society as a whole and within a democratic framework based on the rule of law. At the European level, legally binding agreements on minority rights too were only concluded in the s with the European Charter for Regional or Minority Languages and the Framework Convention for the Protection of National Minorities. Despite this rather different legal development the overlap between both branches is reflected in the monitoring mechanisms of UN treaty bodies and institutions at the European level regularly scrutinizing the situation of minorities with regard to the specific rights conferred by the respective treaty. For example, expert members of the Human Rights Committee and the Committee on the Elimination of Racial Discrimination routinely question government representatives presenting state reports about minority rights.55 Also institutions like the European Monitoring Centre on Racism and Xenophobia or the European Commission against Racism and Intolerance regularly evaluate state performance in regard to the situation of minorities in member states. B. Defining Groups versus Defining Grounds of Discrimination History has shown that difficulties in finding a consensus between different parties arise when it comes to defining groups and criteria of affiliation. This might be the major reason for the different development of anti-discrimination law and minority law – two branches that complement each other but still followed quite different paths. In contrast to minority law, anti-discrimination legislation largely avoids drawing a line between certain groups by defining only grounds or personal characteristics. Bearing in mind human imagination when it comes to defining reasons of exclusion, all anti-discrimination provisions in international human rights treaties include nonexhaustive lists of such grounds. Defining grounds instead of defining groups is in a way indifferent regarding the question of who may enforce them. Discrimination on the basis of colour, for example, cannot only be invoked by persons of darker complexion, but by any person who feels discriminated against because of his/her colour of skin. This concept of non-discrimination predominantly relies on the individual justice model aiming to secure the reduction of discrimination by eliminating differentiations based on illegitimate considerations regarding specific personal characteristics like sex, colour, ethnic or religious origin and so on.56 Concentrating on securing fairness for the individual it generally applies symmetrically, protecting women as well as men, people with dark as well as light complexion, people belonging to the majority and the minor-

 

Ibid., . Christopher McCrudden, “Regulating Discrimination: Advice to a Legislator on Problems Regarding the Enforcement of Anti-Discrimination Law and Strategies to Overcome Them”, in Titia Loenen and Peter R. Rodrigues (eds.), Non-Discrimination Law: Comparative Perspectives (Kluwer Law International, The Hague, ), -, at .



Birgit Weyss and Alexander Lubich ity population.57 However, when it comes to indirect discrimination or positive action, the loophole from group definitions becomes very narrow. Positive actions tend to be asymmetric aiming to advance the situation of particular groups in order to compensate for past subordination or to redress present forms of exclusion and discrimination. This might be one of the main reasons that there is still no clear and enforceable legal state obligation to implement positive action in international law. Anti-discrimination legislation is of course not per se individualistic and minority rights are not exclusively group oriented. The differences outlined above are rather a reflection of the past development and the different approaches pursued. It is, however, evident that the principle of non-discrimination is presently further developed and has gained more acceptance within the state community. C. Collective versus Individual Rights With the emergence of the anti-discrimination concept in the UN treaties, the issue of minority group rights became less important on the international agenda. Hence the United Nations underscored the individual rights of every person based on the fundamental notions of freedom and equality, which is well reflected by Article  of the UN Charter, Article  of the Universal Declaration of Human Rights, and Articles  and  of the International Covenant on Civil and Political Rights. Only Article  CCPR seems to go cautiously beyond the approach of universally applicable individual rights for it states that: [i]n 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 the group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

In one famous case,58 the UN Human Rights Committee also supported the reading of many scholars59 that Article  contains a collective element when it found a violation of an Inuit band’s right to enjoy its traditional way of life and culture and afforded protection from expropriation to this indigenous people as a group. On the regional European level, a similar development could be observed which led to a change of paradigm from granting special rights to members of minorities towards emphasizing the individual guarantees of general human rights law. Reflecting this approach, the ECHR, being the primary European human rights document, does not contain any reference to minorities and exclusively lists the “rights of everyone”. However, the more recent European Framework Convention for the Protection of National Minorities recalls somewhat the collective element when it uses the plural   



Ibid. HRC, Communication No. /, Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, views of  March , CCPR/C//D//. See e.g. Felix Ermacora, “The Protection of Minorities Before the United Nations”,  RdC /IV, -; and Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (N.P. Engel, Kehl am Rhein, nd ed. ), -.

Minority Protection and Anti-discrimination Policies and speaks of the right of “persons belonging to national minorities” to preserve their culture and tradition.60 While this wording certainly does not go so far as to suggest that these rights are held by a minority as a group such as the right to self-determination, where it may apply, it still indicates that minority protection primarily aims at benefiting the group as a whole. The maintenance of the very existence of a group and of an environment, in which the members of the group can live pursuant to their inherited culture and traditions, are thus recognised as values of their own, which have to be promoted independently of any violation of individual rights. While there is much debate in academic circles on whether to employ individual rights or collective rights in order to better protect minority groups,61 the laws of the EU member states do not reflect this. A comparison of the constitutions of the member states reveals that only the Slovene constitution of  provides for group rights of minorities that are truly enforceable by the group itself, i.e. by its representatives in the self-governing local communities.62 In the other member states ‘group rights’ have in fact to be exercised individually by their respective members, although, admittedly, certain minority rights have a very strong impact on the group as a whole.63 Clearly, real collective rights – in the sense that the group itself has locus standi and can claim and enforce the rights – can only be legitimately exercised through democratically elected bodies acting on behalf of and representing the interests of the minority group just as is ensured by the system of social partners in the area of collective bargaining and action.64 With the exceptions of Slovenia and self-governing regions, which can also be seen as an instrument of minority protection, none of the member states provides for such democratic minority group representation. Usually, whenever an entitlement is granted in terms of a right, then it is always the individual member of a group that can claim it. States implement minority protection in the following two forms: minority protection based on human rights and minority protection based on state obligations prescribing special measures. This latter approach is taken by the European Charter for Regional or Minority Languages, which prefers to stipulate state obligations and positive measures to be taken for the benefit of minority languages, the compliance of which is ensured by a periodic reporting system to the Council of Europe. It is strongly argued that an individual human rights approach alone is insufficient for minority protection to have a   

 

Article  FCNM. See Natan Lerner, Group Rights and Discrimination in International Law (Martinus Nijhoff, The Hague, nd ed. ), , where he proposes a catalogue of group rights. Cf. Article  Slovene Constitution. For a detailed overview see Joseph Marko, Autonomie und Integration. Rechtsinstitute des Nationalitätenrechts im funktionalen Vergleich (Böhlau, Wien-Köln, ), -. Adolf Kimmel and Christiane Kimmel, Verfassungen der EUMitgliedsstaaten (dtv, Munich, th ed. ). See e.g. Article  Vienna State Treaty of  on the right to have topographic signs in one’s minority language. For further possibilities to accommodate the issue of representation see Hannes Tretter, “Der Schutz ethnischer Minderheiten durch kollektive und individuelle Rechte”, in Felix Ermacora, Hannes Tretter and Alexander Pelzl (eds.), Volksgruppen im Spannungsfeld von Recht und Souveränität in Mittel- und Osteuropa (Verlag Wilhelm Braumüller, Wien, ), -, at .



Birgit Weyss and Alexander Lubich real prospect of success and that states must show a minimum of political commitment to actively promote minority groups on their territory and to provide the necessary framework for them to preserve and enhance their distinct language, religion, culture and tradition. If a state does not go beyond the stage of mere non-discrimination legislation and non-interference with the general human rights of a minority group, the members of such a group, especially if their number is small in relation to the majority, will very probably not be in a position to withstand the general pressure of assimilation, and the minority group will eventually disappear. So, apart from guarantees phrased in explicit human rights terms, state action going beyond the positive state obligation as required by the international human rights regime is needed. At least from a European perspective, the distinction between minority protection and non-discrimination cannot, therefore, be drawn along the borderlines of collective and individual rights. Admittedly, the collective element is stronger with regard to minority protection where the primary objective is to preserve the diversity of cultures which is a term necessarily attached to a group, but it is not exclusively reserved to it. In order to implement positive actions in the field of non-discrimination it is also necessary to take a distinct group of persons as a reference, which will then benefit as a whole. These already blurred lines have been worsened by recent developments in antidiscrimination law establishing the possibility of institutional support in court action and the idea of adopting a special Article  directive on Roma, which certainly bear a pronounced collective element. What then is the difference if both concepts operate with individual human rights and positive state action? The answer must be seen in the underlying goal: Whereas non-discrimination aims at equal treatment, minority protection provides for special treatment. Any preferential treatment of persons under positive action programmes in the field of non-discrimination is only justified as a temporary measure as long as a given group is structurally underrepresented or discriminated against. When equal opportunities are accomplished, preferential treatment becomes unlawful. This sharply contrasts with the concept of minority protection where the special treatment of members of a group is, in principle, permanent. In order to better illustrate this essential distinction the right to have topographic signs in a minority language, the right to use a minority language before the authorities or the right to political representation of a minority, as they may be granted, are not to compensate for structural disadvantages. Rather, they have a life of their own, independent of any actual discrimination as long as the minority exists. V. Conclusions A. The Added Value of the Racial Equality Directive to Minority Protection Probably the most important change the Racial Equality Directive has brought about is the Union-wide prohibition of racial and ethnic discrimination between private actors in employment and other important areas like access to goods and services, education, social security and healthcare. Drawing from the ECJ case law on gender discrimination, the directive further defines the concept of indirect discrimination. Unequal treatment on the basis of a



Minority Protection and Anti-discrimination Policies person’s mother tongue, for example, can therefore under certain conditions qualify as an indirect discrimination on the basis of ethnic origin.65 Being aware that anti-discrimination legislation, which is not applied, will be reduced to a mere symbolic character, the Directive obliges member states to implement a number of tools and support mechanisms aiming to improve access to justice of groups vulnerable to ethnic discrimination. A decisive factor in increasing the enforceability of discrimination claims can be seen in the shift of the burden of proof to the defender in a discrimination claim. Given that in many cases the victim of discrimination has no access to relevant evidence, this procedural change might render the chances of successful enforcement before civil courts much higher. Furthermore, the protection against any adverse treatment as a reaction to a complaint about discrimination forms an important prerequisite for the effective application of anti-discrimination provisions. Another decisive improvement by the Directive is the designation or establishment of equality bodies in each of the  member states. Theses bodies have the potential to bring about real change not only by providing assistance to victims of discrimination, but also by collecting data on complaints, conducting surveys, developing policy recommendations and by advising employers and companies on equal treatment policies. Unlike all other EC-directives or relevant international human rights treaties, the Directive provides for an active involvement of NGOs by entitling them to engage in relevant judicial and administrative procedures to support victims of discrimination if they approve. Given that persons who have experienced discrimination are more inclined and confident to start legal action when they are supported by organizations with an interest in securing their rights the importance of this provision cannot be underestimated.66 The implementation of the Directive has further led to a shift in regard to legal sources of anti-discrimination provisions. Whereas criminal law so far, for various reasons,67 proved rather inefficient, the mostly newly introduced civil law mechanisms might be more appropriate. Not only do these allow for a shift of burden of proof, they also seem to be more adequate in satisfying the victim’s interest. By providing a legal basis for filing compensation claims in order to seek redress for material and immaterial damages, the number of complaints against discriminatory acts might increase. This might further fill the present lack of relevant case law, which is a problem in most of the member states. Important test litigation, which is taken up by the media, might have an important impact on the public awareness of such legislation. The member states’ reluctance in transposing the Directive indicates that such a leap forward in anti-discrimination legislation would have been inconceivable by member states acting individually. The framework of the European Community therefore proved highly efficient to level up the protection against racial and ethnic as well as other forms of discrimination in all member states.

  

ERRC/Interrights/MPG, Strategic litigation of race discrimination …, . Ibid., . Nickel et al., European Strategies …, .



Birgit Weyss and Alexander Lubich B. What Racial Equality Legislation Cannot Provide The Directive’s impact on the prevention and prohibition of racial and ethnic discrimination has often been challenged as its enforcement predominantly relies on individual litigation. Individual litigation, however, is rather inappropriate when it comes to breaking up structures of institutionalised racism and discrimination. Trade unions might play an important role in coordinating and supporting actions by employees who feel themselves discriminated against as a group. Another similar deficiency is the lack of group redress and class actions that can be enforced independently from a particular victim. Even though it seems justified that victims of discrimination should be free to decide whether their case is brought before a tribunal or a court, this argument does not apply to preventive claims where no person is yet concerned or in cases where a larger group of persons is concerned. Autonomous legal standing for groups as well as specialized organizations and trade unions with regard to the latter cases would certainly increase the risk of potential discriminators to become liable and would thereby increase the preventive impact of equality legislation. This leads us to another criticism that has often been raised, namely the Directive’s reactive character failing to introduce a clear state obligation to implement preventive measures. Even though the directive allows for the adoption of proactive approaches in terms of positive measures, it fails to oblige member states to foresee concrete actions. As already described above, member states could not agree on more than a mere justification of positive measures by introducing a specific exception to the principle of discrimination. This further indicates that the directive’s main focus lies on the concept of formal equality, while failing to oblige member states to improve full equality in practice. The wording of Article  further limits the possibility of adopting positive actions to achieve the aims of preventing or compensating for disadvantages linked to racial or ethnic origin.68 These measures are therefore temporarily limited in nature and are not supposed to function as continuous mechanisms to prevent a minority culture from being absorbed by the majority. Even though the Directive aims to lower the barriers to successful individual litigation, the financial burden and the risk of losing the case due to lack of evidence remain on the individual plaintiff. Obliging or at least encouraging companies and public institutions to actively promote equality would introduce a more forward-looking way of thinking instead of merely focusing on past fault finding. What the Directive therefore fails to implement are particular positive measures or even collective rights aiming to maintain a specific group’s diversity from the majority population. Whereas effective anti-discrimination legislation can certainly promote diversity within a population by eliminating barriers to access to employment or other important areas of life, it fails to directly promote the special needs of a cultural minority in order to preserve their identities and the characteristics which distinguish them from the majority population. 



“With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.” Article , Racial Equality Directive.

Minority Protection and Anti-discrimination Policies Statutory measures allowing minorities to use their languages before public authorities, to run their own schools, to benefit from subsidies allowing for the provision of services provided by the group for the group, and to participate in the political and economic affairs of states are rights that cannot be provided by formal equality legislation, as foreseen by the Directive. C. The Need for an EU Policy on Minority Protection There is currently not much of a common legal approach when looking at the present systems of minority protection applied in the different member states. With the notable exception of the situation of Roma, the challenges in the field of minority protection encountered by the EU member states are very heterogeneous. This is due to many factors such as the different factual situations, the different historical developments and, of course, the different domestic politics pursued in each country. With the exception of anti-discrimination legislation, the EU as it stands does not have any power to harmonise the laws and regulations of the member states in the field of minority protection, for example, by imposing on the member states a certain definition of a minority group or minimum standards concerning the range of rights and entitlements to be afforded or obligations to be fulfilled. The distribution of competences will not change either after the entry into force of the European Constitution, leaving minority issues a prerogative of the member states. However, this should not be seen as particularly worrisome. Instead of wasting resources and precious time in an attempt to forge a consensus among all  member states on a common European definition of minority groups, the EU should concentrate on tailor-made positive action and special measures. Without duplication of effort the European Union policies could be informed by the norms and standards that have already been formulated in the Framework Convention for the Protection of National Minorities of the Council of Europe, signed by all member states except for France, in the same way as they presently are by the rights and obligations enshrined in the ECHR. In this regard it is a very promising development that the Treaty establishing a Constitution for Europe, adopted by the European Council in Rome, declares minority rights a fundamental value on which the Union is founded. In the light of the limited legal powers of the EU and the very heterogeneous situation of minority groups in the member states, rendering any political consensus extremely difficult, it may be preferable to pursue a pragmatic approach. What the EU is best equipped to do is promote projects containing special measures, give incentives for positive action combating structural disadvantages and lend financial support to cultural institutions of minority groups like associations, schools, newspapers, magazines, TV and radio stations and suchlike, that would help to preserve their cultural heritage. In addition, regarding the possible operation of an early warning system for severe violations of democracy, the rule of law and fundamental rights in the member states that might trigger an Article  EU procedure, a future Fundamental Rights Agency could also specially take into account the situation of the protection of minorities. For all these purposes and tasks it would be exceedingly helpful if the institutions and specific bodies (e.g. the Fundamental Rights Agency or the Network of Independent Experts On Fundamental Rights) of the European Union were to cooperate in developing a 

Birgit Weyss and Alexander Lubich working definition of a minority without, however, prejudicing the different positions held by the member states. In this effort the EU could draw from all the notorious drafts, notably the widely recognised Capotorti definition,69 but given that it would constitute a legally non-binding text it should in any case be broad enough to include non-nationals too. Arguably, the real added value of the EU engaging in minority protection could be found not so much in the field of setting new common standards, be it in the form of individual or collective rights, but in providing minority groups with the financial means to maintain and enhance important cultural activities and institutions. On the legal basis of Article  EC, the EU thus ought to show a stronger commitment for preserving Europe’s cultural diversity. This could be done by setting a new priority expressly focusing on minority protection in the framework of the Community action programmes on culture and education, which may be envisaged already for the upcoming financial period of -. For a successful outcome these programmes should be equipped with a much higher budget than their present one, well communicated to target groups, and flexible enough to also allow for longer-term projects of five to ten years where this is needed in order to ensure sustainable improvements. Existing shortcomings could then be directly targeted in cooperation with the minority groups concerned, thereby taking into account their specific needs and circumstances. A right to freely establish a radio station broadcasting in a minority language is valuable but a complementing policy providing the necessary financial funding for the often disadvantaged groups would clearly be more effective. We have seen that European anti-discrimination legislation contributes to improving the situation of ethnic minorities by deterring potential perpetrators from engaging in discriminatory behaviour and by providing efficient support and means of redress to the victims of discrimination. With regard to the situation of minorities in EU member states, these mostly new provisions might alleviate the pressure of assimilation by protecting against any adverse treatment in connection with a person’s ethnic or cultural background. However, member states are merely encouraged, but not obliged, under the Racial Equality Directive to implement programmes of positive action. With the entering into force of the Treaty of Nice, Article  EC was modified in order to allow for the adoption of incentive measures by a qualified majority vote in the Council. Together with comprehensively employing incentives under Article  EC, this would constitute a new promising EU policy of positive action and special measures with much added value for old and new minority groups in Europe.





Cf. Francesco Capotorti, “Study on the rights of persons belonging to ethnic, religious and linguistic minorities”, E/CN./Sub.//Rev. (),  et seq.

Guido Schwellnus*

Looking Back at Ten Years of EU Minority Conditionality vis-à-vis Central and Eastern European Candidate States

I. Introduction The issue of minority protection has acquired an important role in the EU’s external relations after the end of the Cold War. This development started in , when the Declaration on Human Rights adopted at the Luxembourg European Council dedicated a whole paragraph to minority protection,1 and the guidelines for the recognition of new states after the break-up of Yugoslavia required “guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE”.2 Subsequently, references to minority protection were included in the Europe Agreements with Central and Eastern European countries (CEECs), the Stability Pacts for Eastern and South Eastern Europe, and most significantly the political accession criteria spelled out at the Copenhagen European Council in  required applicant states to guarantee the “respect for and protection of minorities”.3 Since the start of accession negotiations in , the European Commission has continuously monitored the performance of CEECs wishing to become EU members with regard to their treatment of minorities. Now, after ten new members acceded to

* 

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Researcher at the Center for Comparative and International Studies (CIS), ETH Zurich, Switzerland. European Council, Luxembourg, - June , Presidency Conclusions, Annex V, SN //. By contrast, the first Declaration on Human Rights issued under the framework of the European Political Cooperation (EPC) in  did not contain any reference to minority rights. Cf. Gaetano Pentassuglia, “The EU and the Protection of Minorities: The Case of Eastern Europe”, () EJIL (), -, at . Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union”,  December , EC Bull. /, . The declaration followed the recommendations of the so-called ‘Badinter Arbitration Commission’, which was set up by the EC to develop legal guidelines to deal with the situation arising from the dissolution of Yugoslavia. European Council, Copenhagen, - June , Presidency Conclusions, SN /.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8,321-340. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Guido Schwellnus the Union in May , it is time to review the successes and shortcomings of EU conditionality in the field of minority protection.4 The most often cited problem in the EU’s use of conditionality in the field of minority protection is the setting of ‘double standards’. This problem arises because the external use of minority protection as a membership condition did not follow the establishment of an internal EU minority standard. The EU has neither developed special minority rights within the acquis communautaire, nor do the member states subscribe to a single European standard.5 Among the political accession criteria, “the insistence on genuine minority protection is clearly the odd one out. Respect for democracy, the rule of law and human rights have been recognised as fundamental values of the European Union’s internal development and for the purpose of its enlargement, whereas minority protection is only mentioned in the latter context.”6 Although the EU has in recent years tentatively addressed minority issues within the acquis, this has been exclusively through the concept of non-discrimination. There remains therefore a conceptual discrepancy between the internal non-discrimination based approach and the external promotion of special minority rights beyond (and in addition to) this standard. Moreover, the EU applied differentiated pressure across applicants, dependent on whether minority protection was regarded problematic and security relevant in the particular case. This is an indication that the EU’s focus on minorities “reflects pragmatic concerns for internal and external stability”7 rather than a principled concern for minority rights as such.8 The widely acknowledged phenomenon of double standards has nonetheless led to different conclusions within different strands of research. Political scientists studying the impact of conditionality conclude that, despite the lack of legitimacy in the field of minority rights, the EU has still been largely successful in inducing legislative and policy change in candidate countries by linking specific demands with the membership perspective. Lawyers and political philosophers, on the other hand, complain that the 

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As this article is concerned with the impact of EU conditionality on CEECs, it includes states from this region which have applied for membership and participated in accession negotiations, i.e. the new member states Poland, Hungary, the Czech Republic, Slovakia, Lithuania, Estonia, Latvia and Slovenia as well as Romania and Bulgaria, who have not yet joined the Union. Conversely, Malta, Cyprus and Turkey, as well as Balkan countries that have not started accession negotiations so far are excluded. Bruno De Witte, “Politics Versus Law in the EU’s Approach to Ethnic Minorities”,  EUI Working Paper RSC (); Pentassuglia, “The EU and the Protection of Minorities …”; Gabriel N. Toggenburg, “A Rough Orientation Through a Delicate Relationship: The European Union’s Endeavours for (its) Minorities”, () EiOP (). De Witte, “Politics Versus Law …”, . Pentassuglia, “The EU and the Protection of Minorities …”, . Cf. also Martin Brusis, “The European Union and Interethnic Power-sharing Arrangements in Accession Countries”,  JEMIE (), ; James Hughes and Gwendolyn Sasse, “Monitoring the Monitors: EU Enlargement Conditionality and Minority Protection in the CEECs”,  JEMIE (), ; Will Kymlicka, “Reply and Conclusion”, in Will Kymlicka and Magda Opalski (eds.), Can Liberal Pluralism be Exported? Western Political Theory and Ethnic Relations in Eastern Europe (Oxford University Press, Oxford, ), , at .

Looking Back at Ten Years of EU Minority Conditionality EU’s approach has failed to contribute to establishing a coherent European minority standard. This article combines both perspectives in an assessment of the EU’s minority policy. To do so, the article will not follow a country-by-country assessment, but will view the EU’s minority policy through the lens of the conceptual problems that lie at the heart of minority protection: first, the balance between the integration of minorities within a general non-discrimination framework and the protection of their cultural distinctiveness via group-specific rights; second, whether special minority rights should be individual or collective; and third, the relation between minority rights and citizenship. II.

The Theoretical Debate: Effective Conditionality vs. Double Standards

The study of EU membership conditionality has become a major focus in recent years both for European integration scholars interested in the external governance of the EU and researchers in the field of international relations analyzing the role of international norms and institutions. Within this literature, the most important question concerns the distinction between two different mechanisms for compliance with international norms: Is compliance driven by rational actors calculating the costs and benefits of rule adoption in the light of external incentives as provided by conditionality, or do ‘soft’ mechanisms such as persuasion, argumentation or social learning lead to socialization and internalization, and hence compliance with international norms? From the perspective of this theoretical debate, minority protection in applicant countries is a particularly interesting case, because on the one hand, international institutions such as the OSCE, the Council of Europe, the EU and NATO have – to different degrees and at different times – utilized both persuasion attempts and conditionality to achieve the compliance of the CEECs.9 On the other hand, the problem of double standards provides different expectations for the effectiveness of either mechanism. While conditionality should work as long as conditions are clear and the link to membership credible, attempts aimed at persuasion should be severely impaired by the lack of legitimacy of the demands.10 Empirical research indeed shows that the apparent lack of legitimacy has not significantly inhibited the success of EU conditionality in the short term, whereas persuasion-based efforts often proved unsuccessful in cases with strong domestic opposition. ‘Soft’ mechanisms only seem to work in cases where external influence is hardly needed, i.e. when domestic opposition is low and domestically driven rule adoption is likely to occur (or has already occurred).11 Three prerequisites for effective conditionality have  



Judith Kelley, “International Actors on the Domestic Scene: Membership Conditionality and Socialization by International Institutions”, () IO (), -. Frank Schimmelfennig, Stefan Engert and Heiko Knobel, “Costs, Commitment and Compliance: The Impact of EU Democratic Conditionality on Latvia, Slovakia and Turkey”, () JCMS (), -. Jeffrey T. Checkel, “Compliance and Conditionality”,  ARENA Working Paper (); Frank Schimmelfennig, “International Socialization in the New Europe: Rational Action in an Institutional Environment”, () EJIR (), -.

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Guido Schwellnus been established. First, conditionality has to be credible, i.e. the target state must have a realistic chance of gaining membership if the conditions are fulfilled, and the EU must be able to exclude any state that does not fulfil the conditions. Second, conditions have to be determinate. It follows that explicit, repeated and concrete demands are more likely to be followed than general principles. Third, the external incentives have to surpass domestic adoption costs. If adoption costs are prohibitively high, e.g. when governments rely on authoritarian rule or nationalist forces, so that compliance would lead to power loss, rule adoption is not likely.12 Hence, conditionality has been found to be both necessary and sufficient to induce policy change in applicant countries in most of the cases relevant for this study. This largely positive assessment of the success of EU conditionality is contrasted by a much more critical evaluation on the part of lawyers and political philosophers, but also critically oriented political scientists. For these scholars, the main problem is not only that setting double standards is in itself questionable from a normative point of view, because “[n]o Western organization has provided any principle of justice that would explain these apparent inconsistencies”,13 but that the EU’s lack of a “coherent vision on the legal position of minorities”14 fails to contribute to the consolidation of a common European minority rights standard. It is therefore necessary to explicate “the underlying concept of minority rights embraced by the EU”,15 both within the internal and external acquis, and to assess this concept in terms of its presumable effect on a comprehensive and coherent minority protection system in Europe. These two seemingly opposing views on the successes and failures of EU conditionality do not necessarily exclude each other. Effective conditionality does not automatically lead to a stable and smooth functioning of the induced policies. While conditionality may change government policies and state institutions, bureaucratic implementation and public attitudes are much slower and much more difficult to influence. Implementation can even come to a halt or relapse once the ultimate incentive for compliance – accession – is achieved.16 Moreover, effective conditionality does not necessarily imply convergence among candidate states, especially when – as is the case with minority rights – no specific EU models are offered and conditions are either ill-defined or a diverse set of specific demands not deduced from a coherent set of principles.17 We 

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For an overview see Frank Schimmelfennig and Ulrich Sedelmeier, “Governance by conditionality: EU rule transfer to the candidate countries of Central and Eastern Europe”, () Journal of European Public Policy (), -. Kymlicka, “Reply and Conclusion …”, . Kyriaki Topidi, “The Limits of EU Conditionality: Minority Rights in Slovakia”,  JEMIE (), . Cf. also Georg Brunner, “EU-Minderheitenpolitik und kollektive Minderheitenrechte: Eine Replik auf Sabine Riedel”, () Osteuropa (), -; Sabine Riedel, “Minderheitenpolitik im Prozeß der EU-Erweiterung: Dynamisierung ethnischer Konflikte durch positive Diskriminierung”, (-) Osteuropa (), -. Pentassuglia, “The EU and the Protection of Minorities …”, . Schimmelfennig and Sedelmeier, “Governance by conditionality …”,  et seq. For a similar argument in the case of privatization policy see Jürgen Beyer, “Integration und Transformation: Das Divergenz-Paradoxon des Beitrittswettbewerbs”, () Politische Vierteljahresschrift (), -.

Looking Back at Ten Years of EU Minority Conditionality would therefore expect divergent outcomes in the field of special minority rights, where the EU has not developed any internal rules and relied on specific demands not derived from any coherent standard, and more convergent outcomes in the field of non-discrimination where elaborate EU rules do exist. And it is these uneven effects of successful conditionality that make it problematic from a conceptual point of view. III. Non-Discrimination vs. Group-Specific Rights A. Conceptual Questions The first important conceptual question is whether the protection of minorities is to be achieved via general non-discrimination or special minority rights. Although these two approaches do not necessarily contradict each other and can be combined in a comprehensive approach to minority protection,18 they can still be distinguished and follow different rationales: First, non-discrimination is a general human rights principle (so that ‘belonging to a national minority’ is only one of many reasons for discrimination to be eliminated), whereas special minority rights are group-specific, i.e. targeted at particular persons or groups. Secondly, while non-discrimination aims at the removal of all obstacles to the enjoyment of equal rights, special minority protection requires permanent positive state action in support of the minority group, in order to preserve its identity and prevent assimilation. Although non-discrimination is increasingly interpreted in a way that allows for positive measures to counter de facto inequalities,19 the aims of non-discrimination and minority protection remain different: positive measures under non-discrimination are by definition only to be employed temporarily and are put into place to remove or render irrelevant the underlying distinction, while special minority rights are essentially permanent and aim at the preservation of the distinctive character of the minority group. Put differently, non-discrimination aims to achieve the full integration of persons belonging to minority groups into society,20 while special minority rights have a tendency to promote a certain degree of segregation. The conceptual tension between approaches based on either non-discrimination or group-specific rights is boosted in the enlargement context, because it lies at the heart of the difference between the internal and external approach to minority protec-

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Open Society Institute, Monitoring the EU Accession Process: Minority Rights – Minority Protection in the EU Accession Process (Open Society Institute, Budapest, ), . Patrick Thornberry, International Law and the Rights of Minorities (Clarendon Press, Oxford, ), . The literature distinguishes integration conceptually from assimilation. However, although policies aimed at integration do not necessarily promote assimilatory tendencies, they can have this effect in the long run, if integration is understood as a one-way process in which minorities are to be integrated into a given society, and pro-integration policies are not accompanied by measures to protect the distinctive character of the minority as well. For a discussion of the concepts integration, assimilation and segregation see e.g. John W. Berry, “Immigration, acculturation and adaptation”,  Applied Psychology: An International Review (), -.

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Guido Schwellnus tion utilized by the EU.21 At the Community level, the issue of minorities is addressed exclusively through the concept of non-discrimination.22 This norm has been a longstanding principle within Community law in the form of gender equality and the abolition of discrimination on the basis of nationality between member states. Since the Amsterdam Treaty, the non-discrimination framework has been expanded to include ethnic and racial discrimination (Article  EC).23 On this basis a Framework Directive on equal treatment in employment and occupation,24 and, more significantly, a Directive on equal treatment between persons, irrespective of racial or ethnic origin (the socalled ‘Race Equality Directive’) were adopted.25 Finally, “membership of a national minority” was included in the non-discrimination article (Article ) of the Charter of Fundamental Rights and thus has become part of the Constitutional Treaty,26 which incorporates the Charter.27 In the enlargement context, the EU has demanded both non-discrimination and group-specific measures to protect minorities that go beyond the non-discrimination approach. Hence, while special minority rights are exclusively mentioned in the political criteria, non-discrimination is not only part of this ‘democratic conditionality’, where it is specifically addressed with regard to the Roma minorities in applicant countries, it also falls under the scope of ‘acquis conditionality’, which demands of all applicants the full implementation of the acquis communautaire.28 This also means that non-discrimination is in fact the only part of EU conditionality with regard to minority protection that rests on the implementation of clearly specified EU rules rather than a diverse set of political demands. This duality is obvious in the structure of the Commission’s 

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For further elaboration see Antje Wiener and Guido Schwellnus, “Contested Norms in the Process of EU Enlargement: Non-Discrimination and Minority Rights”, in George A. Bermann and Katharina Pistor (eds.), Law and Governance in an Enlarged European Union (Hart Publishing, Oxford, ), -. For an overview see Mark Bell, Anti-Discrimination Law and the European Union (Oxford University Press, Oxford, ). Lisa Waddington, “Testing the Limits of the EC Treaty Article on Non-discrimination”, () Industrial Law Journal (), -. Council Directive //EC of  November  establishing a general framework for equal treatment in employment and occupation: Dir. /, OJ  L , -. Council Directive //EC of  June  implementing the principle of equal treatment between persons irrespective of racial or ethnic origin: Dir. /, OJ  L , -. Cf. Elspeth Guild, “The EC Directive on Race Discrimination: Surprises, Possibilities and Limitations”, () Industrial Law Journal  (), -. Treaty establishing a Constitution for Europe, OJ  C , -. Mark Bell, “Equality and the European Union Constitution”, () Industrial Law Journal (), -. Additionally, minority issues are addressed via two other, far less institutionalized norms: First, the EU is officially committed “to respect and to promote the diversity of its cultures” (Art.  EC; cf. Art.  Charter of Fundamental Rights). Second, the Union has started several policy initiatives to combat racism and xenophobia. For a discussion see Guido Schwellnus, “Much ado about nothing? Minority Protection and the EU Charter of Fundamental Rights”,  Constitutionalism Web-Papers (ConWEB) (). For the distinction between democratic and acquis conditionality see Schimmelfennig and Sedelmeier, “Governance by conditionality …”.

Looking Back at Ten Years of EU Minority Conditionality Progress Reports, which address both non-discrimination and special minority rights issues in the chapter on political criteria under the heading of “minority rights and the protection of minorities”, but exclusively refer to non-discrimination issues in the acquis part under chapter  on “social policy and employment”. However, even in the case of non-discrimination there was variation with regard to the strength of conditionality over time as well as across countries. Political conditionality varied with the size of Roma communities and therefore with the perceived problematic character of the minorities. Although the situation of the Roma people was addressed in most of the applicant countries, immediate pressure was strongest in states with large Roma communities, whereas in others – e.g. in Poland – it was added only later to the catalogue of demands. Within acquis conditionality, the implementation of non-discrimination legislation initially was a rather general requirement, which gained urgency and determinacy only after the adoption of the anti-discrimination directives in , the implementation of which was from then on a constant reference point in the Progress Reports. The effects of such variation are rather in terms of timing than of content, so that non-discrimination is – in contrast to special minority rights – an example of considerable policy convergence as a result of EU conditionality. B. Roma in Central and Eastern Europe The Roma entered the EU agenda relatively late, because during the early s their protection was not considered to be as relevant to preserving peace and stability in the region as the protection of territorially concentrated minorities with kin-state support. The issue gained attention only after a significant increase in Roma migration to EU countries.29 It then became the most important minority issue addressed by the EU. The situation of the Roma population was considered to be a problematic issue in most of the candidate states and figured as a priority in several Accession Partnerships.30 Although the situation of Roma is discussed in the Progress Reports under the political conditions as a problem of minority protection, the focus lies almost exclusively on the combat of discrimination and social exclusion and the integration of Roma into society instead of the protection of their cultural identity.31 The EU promoted measures and criticized shortcomings along two general lines: first, the development of comprehensive anti-discrimination legislation and the effective implementation and application of existing legal means; second, the adoption of specific policy programmes and action plans to combat social exclusion and discrimination and promote equal opportunities. The impact of EU conditionality in the field of non-discrimination is perhaps best seen in the case of Romania, where the situation of the large Roma community was a strong focus from the outset. The Commission Report of  concluded that  

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Hughes and Sasse, “Monitoring the Monitors …”, . Roma discrimination was mentioned in the  Commission Opinions on Bulgaria, the Czech Republic, Hungary, Poland, Romania and Slovakia, and was specifically spelled out as a short-term priority in the  Accession Partnerships for Bulgaria, the Czech Republic, Hungary, Romania and Slovakia. Brunner, “EU-Minderheitenpolitik und kollektive Minderheitenrechte …”,  et seq.

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Guido Schwellnus although the situation of other minorities had improved, “[t]he lack of progress with regard to tackling discrimination against the Roma is a subject which has been raised in previous regular reports but which has still not been adequately addressed.”32 The Romanian government responded to this assessment by adopting an Ordinance on the Prevention and Punishment of All Forms of Discrimination in November , which “gives Romania the most comprehensive anti-discrimination framework among EU candidate countries”.33 The ordinance incorporates many aspects of the Race Equality Directive and was consequently praised by the Commission in the  Report as a major positive development.34 A similarly quick response at least on the part of the government can be seen in the case of Slovakia, where policy programmes as well as legislative measures to combat discrimination were initiated in , a fact that was noted positively in the next Progress Report.35 However, in this case the implementation of the anti-discrimination law, which was adopted as in the Romanian case as a special ordinance by the government, failed to find support in parliament and was thereby delayed for several years. As a counterexample to the quick adoption of anti-discrimination legislation in response to strong EU conditionality, Poland was not confronted with any EU demands regarding its small Roma community in the first phase of accession negotiations. Although mentioned in the Opinion, the issue was only added to the catalogue of specific demands in the  Regular Report. Accordingly, anti-discrimination measures were not a high priority issue in Polish politics until very late in the accession process. However, when they were finally addressed, Poland responded first with a policy initiative, which targets Roma in a specific area where they are concentrated, and then legislative measures, e.g. in the Labour Code, which was aligned to the Community legislation in the field of non-discrimination shortly before accession in . Rule adoption was also delayed in applicant countries where the Roma population was initially addressed via special minority rights rather than non-discrimination. The Hungarian case is instructive: While the minority protection system was in place even before EU conditionality came into being, this cannot be said for comprehensive non-discrimination legislation, since Hungary’s anti-discrimination framework was scattered and considered to be “largely inoperative”.36 Although the issue of Roma discrimination was repeatedly addressed by the Commission, beginning with the initial accession Opinion and throughout the annual Reports, and countering Roma discrimination has been included in the accession partnership, EU demands were not quickly transposed into anti-discrimination legislation. Although a draft was proposed by the ombudsman for minorities, the Minister of Justice in  explicitly rejected the intro

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Commission of the European Communities,  Regular Report of the Commission on Romania’s Progress towards Accession, COM() F, Brussels,  November ,  et seq. Open Society Institute, Monitoring the EU Accession Process …, . Commission of the European Communities:  Regular Report on Romania’s Progress towards Accession, SEC() , Brussels,  November , . Commission of the European Communities,  Regular Report of the Commission on Slovakia’s Progress towards Accession, COM() F, Brussels,  November , . Open Society Institute, Monitoring the EU Accession Process …, .

Looking Back at Ten Years of EU Minority Conditionality duction of legislation in this field, after the constitutional court ruled that such legislation was unnecessary. The ambiguity of EU praise for Hungary’s minority protection system and criticism of its lack of measures against Roma discrimination was reinforced by the Commission’s judgment that, despite the obvious legal shortcomings, Hungary had fulfilled its short-term priorities on the issue.37 Only in  was a committee established to review existing legislation, and a non-discrimination law came into effect in , i.e. with a considerable time-lag compared to other accession candidates under equal conditionality to combat Roma discrimination. C. ‘Well-Integrated’ Minorities in Bulgaria and Poland As a further indication of the primary focus on the integration of minorities, the EU has not prioritized minorities that were judged to be ‘well-integrated’ into society, a verdict which is not, however, synonymous with being legally recognized and wellprotected within a comprehensive minority rights system. Perhaps the most striking example is the situation of minorities in Bulgaria and its assessment in the Commission Reports. From the standpoint of legal protection, “[t]he general framework for minority rights protection and the prevention of discrimination against minorities in Bulgaria is inadequate. Overall, Bulgarian minority groups are offered minimal protection of their cultural, religious and linguistic identity, and state recognition of the very existence of minority groups is uncertain.”38 In fact, the Bulgarian Constitution rejects the concept of minorities on the basis that the recognition of their existence would contradict the assumption of Bulgaria being a unified nation state. The treatment of minorities is therefore based entirely on the general non-discrimination principle. Although the Commission has sporadically criticized some aspects of this approach, e.g. the ban on political parties based on ethnic grounds, the bulk of EU demands has concentrated on the implementation of existing anti-discrimination programmes, especially with regard to the Roma community, and the further development of a comprehensive legal non-discrimination framework. The lack of implementation of Bulgaria’s international obligations in the field of minority rights,39 and specifically the situation of the Turkish minority, is hardly addressed, except the recurring phrase that it is “integrated into political life through elected representation at national and local levels and through increasing representation in public administration”,40 neglecting the fact that this is not based on any legal guarantees but rather a precarious political modus vivendi.41 A similar, if much less dramatic result of lack of EU attention can be seen in the case of Poland. After the political recognition of the existence of national minorities in , Poland had included provisions to protect minorities in several legal acts such as     

Ibid., . Ibid., . Ibid. Commission of the European Communities,  Regular Report on Bulgaria’s Progress towards Accession, SEC() , Brussels,  November , . Brusis, “The European Union and Interethnic Power-sharing Arrangements …”, .

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Guido Schwellnus the electoral law, the education law, and also in bilateral treaties signed with all neighbouring countries between  and . Still, the development of a comprehensive set of minority rights through the Constitution (), the ratification of the Framework Convention for the Protection of National Minorities (FCNM, ), and the adoption of a law on minorities () was a lengthy and contested process, because Polish elites did not feel any immediate pressure to improve the system.42 IV. Individual vs. Collective Rights A.

Conceptual Questions

The question whether special minority rights should be conceptualized as individual or collective rights, i.e. as rights granted to persons belonging to minorities or rights granted to the groups as such in the form of self-government, autonomy or self-determination, remains highly contested.43 Also, the EU’s position in this respect was initially ambiguous, particularly because in the absence of any internal minority rights standard it had to ‘borrow’ minority protection norms, which in the early s were still very much in the process of being developed, from other institutions. While the EU made reference to various OSCE and Council of Europe documents, and in specific cases followed the recommendations of the OSCE High Commissioner on National Minorities (HCNM), the formulations used in early EU statements regarding minorities are ambiguous and shift between an individual and collective understanding of minority rights.44 At the start of accession negotiations, ‘Agenda ’ explicitly mentioned both approaches as part of the European standard to which the applicant states were held: A number of texts governing the protection of national minorities have been adopted by the Council of Europe, in particular the Framework Convention for the Protection of National Minorities and recommendation  adopted by the Parliamentary Assembly of the Council of Europe in . The latter, though not binding, recom-

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Peter Vermeersch, “EU Enlargement and Minority Rights Policies in Central Europe: Explaining Policy Shifts in the Czech Republic, Hungary and Poland”,  JEMIE (), at -; Wiener and Schwellnus, “Contested Norms in the Process of EU Enlargement …”, -. For an overview on collective minority protection cf. Georg Brunner,“Minderheitenrechtliche Regelungskonzepte in Osteuropa”, in Georg Brunner and Boris Meissner (eds.), Das Recht der nationalen Minderheiten in Osteuropa (Spitz, Berlin, ), -. For a liberal-individualist critique cf. Jack Donnelly, “The Universal Declaration Model of Human Rights: A Liberal Defense”, in Gene M. Lyons and James Mayall (eds.), International Human Rights in the st Century: Protecting the Rights of Groups (Rowman & Littlefield, Lanham, ), -. Hughes and Sasse, “Monitoring the Monitors …”, .

Looking Back at Ten Years of EU Minority Conditionality mends that collective rights be recognised, while the Framework Convention safeguards the individual rights of persons belonging to minority groups.45

The same reference to individual and collective rights was included in the first country assessments presented in the  Commission Opinions, usually noting the nonimplementation or outright rejection of the collective content of Recommendation  in the respective applicant countries.46 These references remained general, however, and were not followed up by any specific demands. In the later reports, the EU dropped the issue of collective minority rights completely and referred exclusively to the FCNM as the general standard of minority rights to be applied.47 However, although the FCNM was presented as the primary yardstick for the evaluation of minority protection in candidate states, specific demands were not systematically derived from the provisions of the Convention. On the other hand, ratification of the FCNM was not in all cases the conditio sine qua non for a positive assessment of the fulfilment of the political criteria. For example, while in the Polish case the long delay in ratifying the Convention was noted in passing in the Progress Reports, this did not alter the positive assessment of Poland’s record on minority rights. More significantly, although the EU went as far as to “urge” Latvia to ratify the document,48 accession was finally granted while this condition was still unfulfilled.

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Commission of the European Communities, Agenda : For a stronger and wider Union, COM()  Vol. , Brussels,  July , . For example, the Opinion on Lithuania states that “[t]he Lithuanian Constitution recognises the individual rights of persons belonging to minorities (in terms of language, culture and traditions), but has taken no steps to enshrine collective rights which would enable minorities to be recognised as politically organised communities.” (Commission of the European Communities, Agenda  – Commission Opinion on Lithuania’s Application for Membership of the European Union, DOC//, Brussels,  July , ). In the case of Slovakia, the Commission noted that “it has not subscribed to recommendation  of the Parliamentary Assembly of the Council of Europe which provides for the collective rights of minorities”. (Commission of the European Communities, Agenda  – Commission Opinion on Slovakia’s Application for Membership of the European Union, DOC//, Brussels,  July , ). A similar remark can be found in the Opinion on Romania. In May  the Commission replied to a written question that “with regard to [the minority] criterion, the Commission devotes particular attention to the respect for, and the implementation of, the various principles laid down in the Council of Europe Framework Convention for the Protection of National Minorities”: answer given by Commissioner Viviane Reding, European Commissioner in charge of culture, on behalf of the Commission ( May ) in reply to Written Question E-/ by Nelly Maes, MEP (Verts/ALE), to the Commission ( March ), OJ  C  E, . Commission of the European Communities,  Regular Report on Latvia’s Progress towards Accession, COM()  final, Brussels,  October , .

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Guido Schwellnus B. Hungarian Minorities in Romania and Slovakia The best example to show the ambivalent position held by the EU towards collective minority rights is the question of protecting the Hungarian minorities in Romania and Slovakia.49 Both countries display largely similar conditions and followed roughly similar paths. Among the minorities, which constitute over  % of the population in both cases, the biggest are the territorially concentrated, well-organized and politically mobilized Hungarians, who were also strongly supported by their kin-state in their collective rights agenda aiming at territorial autonomy, a claim that was fiercely rejected on the part of state authorities for the fear of secession.50 Still, both countries granted individual rights to minorities in their constitutions and were among the first states to sign and ratify the FCNM, not least as a signal towards Western organizations. These constitutional and international commitments were, however, countered by measures taken by authoritarian and nationalist governments (Mečiar in Slovakia, Iliescu in Romania), which curtailed minority language use and education and refused to adopt or implement legislation on minorities.51 As a result, both countries were frequent targets of international organizations with regard to their human and minority rights records, and in both cases explicit recommendations were often directly linked to membership incentives, first by the Council of Europe, then by the EU. However, neither diplomatic pressure nor conditionality induced any significant policy change at first. While the Council of Europe had granted membership upon the mere promise of introducing minority rights, which was not implemented after accession, both countries were excluded from the first round of CEECs opening accession talks with the EU.52 Although the exclusion of Slovakia in particular probably contributed greatly to boosting the credibility of the EU’s conditions, the examples still point towards limitations in the effectiveness of conditionality: When faced with nationalist elites that depended on anti-democratic and anti-minority policies to keep their power base, external incentives were unsuccessful and produced at best shallow rhetorical commitments. Membership incentives contributed to positive changes in both Slovakia 

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Kelley, “International Actors on the Domestic Scene …”; Melanie Ram, “Minority Relations in Multiethnic Societies: Assessing the European Union Factor in Romania” () Romanian Journal of Society and Politics (), -; Gwendolin Sasse, “Minority Rights and EU Enlargement: Normative Overstretch or Effective Conditionality?”, in Gabriel N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward (Open Society Institute, Budapest, ), -; Schimmelfennig, Engert and Knobel, “Costs, Commitment, and Compliance …”; Wiener and Schwellnus, “Contested Norms in the Process of EU Enlargement …”. Gabriel Andreescu, “Universal Thought, Eastern Facts: Scrutinizing National Minority Rights in Romania”, in Kymlicka and Opalski (eds.), Can Liberal Pluralism be Exported …, -. For example, the promised law on minorities in Romania or the constitutionally required minority language law in Slovakia. Although in Romania the nationalist government was already ousted when accession negotiations commenced (a fact that was positively mentioned in the Commission Opinion on Romania), it can still be argued that the lack of progress in the previous years was a decisive factor in leaving the country out of the first round.

Looking Back at Ten Years of EU Minority Conditionality and Romania only after the nationalist and authoritarian governments were replaced with democratic and pro-Western parties including parties representing the Hungarian minority (Romania in , Slovakia in ).53 In addition, the EU backed down from its general promotion of collective minority rights, which was connected to the endorsement of Recommendation . Although Romania had accepted this in relation to its accession to the Council of Europe,54 and the document was also cited in bilateral treaties signed (again under international pressure) by both Slovakia and Romania with Hungary, the countries rejected the notion of collective rights and autonomy included in the text, Slovakia by issuing a unilateral explanatory note, Romania by insisting on an additional footnote added to the treaty. This reinterpretation was initially criticized by the Western organizations and by Hungary, as well as by the Hungarian minorities themselves, but it was finally accepted. On the contrary, the EU in the name of ‘good-neighbourly relations’ strongly discouraged Hungary to keep pursuing collective rights for their fellow-countrymen abroad,55 and subsequently – as has been already noted – dropped the general endorsement of collective rights completely from its agenda. C. Cultural Autonomy in Estonia, Hungary, and Slovenia If the EU has not induced the implementation of collective minority rights in states that were reluctant do so, it has also not played any role – positive or negative – with regard to collective minority rights systems that have actually been established in some CEECs. While solutions on the basis of territorial autonomy or federalism disappeared in the area after the dissolution of the multinational federations of the USSR, Yugoslavia and Czechoslovakia, and demands by minorities in this direction have met strong resistance, collective minority rights norms in the form of personal, local and cultural autonomy have been developed in three cases: Estonia, Hungary, and Slovenia.56 In Estonia, cultural autonomy for minorities – as proposed by the  Constitution – was specified in a minority law in . According to this law, historically resident minorities (Russian, Jewish, German, Swedish) and ethnic communities with at least , members have the opportunity to apply for autonomy status. However, this purely person-based system does not apply to the large number of Russian-speakers not hold-

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It has, however, been argued that the incentive of EU membership has also contributed to bringing about the government changes in both countries by mobilizing the electorate against nationalist and in favour of pro-Western parties. Milada A. Vachudova, “The Leverage of International Institutions on Democratizing States: Eastern Europe and the European Union”,  EUI Working Paper RSC (). Ram, “Minority Relations in Multiethnic Societies …”, . Margit Bessenyey-Williams, “European Integration and Minority Rights: The Case of Hungary and its Neighbors”, in Ron Linden (ed.), Norms and Nannies. The Impact of International Organizations on the Central and East European States (Rowman & Littlefield, Lanham, ), -. For an overview see Brunner, “Minderheitenrechtliche Regelungskonzepte …”, -.

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Guido Schwellnus ing Estonian citizenship, and the minority groups entitled to apply for autonomy have so far not requested it.57 In Hungary, the minority law of  established minority self-governments on the local and national level, which were already envisaged in the  Constitution, for the  recognized minorities. Since the minorities are mostly small and dispersed, territorial autonomy was not a viable option. On the other hand, the minorities resisted official registration, which is a precondition for personal autonomy systems. Hungary therefore developed a complex mixed system that is based on local elections, where minority self-governments can be set up if at least  % of the local council are representatives of minority organizations. These local self-governments, which have initiative and veto rights in minority-relevant issues, designate a national self-government with competencies in the cultural sphere.58 In Slovenia, the minority self-governments of the Hungarian and Italian minorities as regulated by a special law since  are also a conceptual mix of personal and territorial elements. While membership in the minority organizations exerting cultural autonomy is regulated on a person-based principle and open to all minority members, their competencies are limited to certain regions with a strong minority population. The organization of the minority self-governments is mostly on the local level, where they have veto powers in minority-related issues.59 As the early adoption dates of the respective minority laws already suggest, the roots for the minority protection concepts lie in all three cases in domestic traditions rather than responding to external pressures. The cornerstones of the Hungarian autonomy system go back to an intellectual tradition starting with proposals for a solution of the nationality problem in the Austro-Hungarian Empire by the Austro-Marxists Karl Renner and Otto Bauer, a model which was subsequently picked up and developed by Hungarian scholars.60 Likewise, Estonia revived its own historical minority protection law of the inter-war period,61 and the Slovenian system shows strong continuity from the Yugoslav era.62 The EU did not in general object to these collective minority protection concepts. Rather, they were assessed as providing an adequate or even 

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Christoph Pan, “Die Minderheitenrechte in Estland”, in Christoph Pan and Beate Sibylle Pfeil, Minderheitenrechte in Europa. Handbuch der europäischen Volksgruppen, Band  (Braumüller, Wien, ), -. Georg Brunner, “Der Minderheitenschutz in Ungarn”, in Georg Brunner and Günther H. Tontsch, Der Minderheitenschutz in Ungarn und Rumänien (Kulturstiftung der deutschen Vertriebenen, Bonn, ), -, at -. Christoph Pan, “Die Minderheitenrechte in Slowenien”, in Pan and Pfeil, Minderheitenrechte in Europa …, -, at . Andrea Krizsán, “The Hungarian Minority Protection System: a flexible approach to the adjudication of ethnic claims” () Journal of Ethnic and Migration Studies (), -, at . This includes even detail solutions such as the , threshold for application to autonomy status and goes as far as including historical minorities that no longer exist in Estonia (the Swedes). Ivan Kristan, “Die Rechtsstellung der Minderheiten in Slowenien”, in Brunner and Meissner (eds.), Das Recht der nationalen Minderheiten …, -, at .

Looking Back at Ten Years of EU Minority Conditionality higher standard of protection, while at the same time issues like Roma discrimination (Hungary and Slovenia) and citizenship (Estonia) were regarded to be more important and linked with additional demands. V. Minority Rights and Citizenship A. Conceptual Questions The relationship between minority rights and citizenship is a complex one. Specifically, two aspects are to be carefully distinguished: first, whether special minority rights should be granted to citizens only, and second, whether persons belonging to a resident group of different ethnic origin than the titular nation should be entitled to gain access to citizenship. The first question is directly linked to the definition of minorities and therefore a central part of any minority rights concept. Whereas the UN has in recent years moved away from the citizenship requirement towards a more inclusive definition of minorities,63 European documents explicitly or implicitly consider citizenship to be an acceptable condition for minority status and hence access to minority rights: The CSCE Copenhagen Document clearly separates minority rights issues from the rights of aliens. In the Council of Europe context, Recommendation  explicitly includes the requirement of citizenship within the definition of minorities, and the FCNM, while not featuring any minority definition, at least implicitly accepts state declarations that restrict its application to citizens.64 The second question has been addressed in minority protection instruments especially with regard to newly established states (e.g. in the minority treaties under the tutelage of the League of Nations in the inter-war period),65 but does not generally belong to minority rights strictu sensu. Rather, it falls under international norms on nationality, which only partially regulate state practice and mostly leave the determination of access to citizenship to the respective state.66 The main question is not the definition of minorities or the content of their rights, but access to citizenship rights as such, which might or might not include any special minority rights.

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Asbjørn Eide, Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Working paper submitted to the UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Working Group on Minorities, th session, - May , UN Doc. E/CN./Sub./ AC.//WP.. However, since only a minority of the signatories have issued such a declaration, the advisory board monitoring the implementation of the FCNM has adopted a more inclusive “pragmatic and flexible approach”. Rainer Hofmann, “Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities”,  EYMI (/), -, at . See e.g. Article  of the Polish Minorities Treaty,  June , cited in Thornberry, International Law …, . For a discussion see Carmen Thiele, “The Criterion of Citizenship for Minorities: The Example of Estonia”,  ECMI Working Paper ().

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Guido Schwellnus B. Russian Speakers in Estonia, Latvia and Lithuania The most important minority group confronted with the problem of not holding citizenship in their country of residence are the Russian-speakers in Estonia, Latvia and Lithuania.67 All three Baltic states gained independence when the Soviet Union was dissolved in , so the question on which basis the citizenry should be determined and specifically the status of the sizeable Russian-speaking population, which had to a large degree moved to the region in the Soviet period, emerged as a major problem. Furthermore, since all three countries adopted minority rights legislation quite early on,68 accession to citizenship became the main point of contention for the international community in the area of minority protection. The preferred solution from the point of view of Western organizations was the ‘zero option’, i.e. the immediate granting of citizenship to all current residents at the point of independence.69 The least problematic case in this regard was Lithuania, because citizenship was indeed granted to all residents without any conditions, at least in the initial phase.70 Hence, when the Commission assessed the merits of Lithuania’s application in , it concluded that [t]he situation of minorities in Lithuania is, in general, satisfactory. The  Law on nationality has made a major contribution here by granting citizenship to all persons resident in Lithuania, regardless of their national origins, previous periods of residence or ability to speak the language. Consequently, some % of persons belonging to minorities now have Lithuanian nationality.71

Estonia and Latvia, by contrast, refused to grant initial citizenship to all residents. On the basis of the interpretation that these states were not newly founded but in fact reestablished after the unlawful occupation by the Soviet Union in , both countries granted automatic citizenship only to ethnic Estonians or Latvians, respectively, and to people that were resident in the countries before  and their descendents.72 All other residents, i.e. the majority of Russian speakers, had to apply for naturalization,

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Citizenship also became an issue with regard to Roma in the Czech Republic, when the granting of citizenship was linked to the requirement of five years without criminal record, which de facto excluded many Roma. Lithuania passed a minority law in , Latvia in , and Estonia in , cf. Brunner, “Minderheitenrechtliche Regelungskonzepte …”,  et seq. Thiele, “The Criterion of Citizenship for Minorities …”,  et seq. Andreas Hollstein, “Die Rechtsstellung der Minderheiten in der Republik Litauen”, in Brunner and Meissner (eds.), Das Recht der nationalen Minderheiten …, -, at . Commission of the European Communities, Opinion on Lithuania’s Application …, . Note that the formulation implies that non-citizens have the status of belonging to a minority. Vello Pettai, “Definitions and Discourse: Applying Kymlicka’s Models to Estonia and Latvia”, in Kymlicka and Opalski (eds.), Can Liberal Pluralism be Exported …, -, at .

Looking Back at Ten Years of EU Minority Conditionality which led to a very high number of non-citizens remaining in both countries (, in Estonia and , in Latvia). The initially adopted naturalization procedures were highly restrictive, including demanding tests to prove knowledge of the state language (which is not common among Russian speakers), history and constitution. The requirements of the Latvian system were especially strict: they also demanded  years of residence and established a quota system with a very small number of permitted applications each year, a fact that would have led to a high percentage of Russian speakers having not even a mid-term chance of becoming citizens. The naturalization rules in both countries met with criticism from international organizations. The HCNM, while not questioning the application of requirements for the granting of citizenship to Russian-speakers as such, proposed that the rules should be as liberal as possible and in line with international norms. The Council of Europe made Latvian membership conditional on changes in the strict naturalization regime. In particular, it opposed the quota system. In response, Latvia replaced the quotas with a so-called ‘window system’, which followed the HCNM recommendations. Still, compliance with the conditions set by international organizations did not lead to a quick rise in the number of successful applications for citizenship.73 When EU conditionality set in more concretely in , the Commission stressed in its Opinions the need for both Estonia and Latvia to take measures to accelerate the naturalization procedures and demanded the granting of citizenship to stateless children in accordance with international law. In the case of Latvia, the ‘window system’ came under criticism again, since it was regarded as one factor inhibiting applications. Although domestic opposition was still significant, the demands were heeded quickly. By , both countries had adopted legislation that granted citizenship to stateless children, Estonia had simplified the naturalization procedure, and Latvia had abolished the ‘window system’. The latter in particular led to a dramatic rise in successful applications for citizenship, but still the number of Russian speakers without citizenship remained considerable, and by  the number of applications started dropping again. Therefore, while both Estonia and Latvia followed EU demands, the primary aim of EU conditions – full legal integration of all Russian speakers in these countries – remained unfulfilled. In reaction to the slow and limited process of naturalization in Estonia and Latvia despite legislative concessions, the EU in fact rejected the limitation of minority rights to citizens in principle. The Commission’s Opinion on Latvia stated that with regard to the situation of minorities “a distinction has to be made between rights and safeguards connected with membership of an ethnic and cultural community regardless of the nationality held and differences in personal status arising from non-possession of Latvian nationality.”74 The Opinion on Estonia added with reference to the fact that 

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It has even been argued that in the Latvian case, recognizing the limited impact of the new naturalization processes on the de facto numbers of naturalizations was indeed a precondition for the adoption of the new rules; see Schimmelfennig, Engert and Knobel, “Costs, Commitment, and Compliance …”, . Commission of the European Communities, Agenda  – Commission Opinion on Latvia’s Application for Membership of the European Union, DOC//, Brussels,  July , .

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Guido Schwellnus Estonia had upon ratification of the FCNM issued a declaration restricting the application of minority rights to citizens that “the definition of the concept of minority adopted by Estonia in its declaration when depositing the act of ratification of the Council of Europe’s framework convention on minorities is not relevant and the situation of non-citizens also needs to be taken into consideration in this assessment.”75 While this interpretation is problematic in conceptual terms, because it conflates the two distinct aspects of the relation between citizenship and minority rights, its significance is somewhat diminished by the fact that the main thrust of EU demands in the end concerned the integration of non-citizens, not the granting of extensive special rights to these communities.76 On the one hand, the EU pursued a non-discrimination agenda and pressed for the abolition of certain restrictions for non-citizens, e.g. in land ownership or occupation; on the other hand, it endorsed policies aimed at facilitating the integration of Russian speakers into the majority society, e.g. official language training programmes. To sum up, the assessment of conditionality on the issue of citizenship for Russian speakers in the Baltic States remains mixed. On the one hand, strong and persistent pressure linked with the perspective of membership first in the Council of Europe and then in the EU achieved a significant liberalization of naturalization procedures against very strong domestic resistance. In this regard, the cases of Estonia and Latvia are strong indicators for the potency of membership incentives, because they succeeded while even the relentless diplomatic efforts of the HCNM did not bring about this change.77 On the other hand, EU conditionality stopped at the point when legislation regarding nationality was largely in line with international standards, although the de facto result falls short of what the EU wanted to achieve. Contrary to the assumption that the huge material asymmetry in favour of the EU and the incentive of membership would give the EU such an overwhelming bargaining position that it could demand almost anything, conditionality was limited (or rather self-restricted) by legitimate international standards. VI. Conclusion This article set out to combine an assessment of the effectiveness of EU conditionality with conceptual problems of minority protection. Three general conclusions can be drawn from the findings. First, EU conditionality was effective in the sense that in many cases it has in fact changed national policies and induced legislative measures with regard to minority protection, although the long-term implementation and stability of these rules after accession remains still to be seen. 

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Commission of the European Communities, Agenda  – Commission Opinion on Estonia’s Application for Membership of the European Union, DOC//, Brussels,  July , . In fact, in the  and  Reports on Estonia and Latvia, the assessment of minority protection apart from the naturalization issue figures under the sub-headline “integration of minorities”. Kelley, “International Actors on the Domestic Scene …”, -; Schimmelfennig, Engert and Knobel, “Costs, Commitment, and Compliance …”, .

Looking Back at Ten Years of EU Minority Conditionality Second, the effect of EU conditionality has been uneven. In the area of non-discrimination, the existence of specific rules within the acquis communautaire has led to a rather convergent set of policy programmes and legislative measures that mirror the instruments developed by the EU in recent years. In the field of minority rights, ambiguous principles and varying specific demands have promoted more diverse outcomes, an effect that is even enhanced by the fact that although the EU’s aim has been predominantly to promote the integration of minorities, its policies have been permissive towards collective minority protection systems where they existed. In any case, non-discrimination legislation has been an additional condition to existing or newly developed minority protection rules. Such a multi-tiered approach could of course be welcomed as a contribution to a flexible and comprehensive minority protection standard. From a conceptual viewpoint, however, it is not clear whether the different norms will always work in a complementary fashion. A parallel constellation is already existent among the old member states. For example, the European Court of Justice has not curtailed rules concerning the autonomy status of South Tyrol as a violation of EU non-discrimination rules,78 but acknowledged that the “the protection of ... a minority may constitute a legitimate aim” of national policy.79 However, the Court rejected the restriction of minority rights to (national) citizens unless protective measures would be “undermined if the rules in issue were extended to cover … nationals of other Member States exercising their right to freedom of movement.”80 It follows that EU anti-discrimination rules do not necessarily, but may well contradict established minority rights, specifically when they are based on the requirement of citizenship. It remains to be seen how the CEECs – especially those that have showed considerable reluctance to implement minority rights at all – will react politically to claims for the extension of minority rights to immigrants from other EU member states. The third and final conclusion of this article is that the EU’s systematic monitoring of minority protection over almost a decade has not produced any coherent minority rights standard and has not necessarily contributed to strengthening existing Council of Europe principles. There seems to be already a certain ‘phasing out’ of the monitoring with regard to special minority rights after the accession of the new member states.81 The Commission’s final reports on the applicants that were admitted to the Union in May  no longer address the political criteria altogether, so that minority questions are only mentioned in terms of transposing the EU’s anti-discrimination acquis

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For a comprehensive analysis see Gabriel N. Toggenburg, “EU-ropäische Mobilität und Südtiroler Autonomie: Konfrontation – Cohabitation – Kooperation?”, in Joseph Marko et al. (eds.), Die Verfassung der Südtiroler Autonomie (Nomos, Baden-Baden, ), -. ECJ, case C-/ Bickel and Franz, judgment of  November  [], ECR I-, para. .

Ibid., para. . De Witte, “Politics Versus Law …”, ; Sasse, “Minority Rights and EU Enlargement …”, . For a legal analysis see Bruno De Witte and Gabriel N. Toggenburg, “Human Rights and Membership of the European Union”, in Steve Peers and Angela Ward (eds.), The EU Carter of Fundamental Rights (Hart Publishing, Oxford, ), -.

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Guido Schwellnus into domestic legislation.82 In this sense, the EU’s efforts in the field might prove to be detrimental to the consolidation of a European standard on special minority rights, despite – or even because of – a heightened attention to minority issues. If the EU’s constitutional ambitions lead to an increased emphasis of its own set of rules based on fundamental rights and specifically the non-discrimination principle, under which the protection of minorities is subsumed, this standard could rival the existing minority rights standard of the Council of Europe.

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By contrast, the assessment of the political criteria including minority protection was upheld in the reports issued at the same date for the candidates that did not accede in , i.e. Romania and Bulgaria.

Dilek Kurban*

Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey

I. Introduction Turkey’s recognition as an official candidate for accession to the EU has brought to the country’s agenda an issue that had been long suppressed in the collective consciousness of society: minority rights. Caught between the conflicting goals of fulfilling the minority protection conditionality of the Copenhagen criteria and maintaining its official identity policy based on the assimilation of all cultural differences, Turkey chose to engage itself in an unattainable effort to achieve both.1 Towards realizing the former, the government enacted a series of constitutional and legislative reform laws implicitly granting ethnic and linguistic minorities some of their long denied language rights and making some progress towards protecting the hitherto violated property rights of nonMuslims. To achieve the latter, the government carefully avoided any explicit reference in the letter and spirit of the reform laws that could suggest an official recognition of minority identities. It also made minorities’ exercise of their limited rights prohibitively difficult by attaching restrictive conditions to them and by conferring on bureaucrats a virtually unchecked authority in adopting secondary legislation. Thus, the reform process has become one of which one progressive step made towards lifting the restric-

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Dilek Kurban, Juris Doctor, Programme Officer, Democratization Programme, Turkish Economic and Social Studies Foundation, Istanbul. I am grateful to Dr. Ruud Koopmans for his wholehearted encouragement and thoughtful comments. I would also like to thank Dean Ellen Chapnick and Prof. Peter Rosenblum of Columbia Law School, for awarding me the Columbia Human Rights Fellowship, which enabled me to conduct research for this article. Undoubtedly, the resistance to adhere to a minority protection regime is by no means unique to Turkey and is also shared by a few notable EU member states. The obvious examples are France, which does not acknowledge the existence of minorities within its borders, and Greece, whose narrow definition of minorities recognizes religious minorities only. Moreover, the fact that the EU has engaged in a double standard in making accession conditional to minority protection while failing to impose a similar high standard on its existing members has been widely commented on in the literature. Yet, a discussion of the evident gap between the EU’s internal and external policies on minority protection is beyond the scope of this article.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 341-371. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Dilek Kurban tions imposed on the exercise of minority cultures was followed by two regressive steps, putting into question the true intent and commitment of the government. In the meantime, the genie was let out of the bottle: The rhetoric of minority rights has become a part of the national discourse. Various minority groups started to raise their voice in demanding recognition of their distinct identities, the ending of their extensive de iure and de facto discrimination and the free exercise of their religion, language and culture without having to fear intimidation or persecution. This public debate generated by the EU accession process culminated in the release in October  of two reports, first by the EU Commission2 and later by an independent national advisory committee,3 which contained critical assessments of Turkey’s official minority policy and substantive recommendations for revising it. The reports’ reference to Alevis and Kurds as ‘minorities’ not only drew official condemnation from the highest level of the government, but also rejection from some representatives of these groups themselves. What may seem to be a counter-intuitive reaction at first glance is explicable and indeed expected in light of the unique historical context of Turkey, where official minority status has been exclusively granted to non-Muslim citizens who are by and large perceived by both state and society as lesser citizens whose loyalty to the nation is untrustworthy. In having been granted a special legal regime of minority protection, non-Muslim citizens of Turkey have essentially been forced into an unspoken pact with the state: a trade-off between minority rights and full citizenship. Aware of this social reality, and not having been immune to the widespread social prejudices against non-Muslim minorities, Kurds and Alevis predictably rejected minority status arguing instead that they were among the ‘founding peoples.’ The paradoxical situation in which various minorities demand cultural recognition and what are essentially minority rights while at the same time vehemently rejecting the ‘minority tag’ begs the question: How should Turkey’s minority question be resolved without consolidating the existing social pillarizations4 within society? To address that question, this article advocates the development of a new constitutional citizenship model universally encompassing all minorities rather than the creation of new minority regimes granting special protection to specific groups. The rest of the article is organized as follows: Part II offers a historical analysis of the development and implementation of Turkey’s minority policy, and a critical discussion of the repercussions for all 

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European Commission,  Regular Report on Turkey’s Progress towards Accession, COM()  final, at . Prime Ministry Advisory Committee on Human Rights, Sub-Committee on Minority Rights and Cultural Rights, “Report on Minority Rights and Cultural Rights”, adopted on  October , released to the public on  October . I borrrowed the term ‘pillarization’ from Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands (Berkeley, University of California Press, ). For an analysis of the link between pillarization and Dutch minority integration politics, see Ruud Koopmans, “Tradeoffs Between Equality and Difference – The Failure of Dutch Multiculturalism in Cross-National Perspective”, paper for the conference “Immigrant Political Incorporation”, Radcliffe Institute for Advanced Study Harvard University, - April , Boston.

Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey minority groups of the creation of a dichotomous legal structure based on the trade-off between minority rights and full citizenship. Part III discusses the impact of the EU accession process on the protection of minorities in Turkey, offering a legal analysis of the steps taken and the omissions made in this regard. This part concludes that, while constituting positive steps in the direction of enhancing the freedom of minorities to freely exercise their religion and culture, the reforms have not made a fundamental change to Turkey’s official identity policies. Part IV discusses the triggering effect the EU process has had on the rise of minority consciousness, acting as the antithesis of the cultural homogenization policies of Turkification. I conclude with proposals for a solution based on the development of an inclusive, civic and universal constitutional citizenship free from ethnic or religious substance and based on the premise of equality of all citizens irrespective of their religion, language or ethnicity. II. Turkey’s Minority Policies: The Historical Context For the Turkish state and society, the notion of ‘minority rights’ is a politically loaded concept with controversial connotations. The term was introduced to the national discourse early on with the establishment of the republic, when the founders were practically compelled by the Western powers to grant minority status to Turkey’s nonMuslim population. Since then, the concept of minority rights has been associated with the waiver of sovereignty and an unjustified interference in internal affairs, and portrayed in the official discourse as a once and for all granting of special treatment limited to non-Muslim citizens.5 Thus, while a separate legal regime was created for the non-Muslim minority, all Muslims were categorized as ‘Turks’ and became subject to homogenization policies aimed at eradicating their cultural differences. Inherent in this dichotomous legal regime was a trade-off between minority status and full citizenship: non-Muslims have had to pay the high price of ‘second-class citizenship’ in return for the minority rights they have been accorded, and various ethnic groups have been compelled into an implicit agreement to suppress their cultural differences in return for ‘full citizenship’. The legacies of this duality continue to be felt in every walk of life in Turkey today. A. The Treaty of Lausanne: The Codification of Turkey’s Minority Policy Modern Turkey was founded on the remains of a vast empire, which had lost a majority of its territory and population in the course of a series of wars.6 The republic was estab

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That Turkey perceives the question of minority rights as settled by the Treaty of Lausanne is evident in, for example, the Ministry of Foreign Affairs describing the official minority policy: “The status of minorities has been internationally certified by the  Treaty of Lausanne, according to which there are only non-Muslim minorities in Turkey. It is wrong, according to this definition, to refer to our citizens of Kurdish descent as a ‘Kurdish minority’.” See Republic of Turkey Ministry of Foreign Affairs, Frequently Asked Questions, at . The Ottoman Empire lost  % of its territory and  % of its population within a period of approximately  years between  and . Etyen Mahçupyan, “Türkiye’de Gayrımüslim

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Dilek Kurban lished amid feelings of entrapment in a relatively small territory and of anxiety over the prospect of continuing European meddling in Turkey’s internal affairs with the pretext of protecting its non-Muslim citizens.7 The losses suffered during the great wars8 and the misgivings about the loyalty of Christian citizens9 brought about a defensive impetus to eradicate non-Muslims from Anatolia and to homogenize the population of the new republic. Critical in this process were the ethnic cleansing and expulsion of Armenians in  and the forced migration of Greeks under population exchange agreement in .10 Notwithstanding these developments, a significant non-Muslim population remained within Turkey, concentrated in Istanbul, which subsequently became the object of fierce negotiations at the  Lausanne Peace Conference.11 While the Turkish delegation would eventually give in to the European pressure to grant special legal protection to non-Muslims, it was adamant in the non-negotiability of according minority rights to any other group. 12 The official minority policy confirmed in the Treaty of Lausanne defined minorities solely on the basis of religion and refused to recognize the ethnic, linguistic and denominational differences among

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Cemaatlerin Sorunları ve Vatandaş Olamama Durumu Üzerine”, Turkish Eonomic and Social Studies Foundation (Türkiye Ekonomik ve Sosyal Etüdler Vakfı, TESEV), June /, at . The minutes of debates in the Turkish Grand National Assembly in the early s demonstrate how the parliamentarians perceived the elimination of non-Muslim minorities as “an existentialist question for Turkey.” Ayhan Aktar, Varlık Vergisi ve ‘Türkleştirme’ Politikaları (İletişim, Istanbul, ), -. During the period of - culminating in the establishment of the republic, a series of wars were fought, including the Balkan Wars, World War I and the National Liberation War. Only in the latter was Turkey victorious. The non-Muslim minorities’ collaboration with the occupying forces and their opposition to the national liberation movement in the early s would always remain in the collective memory of the Turkish state and society, giving rise to a deep suspicion of their loyalty to the nation. Aktar, Varlık Vergisi ..., . Pursuant to “The Agreement and Protocol on the Exchange of Greek and Turkish Populations” signed in Lausanne on  January , Greece and Turkey practically discarded their respective Turkish and Greek minorities, with the exception of Turks living in the Western Thrace region of Greece and Greeks living in Istanbul. Ibid., . The Treaty of Lausanne was signed between Turkey and the Allies (The British Empire, France, Italy, Japan, Greece, Romania and the Serb-Croat-Slovene State) on  July . Treaty of Peace with Turkey,  LNTS (),  (hereinafter Treaty of Lausanne). Philip Robins, “The Overlord State: Turkish Policy and the Kurdish Issue”, () IA (), -, at , stating that the Treaty’s preoccupation with non-Muslims was a consequence of the bitter wars Turkey fought against its non-Muslim minorities during the national liberation war in the early s, and noting that “the Turkish negotiators [at Lausanne] were adamant in their refusal to recognize ethnically based minorities”.

Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey the majority Muslim population.13 The Treaty of Lausanne’s novel minority definition14 sought, and effectively achieved, the exclusion of ethnic minorities15 from its scope. The principal lesson the founders drew at Lausanne was the necessity to design policies to ensure the nonemergence of any other minority to prevent foreign intrusion in internal affairs. The memoirs of Dr. Rıza Nur, Turkey’s representative in the Sub-Commission on Minorities at Lausanne are quite telling in this regard: The French have three concepts of minorities: racial minorities, linguistic minorities, and religious minorities. This is very alarming for us, a great danger. It is amazing how deep and well these men are able to think when it comes to acting against us […]. With racial, they will group the Circassians, the Abkhaz, the Bosnian and the Kurd together with the Greek and the Armenian. With language, they will include those who are Muslim but speak another language. And with religion, they will turn the two million kızılbaş16 into a minority. Thereby they will tear us apart […]. Lesson to be learned: The most real, just and urgent task awaiting us is to make sure that there remains no one belonging to another race, language and religion in our country.17

The lesson was learned: Various ethnic groups who shared a common Muslim identity would thereafter be consolidated as ‘Turks’ and become subject to homogenization policies. 

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In a sense, the root of this policy dates back to the millet system of the Ottoman Empire, which classified subordinates on religious grounds, granting a degree of autonomy to three non-Muslim communities – the Armenians, Greeks and Jews – and considering Muslim subordinates as a homogenous unity regardless of their ethnic and linguistic differences. Kemal Kirişçi and Gareth M. Winrow, The Kurdish Question and Turkey: An Example of a Trans-state Ethnic Conflict (Frank Cass, London, ), . Accordingly, all Muslims belonged to the ‘Muslim nation’ and were considered to be a part of the ‘first class majority’, whereas non-Muslims were grouped into different millets based on their sects and constituted ‘second class subjects’. Baskın Oran, Türkiye’de Azınlıklar: Kavramlar, Lozan, İç Mevzuat, İçtihat, Uygulama (TESEV, Istanbul, ), . Similar minority treaties signed at the time between other defeated nations and the Allies under the auspices of the League of Nations defined minorities on the basis of race, religion and language. See e.g. The Minorities Treaty between the Allies and the Republic of Poland, signed on  June . Art.  reads: “Polish nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Polish nationals.” Turkey’s majority Muslim population comprises of dozens of ethnic and linguistic communities, who are further divided along religious and denominational lines with overlapping ethnodenominational identities: Turks (Sunni and Alevi), Kurds (Sunni and Alevi), Laz, Circassians, Arabs (Sunni, Alevi and Christian), Georgians, Bosnians, etc. For more information on these groups, see Dilek Kurban, “Confronting Equality: The Need for Constitutional Protection of Minorities on Turkey’s Path to the European Union”,  Columbia Human Rights Law Review (), -, at -. This derogatory word means literally ‘the redhead’ and refers to Alevis, a non-Sunni Islamic domination. Aktar, Varlık Vergisi ..., , citing Dr. Rıza Nur, Hayat ve Hatıratım (Altındağ, Istanbul, rd ed. ),  (author’s translation).

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Dilek Kurban B. The Construction of ‘Turkishness’ in the Early Republican Years The Turkification policies following the signing of the Treaty of Lausanne “sought the dominance of Turkishness and Islam as the defining elements in every walk of life, from the language spoken in the public space to citizenship, national education, trade, personnel regimes in public enterprise, industrial life and even settlement laws.”18 The design and implementation of these policies can be traced in the various laws and policies adopted in the s and s: ‘Citizen, speak Turkish!’ campaigns,19 nationalist theories advocating the supremacy of the Turkish history and language,20 the forced resettlement of minorities in predominantly Turkish areas21 towards their assimilation into the “Turkish culture”,22 the prohibition of the use of non-Turkish names,23 the ban on the use of minority languages in schools24 and in courts,25 and the requirement of “belonging to the Turkish race” for recruitment to the military academies and for employment in the public sector.26 Thus, the distinct cultures, languages and histories of various ethnic groups such as the Kurds, Arabs, Laz, Alevis and Circassians, etc. were suppressed in return for the ‘prize’ of full citizenship. The Turkification policies were both inclusive and exclusive at the same time: They were inclusive towards ethnic minorities in considering all Muslims as Turks (provided they were willing to adopt the dominant culture), but exclusive towards nonMuslims (no matter how willing to assimilate they might be) in drawing the boundaries of Turkishness on the basis of religion. The following quote from one of the founding leaders is indicative of the boundaries of the newly constructed Turkish identity: We consider those citizens of ours within the political and social community of the Turkish nation who have been persuaded with ideas such as kurdishness, circasianness and even lazness and pomacness as one of us. It is our duty to rectify with kindness   

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Ayhan Kaya, “Cultural Reification in Circassian Diaspora: Stereotypes, Prejudices and Ethnic Relations”, () JEMS (), -, at  (citation omitted). Aktar, Varlık Vergisi ..., . Kaya, “Cultural Reification …”, , citing the  Turkish History Thesis which “plac[ed] the Turks into the center of world civilization” and the  Sun Language Theory which “address[ed] the Turkish language as the mother of all languages in the world.” See Law of Settlement, No. , adopted on  June , entered into force on  June . Ibid., Art. , stating the legislative purpose of the law. Oran notes that the text of the article available on the web does not reflect the amendments made to the law, the original text of which had contained references to “the Turkish race”. Oran, Türkiye’de Azınlıklar ..., . See Law of Surname, No. , adopted on  June , entered into force on  July . Catherine Pierse, Cultural and Language Rights of the Kurds: A Study of the Treatment of Minorities under International Law in Turkey, Iraq, Iran and Syria in Light of International Human Rights Standards (Kurdish Human Rights Project, London, ), . David McDowall, A Modern History of the Kurds (I.B. Tauris, London and New York, ), . For examples of job advertisements containing this requirement, see Oran, Türkiye’de Azınlıklar ..., .

Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey and wholeheartedness these misconceptions, which are legacies of the dark oppressive periods of the past and the product of long historical conflicts.27

Thus, as Aktar aptly puts it, by declaring all Muslims as Turks, the ‘Turkification’ policies have on the one hand extended the scope of ‘us’ to include all ethnic minorities and on the other hand defined the ‘other’ by excluding non-Muslims.28 In the eyes of the state, non-Muslims could never be Turkified due to insurmountable differences – a policy which denied non-Muslims even the choice to voluntarily assimilate into the dominant culture. The republican founders’ preoccupation with policies of nationalism and assimilation has “eventually shaped the ways in which ethnic groups have developed their identities.”29 At the outset, the desire to be an integral part of the nation-building project has caused many of the ethnic groups to voluntarily assimilate into the dominant Turkish-Sunni culture by suppressing and/or hiding their differences.30 This integrationist strategy was also adopted by the Jews, most evident in their opting out of the minority rights they were granted under the Treaty of Lausanne31 and in the work of Moiz Kohen, also known as Munis Tekinalp in his Turkified name, an avid proponent of Turkification in the s and a prominent ideologue of Kemalizm in the s.32 In his book aptly named “Turkification”, Kohen, in a fashion reminiscent of the Ten Commandments, advised fellow Jews of the ten steps they needed to take in order to integrate into the dominant culture.33 However, much to the disillusionment of the Jews, their integrationist strategies would fail to eradicate their ‘otherness’ in the eyes of the state.34 It would soon become apparent that the non-Muslim population’s offi

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Aktar, Varlık Vergisi ...,  (author’s translation), quoting Recep Peker, the Secretary General of the Republican People’s Party, the party founded by Atatürk and which ruled Turkey until the s under a single party regime. Ibid., . Kaya, “Cultural Reification …”, . Ibid. See Rıfat N. Bali, Cumhuriyet Yıllarında Türkiye Yahudileri: Bir Türkleştirme Serüveni () (İletişim, Istanbul, ), . Id., Devlet’in Yahudileri ve ‘Öteki’ Yahudi (İletişim, Istanbul, ), . Bali cites Kohen as an example of ‘the Jew of the state’, a term he employs to characterize leaders of Jewish community who, in their representative capacities, voiced the requests and needs of their constituents to the state in a conciliatory, facilitating and mediating fashion. Ibid. Kohen’s ‘ten commandments’ were: “. Turkify your names; . Speak Turkish; . Pray in Turkish in synagogues; . Turkify your schools; . Send your children to Turkish schools; . Get engaged in national issues; . Stick together with Turks; . Affiliate yourself with the community spirit; . Fulfil your duties in the national economy; . Be aware of your rights.” Kaya, “Cultural Reification …”,  (citation omitted). One person who most deeply felt this disappointment was Mişon Ventura, a prominent leader of the Jewish community who served as a member of the parliament both in the Ottoman Empire and in Turkey. He was among the community leaders who had decided to opt out of Lausanne and was the embodiment of the notion of ‘the Jew of the state’. Bali reports that “Ventura, who believed in Turkification, came to the realization that the Jews of Turkey were accepted as real Turkish citizens neither by the political and intellectual elites

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Dilek Kurban cial recognition in the Treaty of Lausanne effectively suggested a trade-off between the minority rights they have been granted and the citizenship rights they have been stripped of. C. The Distortion of Lausanne: From Minorities to ‘Second Class Citizens’ The fate of minorities in countries where ethnic nationalism reign has been reported to be one of forced expulsion or ‘second-class citizen’ treatment.35 In the case of nonMuslims in Turkey, it has been both. Following the  ethnic cleansing and expulsion of Armenians and the population exchange of the Greeks, Turkey had done away with the vast majority of its non-Muslim population by the end of World War I.36 And those that have remained would essentially receive second-class citizenship under the disguise of a minority protection regime. In essence, the Treaty of Lausanne was a human rights treaty envisioning full citizenship rights for non-Muslims. It granted non-Muslims substantial negative as well as positive rights, and conveyed affirmative obligations on the Turkish government to undertake measures for the enjoyment of those rights.37 And yet, the end result became one in which “non-Muslims were no longer the authentic components of social imagination, but rather ‘additional’ elements attached to the state through international law.”38 Tacit in the legal distinction between Muslims and non-Muslims was a discriminatory theory of citizenship based on the supremacy of Turkish ethnicity and the Sunni Muslim religion. The establishment of a distinct legal regime meant to protect non-Muslims has effectively served to verify their ‘otherness’ and to justify their practical omission from the constitutional domain and its legal protections. Furthermore, the perceived privileged treatment of non-Muslims aggravated and legitimized the prejudices long present in the subconscience of society, and made them an easy target for social discrimination. Turkey’s exclusionary policy towards its non-Muslim citizens rests on a philosophy that sees the concepts of minority and national security as interconnected. Accordingly, non-Muslims (and thus, minorities) are viewed as undesirable ‘foreign elements’, particularly at times when there are apparent and actual threats to national security. The

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nor by the society despite all the efforts they have made and notwithstanding the rights afforded to them under the  Constitution.” Bali, Devlet’in Yahudileri …, . Aktar, Varlık Vergisi ..., , citing Anthony D. Smith, “Ethnic Nationalism and the Plight of Minorities”, (/) Journal of Refugee Studies (), -. By the end of World War I, the percentage of non-Muslims living within Turkey’s current borders went down from  % to a mere . %. Aktar, Varlık Vergisi ..., , citing Çağlar Keyder, Türkiye’de Devlet ve Sınıflar (İletişim, Istanbul, ), . Most notably, the Treaty of Lausanne granted non-Muslims the right to equal protection and non-discrimination (Arts.  and ), the right to establish, manage and control their private social, charitable, religious and educational institutions (Art. ), the right to establish private schools and to give education in their own language (Art. ), the conditional entitlement to government funding to receive primary level education in their own language (Art. ), and the right to exercise their religion freely (Art. ). Mahçupyan, “Türkiye’de Gayrımüslim ...”, .

Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey repercussions of this perception are traceable in the  attacks against Jews living in Thrace,39 in the  exclusive military conscription of non-Muslims,40 in the disproportionate levying of a wealth tax on non-Muslims in ,41 in the  mob riots against the non-Muslim population of Istanbul,42 and in the systematic confiscation of 







In a social upheaval in  known as ‘the Thrace incidents’, the Jewish inhabitants of the Thrace region were targeted in acts of looting, physical attacks, commercial boycotting and eventually forced expulsion out of the region. See Bali, Devlet’in Yahudileri …, . While Bali points to the rising anti-Semitism in Europe at the time to explain the causes of the attacks, Aktar makes a strong case in arguing that the incidents resulted from a strategic military decision made by the government to clean Thrace of all ‘foreign elements’ and to militarize the region to be able to defend the country against a possible attack by the fascist government in Italy. Aktar, Varlık Vergisi ..., -. The  conscription was limited to non-Muslims living in Istanbul. In , a subsequent draft was issued to cover all non-Muslims living all across Turkey. The conscripted non-Muslims were not entrusted with weapons, but deployed mainly in road construction projects. See Bali, Devlet’in Yahudileri …, -. Bali accurately points out that the exclusive conscription of a segment of the population on the basis of their religion was effectively an exception to the fundamental principle of secularism protected under the Turkish Constitution. Ibid., . And, perhaps more importantly, the selective draft violated the constitutional principles of equal treatment and non-discrimination. The Wealth Levy Law, No. , adopted on  November , entered into force on  November . Commissions made up of bureaucrats were established in every city and district to determine the amount each taxpayer had to pay (Art. ). The law precluded the judicial review of the decisions made by these commissions (Art. ). Taxpayers were given only one month to make their payments (Art. ). The commissions established under the law levied disproportionately high taxes on non-Muslims, discriminating between similarly situated Muslims and non-Muslims. As a result, many non-Muslims were unable to gather the sufficient funds within one month and their property was expropriated and sold by the state. If the proceeds of the sales were insufficient to meet their debts, taxpayers were gathered in focal camps in Istanbul, Izmir and Bursa and transferred to labour camps around the country. A total of , non-Muslims were gathered from all around the country. In Istanbul,  non-Muslims managed to gather sufficient funds and pay their taxes before their dispatch, but , were sent to labour camps in central and eastern Anatolia.  nonMuslims died in labour camps. This discriminate treatment ended de facto in December  with the release of the remaining non-Muslims from the labour camps, and de iure with the annulment of the law on  March . Aktar, Varlık Vergisi ..., -. In what has come to be known as ‘the incidents of  and  September’, violent mobs attacked unarmed non-Muslim civilians and their property. While the main target were Greeks due to the escalation of a crisis between Greece and Turkey over Cyprus, Armenians and Jews were also attacked. The acts of looting, vandalizing and burning of homes, businesses, churches, schools and cemeteries turned the predominantly non-Muslim neighborhood of Beyoğlu into a war zone. The incidents were triggered off by news reports of Greeks bombing Atatürk’s house in Thessaloniki and coincided with the convening in London of an international conference on Cyprus between the governments of Greece, Turkey and the UK. M. Asım Karaömerlioğlu, - Eylül’ün Anlattıkları, Bolsohays,  September , at . Within a matter of few a hours, , shops and houses were seriously damaged;  churches, two monasteries and one synagogue were burned down; two Greek cemeteries and eight sacred Greek fountains were completely destroyed. For an analysis of the socioeconomic, political and ideological condi-

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Dilek Kurban properties belonging to non-Muslim community foundations43 pursuant to the infamous  judgment of the High Court of Appeals.44 What these incidents, laws and policies have in common are the collective targeting of non-Muslims, the state’s involvement either directly in the design and implementation of laws and policies or indirectly in the tacit approval of criminal acts, and the presence of triggering international events such as the rising anti-Semitism in Europe (in the case of the  Thrace incidents, the  military conscription and the  Wealth Levy) and the outbreak of hostilities between Greece and Turkey over Cyprus (in the case of the incidents of  and  September and the  judgment against foundations). Most importantly, the events validated the continuity of the process of Turkification and simultaneously achieved for the state two desired outcomes: the flight of tens of thousands of non-Muslims from Turkey and the ‘nationalization of the economy’ by way of the transfer of wealth from non-Muslims to Muslims.

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tions that gave rise to this mob violence, see Ali Tuna Kuyucu, “Ethno-religious ‘Unmixing’ of ‘Turkey’: - September Riots as a Case in Turkish Nationalism”, () Nations and Nationalism (), -, at . ‘Cemaat Vakıfları’ (community foundations) refers to foundations belonging to nonMuslim communities, which were established during the Ottoman Empire in accordance with discretionary permits granted by various sultans. Thus, because these foundations were not established pursuant to a law, they did not have founding charters. A  law gave legal personality to these institutions, enabling them to own property, and the Treaty of Lausanne allowed them to have a just and permanent legal status. However, the Law of Foundations of  June  placed these foundations under the jurisdiction of the Directorate General of Foundations (Vakıflar Genel Müdürlüğü, VGM), which subsequently called upon the foundations to declare and register with the state a list of all the property they owned. ‘The  Declaration’ made by the community foundations in accordance with this call were merely a list of the property they owned at the time. For a comprehensive analysis of the Law of Foundations, see Working Group on Minority Rights, Cemaat Vakıfları: Bugünkü Sorunları ve Çözüm Önerileri (Istanbul Bar Association, Istanbul, ). Forgotten in the state archives for a few decades, the  Declaration was rediscovered in the late s with the outbreak of hostilities between Greece and Turkey over Cyprus and “has started to be utilized in a way that had nothing to do with the purpose of its enactment at the first place.” Ibid., . Accordingly, the VGM decided that the declarations made by the community foundations were in effect founding charters and therefore their legal entitlements were limited to whatever property they had declared in , ibid. The community foundations were informed that any property they have subsequently acquired would be taken away from them since the  Declaration did not entitle them to own property. Oran, Türkiye’de Azınlıklar ..., . In a decision dated  May , the High Court of Appeals upheld this policy on the ground that “legal entities established by non-Turks have been prohibited from owning property” in Turkey, ibid., . In referring to non-Muslim citizens as “non-Turks” and holding them on the same lower legal standard as foreign nationals, the judiciary thus provided legal legitimacy to an evidently unlawful and discriminatory practice infringing non-Muslim citizens’ right to equal treatment under the Turkish Constitution and the Treaty of Lausanne. This wrongful interpretation of the law has been upheld in subsequent various court decisions, leading to the confiscation of immovable properties belonging to non-Muslim schools, churches, hospitals, etc. The resulting loss in revenue has risen to a level to threaten the very existence of non-Muslim communities in Turkey.

Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey While these successive laws and policies ascertained the exclusion of non-Muslims from the protection of citizenship rights, complementary practices ensured that they also do not fully enjoy their minority rights.45 Over the course of the  years since the signing of the Treaty of Lausanne, Turkey has been systematically violating the terms of the treaty. This is most evident in Turkey’s restriction of Lausanne’s protection to Jews, Armenians and Greeks in a manifest breach of the plain language of the Treaty which provides protection to all non-Muslims without enumerating any single group of them;46 in its direct interference in the internal affairs of non-Muslims through the Directorate General of Foundations (Vakıflar Genel Müdürlüğü, VGM), a government agency micromanaging the day-to-day operation of the community foundations;47 in the prohibition of the training of Christian clergy, the provision of religious services by non-citizens and the publication of religious books in Greek;48 in the preparation and publication by the Ministry of Education of school textbooks containing discriminatory language inciting hatred against non-Muslims;49 in the hindrance of the elections  







For an extensive discussion of Turkey’s violation of its obligations under the Treaty of Lausanne, see Kurban, “Confronting Equality …”, -. In a practice developed soon after it granted de iure minority rights to all non-Muslims under the Treaty of Lausanne, Turkey restricted its de facto recognition to only three communities: Greeks, Armenians and Jews. Turkey has largely succeeded in convincing the international community as well as the national public opinion about the accuracy of this misinterpretation of the Treaty. The diplomatic feat Turkey has accomplished in this regard is most evident in the European Commission’s annual Progress Reports. In its  Report, the Commission effectively endorsed the illegitimate exclusion of the remaining non-Muslims (such as Assyrians, Protestants, Bahais, Georgians, Maronite Christians and Chaldeans) from the protection of the Treaty of Lausanne by calling for the due examination of the “concrete claims of non-Muslims, whether or not they are covered by the  Lausanne Treaty” (emphasis added). European Commission,  Regular Report on Turkey’s Progress Towards Accession, at , . The conferral on the VGM of the authority to regulate the operation of the community foundations is in violation of non-Muslims’ right to manage and control their own institutions. The Treaty of Lausanne explicitly grants non-Muslims the right to “manage and control … [their] charitable, religious and social institutions, [as well as] any schools and other establishments for instruction and education”, Art.  Treaty of Lausanne. All theological faculties in Turkey were closed down in . Though faculties teaching the Islamic religion were subsequently reopened, the Armenian and Greek-Orthodox seminaries remain closed, despite continuous call on the government by the Armenian and Greek communities. Tessa Hofmann, “Armenians in Turkey Today: A Critical Assessment of the Situation of the Armenian Minority in the Turkish Republic”, Armenian Associations of Europe, October , , at . Unable to hire clergy from abroad and prohibited from training their own, these communities are practically deprived of the right to exercise and teach their religion. A joint project conducted by the History Foundation and Turkey’s Science Academy on textbooks taught in primary and secondary schools reveals the explicitly discriminatory content of these books against persons belonging to minority groups. For example, a geography textbook reads: “Almost everyone living in Turkey is a Turk. Until recently, there were

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Dilek Kurban for the board of directors of community foundations;50 in the rejection of legal personality to non-Muslim religious institutions;51 in requiring the deputy headmaster of non-Muslim minority schools to be Turk (hence Muslim);52 in the prevention of the opening of new churches;53 and in the failure to return to non-Muslim foundations their confiscated property and/or to compensate them for the harm they have suffered because of this unlawful practice.54 These laws and policies of systematic discrimi-

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also Greeks and Armenians in addition to Turks. Some of these groups have attempted to harm the country when they found the chance to do so.” “Çocuğa Devletin Görevi Böyle mi Öğretilmeli?”, Radikal,  February , A. The bureaucratic establishment exercises an unlimited and unchecked discretionary authority in manipulating the board elections of the community foundations. The  September  “Regulation on the Substance and Procedures of the Elections for the Board of Directors of Community Foundations” exacerbate the situation in limiting the electoral districts to the boroughs the foundations are located in and in imposing on candidates running for the boards the requirement to reside in the borough where the foundation is in, notwithstanding the fact that there are very few or even no non-Muslims left in many of these boroughs. For a critique of this regulation and a proposal for an alternative solution, see Dilek Kurban, “Vakıflar Kanunu Tasarısı’nın Cemaat Vakıfları’nı İlgilendiren Hükümleri Üzerine TESEV Görüşleri”, TESEV, December , -, at . The state’s deliberate rejection to grant institutional recognition to the highest religious authorities of non-Muslim communities causes significant practical difficulties in issues ranging from the training of clergy to regulating cemeteries, from collecting donations to holding meetings. The denial of legal personality also means that the religious leaders of non-Muslim communities can only be elected subject to a special permission from the state. This policy is an indicator of the desire to “make these communities live in a state of continuous dependence on the state.” Mahçupyan, “Türkiye’de Gayrımüslim ...”, . In a language personifying the ethnic nature of Turkish citizenship and the official policy of perceiving non-Muslim citizens as foreigners, the related law requires deputy headmasters of schools opened by “foreigners” to be “of Turkic origin and a citizen of the Turkish Republic.” Art.  Law on the Private Education Institutions, No. , adopted on  June , entered into force on  June . The application of a law originally enacted to regulate the branches in Turkey of foreign educational institutions to schools opened and run by non-Muslim minorities, the very citizens of the country, and the requirement to place in these minority schools a ‘trustworthy real citizen’ as ‘the eyes of the state’ is a lucid reminder of the official stance which continues to perceive non-Muslims as lesser citizens, if at all. The extremely rigid state policies against non-Muslims have not only made it prohibitively difficult for Armenians and Greeks to restore and repair their existing churches, but have also prevented the opening of any new churches in Turkey since the s. The prohibition on building new churches has been particularly detrimental to the Presbyterian Christian community in Turkey, who are made up of foreigners as well as citizens who have converted to Christianity. For the story of the decade-old ordeal of a Presbyterian priest to get bureaucratic approval for opening a church in Antalya, see Hugh Pope, “Rahibin Kilise Çilesi”, Radikal,  November , A. The community foundations are indispensable for the continued existence of non-Muslims in Turkey and for the preservation of their historical, cultural and religious lives. The systematic confiscation of properties belonging to these foundations has left them by and large incapable of performing religious, educational and social services to their communities.

Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey nation against non-Muslims vividly demonstrate how the official stance “transforms non-Muslimness into some sort of de facto ‘non-citizenship’.”55 Consequently, the nonMuslim citizens of Turkey are left with the least desirable outcome: Not only are they unable to fully enjoy their minority rights, but they are also clearly identifiable targets for legal and social discrimination due to the ‘minority’ label attached to them. While in law they are citizens provided with minority rights, in practice they are neither full citizens nor minorities whose rights are fully protected. III. Enter the Eu: Towards a Revision of ‘Turkishness’? It was against this historical background that Turkey, aspiring for membership to the EU, found itself having to formally commit to the minority protection conditionality, notwithstanding the challenge the latter posed to the longevity of its policies. Towards fulfilling the Copenhagen political criteria, the Turkish government launched a process of constitutional and legislative reforms in October , granting some rights to persons belonging to some minority groups.56 Neither the constitutional amendments nor the subsequent legislative reforms explicitly sought to design a legal framework for the protection of minorities. The legislature was prudent in not granting minority status to new groups and in not identifying the beneficiaries of the individual rights seemingly granted to members belonging to ethnic minorities. Nonetheless, significant steps taken as well as omissions made in the reform laws implicate the rights of minorities. The public debate, press commentaries and statements by political leaders during the reform process illustrated that, in essence, the reforms primarily targeted two groups – non-Muslims and Kurds – relatively improving the property rights of the former and conferring limited language rights on the latter. In effect, the enjoyment of the reform laws was not limited to these two groups; all ethnic minorities became de iure entitled to enjoy the language rights granted with the original intent to meet the Kurds’ longrejected demands for cultural recognition. As a result of the reform process, some of the restrictions hitherto imposed on non-Muslims’ enjoyment of their minority rights were lifted, and all ethnic groups, though still not officially recognized, were granted relatively significant – albeit limited and conditional – language rights. In sum, all minority groups have been indirectly granted some rights, with the exception of two groups, who were entirely excluded from the reform process: the non-Sunni Muslim minorities of Alevis57 and Caferis.58 The limitation of the reforms to language and property rights   



Mahçupyan, “Türkiye’de Gayrımüslim ...”, . For a critical analysis of the substance and implementation of the reform laws relating to minority rights, see Kurban, “Confronting Equality …”, -. Alevis, a heterodox Shi’a Muslim community, are the largest religious minority in Turkey. They differ considerably from the Sunni majority in their interpretation and practice of Islam. There are estimated to be  to  million Alevis in Turkey, constituting one fourth to one third of the population. For more on the Alevis, ibid., -. Caferism is the name given to one of the four Shi’a schools, which differ from each other in their interpretation of the Shi’a denomination of Islam. There are an estimated  million Caferis in Turkey. Selahattin Özgündüz, representative of the Caferis, speech made at the TESEV Workshop on Grey Areas in Human Rights,  December , Istanbul.

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Dilek Kurban effectively drew the boundaries of the reform process so as to embrace ethnic/linguistic minorities and non-Muslim minorities respectively, leaving outside the denominational minorities within Islam. This deliberate exclusion demonstrated that while there is a seemingly negligible flexibility in the ‘Turkish’ component of the national identity, the Sunni component still remains intact and inalienable. A. A Step Forward: Parliamentary Reforms on Minority Rights Towards advancing the use of minority languages in the media, the reforms started with the removal of some of the constitutional restrictions imposed on them.59 Subsequently, a series of laws effectively opened the way for broadcasting in minority languages. An amendment to the broadcasting law in the August  reform package allowed for “broadcasting in different languages and dialects Turkish citizens traditionally use in their daily lives.”60 The same law was further amended in July  to provide for both public and private broadcasting.61 However, the law contains a troublesome content restriction in imposing an over-inclusive ban on broadcasts “contradict[ing] the fundamental principles of the Turkish Republic and the indivisible integrity of the state.”62 The regulation adopted by the executive to implement the law further restricted its scope,63 leading to major setbacks in practice.64

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The constitutional amendments of October  removed restrictions on the use of minority languages in the expression and dissemination of thought (Art. ) and in broadcasting (Art. ). Arts.  and  Law on the Amendment of Certain Provisions of the Constitution of the Republic of Turkey, No. , adopted on  October , entered into force on  October . Art. (a)() Law on the Amendment of Various Laws, No. , adopted on  August , entered into force on  August . It is notable that the carefully drafted title and text of the law do not explicitly recognize any of the minority languages. For a critique of this wording, see Kurban, “Confronting Equality …”, . Art. () Law on the Amendment of Various Laws, No. , adopted on  July , entered into force on  July . Art. (a)() Law No. . For a discussion of the potential reach of this restrictive clause, see Kurban, “Confronting Equality …”, -. The implementing regulation precludes regional or local broadcasting, requires state authorization, establishes direct state control over broadcasting, controls the content of broadcasting, prohibits broadcasting of children’s programmes, restricts broadcasting time to a few hours every week, requires simultaneous or immediate subsequent translation into Turkish, and prohibits broadcasting in violation, inter alia, of national security and the indivisible territorial and national integrity of the state. Arts. ,  and  Regulation About the Radio and Television Broadcasting in Different Languages and Dialects Traditionally Used by Turkish Citizens in their Daily Lives, implementing Law No. , entered into force  January . For examples of the problems encountered in the implementation of the law, see Nurcan Kaya and Clive Baldwin, “Minorities in Turkey”, Minority Rights Group International, July , -, at .

Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey In the area of language education, the reforms made in August  effectively allowed65 the opening of private courses for teaching minority languages,66 subject to the requirement that such instruction does not violate the “indivisible integrity of the state”.67 The legislature has explicitly made it clear that this by no means suggested teaching “Turkish citizens as mother tongue any language other than Turkish.”68 Undoubtedly a positive step in the right direction, the granting of the right to teach and learn minority languages in private courses falls far short not only of established international standards,69 but also of the educational rights afforded to non-Muslim minorities under the Treaty of Lausanne70 and the educational opportunities available to all students in Turkey for learning and even receiving education in foreign languages.71 Thus, the reform law exacerbates the existing inequality of treatment between ethnic

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In using a language almost identical with the title and the text of the broadcasting law, the law once again indirectly grants the right to learn minority languages without granting them legal recognition. Art.  Law No. . Ibid, Art. (c)(). Art. (a) Law on the Amendment of Various Laws, No. , adopted on  July , entered into force on  August . The critical issue in language rights is not whether minorities should be allowed to open private institutions to teach and learn their languages, but to what extent states have affirmative obligations to enable individuals to learn their mother tongue through taking positive steps, including providing partial or full state funding. International standards are clear about the distinction between private and public education, and impose on states a duty to recognize the right of minorities to have private education in their languages and to seek government funding. For example, Art.  of the Council of Europe Framework Convention for the Protection of National Minorities provides: “) Within the framework of their education systems, the Parties shall recognize that persons belonging to a national minority have the right to set up and to manage their own private educational and training establishments; ) The exercise of this right shall not entail any financial obligation for the Parties.” Similarly, the Copenhagen Document recognizes the persons belonging to minorities’ right to “establish and maintain their own educational, cultural and religious institutions, organizations or associations, which can seek voluntary financial and other contributions as well as public assistance, in conformity with national legislation”. Art. () 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 . One area where there are no clear international standards, however, relates to the responsibility of states in this process. International instruments are silent on the public funding of the teaching of or education in minority languages. However, fairness and equality suggest that persons belonging to minorities should at the very least be entitled, upon demand, to learn their languages at public schools. Non-Muslim minorities have the right to private and, where numbers warrant, the conditional entitlement to public education in their languages in primary and secondary schools. Arts. ,  Treaty of Lausanne. All students in Turkey, irrespective of their ethnicity, religion or any other status, have the opportunity to have private and public education from primary to post-graduate institutions in Western languages, including English, French and German.

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Dilek Kurban minorities and non-Muslim minorities as well as between ethnic minority languages and foreign languages. There have been positive developments towards enhancing the freedom of expression of minority identity. Promising steps have also been taken in the area of employment law,72 with the prohibition in employment relations of discrimination on grounds of, inter alia, language, race, religion and denomination.73 While the list is non-exhaustive, the absence of ethnicity and national origin among the enumerated grounds is notable,74 as well as the restriction of the prohibition of discrimination to employment relations only (and not extending it to discrimination in recruitment).75 To enhance the property rights of the non-Muslim minority, the Law of Foundations was amended76 to allow community foundations to have legal title to their property. In trying to rectify some of the injustices stemming from post- practices, the law now allows community foundations to buy, sell and donate the properties they currently use. As for the return of the previously confiscated properties, the law requires foundations not only to prove that they have legal title to such property, but also that they are “utilising” it. In other words, to be able to seek the return of their property, foundations must be currently using such property. This illogical legal formulation, which defies the plain meaning of the term “return,” effectively makes it impossible for foundations to get their properties back. Furthermore, in a typical fashion of lawmaking in Turkey, the law makes it extremely difficult for community foundations to register the property they currently use in requiring VGM’s permission.77 This executive control over the exercise of property rights was further bolstered by an executive regulation,78 which requires non-Muslim foundations to follow cumbersome bureaucratic application procedures79 and restricts the kinds of property on which they can retain   

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Labour Law, No. ,  May , Official Gazette No. ,  June . Ibid., Art. . The omission of national origin and ethnicity from the grounds of non-discrimination is particularly relevant with respect to the EU’s established acquis communitaire on anti-discrimination. Art.  of the Treaty Establishing the European Community prohibits discrimination on grounds of nationality, while the EU Race Directive adopted on the basis of Art.  of the EC Treaty proscribes discrimination based on race and ethnicity in a wide scope of areas including employment, education, healthcare and access to and supply of goods and services. European Commission against Racism and Intolerance (ECRI), Third Report on Turkey, adopted on  June , released on  February , . The Law of Foundations was amended twice in August  and January . Art.  Law No. ; Art. () Law on the Amendment of Various Laws, No. , adopted on  January , entered into force on  January . The requirement of bureaucratic approval for non-Muslim foundations’ registry of their property also has a discriminatory aspect in that such permission is not required for other (Muslim) foundations. Kaya and Baldwin, “Minorities …”, . See Regulation on the Community Foundations’ Acquisition and Enjoyment of Immovable Property, and on the Registry on the Name of These Foundations of Immovable Property They Use, implementing Law No. , entered into force on  January . Ibid., Art. (), requiring foundations to state in their applications, inter alia, the purpose for which the property is being used, the purpose for which it is sought to be acquired, and

Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey legal title.80 Predictably, only a fraction – less than  % – of the applications made by community foundations has turned out positively.81 The reforms, even in the absence of bureaucratic resistance, would still fail to provide a sustainable and permanent solution to the problem. The imminent problem for community foundations is not their ability to register the property they use. The real question is whether the post- practice of systematic confiscation of their property will come to an end and whether the properties taken away will be returned or due compensation will be paid to their rightful owners. And it is this question that is critical for Turkey’s accession to the EU82 and at stake in cases pending before the European Court of Human Rights (ECtHR).83 Notwithstanding, a draft law84 currently under deliberation in the parliament, drawn up after the EU gave Turkey a date for the initiation of accession negotiations and the Council of Europe warned the Turkish government about the property cases piling up before the ECtHR, continues to disregard the problem. In requiring that the community foundation seeking the return of its confiscated property must be currently utilizing such property,85 the legislature not only defies the ordinary meaning of the word “return”, but also puts into question its stated intent to return to the non-Muslim foundations the property unlawfully taken away

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an expert report on the state of the property. Ibid., Art. , allowing non-Muslim foundations to register only the immovable property they use for their religious, charitable, social, educational, medical and cultural purposes. According to the data provided by the VGM in May , a mere  out of a net total of , applications have been approved for registry, Oran, Türkiye’de Azınlıklar ..., . Among the dismissal grounds cited by the VGM is the registry of the property in question on the name of public institutions or private persons. Some of these properties belong to the group of real estate the non-Muslim foundations had declared in , but whose title later unlawfully passed to the state and third parties. Thus, it is precisely because the legal title to their property has passed on to the state or to third parties under unlawful state practices dating back to  that non-Muslim foundations today do not have title to their property. In rejecting the registry applications on the ground of policies that have caused non-Muslim foundations to lose title to their property in the first place, the VGM demonstrates a bureaucratic stance in complete defiance of the explicit legislative purpose of Law No. , which is to enable non-Muslim foundations to own legal title to the property they use. In their  March  visit to Turkey, the EU Troika made it clear to the Turkish government that the resolution of the property question is contingent on finding a just, equitable and durable solution for either the return to the non-Muslim foundations of their confiscated property or payment of just compensation for the harms suffered where return is impossible. Hilal Köylü, “Uygulama Zayıf ”, Radikal,  March , A. Four of these cases were brought to Court by the Yedikule Surp Pırgiç Armenian Hospital Foundation on  July  (filed by the Court as Appl. No. /),  August  (/),  March  (/) and  July  (/). Draft Law of Foundations. For a critical legal opinion on the draft law submitted to the Turkish Prime Minister’s Office, see Kurban, “Vakıflar Kanunu Tasarısı’nın ...”. Draft Law of Foundations, provisional Art. .

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Dilek Kurban from them.86 Thus, what may seem to be a simple property registry question in reality concerns the fundamental rights of Turkey’s non-Muslim citizens to property, equality and non-discrimination under the Turkish Constitution, the Treaty of Lausanne and the European Convention on Human Rights. B. A Cautionary Tale: Omissions of the Reform Process There is no doubt that the reforms represent a major shift in Turkey’s attitude vis-à-vis its minorities, first and foremost the Kurds whose demands for cultural recognition have long been ignored by the state. However, it would be inaccurate to claim that the shift has been drastic; the EU process has not yet generated a fundamental change in Turkey’s official minority policy. Despite the relatively significant progress made, the reforms left many issues unresolved. Rather than being inadvertent oversights, these omissions are rather deliberate measures to ensure that Turkey’s minority policy remains fundamentally unchanged. This is most evident in the continuity of Turkey’s foreign policy with respect to international treaties. If the treaty in question specifically addresses minority rights, Turkey’s policy is one of inaction, as in the case of the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages (EChRNL). If, on the other hand, the treaty is not on minorities per se, but entails provisions granting them rights, Turkey signs the treaty with reservations.87 Turkey has most recently demonstrated this policy in its reservation to interpret and apply Article  of the International Covenant on Civil and Political Rights (CCPR)88 in accordance with the related provisions and rules of the Turkish Constitution and the Treaty of Lausanne.89 The subjugation of Article  seeks to ensure that no minority other than non-Muslims enjoys minority status, and therefore goes against the principle laid down by the Human Rights Committee (HRC) that “[t]he 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.”90 Thus, the declaration is incompatible with the object and 

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

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The message given by this apparent unwillingness has undoubtedly been received by bureaucrats who, most recently in March , sold a building belonging to an Armenian hospital that was confiscated in  to a third party, notwithstanding that the said property is the object of controversy in a case pending before the ECtHR. See İsmail Saymaz, “Ermeni Vakfına Şok”, Radikal,  March , A. For an application of this policy in the case of the Convention on the Rights of the Child and the OSCE instruments, see Kurban, “Confronting Equality …”, -. Art.  of the International Covenant on Civil and Political Rights (CCPR) states that “[i]n 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”. HRC, Declaration and reservation of the Republic of Turkey to the International Covenant on Civil and Political Rights, dated  September , United Nations High Commissioner for Human Rights. HRC, General Comment , Art.  (th session ), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/

Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey purpose of the CCPR and violates the established principle of customary international law as codified by the Vienna Convention on the Law of Treaties that reservations, understandings and declarations incompatible with the object and purpose of a treaty shall not be permitted.91 This analysis is also valid for Turkey’s similar recent reservation to the International Covenant on Economic, Social and Cultural Rights to apply Article ()92 and ()93 in conformity with Articles ,94 95 and 96 of the Turkish Constitution, seeking to preclude the provision of education in ethnic minority languages.97 Generally speaking, after more than  constitutional amendments, there still does not exist a constitutional provision recognizing and endorsing the various minorities within Turkey. More specifically, in the area of language rights, there are significant constitutional restrictions attached to the use of minority languages in education.

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GEN//Rev./, . Art. (c) of the Vienna Convention on the Law of Treaties. Certainly, this observation also holds true for many states, even in the European context. For example, in signing the Framework Convention for the Protection of National Minorities, many EU member states have entered reservations, understandings and declarations limiting the scope of the Convention by either enumerating those minority groups entitled to protection or by putting forward a restrictive minority definition. For a not entirely up-to-date list of reservations, understandings and declarations, see . Art. () CESCR reads: “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions”. Art. () CESCR reads: “No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.” Art. () Turkish Constitution: “The Turkish state, with its territory and nation, is an indivisible entity. Its language is Turkish.” Art. () Turkish Constitution: “None of the rights and freedoms embodied in the Constitution shall be exercised with the aim of violating the indivisible integrity of the state with its territory and nation, and endangering the existence of the democratic and secular order of the Turkish Republic based upon human rights.” Art. () Turkish Constitution: “No language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institutions of training or education. Foreign languages to be taught in institutions of training and education and the rules to be followed by schools conducting training and education in a foreign language shall be determined by law. The provisions of international treaties are reserved.” HRC, Declaration and Reservation of the Republic of Turkey to the International Covenant on Economic, Social and Cultural Rights, dated  September , United Nations High Commissioner for Human Rights, at .

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Dilek Kurban Article  of the Constitution continues to declare Turkish as the “mother tongue” of Turkish citizens and prohibits public education in any other language.98 Equally critical is the non-amendment of Article , which identifies Turkish as “the language of the state,” as opposed to “the official language of the state,” giving the impression that Turkish is the sole language spoken in the state. Furthermore, Article  provides public funding exclusively for the preservation and promotion of Turkish language, history, and culture.99 While these constitutional provisions, in their current form, may not be problematic from a strictly human rights perspective, they do create a tension if the parliament intended to situate the reforms within a minority protection framework.100 Moreover, when read in light of Turkey’s historical Turkification policies, these provisions cannot be deemed to be inoffensive to minority cultures and languages. Another fundamental omission of the reform process is the non-amendment of the constitutional provisions discriminating against the Alevis and the Caferis on the basis of their denomination. As a result of the Treaty of Lausanne’s restrictive definition of minorities on the basis of “religion” instead of “religion, sect and denomination” and the effective exclusion of Alevis and Caferis from the protection of the Treaty, the distinct religious identities of these denominational minorities within Islam have never been officially recognized. The state is assuming that anyone who is not a nonMuslim is not just a Muslim, but also a Sunni Muslim, and thus subject to assimilationist policies substantiated by the  Constitution. Hence, while non-Muslims were 

There is an exception to the prohibition of education in languages other than Turkish. Art. () of the Turkish Constitution provides teaching of and education in foreign languages determined by law. The exception is made for public and private schools that give elementary through postgraduate education in selected foreign languages approved by the state. Among these languages are English, French, German and Italian.  Art.  Turkish Constitution: () The “Atatürk High Institution of Culture, Language and History“ shall be established as a public corporate body, under the moral aegis of Atatürk, under the supervision of and with the support of the President of the Republic, attached to the Office of the Prime Minister, and composed of the Atatürk Centre of Research, the Turkish Language Society, the Turkish Historical Society and the Atatürk Cultural Centre, in order to conduct scientific research, to produce publications and to disseminate information on the thought, principles and reforms of Atatürk, Turkish culture, Turkish history and the Turkish language. () The financial income of the Turkish Language Society and the Turkish Historical Society, bequeathed to them by Atatürk in his will are reserved and shall be allocated to them accordingly. () The establishment, organs, operating procedures and personnel matters of the Atatürk High Institution of Culture, Language and History, and its authority over the institutions within it, shall be regulated by law.  It is not coincidental that the constitutions of EU member states that provide legal protection to their minorities do not give official status to any particular language (Italy, Belgium and Luxembourg), or constitutionalize an official language without prejudice to the linguistic rights of minorities (Spain, Austria), or declare more than one language the “official language” of the state (Ireland).

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Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey granted autonomy in running their religious institutions, in a peculiar interpretation of secularism, the religious affairs of all Muslims were put under the direct supervision and control of the state through the Directorate of Religious Affairs (Diyanet İşleri Başkanlığı).101 And yet, neither Alevis nor Caferis have, or are permitted to have, any representation in this institution. Pursuant to a well-established policy prescribed in a regulation which was in effect until recently, “anyone who is not a Sunni Hanefi is not entitled to work in the Directorate of Religious Affairs.”102 The interpretation of the principle of secularism to suggest full control over religion has caused the state to be involved in regulating every aspect of the practice of Islam, from paying the salaries of religious leaders (imams) to constructing mosques, from overseeing of pilgrimage to making authoritative pronouncements on religious questions and taking “a leading role in the interpretation of the Koran and Islam in the modern world.”103 This state involvement in religious affairs not only excludes Alevis from public space in which to practice and teach their religion, but also tries “to bring the Alevis into the Sunni fold.”104 The dual nature of the state’s attitude towards Alevis is evident in its failure to allocate funds to sponsor Alevi religious leaders (dedes) or to build Alevi houses of worship (cemevis), while at the same time constructing mosques in and appointing imams to Alevi towns and villages.105 It is also manifest in Article  of the Turkish Constitution, which requires the instruction of religion in primary and secondary schools “under state supervision and control”.106 While these compulsory classes cover basic information about other religions, they are predominantly about the theory and practice of Islam and “are considered by many religious minorities to be subjective and inaccurate.”107 The classes are instructed on the basis of the Sunni interpretation of Islam, and thus are particularly discriminatory against Alevi and Caferi pupils since the exemption offered in practice to Christian and Jewish students is not available to them. The European Commission against Racism and Intolerance (ECRI) has recently urged Turkey to either make religious instruction optional for everyone or to revise the content of the classes to genuinely cover all religious cultures.108 In fact, the government has recently started to revise the textbooks used in these courses to incorporate the  Art.  Turkish Constitution.  Selahattin Özgündüz, representative of the Caferis, speech made at the TESEV Workshop on Grey Areas in Human Rights,  December , Istanbul.  See David Shankland, Islam and Society in Turkey (The Eothen Press, London, ), .  See Martin van Bruinessen, “Kurds, Turks and the Alevi Revival in Turkey”, University of Georgia, at .  The vast majority of Alevis, namely those that are ethnically Turkish and Kurdish, do not go to mosque, but conduct their religious ceremonies (cem) presided by “holy men” (dede) at their own houses of worship (cemevis). The practices of prayer (namaz), pilgrimage, fasting in Ramadan and zakat are also not followed by the Alevis. Ibid., .  Art.  Turkish Constitution reads: “Education and instruction in religion and ethics shall be conducted under state supervision and control. Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools.”  European Commission,  Regular Report on Turkey’s Progress Towards Accession, .  ECRI, Third Report on Turkey …, .

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Dilek Kurban Alevi faith into the curriculum.109 However, the ECRI fell short of recommending the abolishment of religious instruction classes, be it mandatory or elective.110 In a country where religious differences continue to play a divisive role, expecting young pupils to make free decisions about electing a religious course without feeling intimidated is unrealistic. Furthermore, any state instruction of religion runs against the principle of secularism, irrespective of Turkey’s own idiosyncratic definition of this concept. When such instruction is biased towards a certain interpretation of a religion over the others, namely towards the Sunni version of Islam over the non-Sunni interpretations, it also violates the fundamental principle of equality. This objection to state instruction of religion on the basis of non-discrimination not only rests on the rights of non-Sunni denominations within Islam, but also on the rights of secular and atheist parents who may not want their kids to receive any sort of religious education. Lastly, in the absence of theological institutions teaching non-Muslim and non-Sunni faiths, the revised textbooks will be written and the courses will be taught by none other than Sunni scholars, bureaucrats and imams – members of the establishment that is the source of the discrimination against non-Sunni minorities to begin with. Indeed, the deputy president of the Directorate of Religious Affairs has recently stated that cemevis are not legitimate places of worship under Islam and that the dede title is illegal.111 Endorsing the state with the power to make authoritative decisions about issues of faith, particularly in a country with a history of religious persecution, goes against the very core of freedom of religion. Finally, the parliament has not lowered the % national electoral threshold, which is a considerable obstacle to the political participation of minorities, in particular the pro-Kurdish parties.112 Similarly, the Law on Political Parties (LPP) continues to prohibit political parties from pursuing pro-minority protection policies. Article ’s “prevention of the creation of minorities” bans political parties from claiming that minorities exist in Turkey113 or from “aiming to and engaging in activities towards disturbing the  According to the draft study conducted by the government, the textbooks will cover Alevism as a spiritual movement rather than a system of religious belief. See Dilek Güngör, “Din Dersi Sil Baştan”, Radikal,  January , A.  A case pending before the ECtHR brought by the parent of an Alevi pupil who was not allowed to be exempted from religious courses may soon provide a decisive answer to this question.  Adnan Keskin, “Cemevi, Dini Değil”, Radikal,  January , A.  Pro-Kurdish parties have repeatedly failed to surpass the % threshold in national elections despite having received the highest percentage of the votes in Turkey’s eastern and southeastern regions populated predominantly by the Kurds. While some minimum level of electoral threshold might be desirable for maintaining political stability in any given country, a  % threshold level goes beyond achieving that legitimate aim. Instead, instituting such a high national threshold in a country where pro-Kurdish parties predominantly get votes in a concentrated region is a deliberate attempt to secure the exclusion of such parties from the national parliament, and thus violates the principle of equality as applied to political parties. The  % threshold is also excessively high compared to other democracies, such as Germany ( %), Denmark ( %) and Sweden ( %).  Art. (a) Law on Political Parties, No. , adopted on  April , entered into force on  April  prohibits political parties from claiming “the existence of minorities in the

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Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey unity of the nation by creating minorities on the territory of the Republic of Turkey through protecting, advancing or spreading languages and cultures other than the Turkish language and culture.”114 Furthermore, the LPP still maintains the prohibition on political parties from using languages other than Turkish at their meetings, statutes, programmes and propaganda.115 The ban has already caused the launching of criminal proceedings against the executives and members of political parties.116 An exception made for “languages other than those forbidden by law” permits the translation of party statutes and programmes into foreign languages.117 The restriction brought on minority languages and the exception carved for foreign languages “discriminates between foreign and minority languages, and is particularly discriminatory against pro-Kurdish parties, many of whose voters do not speak Turkish.”118 IV. Proposals for Solution: From Selective Minority Regimes to a Universal Constitutional Citizenship While the impact of the EU accession process on Turkey’s official policy on minorities has been marginal, there has nonetheless been a considerable shift in the state’s attitude towards the expression of cultural differences. As in no other time in the history of the republic, persons belonging to ethnic and religious minorities have started to publicly assert their identities and articulate demands for cultural recognition. In triggering the rise of minority consciousness in Turkey, the EU process has effectively reversed some of the harm done by the Turkification policies on minorities’ subjective awareness of their distinct identities. And yet, judging from the relative easing of the pressures on minority self-identification, one should not jump to the conclusion that the concept of minority rights is no longer a taboo. The official denunciation of the substantive recommendations made in two reports released in October and the backing the state has received in this regard from some minority groups quickly reminded that minority rights continue to be an extremely politicized, divisive and polarizing issue in Turkey. Nonetheless, while virtually all minority groups have recently made public statements denouncing their external identification as ‘minorities’, none of them has rejected to be granted minority rights. To the contrary, various ethnic and religious groups have territory of the Republic of Turkey based on national, religious, cultural, denominational, racial or linguistic differences”.  Ibid., Art. (b).  Ibid., Art. (c).  Most recently, the Chief Prosecutor’s Office in Ankara opened an investigation against  former and current executives of the pro-Kurdish Party for Rights and Liberties (Hak ve Özgürlükler Partisi, HAKPAR) for speeches made in Kurdish during the first annual party congress and for sending invitations written in Kurdish to the President, Prime Minister and the President of the parliament for their participation to that congress. See “HAKPAR’a Kürtçe Davası”, Radikal,  March . For other examples of similar criminal proceedings, see Kaya and Baldwin, “Minorities …”, .  Kaya and Baldwin, “Minorities …”, .  Ibid.

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Dilek Kurban started to raise their voices in demanding “legal protection” from the state, which is essentially a demand for minority rights in disguise. In light of the unique historical background of Turkey’s minority policy, the wholehearted efforts made by Muslim minorities in trying to distance themselves from the official non-Muslim minorities in the eyes of the state was not entirely unpredictable. The analytical challenge posed by the contradiction in the rejection of minority status on the one hand, and the demand for essentially minority rights on the other, calls into question the desirability of the development of new minority regimes in Turkey. Instead, the unique historical and political context of the country, the nature of the demands made by all minority groups and the high price non-Muslims have had to pay in return for having been granted minority status calls for a constitutional solution to Turkey’s minority question. A. EU’s Triggering Effect: The Rise of Minority Consciousness in Turkey Turkey’s process of accession to the EU has had a triggering effect in bringing to the surface the hitherto suppressed demands of various ethnic and religious minorities for cultural recognition. The unspoken deal made by the republican elite with the officially unrecognized minorities towards trading cultural recognition for full citizenship has started to be broken. Even the hitherto silent and largely unknown minorities, such as the Laz and the Georgians, have joined the Kurds in claiming state sponsored education and broadcasting in their mother tongues. The unofficial non-Muslim minorities whose de iure minority rights under the Treaty of Lausanne have been systematically violated by the state have also started to speak up, asking for legal protection against discrimination and for greater religious freedom. Thus, in triggering the rise of minority consciousness, the EU process has served as the antithesis of the Turkification policies: The diverse cultural identities of various minority groups suppressed by the latter have found in the former the opportunity to resurface. Yet, the public debate generated by the release of two critical reports in October  soon made it clear that the controversial nature of the notion of minority rights is still not a bygone conclusion in Turkey. On  October , the European Commission released its much-awaited Regular Report on Turkey. The Commission’s reference in the report to Alevis and Kurds as ‘minorities’119 generated an unprecedented public debate in Turkey, led by an official declaration that these two groups are not a minority, but rather belong to ‘the core’ of society.120 The Prime Minister’s reaction to the report was more deliberate: In an outright and explicit rejection of the Alevi identity, Erdoğan rejected the view that Alevism is a distinct interpretation of Islam. Instead, he said, “[i]f Alevism means to love and

 The European Commission has, for the first time, suggested that Alevis and Kurds are unofficial minorities. The Commission’s reference was more direct in the case of the Alevis (referring to them as “non-Sunni Muslim minorities” and implicit for the Kurds (singling out the Kurds as a “community” not officially recognized as a minority), European Commission,  Regular Report …,  and .  In his evaluation of the Progress Report, President Ahmet Necdet Sezer disputed the idea that Kurds and Alevis are minorities. Rather, he said, they are “the elements of the majority”. “Sezer: Aleviler Azınlık Değil”, Radikal,  October .

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Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey follow Ali the Caliph, … then I am more Alevi [than the Alevis].”121 Soon after, the Prime Ministry Advisory Committee on Human Rights, an independent government body, issued a far-reaching report criticising the state’s traditional views of minority and minority rights and calling for a new notion of constitutional citizenship embracing ethnic and religious differences.122 The reaction of the government was harsh: disowning the report,123 renouncing its validity on procedural grounds,124 and launching a criminal investigation against its author and the president of the Committee.125 Perhaps the most telling reaction came from the Office of the Chief of Staff which, in a written press statement, not only went into an extensive, and rather inaccurate, substantive legal analysis of the concepts of individual versus group rights, and minorities versus citizens, but also justified this ultra vires action by pointing out the “security dimension” of the minority question.126 The statement has served as a vivid reminder that as far as the Turkish state is concerned, minorities are still viewed not as citizens who merit special legal protection, but as foreign elements within the population who need to be closely watched. In light of Turkey’s unique historical and political context, one could perhaps argue that the official reaction to the October reports was to be expected. What was rather surprising to many, particularly in Europe, was how strongly the reports were criticized  “Başbakan: Ben Daha Aleviyim”, Radikal,  October , A.  Prime Ministry Advisory Committee on Human Rights, “Report on Minority Rights …”.  The Minister for Foreign Affairs claimed that the Committee was not an official body and had no legal connections with the Prime Minister’s office. In reality, the Committee was established on  April  by Law No. , which explicitly provided that its expenses would be provided from the budget of the Prime Ministry and that the Committee would be under the authority of a minister designated by the Prime Minister. “Gül: Bu Raporlar Kıskançlık Ürünü”, Radikal,  October , A.  The government’s procedural objections varied: that the Committee had no authority to issue a report without a request from the government, that the release of the report to the press before its submission to the government violated ethical and procedural rules, that the voting of the report was invalid due to the absence of a majority of members of the Committee in attendance, and that the report was unduly altered subsequent to its approval. In reality, the Committee had the legal mandate to issue reports on its own discretion, all the meetings of the Committee where the report was discussed have been open to the public, the report was accepted upon the approval of a majority of the members present and the changes to the report were merely editorial and did not alter the substance. For a detailed discussion of these issues, see Baskın Oran, “‘Azınlık Hakları ve Kültürel Haklar Raporu’nun Bütün Öyküsü”,  Birikim (), -.  The criminal investigation was launched by the prosecutor on his own initiative, based on the allegations that the report’s proposals towards replacing the ethnic-based Turkish identity with a civic based constitutional citizenship and amending Art.  of the Constitution to turn Turkish into “the official language” rather than “the language” of the state violated the Penal Code’s Art. , which forbids excessive criticism of state institutions, and Art. , which bans incitement to hatred on the basis of differences of social status, class, race, religion, sect or region. “AB Eğitimi İşe Yaramamış”, Radikal,  February .  For the Turkish text of the press statement, see Genelkurmay Başkanlığı, Basını Bilgilendirme Toplantısı,  November , , at .

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Dilek Kurban by some representatives of the Kurds127 and Alevis.128 In renouncing the minority label, the common argument made by both groups was that they were among the founding peoples of the republic and thus a member of the majority, and what they demanded was not minority status, but “legal protection”. The Kurds’ and Alevis’ claim for founding people status instead of minority treatment should come naturally in light of the connotations the concept of ‘minority’ bring to the collective psyche in Turkey. In view of the price non-Muslim minorities have had to pay for their minority status, a general conviction has been rooted in the minds of the population that being a minority is not a favourable legal status but a fearsome label for second-class citizens whose loyalties cannot be trusted upon. And it is this label that Alevis and Kurds fear will attach to them if they claim minority status, a fear that was quickly justified by the subtle warning the Office of the Chief of Staff implied in pointing out that the Kurds and Alevis themselves have given the necessary reaction to the Commission’s report.129 However, that Kurds and Alevis vehemently reject the minority tag does not necessarily suggest that they are also against minority rights. To the contrary, their demand for “legal protection” is effectively a call for minority rights in disguise. This is visible in the Alevis’ demands for legal status for cemevis as institutions of faith, the abolishment of the

 In renouncing the labelling of the Kurds as a minority group, the Kurdish political elite instead insisted that the Kurds are the “founding people” of the republic along with the Turks. See the remarks made by Nazmi Gür, the Deputy President of the pro-Kurdish Democratic People’s Party (Demokratik Halk Partisi, DEHAP), in Özge Gözke, “Başka Bir Avrupa Birliği Mümkün mü?”, Bianet,  October , at http://www.bianet. org////.htm. A similar statement was made very strongly by Leyla Zana, a former member of the parliament from the banned pro-Kurdish political party Demokrasi Partisi (DEP, Democracy Party) in her address to the European Parliament, where she said: “The Kurds are not a minority. This term has very much bothered us. The Kurds are a part of the majority. All they demand at the moment is legal protection.” Güven Özalp, “Zana: Azınlık değil çoğunluk üyesiyiz”, Radikal,  October .  Cemal Şener, a scholar specialized on the Alevi faith and culture, stated that the Alevis have felt uncomfortable at being described as a minority and that they associated any acceptance of minority status with taking a stand against the secular republic. Haber Merkezi, “Azınlık Raporuna Azınlık Yorumu”, Bianet,  November , at . Indeed, in a statement made in response to the public debate in Turkey, the President of the European Alevi-Bektaşi Unions Confederation stated that their members did not in any way define themselves as a minority. “Aleviler: Önce Yasal Güvence”, Radikal,  October .  Press statement by Genelkurmay Başkanlığı, “Basını Bilgilendirme Toplantısı”,  November , at .

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Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey Directorate of Religious Affairs and the constitutional protection of the Alevi faith,130 and in the Kurds’ plea for language rights, including public education in Kurdish.131 Thus, the process initiated by the reforms and fostered by the release of the October reports culminated in a highly politicized social environment where competing identity claims by various minority groups clash with each other and with the assimilationist identity policies of the state. The paradox in the Kurds’ and Alevis’ vehement rejection of the minority label while at the same time demanding what are practically minority rights speaks perhaps most acutely to the fact that the question of minorities is still an extremely politicized, divisive and perplexing issue in Turkey. This contradiction underscores the distinctiveness of the Turkish case and calls for a unique analysis of Turkey’s minority question. This call is further substantiated by the virtually uniform position taken by non-Muslims that they are willing to renounce their minority status so long as they would be treated as full citizens on equal terms with the rest of the population.132 B. Proposals for Reform: A New Notion of Constitutional Citizenship The advocacy of minority rights is based on the premise that affording special legal protection to disadvantaged groups serves to preserve their cultural identity and to empower them to participate fully and meaningfully in the political, social and economic life of the country. Indeed, positive discrimination policies have in many cases provided minorities with an equal opportunity vis-à-vis the majority and helped to achieve substantive equality between the two. Yet the unique and convoluted experience of Turkey’s non-Muslim minorities compels one to question this basic premise. While there is no doubt that the Treaty of Lausanne minority regime made the preservation of the culture, language and religion of Greek, Armenian and Jewish minorities possible, it is also irrefutable that the perceived ‘privileged treatment’ of these communities served to consolidate the historically grounded polarizations in society. The minority label attached to these groups validated their ‘otherness’ in the eyes of the state and  “Aleviler: Önce …”. It is important to note that there are considerable differences in the competing demands made by various Alevi groups in Turkey. For example, while the AleviBektaşi Unions Confederation calls for the abolishment of the Directorate of Religious Affairs, the Cem Foundation, which has a more amiable relationship with the state, call for the representation of Alevis in the Directorate. Regardless, all of the diverging demands made by various Alevi groups are effectively demands for special legal privileges.  The Kurds’ demand for language rights has been most explicitly advocated by Şerafettin Elçi, a prominent Kurdish politician and a former member of the parliament, who has recently called for a federal solution to the Kurdish problem and the adoption of a policy of official bilingualism. See Neşe Düzel, “Türkiye’de İki Resmi Dil Olmalı”, Radikal,  February , A.  This position has recently been voiced by various non-Muslim groups, both those recognized by the state and those that are not. The representatives and members of Chaldean and Presbyterian communities uniformly reaffirmed this position at a recent workshop. Speech made at the TESEV Workshop on Grey Areas in Human Rights,  December , Istanbul. The preliminary findings of an ongoing study on Armenians in Turkey strongly confirm this finding. Karin Karakaşlı et al., “Türkiye’de Ermeni Olmak: ‘Sadık Millet’ten Talep Eden Yurttaşa”, TESEV, February  (on file with the author).

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Dilek Kurban society, turning them into targets for legal and social discrimination and preventing them from elevating into full citizenship status. With Turkey on the eve of accession negotiations with the EU, the ultimate challenge is to address minorities’ demands without exacerbating the social pillarizations within society. Towards that end, any well-intended initiative to develop egalitarian and democratic policies to address minorities’ claims should be grounded upon a constitutional reform movement instead of ad hoc, piecemeal laws enacted merely to fulfil the EU accession criteria. And such a movement should inevitably result in the drafting of a new constitution rather than a patchwork of constitutional amendments. No matter how drastic and numerous they may be, amendments made to a constitution suffering from severe procedural and substantive democratic deficits are predestined to fail to produce sustainable solutions to Turkey’s minority and human rights issues.133 A new constitution based on an inclusive and civic notion of citizenship which stands in equal distance from all ethnic, religious and linguistic minorities and which respects and promotes the multicultural heritage of Turkey would be a crucial first step towards turning ‘the others’ into ‘us’. The diverse demands of various minority groups could be met through the adoption of an inclusive notion of constitutional citizenship free of an ethnic or religious component without creating new minority rights regimes tailored for particular groups. The guarantee of a meaningful freedom of religion for all minorities would require the state to take a negative approach and to completely withdraw from the religious sphere. More specifically, the discontinuation of compulsory religious instruction in schools, the removal of the requirement to declare religion in official identification cards, and the abolishment of the Directorate of Religious Affairs would help achieve substantial equality between the Sunni majority and the Alevi and Caferi minority.134  The  constitution suffers from procedural anti-democratic flaws, since it was enacted by a group of constitutional law professors at the behest of the military junta that conducted the  military intervention. Substantively, the constitution is also incurably anti-democratic in its entirety, from its authoritarian preamble which sets the tone of the document as duty-imposing rather than rights-granting, to its substantive provisions which establish a hierarchy in favour of “national unity,” “territorial integrity” and “secularism” over fundamental rights and liberties, from its unamendable clauses to the blanket impunity for the military junta. The authoritarian and anti-democratic nature of the constitution renders any amendments, no matter how radical they might be, insufficient to guarantee the rights of minorities. Moreover, the constitution precludes certain fundamental amendments that would be necessary for achieving substantive equality for minorities, such as the abolishment of the Directorate of Religious Affairs (since it would be deemed to be against the principle of secularism as interpreted by the state) and the amendment of Art.  so as to transform Turkish from “the language of the state” to “the official language of the state” (since this Article is among those unamendable under Art. ).  The question of the abolishment of the Directorate of Religious Affairs is one of the most controversial issues in Turkey today. Finding a solution that would embrace all parties and satisfy the Sunnis, Alevis and the state is an extremely challenging task. This is so not only because the Directorate is a giant bureaucracy with a strong constitutional mandate, but also because any suggestion for its abolishment is perceived by the republican elite, including the military, as a threat to the founding principle of secularism. Furthermore, recent studies conducted on the issue show that a vast majority of Sunnis, from clerics to believers, view



Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey This would suggest a complete transformation of the role the state has traditionally set for itself in defining the substance of religion and in regulating the means of exercising it. Instead of making authoritative statements about whether Alevism is a religion or not, the state simply needs to take the requisite legal measures to enable Alevis to freely exercise their faith without any fear of intimidation. Similarly, by simply fulfilling its legal obligations under the Treaty of Lausanne instead of micro-managing the religious affairs of non-Muslims, the state would bring an end to many of the problems these communities face today. And the inclusion of a provision in the new constitution which would explicitly endorse135 non-Muslims’ rights under the Treaty of Lausanne would not only give teeth to the legal protection they are entitled to, but would also have a symbolic significance in incorporating them into the constitutional scheme on equal footing with the rest of the citizens.136 Finally, substantive equality between the majority and the various ethnic and linguistic minority groups cannot be fully achieved until and unless the state agrees not only to permit private education in minority languages, but also to provide funding for their teaching in public schools where there is sufficient demand from minorities. A new constitutional provision acknowledging and endorsing the existence of languages other than Turkish and permitting the teaching of such languages in schools would be a great step towards alleviating some of the harm done in the past to Turkey’s uniquely rich cultural heritage. Such a constitutional movement would undoubtedly need to be accompanied by comprehensive legal reforms. The lack of an anti-discrimination law is a deficiency of the Turkish legal system identified by virtually all minority groups. The enactment of such a law, as will be required by the EU in the accession process, would help bring many issues traditionally associated with minorities to the realm of citizenship, and thus offer universal solutions rather than special measures towards addressing many of the problems underscored in this article. An anti-discrimination law prohibiting both direct and indirect forms of discrimination by both public and private parties in all walks of life, and allowing positive discrimination for persons belonging to minorities would be a significant first step towards providing all minorities with the equal opportunity to participate in the social, economic and political life of the country. Certainly, the Directorate as a unifying power for Muslims and an indispensable source of authority on the interpretation of Islam. However, the discriminatory and anti-secular nature of the institution is undoubtful. Recognizing the controversial nature of the issue, an immediate solution in the short term could be bringing an end to the current practice of taxing Alevis for the provision of essentially Sunni religious services by the Directorate. Instead, Alevis should be allowed to spend their tax money on the provision of their own religious services in a fashion they deem to be appropriate.  The Turkish Constitution’s only implicit reference to the Treaty of Lausanne is present in Art. () Turkish Constitution, which exempts “[t]he provisions of international treaties” from the prohibition on public education in languages other than Turkish and the requirement of state authorization for private education in foreign languages.  A further step towards providing substantive protection to non-Muslims would be a genuine attempt to remedy past injustices through a meaningful amendment of the draft law on foundations to prevent future confiscations of properties belonging to non-Muslim community foundations as well as to allow the return of the confiscated properties to their rightful owners or to give them just compensation where return is no longer possible.

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Dilek Kurban the enactment of such a law would need to be coupled with the establishment of a national body empowered with the monitoring, reporting and enforcement of the law, and the provision of free legal aid to persons belonging to minorities to bring lawsuits against both public and private individuals engaging in discriminatory behaviour. However, mere legal reform, no matter how necessary, would be insufficient to secure the substantive protection of minorities. The hurdles that bureaucratic resistance has caused to the reform process in Turkey have once again made it evident that real and meaningful change will not be possible in the absence of a change in the discriminatory social attitudes vis-à-vis minorities. The most urgent and challenging task facing policy makers is to eradicate the widespread social prejudices and stereotyping against minorities. To begin with, an intensive training programme needs to be launched to educate judicial and administrative bureaucrats, as well as police and military personnel on their legal duties to protect minorities’ rights to be free from discrimination. Additionally, it is essential to revise the national curriculum to familiarize students with different minority cultures and the rights of minorities to be free from discrimination, and to replace the prejudicial and stereotypical language prevailing in school textbooks with one written with an eye on promoting human rights and minority rights. In other words, comprehensive measures are necessary in a wide range of areas to ensure that minorities are not discriminated against, that those that do discriminate should not go unpunished, and that the presence of different minorities is cherished as an invaluable cultural heritage rather than a threat to national unity and territorial integrity. V. Conclusion The minority protection condition for accession to the EU has confronted the Turkish state and society with the challenge to find a long overdue solution to a pressing issue: the reexamination of the constructed national identity. That, more than  years after the establishment of the nation-state, the ‘nation’ is still searching for itself speaks to the failure of Turkification policies to suppress the distinct identities of various groups in Turkey. Yet, the experience of non-Muslims, the only officially recognized minority group, makes it evident that pillarizing society into separate communities on the basis of religion and ethnicity is not an optimal solution either. The non-Muslim case also shows that granting minority status to some groups at the inevitable cost of excluding others and creating ‘privileged’ legal regimes for minorities can serve to create schisms among the population and to turn official minorities into easy targets for social and legal discrimination. Thus, the resolution of Turkey’s minority question calls for an innovative approach, which should rest upon redesigning a constitutional citizenship model that would provide substantive equal protection to all citizens irrespective of their differences. Equally critical for a durable solution is the rhetoric of the state, finding voice in the discourse of official authorities. The case of Turkey vividly reveals that enacting legal reforms is necessary but insufficient to bring real and meaningful change in social and official attitudes towards minorities. The internalization of reform laws requires a radical transformation of the dominant social mentality, as evident in the bureaucratic resistance to change and the social stigmatization of minorities. The official rhetoric is extremely important for changing prejudices against minorities. A patronizing, dismiss

Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey ive and nationalist rhetoric by government officials thwarts instead any potentially positive impact of reform laws. And it is here, perhaps, where the Turkish state has failed the most. Turkey’s multicultural heritage is yet to be embraced at the highest state level; even the mere pronouncement of minorities and minority rights continues to trigger nationalist reactions by political leaders; and there is yet to be an official recognition of and apology for the traumatic experiences non-Muslim citizens have suffered over the past decades in the hands of their own state. The launching of a ‘Garden of Religions’ hosting a mosque, a synagogue and a church cannot suffice to prove ‘religious tolerance’ in a country where non-Muslims suffer a great deal of discrimination on a daily basis, where the existence of non-Sunni minorities continue to be disregarded, where the mere use of minority languages in public can still result in criminal investigation, where there is an unwritten yet well-established practice of not hiring non-Muslims in the military, the police and the Ministry of Foreign Affairs, and where there does not exist a single non-Muslim member of parliament in the entire Grand Assembly or an Alevi among the more than  MPs of the ruling Justice and Development Party.137 Paying lip-service to ‘religious tolerance’ does not make the government credible – deeds go much further than words. Towards finding an egalitarian and democratic solution to Turkey’s minority question, this article has advocated the redesign of a civic and inclusive constitutional citizenship free of any ethnic or religious component. The emancipation of the constructed ‘Turkish’ identity from its ethnic and religious substance requires not only the drafting of a new constitution and the adoption of fundamental legal reforms, but also a radical change in the official discourse at the highest level. Only then would the Turkish state be able to restore a sense of civic pride in its nationals and empower all minorities with a sense of entitlement as full citizens with equal constitutional rights.

 As part of a public relations campaign towards being given a date to start accession negotiations from the EU, Prime Minister Erdoğan presided the opening of a compound named ‘Garden of Religions’ in a tourist complex in Antalya in the southern coast of Turkey. Speaking in the attendance of the Dutch Minister for EU Affairs, Erdoğan contrasted the “religious tolerance” in Turkey with the lack thereof in the Netherlands, pointing out the recent murder of the Dutch film director of Theo van Gogh by a radical Muslim. And yet, Erdoğan did not mention that this was the first church built on Turkish land since the establishment of the republic, that one church could not possibly represent the various Christian faiths in Turkey, and that the ‘Garden of Religion’ was built in the middle of a remote tourist complex instead of one of the historically non-Muslim areas of Antalya hosting local Christian communities. “Üç Mabet Aynı Bahçede Buluştu”, Radikal,  December , A.

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Niamh Nic Shuibhne *

Recent Developments on the Status of (Minority) Languages within the EU Framework

I. Introduction If asked, “have recent times produced key European Union (EU) developments for the status of minority languages?”, an instinctive answer would most probably be an abrupt, quite simple: “no”. On reflection, however, more has been going on than might first be presumed, and with somewhat mixed results. A number of inclusive policy initiatives have been published, yet the Court of Justice has confirmed the legitimacy of a controversial cutting of language options within EU agencies and other noninstitutional bodies; unprecedented EU enlargement has incurred an equally unprecedented linguistic enlargement; and so on. The EU is also in the midst of a vibrant period of constitutional reflection more generally, thinking of the Treaty establishing a Constitution for Europe (although, at the time of writing, this is a document with a very uncertain future).1 Why, then, might the prevalence of minority language issues not have seemed more readily apparent? After briefly introducing the EU language framework, this contribution will then tour through the various developments outlined above, deploying a broad division between ‘policy’ and ‘legal’ events. The analysis will highlight two key themes. First, in light of the way in which language policy has evolved (or not evolved) in the EU context, we need to rethink our understanding or categorisation of ‘minority languages’ per se. Within the overall EU language framework, we can no longer conceptualize minority languages as those which, in a simple sense, are not official EU languages. Even within the supposedly privileged realm of officialdom, linguistic hierarchies are intensifying. It was never really appropriate to think of the EU languages as ‘equal’ in all respects. But not addressing or facing up to their differences in use and in de facto status has now become all the more critical; it is simply a fact that there are layers of ‘minority-ness’ both within and without the official EU language framework, and continuing to pretend otherwise exacerbates inequality rather than the contrary. Second, the historical absence of coordination among various actors has long bred a fragmented arena for the making and hearing of minority language claims in the EU sphere. This generates, essentially, a tale of incoherence. Language matters tend to be considered with an acute singularity of interest in the EU, divorced from an awareness * 

Reader in EC Law, School of Law, University of Edinburgh. OJ  C , .

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 373-388. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Niamh Nic Shuibhne of how different claims interact, how their mutual dependence can affect the success or otherwise of a proposed policy approach. It is an acutely problematic method, the fruits of which are felt all the more keenly now that the EU framework more broadly continues to deepen and evolve. Minority language status, in whatever sense this descriptor might be understood, has not deepened and evolved accordingly. II. Outline of the EU Language Framework This section seeks to provide a basic outline of the status quo, of the way in which the EU organizes its languages and their functions, and of the place of minority languages within that scheme. The EU (now) has  official languages – Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish – the functions of which will be set out in more detail below. For all other languages spoken within the EU, three levels can be discerned. First, the position of Irish is exceptional. It is not a fully fledged official language but it has a more limited status, usually described as being a ‘Treaty language’. In essence, this means that while the EU and European Community (EC) Treaties are required to be translated into Irish, secondary legislation (or any other official EU documentation) is not. Its inclusion in Article  EC (see below) imports it indirectly into Article  EC (which means that citizens of the EU can write to the EU institutions in Irish as well as the  official EU languages, and must have a reply in the same language). Irish may also be used in proceedings before the Court of Justice and it has also been included in Community language education programmes.2 Second, although it does not have any status, as such, in the EU framework, limited or otherwise, Letzeburgesch (which has official status in Luxembourg, but not in the EU) has been included in Community language education programmes. Finally, then, we have all other regional and/or minority languages, the legal status and number of speakers of which can, domestically, vary considerably (compare, for example, Breton, Catalan and Welsh). But their status vis-à-vis the EU language framework is uniform, i.e. they have none. To understand that from which these regional and/or minority languages are excluded, and the implications of that exclusion, a brief summary of the official EU language scheme will now be outlined. First, Article  EC ensures that, in effect,  language versions of the Treaties exist, and that all of them are equally (legally) authentic. Article  EC provides that “[t]he rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the Rules of Procedure of the Court of Justice, be determined by the Council, acting unanimously.” The Council realized this mandate in Regulation /,3 which (since  May ) estab-

 

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See in particular, the Socrates programme, Decision /, OJ  L , , incorporating the Lingua language education programme. See Council Regulation //EEC of  October  determining the languages to be used by the European Economic Community: Regulation /, OJ  B , - (latest amendment in  by the Act concerning the conditions of accession of the ten new member states).

Recent Developments on the Status of (Minority) Languages within the EU Framework lishes  official and working languages of the institutions of the Union. This amounts, in effect, to a transposition of the linguistic inclusiveness codified in Article  EC. Article  of Regulation / distinguishes explicitly between working and official languages, but does not proceed to realize this difference in any further detail or subsequent provisions. Instead, the Regulation goes on to set down a simple framework in respect of communications between the Community institutions and the member states, and (natural or legal) persons subject to their jurisdiction. Member states (and persons subject to their jurisdiction) may write to the institutions in any of the official Community languages and “[t]he reply shall be drafted in the same language” (Article ); for natural persons with the nationality of a member state, this rule is now bound up with EU citizenship rights (see Article  EC).But even within the less constitutional premise of Regulation /, it is clear that language choice (at least within the language scheme parameters) is conferred on the member states, and on individuals where relevant, rather than on the institutions. For communication the other way around, documents sent by a Community institution to a member state or to a person subject to its jurisdiction must be drafted “in the language of such a state” (Article ; that that language must be one of the official EC languages is understood implicitly here, since these are the only languages mentioned in Regulation / in the first place).4 Although essentially a matter of ‘internal’ work throughout the drafting and adoption processes, regulations and other legislative documents of general application must be drafted in all of the official/working languages (Article ); each language version is treated as equally authoritative in a legal sense. In a related vein, then, Article  requires publication of the Official Journal of the European Union in  languages also. Article  provides that “[t]he institutions of the Community may stipulate in their rules of procedure which of the languages are to be used in specific cases”, allowing, in effect, that the institutions may determine their own internal language practices; so the effect of ‘working languages’ is implied here, but that terminology is not used. It is clear that the institutions do work internally in a considerably reduced number of languages – French alone in the Court of Justice, for example. The Court is subject generally to Regulation / but, according to Article , “[t]he language to be used in the proceedings of the Court of Justice shall be laid down in its rules of procedure.”5 In summary, then, minority language versions of the Treaties do not exist (or do not exist yet, more accurately; see further, section IV below); no Community or Union legislation is translated into minority languages; and there are no official channels of communication, for natural or legal persons, with the Union institutions in languages other than the official  plus Irish. Quite apart from the official language framework, 



If a member state has more than one official language, selection of the appropriate language is, according to Article , governed by the state’s internal language rules (for example, certain languages may be required to be used in different geographical regions), but the presumption remains that only official EC languages are relevant. For the details of the language rules applicable here, see Articles - of the Rules of Procedure of the Court of Justice (OJ  C , , as amended, for purposes of EU enlargement, by Council Decision of  April , OJ  L , ). The same language rules apply (for the most part) in the Court of First Instance (see Articles - of the Rules of Procedure of the Court of First Instance (OJ  C , ), and OJ  L , ).



Niamh Nic Shuibhne however, there is something of a detached stream of activity in respect of minority language promotion, in respect of which more recent developments will now be discussed; in section IV, the question as to whether minority languages could and should be endowed with official status will be revisited. III. Some Policy Initiatives Bruno de Witte has written that there is evidence of a negative, but not a positive, language policy within the EU.6 This insight captures precisely the rather haphazard way in which language issues are tackled by the Community institutions. Language questions clearly impact on the EC in both direct (e.g. the translation of Community documents) and more indirect ways (e.g. rules on product labelling vis-à-vis the free movement of goods;7 more recently, in respect of the free movement of persons, the much-publicized ‘Europass’ mobility initiative, which includes a language portfolio8). But what these different types of language questions share is that they tend to be dealt with reactively. There has been no proactive drive towards more systematic language policy planning or development, which might cut across the various strands of EU language need. In the fields mentioned, as in others, it is also difficult neatly to separate minority language issues from language issues more generally. And the difficult question of Community competence should, of course, be mentioned here. Apart from the legal basis which allows for the determination of language rules in the institutions,9 the Treaty generates no authority for EC language rules, which would allow for the monitoring or shaping of internal member state language practices more directly. Any EC initiative on minority language policy, which goes beyond supplementing and supporting member state action, skirts the boundaries of appropriate competence delimitation, therefore, unless a clear linkage to a Treaty legal basis can be divined. The institutions cannot act as they please; policy development is always constrained by the contents of the Treaties. The most obvious inclination here is to explore



 





Bruno de Witte, “Language Law of the European Union: Protecting or Eroding Linguistic Diversity?”, in Rachael Craufurd Smith (ed.), Culture and European Union Law (Oxford University Press, Oxford, ), -, at . See, for example, ECJ, case C-/ Colim v. Bigg’s, judgment of  June , [] ECR I and case C-/ Geffroy v. Casino France,  September , [] ECR I-. See Decision //EC of the European Parliament and Council,  December , on a single Community framework for the transparency of qualifications and competences (Europass); see, with particular reference to the language portfolio, Article  and Annex V of the Decision; see also, the Europass portal at . As noted above, see currently, Articles  and  EC, and Regulation /. In the new Treaty, see the roughly equivalent Articles III- and IV-; changes to the latter provision, however, will be discussed further in section IV below. Despite hopes and attempts to the contrary, the new Treaty does not contain enhanced protection for the rights of minorities, apart from a brief (and last-minute) reference in Article I-, in the context of respect for human rights “including the rights of persons belonging to minorities” as a Union “value”.

Recent Developments on the Status of (Minority) Languages within the EU Framework the potential of the cultural policy provisions; but the limitations inherent in this legal basis are already well documented.10 Following on from the loose division of legal/political contexts introduced above, the work of the ‘political’ EC institutions – primarily, the European Parliament and, perhaps to a lesser extent, the Commission – has always been to the forefront of more ‘direct’ minority language action. Despite the ambiguity surrounding appropriate legal bases (all the more problematic before the Maastricht Treaty introduced the limited competences in education and culture), the European Parliament resolutions that spanned the s and early s are somewhat legendary in this field.11 After a considerable gap in time, a Resolution adopted in  on “regional and lesser-used European languages” focused primarily on the value of language learning, given that the joint Community/Council of Europe European Year of Languages was just then coming to an end.12 A varied, but somewhat scattered, agenda for future action can be derived from the Resolution’s closing paragraphs, with the Parliament calling for funding for a multiannual programme for language learning (to include regional or lesser-used languages); mindfulness of linguistic diversity and language rights in candidate countries in respect of the (then) future EU enlargement; exploration of legal bases for sustained funding to promote regional and lesser-used languages;13 implementation of Article  of the Charter of 







See Article  EC and Article III- of the new Treaty. See generally, Niamh Nic Shuibhne, EC Law and Minority Language Policy: Culture, Citizenship and Fundamental Rights (Kluwer Law International, The Hague, ), chapter , and the contributions in Craufurd Smith (ed.), Culture and European Union Law … . Notwithstanding the relative weakness of the permitted measures that can be adopted under Article  – i.e. incentive measures excluding harmonisation, and recommendations – the Council is compelled at present to act unanimously. If the new Treaty is ratified, however, this requirement will be removed, the implications of which are discussed further below. It should also be noted that in Article  EC and Article III- of the new Treaty, the development of “the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States” is included as an objective for Community (at present; Union, in the new Treaty) action. See the Arfé Resolution () on a Community Charter of Regional Languages and Cultures and on a Charter of Rights of Ethnic Minorities, OJ  C , ; Arfé Resolution () () on Measures in favour of Minority Languages and Cultures, OJ  C , ; Kuijpers Resolution () on the Languages and Cultures of Regional and Ethnic Minorities in the European Community, Doc. A -/; and the Killilea Resolution () on Linguistic and Cultural Minorities in the European Community, OJ  C , . European Parliament Resolution () on Regional and Lesser Used Languages, OJ  C  E, . On the European Year of Languages , see Decision //EC of the European Parliament and Council,  July , OJ  L , . As a consequence of European Parliament lobbying, a budget line for funding dedicated to minority language projects was established in . It was not, however, authorized by a legislative act – recalling that the EC Treaty provision on culture was not inserted by the Treaty of Maastricht until , there was no suitable legal basis available. This continued until ECJ, case C-/ United Kingdom and others v. Commission,  May , [] ECR I-, where the Court of Justice held that every “significant” EC expenditure must be grounded in the prior adoption of a legislative act. As a direct consequence of that decision, minority



Niamh Nic Shuibhne Fundamental Rights;14 and member state signature and ratification of the Council of Europe’s European Charter on Regional and Minority Languages.15 On  July  the Parliament’s Committee on Culture, Youth, Education, the Media and Sport presented “recommendations to the Commission on European regional and lesser-used languages – the languages of minorities in the EU – in the context of enlargement and cultural diversity”; the rapporteur was Michl Ebner.16 Again, emphasis was placed primarily on the provision of – sustained – funding for language learning initiatives, and the remedying of Community initiatives in this field to date by including regional and lesser-used languages in language education programmes. A European Agency for Linguistic Diversity and Language Learning was also proposed. The Report suggested Articles , ,  and  EC as the appropriate legal bases. Less than a fortnight later, the Commission published its Action Plan for  on “Promoting Language Learning and Linguistic Diversity”.17 There are three main strands or policy objectives in the Action Plan: life-long learning, better language teaching, and building a “language-friendly environment”. Within the ambit of this latter ambition, the Commission finally brings regional and minority languages into language learning programmes, but with no real discussion at all of why and/or how. The expansion of the language range, as a policy shift, is surely to be welcomed; but only time will tell if this ‘one model fits all’ approach is either wise or sustainable. Perhaps what comes across most clearly from this very brief overview of the political minority language initiatives of recent years is that little has changed since the early European Parliament resolutions; the ambitions and objectives that were evoked therein continue to guide the institutions today. Legal competence has since been developed, but political difficulties have proven slow to recede. Almost all institutional energies, and thus concrete action, have thus been concentrated on the relatively noncontroversial sphere of language learning – a crucial and critical dimension of (minority) language policy, certainly, but a limited one nonetheless. That this has been achieved at the expense of a more inclusive, more coherent approach to EU language planning will perhaps become more apparent below.





 



language funding was no longer provided via its dedicated budget line and continues to be provided on an ad hoc basis only. The unanimity requirement in Article  EC, mentioned above, and not legal basis per se, establishes the key difficulty on this point since, thus far at least, it has not been possible to secure the political support of all the member states. As already noted, the new Treaty could change things quite markedly in this context. OJ  C , , and incorporated as Part II of the new Treaty. Article  of the Charter (or Article II- of the new Treaty) provides that “[t]he Union shall respect cultural, linguistic and religious diversity”. But it is far from clear how the Parliament envisaged ‘implementation’ of this rather vague statement. At the time of writing,  member states have both signed and ratified the Charter (Austria, Cyprus, Denmark, Finland, Germany, Hungary, the Netherlands, Slovakia, Slovenia, Spain, Sweden and the United Kingdom); six have signed but not yet ratified (Czech Republic, France, Italy, Luxembourg, Malta and Poland) and the remaining seven (Belgium, Estonia, Greece, Ireland, Latvia, Lithuania and Portugal) have done neither. Document A-/ Final. COM ()  final. See the Council mandate in its Resolution of  February , OJ  C , .

Recent Developments on the Status of (Minority) Languages within the EU Framework IV. Development of the Legal Framework Three broad themes in particular will be addressed in this section: first, the impact on the legal framework of EU (linguistic) enlargement; second, recent case law of the Court of Justice, which has critical implications for the sustainability of that framework; and, finally, a recent legislative proposal which is grounded in respect for language rights, but appears to confound itself on that basis. Throughout this section, the conceptual or definitional question on what a ‘minority’ language now is in the EU context takes on particular importance. It is not just that action to promote languages without any official place in the EU – ‘straight’ minority languages – rests on a precarious footing; as well as this, the de facto hierarchies of use and of status attached to the official languages themselves are being somewhat calcified – not, however, in any careful or disciplined way, but much more subtly, much more discretely, and thus all the more dangerously. A. Language and EU Enlargement Perhaps the most striking aspect of the  EU enlargement process is how little (public, in any case) discussion seemed to take the resultant linguistic enlargement of the EU into account. This eerie and unsettling silence was equally evident throughout the Convention (on the Future of Europe) process, which prepared a draft of the Treaty establishing a Constitution for the European Union. The stable door is now closed, but the horse has well and truly bolted – the straining linguistic services of the institutions are generating more (negative) coverage than EU language issues ever have; and, oddly, political actors have more recently set to work on unpicking the (official) language framework, after both the Convention and intergovernmental negotiation phases have been completed. First, to look at recent EU enlargement specifically, the linguistic dimension to the pre-accession negotiations was concentrated almost exclusively on domestic minority (including language) rights protection standards within the candidate countries.18 In as much as the Nice Treaty can be considered as a blueprint for the functioning of the institutions in the enlarged Union, it is astonishing that no real consideration appears to have been given to the practical hurdles facing the EU interpretation and translation services and thus to serious reviews of the official EU language framework; from  May , a language scheme of  as opposed to, previously,  languages had to be delivered and managed, an almost doubling of requirements.19 In terms of status, the clear presumption was that the Union of  member states and  official and working languages would enlarge exponentially to a Union of  member states and  official 



A number of contributions to the II Mercator International Symposium “Europe : A new framework for all languages?” held in Tarragona, February , addressed and evaluated different aspects of this question – see the index, which also contains links to abstracts and complete texts of papers, at . See Niamh Nic Shuibhne, “Case Comment on Kik v. Office for Harmonisation in the Internal Market”, () Common Market Law Review (), -, footnote  and accompanying text.



Niamh Nic Shuibhne and working languages, representing at least one official language of each member state. Moreover, no special concessions were sought, thinking, for example, of status of the Turkish language in Cyprus.20 And the minority languages of the new member states thus acquired a similar status to the minority languages of all other member states in the Union language framework, i.e. absolutely none at all. Almost immediately, however, difficulties emerged. Translation of official documents into Maltese was suspended from the outset, “due to the current situation regarding the recruitment of Maltese linguists and the resulting lack of qualified translators”.21 More generally, the strains placed on the translation services have since been blamed for everything from soaring costs to serious legislative delays.22 All of this stands in marked contrast to the celebratory EU rhetoric of harmonic linguistic diversity. As already noted, the parallel process of constitutional reform more generally, via the Convention on the Future of Europe, reflected no more intensely on either the ideological or practical stresses of the multilingual mammoth the EU was about to become.23 It is also noteworthy that proposals for reform actually submitted to the Convention tended to echo the division referred to throughout this summary – emphasis was placed either on increasing support for minority language promotion within the member states, or on reforming the institutional language rules of the EU itself. An awareness of the intertwined reality of these language questions, of the need for a more systematic appreciation of their interconnectedness, is consistently lacking. It is somewhat surprising to note, then, that moves to amend the fundamental (Treaty) language framework have bubbled over after the completion of the Convention process. First, it has already been observed that Articles III- and IV- of the new Treaty effectively reproduce Articles  and  EC respectively. Article  EC simply lists the single original language versions of the Treaty, i.e. the  official languages of the EU, and Irish. A post-Convention addition to Article IV-, however, introduces a new procedure, perhaps somewhat inspired by the anomalous status of Irish, but offering considerably less in substance: .











This Treaty may also be translated into any other languages as determined by member states among those which, in accordance with their constitutional

According to Article  of the Constitution of Cyprus, Greek and Turkish are the official languages of the Republic. The provision goes on to set out detailed arrangements for the official use of both languages. The attachment of special linguistic concessions to accession is not unprecedented, recalling the unique status in the Union of the Irish language. See Council Regulation //EC of  May  on temporary derogation measures relating to the drafting in Maltese of the acts of the institutions of the European Union, OJ  L , . Even a cursory search at , for example, reveals such dramatic headlines as “Translation errors in Polish EU Constitution to delay ratification” ( January ), “EU language bills rocket” ( January ), “EU translation problems cost lives, says UK” ( July ) and “Translation problems delay crucial EU financial laws” ( May ). See again, Nic Shuibhne, “Case Comment …”, -, for a discussion of some of the (limited) proposals put forward to the Convention, none of which met with any success in terms of finding their way into the Convention’s ultimate draft.

Recent Developments on the Status of (Minority) Languages within the EU Framework order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the member states concerned to be deposited in the archives of the Council.

This provision first emerged at intergovernmental negotiations in June ,24 largely the result of mounting domestic pressure on member states (particularly in Spain) to remedy the absence of any real consideration of minority (language) issues by the Convention. In October , the following Declaration was attached to the final Treaty text: The Conference considers that the possibility of producing translations of the Treaty establishing a Constitution for Europe in the languages mentioned in Article IV() contributes to fulfilling the objective of respecting the Union’s rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article I-() of that Treaty. In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages. The Conference recommends that those member states wishing to avail themselves of the possibility recognised in Article IV-() communicate to the Council, within six months from the date of the signature of that Treaty, the language or languages into which translations of that Treaty will be made.25

The conception of Article IV- contains a number of innovations. First, it denotes an implicit, but real, recognition that languages other than those recognized officially at EU level even ‘exist’ in the member states; it signals also a recognition that the EU and at least its primary law can, even should, be transmitted in these languages. This nod to linguistic diversity is somewhat limited by the requirement that such languages have official status of some sort in the member states, but this is hardly surprising when considered through a lens of political acceptance. Second, we see a delegation of the work of translation away from the EU itself. These Treaty translations will be devoid of legal effect, and so are of as much symbolic as practical import; but, if not centrally translated, there could otherwise be serious implications for the uniform application of Union law. In other words, legal effect has been sacrificed for the advantage of having the translated Treaty versions merely come into existence at all. By placing primary responsibility for the management of this system in the hands of the member states, the Union function of “support” is strongly realized; moreover, political pressure to act within the six month time-frame, which expired in mid-, had to be directed domestically, not at the Union institutions.26   

See CIG /,  June . Addendum  to CIG / REV , Brussels,  October , Declaration No.  on Article IV-(), now in OJ  C , . There appears to be a widespread awareness of and interest in the realisation of Article IV(); in the Scottish parliament, for example, a motion considered “that the translation of the treaty into the Gaelic and Scots languages would be a symbolically important means of demonstrating a continued commitment to the long-term future of these important ele-



Niamh Nic Shuibhne Third, and perhaps most crucially, we see now in the Treaty (and, see below, in the Court) a tentative detachment from the rigid ‘all languages, all equal’ model which pins the EU language framework within a formalistic straitjacket hopelessly unsuited to the reality of EU language needs. Notwithstanding the official status of  languages within the EU, the institutions work in a variety of ‘linguistic levels’, sometimes using just one language for internal purposes, sometimes a limited number, and sometimes translating and interpreting into all . Apart from basic provisions in Regulation /, this multilevel operative reality is not really formally acknowledged or sufficiently provided for; but by preserving an equality of status, the complexity of language needs and language functions is ignored. The unique status of the Irish language has rested quietly for too long, the potential for imagination that it posits was essentially ignored. Article IV-() is a less substantive compromise. But it does, at least, acknowledge that there are more language questions within the EU sphere, and within its remarkable blend of supranational and domestic concerns and competences, than a basic model designed originally for four languages could possibly accommodate. A creative exploration of other possibilities, other levels of use and of status, is therefore to be welcomed. It is not without risk, of course, a question returned to again below. First, it should be noted that this emerging flexibility is starting to seep into language questions more generally (if not, unfortunately, entirely coherently). In keeping with the momentum generated by the inclusion of Article IV-() but, again, in an exercise of fairly bizarre timing,27 two further political moves were launched after the signature of the new Treaty. In November , Ireland launched a proposal to seek full official and working status for Irish.28 The initiative was launched in a (Malteseinfluenced?) spirit of compromise and selectivity, however, highlighting certain legal measures only for translation for an initial four-year period (i.e. legislation adopted







ments of Scottish culture; considers that any such translations should be made available prior to the proposed referendum on the treaty in order to allow voters to refer to the treaty in their chosen language, and accordingly calls on the Executive to make representations to Her Majesty’s Government with a view to having the translations completed.” See Business Bulletin No. /, Section F,  November , available at . Whether awareness and interest can be converted into real results remains, of course, to be seen. At the time of writing, it could only be confirmed that certified translations of the Treaty (in Basque, Catalan and Galician) had been provided only by Spain (or more accurately, translations provided by the language communities themselves presented ‘via’ Spain, acting as the actual EU member state): see the reference in footnote  below. Several queries by e-mail to both the Council and Commission, as to whether other states had used the mechanism or not, proved fruitless; incidentally, the Commission’s pre-formatted on-line query form offers a list of  languages only and, in contravention of Article  EC, does not include Irish. The author pointed this out to the Commission also; at the time of writing, there has not yet been a response. Or, at least, bizarre timing from the perspective of EU constitutional reform processes; looking ahead to national referendum battles in respect of ratification of the new Treaty, perhaps not so bizarre after all. The proposal was first presented at a meeting of the Permanent Representatives Committee (COREPER); see the press release on  November  from the Department of Foreign Affairs, at .

Recent Developments on the Status of (Minority) Languages within the EU Framework jointly by the Parliament and Council, but not, for example, judgments of the Court of Justice), with a review then to take place after that time period has elapsed. Ireland presented its proposal more formally at the General Affairs Council meeting on  December . At the same meeting, and following what has been described as a “saga of poisoned philological, inter-regional and party-political disputes”,29 Spain also presented a memorandum requesting “official recognition of all languages with official status in Spain”.30 Curiously, though cleverly, the memorandum proposes amendments to Regulation /, and not to the Treaty itself; Ireland has proceeded on the same basis, but it is not at all clear that official and working status can be affected in this way. The terms of the status requested by Spain are presented in some detail – in essentials, the EU functions sought for Basque, Catalan and Galician amount to the present and proposed status of Irish combined, but without the stipulation of a temporal review. Moreover, the memorandum states clearly that “[t]he Spanish Government will underwrite the costs arising from the practical implementation of the changes sought in the language regime”, and that it was also willing to make translators and interpreters available. Again, then, we see a merging of Union and member state resources and facilities; but this in turn raises questions on the intended legal effects of the resulting documents and the implications for the uniform effect of Community law. Both requests were forwarded by the Council to the Permanent Representatives Committee (i.e. COREPER) for further examination.31 The Council has very recently decided that Irish will be an official EU language (with effect from  January ) along the lines of the terms sought in the proposals of the Government.32 The results for Spain are more mixed: the translation and interpretation functions sought have been agreed to, but without the label of ‘official’ EU status per se for the languages themselves.33 B. Legal Evaluation of the Language Framework While, politically, the member states have been exploring these partial expansions of the official languages framework, the Court has moved instead to confine both the scope of 



 



Anna Verges, “Spain before the Referendum”, in The Federal Trust for Education and Research, EU Constitution Newsletter, February , -, at . The Spanish memorandum detailing its proposals can be accessed at . See Council of the European Union, General Affairs, Brussels,  December , Press Release / (Presse ), . Council Regulation //EC of  June  amending Regulation //EEC of  April  determining the language to be used by the European Economic Community and Regulation //EEC of  April  determining the language to be used by the European Atomic Energy Community and introducing temporary derogation measures from those Regulations, in OJ  L , -. Council conclusion of  June  on the official use of additional languages within the Council and possibly other Institutions and bodies of the European Union, in OJ  C , -.



Niamh Nic Shuibhne that framework and the ideological basis underpinning it. Most Luxembourg case law that touches on language has done so in the indirect sense outlined at the outset of this contribution.34 At the culmination of the series of Kik cases,35 however, the Court of Justice had an opportunity to pronounce on both the principles and application of EU language arrangements. The Kik litigation challenged the language rules operable in the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), an EC agency established to process applications for Community trademarks. As prescribed by Council Regulation, OHIM recognizes English, French, German, Italian and Spanish only as its working languages.36 An application for a Community trademark may be filed in any of the official EC languages, but applicants must specify a second language – and this must be an OHIM working language – in which the Office may send written communications. Furthermore, the applicant is deemed to accept this second language as the language to be used in opposition, revocation or invalidity proceedings in certain circumstances.37 If the Community trade mark is granted, it is then translated into the language of each member state designated in the application. It is difficult to summarize this complex web of judgments, but the following key principles should be noted. First, the Court has distinguished between the institutions listed in Article  EC, which are bound by the rules on Regulation /, and other agencies and bodies, which are not.38 Thus, while OHIM deals constantly with trademark agents throughout the member states, its linguistic obligations may legitimately be diminished by the Council; its language rules do not have to accord with the theme of linguistic equality that characterizes Regulation /, with the linguistic obligations that are placed on the institutions in respect of communications with natural or legal persons. Second, the Court, by not expressly contradicting the more overt stance of the Court of First Instance, could be said to have implicitly rejected the applicant’s assertion that linguistic equality was a fundamental principle of Community law. The argument that non-discrimination on grounds of nationality (Article  EC) surely incorporates non-discrimination on grounds of language was not really dissected; the Court of Justice talked about appropriate and proportionate justification, about the balance between principle and efficiency, but it never actually set out the principle, a 



  



See, for example, the references in footnote  in respect of the free movement of goods; on the free movement of persons, see ECJ, case C-/, Criminal Proceedings against Bickel and Franz, judgment of  November , [] ECR I-; and case C-/ Angonese v. Cassa di Risparmio di Bolzano, judgment of  June , [] ECR I-. There are four Kik cases in all: first, case T-/ Kik v. Council and Commission, order of  June  [] ECR II- and, on appeal, case C-/, Order of //, [] ECR I-; these cases relate to the standing of the applicant rather than the substance of the language questions. Case T-/ Kik v. Office for Harmonisation in the Internal Market (Trade Marks and Designs), judgment  July , [] ECR II- and Case C-/P Estate of Christina Kik deceased v. OHIM, judgment of  November , [] ECR I- are of more relevance here. For more detailed discussion of all four judgments, see Nic Shuibhne, “Case Comment …”. Regulation /, OJ  L/, Article . Ibid., paras. -. See the judgment in case C-/P, judgment of  November , para. .

Recent Developments on the Status of (Minority) Languages within the EU Framework departure from which was being justified.39 The reluctance of the Court to engage in a more thorough contemplation of discrimination may well be unsettled; however, if the new Treaty ratified the current Article  of the Charter of Fundamental Rights – i.e. a general prohibition of discrimination on a number of grounds, which expressly includes language – will become the legally binding Article II-. It is difficult to see how the Court could employ its Kik evasion tactics in that strengthened legal environment. Finally, it should be observed that the judgment is grounded in a number of formalistic distinctions – as noted above, institutions ‘versus’ agencies and bodies; and also, citizens acting as such ‘versus’ acting in an economic capacity40 – which simply do not bear up to substantive scrutiny. Whether a document originates from an institution or other body, or whether the nature and content of the communication is economic or otherwise, tells us nothing about the impact on the individual concerned. Ironically, in the EU context, more ‘citizens’ probably deal with bodies other than the institutions, and in an economic capacity than any other type of situation. And these communications can bear considerably on both rights and obligations. In this vein, the blanket selectivity of legal measures to be (and not to be) translated in the Irish and Spanish proposals outlined above looks equally problematic; for individuals, decisions and other Community legal measures can be of at least equal, and often far more, import than regulations. The importance of noninstitutional EU bodies in respect of the rights and obligations of individuals is highlighted still further by two matters, one ongoing, one recently (though only superficially) resolved. First, the draft Regulation on the Community Patent41 includes some detailed discussion of language arrangements including translation costing tables, and proposes, in effect, a regime of three languages (English, French and German). The European Parliament, via the Palacio Report on the draft Regulation,42 argued for comparability with the OHIM trademark regime (thus adding Italian and Spanish). The Council was not initially swayed, however; at a meeting on  March , the summary of its discussions on the draft Regulation points clearly to the Commission’s original three-language model.43 But the matter is proving enduringly controversial. The summary of discussions for the Council meeting on  and  May  notes that it “did not reach agreement by unanimity, as required, on the Presidency’s compromise proposal for a Council Regulation on the Community patent. Germany, France, Spain and Portugal voted against and Italy abstained. Noting that all conceivable compromise solutions for the only outstanding issue, which concerns the translation of patent claims, had been tried, the Presidency stated its intention to refer this matter to the President of the European Council”.44 At the time of writing, the stalemate continues.

     

See, in particular, ibid., paras. -. On this point, see, ibid., paras. -. COM () . A--. See PRES//,  March . See PRES//,  May , emphasis added.



Niamh Nic Shuibhne Second, language decisions taken within another noninstitutional body, Eurojust, came very recently to be reviewed by the Court of Justice.45 Like the earlier Kik cases, the Court did not have to consider the substantive questions here, dismissing the claim at the preliminary hurdle of admissibility. But Advocate-General Poiares Maduro had delivered his Opinion in this case on  December ; and his detailed consideration of the substance of the case itself deserves discussion here. A Union rather than Community body,46 Eurojust serves to promote coordination between member states for the investigation and prosecution of serious crime. The case related to the recruitment of staff for the body and the linguistic knowledge required for a series of posts that had been advertised in the Official Journal;47 the details differed across various posts, but for most, knowledge of English, or English and French was required, with an ability to work in other Community languages deemed an “asset”.48 For the position of librarian/archivist, however, no specific linguistic requirements were set down. For all posts, irrespective of the substantive linguistic requirements specified, applications submitted in the language in which the advertisement was published had to be accompanied by an application form completed, also in English; supporting documents were also required to be submitted in English. Spain’s claims were founded essentially in the domain of discrimination, which is rather ironic given its interventions in Kik in support of the limited OHIM language regime. Much of the Opinion discussed the admissibility of the claims vis-à-vis the general Community rules on standing before the Court.49 On the substantive language issues, however, the Advocate-General took a refreshing approach, blending principle with pragmatism in marked contrast to the judgment(s) in Kik. The Community principle of non-discrimination on grounds of nationality was transposed convincingly to the Union;50 and the context of linguistic matters was set firmly in the language of “rights”.51 It is not that the mechanism of justifying language limitations is absent, but rather, that it proceeded from an openly declared foundation of respect for linguistic diversity. There was a welcome recognition that the substance of any communication, rather than its form, should determine the applicable linguistic rules; and while appropriate limitations were discussed, they were set expressly against a principled backdrop of non-discrimination, lending a tenor of balance to the methodology that was painfully absent in the Kik judgments. There was also pragmatic recognition of the difference between external and internal communication, and the resultant permissibility or otherwise of linguistic restrictions.52 Applying these conclusions to the facts of the case, the Advocate-General showed some deference to Eurojust’s determination of its        



ECJ, case C-/, Spain v. Eurojust, judgment of  March , not yet reported. See Council Decision //JHA, OJ  L , . See OJ  C  A, . For details of the various posts and associated linguistic requirements, see Spain v. Eurojust, para.  of the Opinion. Ibid., paras. -. Ibid., paras. -. Ibid., paras. - in particular. Ibid., paras. -.

Recent Developments on the Status of (Minority) Languages within the EU Framework functionality requirements, found that the rights of applicants are “impaired only to a limited extent”, bearing in mind “the duties associated with the posts concerned”,53 and thus annulled only the requirement that applications for the post of librarian/archivist must be submitted in English, recalling the lack of any express requirement of competence in English for that post.54 There was, however, some vulnerability in the reasoning. While the Opinion stated clearly that the language regime of the Community – and, more particularly, Regulation / – applies equally to the Union,55 it did not deal directly with the institution’s/other bodies’ distinction on which Kik turned.56 If Regulation / was found not to apply to OHIM, it can be found similarly not to apply to Eurojust. The Community/Union distinction is not, here, the fatal one; rather, the institution/body division remains material. The Opinion does appear to draw from a more general principle of linguistic diversity, beyond the Regulation, which applies across the spectrum of EU entities;57 but when discussing the substance of the claims, a breach of “Regulation No ” is again recalled.58 And so, if the mind set of the Court of Justice has not evolved in the interim, there was no need for it so to do in this case either, had admissibility rules not settled the matter in any event. C. Language and Rights and Getting it Wrong Finally, following on from the general themes of both language rights and the increasingly comprehensive Union impact on crime and security, the Commission proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union should be mentioned.59 The right to understand the “nature and cause of the accusation”, and the associated rights of (free) translation and interpretation, feature strongly throughout the proposal, with reference to Article () ECHR and relevant Strasbourg case law.60 In line with the standard of protection offered by the ECHR, it must be stressed that understanding rather than choice is the guiding linguistic standard. This formulation is neutral in respect of minority languages, since it neither requires nor precludes them from being a language the accused understands. But there is something of an oddity in Article  of the draft proposal; para.  provides that “all suspected persons are made aware of the procedural rights that are immediately relevant to them by written notification” – a “letter of rights”. Para.  goes on, however,    

   

Ibid., para. . Ibid., para. . Ibid., para. . There is some consideration of the non-institutional status of Eurojust in the Opinion, in paras. -, but this is in the context of the admissibility of the action and not the application of Regulation /. See in particular, Eurojust, para.  of the Opinion. Ibid., para. . COM ()  final; I am grateful to Bruno de Witte for this point. See, in particular, paras. - and - of the Explanatory Memorandum.



Niamh Nic Shuibhne to limit translation of this written notification into “all the official Community languages” – which may well discriminate against a minority language speaker who does not ‘understand’ one of these languages, contra the neat presumption in para. : “in all the official Community languages so as to be able to offer an arrested person a copy in a language he understands”. This breaches the standard of protection guaranteed by the ECHR, that which the Commission clearly is trying, at least, to assure. The proposal is still at an early stage;61 and so it is both possible and imperative that this potential impairment of rights can still be rectified. V. Concluding Remarks This brief excursion through recent years of EU language ‘policy’ shows, on the one hand, that little has changed since the heyday of European Parliament momentum in the late s and s. Action in respect of minority languages is still being ‘promoted’, even if the range of ambition is now more limited to language learning – critical, but insufficient – than at any time past. The legal basis now provided by the EC Treaty for initiatives in this regard is tempered by the constraint of political unanimity. Among the myriad of changes wrought by the new Treaty, however, this small but crucial adjustment may yet be one. It has been stressed, however, that we can no longer conceptualize minority languages as simply those outside the official EU language framework. As the increasing use of a small number of functional languages, predominantly English, intensifies, then the use and de facto status of other languages must diminish in turn. Perpetuating a myth of equality fails to provide a mechanism for contemplation of these ‘minority official’ languages. Yet there exists also a curious contradiction in contemporary EU language directions, a bewildering display of random and chaos. The rhetoric of EU enlargement was all about linguistic diversity – the more, the very much merrier; but the subsequent reality has been more about a crisis of resources. While the member states seek currently to explore a more flexible language framework, they do so to increase rather than to reduce the number of languages with which the translators and interpreters must deal. Yet, at the same time, the Court has blessed a considerable reduction of linguistic obligations in noninstitutional Community (and, perhaps soon, Union?) bodies. There is, in short, no linguistic coherence in EU language planning. Or more accurately, there is no planning, either. How can a situation in which Basque, Catalan, Galician and Irish acquire enhanced status, while trademarks, patents, even Eurojust job applications, must be submitted in fewer and fewer languages, be seen as progression? We do not just need, as the Ebner Report suggested, an Agency for Linguistic Diversity and Language Learning. We need an EU Agency for Language Planning, which can take an overview of all linguistic needs and linguistic developments; which can attempt to devise a more rational yet ideologically sound EU language scheme. Otherwise, the linguistic dimension of EU citizenship will have no substance. And virtually all EU language questions will become the stuff of ‘minority’.





The progress of the legislative procedure can be tracked at .

John Handoll *

The Long-Term Residents Directive

I. Introduction Council Directive //EC concerning the status of third-country nationals who are long-term residents (the “LTR Directive”) was adopted by the Council on  November .1 The LTR Directive, which is to be transposed by member states by  January  at the latest, counts as one of the achievements of the Tampere programme, launched at the Tampere Summit in October . Though falling short of what some – including the Commission – may have originally hoped for, it constitutes an important milestone in the development of a Community law framework of rights for third-country national migrants. This article will consider the background to the LTR Directive (Section II), and sum up the legislative process leading to its adoption (Section III), then the main provisions of the LTR Directive will be outlined (Section IV). The status of the long-term resident third-country national will then be considered in the light of the principle of equality of treatment (Section V) and of integration policy and citizenship (Section VI). Finally some comments will be made on the position of long-term residents under the Constitutional Treaty signed in Rome in October  and currently awaiting ratification (Section VII). This contribution focuses on the position of the long-term resident third-country nationals under the LTR Directive. It does not address the question of long-term residence status in the individual member states.2 It also does not deal with other Community measures or international instruments relevant to long-term residents.3

*  



Partner, William Fry Solicitors Dublin, and Irish representative in the Odysseus network. Council Directive //EC of  November  concerning the status of third-country nationals who are long-term residents: Dir. /, OJ  L , -. See Kees Groenendijk, Elspeth Guild and Robin Barzilay, The Legal Status of Third Country Nationals who are Long-Term Residents in a Member State of the European Union (Office for Official Publications of the EC, Brussels, ). Note, however, that national law and practice has evolved in many of the member states reviewed. See John Handoll, “The Status of Third-Country Nationals Residing on a Long-Term Basis”, in Philippe de Bruycker (ed.), The Emergence of a European Immigration Policy (Bruylant, Brussels, ), -.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 389-409. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

John Handoll II. Background Although the EC (formerly EEC) Treaty has for long provided (and continues to provide) a basis for some provisions on the treatment of third-country nationals,4 it was only with the Maastricht Treaty that a specific basis for taking measures on conditions of residence by third country nationals was included, and then only in the third pillar. A non-binding  Resolution on the status of third-country nationals residing on a longterm basis in the member states5 was taken on this basis and continues to be applicable. As it results from the Amsterdam Treaty, Article () EC provides for the adoption of measures on immigration policy, including those on “conditions of entry and residence”, though it should be noted that nothing is said expressly about integration or treatment. Article () EC provides for the adoption of measures “defining the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States”. Union policy in relation to the status of long-term resident third-country nationals was addressed by the October  Tampere European Council. The relevant conclusions are set out below: .

.

The European Union must ensure fair treatment of third country nationals who reside legally on the territory of its Member States. A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens. It should also enhance non-discrimination in economic, social and cultural life and develop measures against racism and xenophobia. … The legal status of third country nationals should be approximated to that of Member States’ nationals. 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 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. The 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.

Presidency Conclusions of European Council meetings are by their nature political texts, leaving plenty of room for manoeuvre in the definition of policy and the creation of legal rules. The language used in the above Conclusions is aspirational in nature – witness the use of the word ‘should’ and the statement that the set of rights to be granted to long-term resident third-country nationals should be ‘as near as possible’ to those enjoyed by EU citizens. The scope of application of any non-discrimination principle, and the framework within which the principle was to be applied, was left rather blurred. The legal status of  



See provisions in relation to the free movement of persons, external relations, approximation in relation to the common market and Article  EC. OJ  C , .

The Long-Term Residents Directive third-country nationals was only to be “approximated” to member state nationals. Longterm residents were to enjoy a set of rights as near as possible to those enjoyed by EU citizens: A number of examples of such rights were given, including the rather vague “principle of non-discrimination vis-à-vis the citizens of the State of residence”. It should also be noted that the Conclusions straddled areas of Community and member state competence. Integration policy largely remains a matter for the member states. The endorsement of the objective that long-term residents be given the opportunity to obtain the nationality of the host member state should be seen in light of the fact that the member states have reserved competence in the attribution and granting of nationality, with Community law effectively prohibiting member states from refusing to recognise that a person seeking free movement rights possesses a “genuine” nationality of another member state.6 III. The Legislative Process In the Spring of , the Commission presented its proposal for a Directive concerning the status of third-country nationals who are long-term residents.7 Based on Article () and () EC, the proposal set out: (a) the terms for conferring and withdrawing long-term resident status granted by member states to third-country nationals legally residing in their territory and the rights (including those of equal treatment with nationals in a wide range of areas) attaching to such status; and (b) the terms on which third-country nationals enjoying long-term resident status in a member state under Community law should have the right of residence in other member states. The European Parliament,8 the Economic and Social Committee9 and the Committee of the Regions10 each considered and sought changes to the proposal. The Council started considering the matter in July  and from the beginning there were clear divergences between member states on matters such as personal scope, conditions for obtaining long-term resident status, and movement between member states. Following a series of deadlocks and delays, the June  Seville European Council11 urged that the proposal be adopted by June . After a considerable amount of further negotiation and compromise, political agreement was reached at the - June Justice and Home Affairs Council.12

   



 

See ECJ, case C-/ Micheletti, judgment of  July , [] ECR I-, para. , and ECJ, case C-/ Chen, judgment of  October , not yet reported, para. . COM() final. European Parliament legislative resolution of  February . Opinion of the Economic and Social Committee on the “Proposal for a Council Directive concerning the status of third-country nationals who are long-term residents”: // ESC, OJ  C , -. Opinion of the Committee of the Regions on the “Proposal for a Council Directive concerning the status of Third Country nationals who are long-term residents”: CoR /, OJ  C , . Presidency Conclusions (SN /// REV ), para. . Council Doc. /.



John Handoll It is not proposed here to discuss the positions of the various institutions and the member states. However, at the level of the Council, it has to be said that the legislative process was conducted with a considerable degree of secrecy – redolent of clandestine diplomatic negotiation rather than of open law making – although most of the preparatory documentation is now available. IV. The Directive A. The Preamble A number of general matters are addressed in the Preamble to the LTR Directive.13 The LTR Directive is stated to be based on the EC Treaty, in particular Article () and (). Reference is made to the EC Treaty provisions which, with a view to the progressive establishment of an area of freedom, security and justice, provide for measures aimed at ensuring the free movement of persons, in conjunction with flanking measures, and for measures relating to asylum, immigration and safeguarding the rights of third-country nationals (Recital ). The statement of the Tampere European Council relating to the legal status of third-country nationals and to long-term residents is repeated (Recital ). It is stated that the LTR Directive respects the fundamental rights and observes the principles recognised in particular by the ECHR and by the Charter of Fundamental Rights of the EU (Recital ). An important rationale for the provisions of long-term resident status is found in the statement that “the integration of third-country nationals who are long-term residents in the member states is a key element in promoting economic and social cohesion, a fundamental objective of the Community stated in the Treaty” (Recital ). Member states are to give effect to the LTR Directive without discrimination on a broad variety of grounds (Recital ). The LTR Directive is stated to comply with the principles of subsidiarity and proportionality (Recital ). Finally, it is stated that the UK, Ireland and Denmark are not, under the Protocols concerning these three member states, participating in the adoption of the LTR Directive and are not bound by or subject to its application (Recitals  and ). B. Chapter I – General Provisions 1. Subject Matter In terms of subject matter, the LTR Directive determines: (a) the terms for conferring long-term resident status granted by a member state to legally-resident third-country nationals, and rights pertaining to such status; and (b) the terms of residence of such long-term residents in member states other than the one granting the status (Article ). There are a number of key definitions (Article ). In particular, ‘third-country national’ means any person who is not a citizen of the Union under Article () of the EC Treaty (Article (a)) and – to make it clear that the status is a Community status – ‘longterm resident’ means any third-country national who has long-term resident status as provided for under Articles  to  of the LTR Directive (Article (b)). 



Recitals in the Preamble relating to specific provisions of the Directive are addressed in the context of those provisions.

The Long-Term Residents Directive 2. Personal Scope In terms of personal scope, the LTR Directive will benefit third-country nationals legally residing in a member state, with the exception of those residing for study or vocational training, those benefiting from temporary or subsidiary protection or applying for authorization to reside on these grounds, asylum-seekers and refugees, those residing solely on temporary grounds or in cases where their residence permit has been formally limited and those with diplomatic status (Article () and ()). The exclusion of refugees departs from the Commission proposal, though the Council welcomed the Commission’s commitment to present within one year – and if possible before the end of  – a proposal for extending the LTR Directive to refugees and persons enjoying subsidiary protection.14 3. Substantive Scope On substantive scope, the LTR Directive is to apply without prejudice to: (a) bilateral agreements between the EC, or between the EC and its member states, and third countries; (b) bilateral agreements between a member state and a third country before the LTR Directive enters into force;15 and (c) a number of conventions and charters under the auspices of the Council of Europe16 (Article ()). C. Chapter II – Long-Term Resident Status 1. General Chapter II contains provisions on long-term resident status in a member state. 2. Duration of Residence The LTR Directive sets out rules on duration of residence. Long-term resident status is to be granted on a mandatory basis – subject to exceptions on grounds of public policy or public security – to thirdicountry nationals who have resided legally and continuously for five years immediately prior to the submission of the relevant application (Article ()), showing that the person has put down roots in the country.17 Periods of residence spent whilst the person concerned has resided solely on temporary grounds or whilst enjoying diplomatic status are not to be taken into account in calculating this period, whilst only half of the period for study purposes or vocational training may be taken into account where the person concerned acquires a qualifying title of residence (Article ()). Periods of absence for less than six consecutive months and which do not in total exceed ten months in the five-year period are not to interrupt this period and are to be taken into account in calculating the period: for specific or exceptional reasons of a temporary nature and in accordance with national law, member states may provide   



See the Council Statement on Article  in the minutes of the ,th meeting of the Council.  January , pursuant to Article . Specifically, the  European Convention on Establishment, the  European Social Charter, the European Social Charter and the  European Convention on the Legal Status of Migrant Workers. See Recital .



John Handoll that a longer period of absence is not to interrupt the period – subject to possible derogation in the case of absence for employment purposes, the relevant period is not to be taken into account in calculating the total period (Article ()). 3. Conditions for Acquiring the Status Conditions for acquiring the status are specified, covering possession of stable and regular resources “sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned” and “sickness insurance in respect of all risks normally covered for his/her own nationals in the Member State concerned” (Article ()). Member states are also able to require compliance with integration conditions “in accordance with national law” (Article ()). In contrast to the Commission proposal, these conditions are to apply to those born in the member state. Member states may refuse to grant the status on grounds of public policy or public security: In taking such a decision, the member state is to consider the severity or type of offence against public policy or public security, or the danger that emanates from the person concerned, while also having proper regard to the duration of residence and links with the country of residence (Article ()). A refusal is not to be founded on economic considerations (Article ()).18 The notion of public policy may cover a conviction for committing a serious crime.19 It has been stated in the Council minutes that “the notion of public policy and public security also covers cases in which a thirdcountry national belongs to an association which supports terrorism, supports such an association or has extremist aspirations”.20 4. Procedures for Acquiring Long-Term Resident Status In relation to the acquisition of long-term resident status, it is intended to lay down procedures which are “effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as being transparent and fair, in order to offer appropriate legal certainty to those concerned”, whilst “they should not constitute a means of hindering the exercise of the right of residence”.21 The person concerned is to lodge an application with the competent authorities, to be accompanied by documentary evidence to be determined by national law that the conditions under Articles  and  have been satisfied, which may include documentation regarding appropriate accommodation, as well as a valid travel document if required (Article ()). The decision is to be notified to the person concerned as soon as possible and, save in exceptional circumstances, within six months of the application:22 the person concerned is to be informed about his/her rights and obligations under the LTR Directive (Article ()). Where 

   



See Recital , making it clear that economic considerations should not be a ground for refusal to grant the status and shall not be considered as interfering with the relevant conditions. See Recital . See note . Recital . The consequences of no decision being taken by the end of this period are to be determined by national legislation.

The Long-Term Residents Directive the conditions provided for by Articles  and  are met, and the person concerned does not represent a threat to public policy or public security, the person concerned is to be granted long-term resident status (Article ()). 5. Permanence of Status Subject to provisions on withdrawal or loss of the status, the status as long-term resident is to be permanent (Article ()). 6. The Permit Long-term residents are to be endowed with a long-term resident’s EC residence permit, to be valid for at least five years and (upon application if required) to be automatically renewable on expiry (Article ()). The permit may be issued as a sticker or a separate document and is to be issued in accordance with the rules and standard model set out in the  Regulation laying down a uniform format for residence permits23 (Article ()). 7. Withdrawal or Loss of the Status In relation to the withdrawal or loss of the status, long-term residents will no longer be entitled to maintain the status in cases of fraudulent acquisition of the status, the adoption of expulsion measures or – subject to possible derogation by the member state – absence from the territory of the Community for  consecutive months (Article () and ()). Member states may decide that the status will be lost when the long-term resident commits serious crimes and constitutes a threat to public policy, even if the offences do not justify expulsion (Article ()). The status is lost where it is granted in another member state under Article  and – subject to possible derogation by the member state – is in any case lost after six years of absence from the state that granted the status (Article ()). In cases of loss through absence, the granting member state is to provide for a facilitated procedure for reacquiring the status, applying in particular to persons residing in a second member state to pursue studies: The conditions and procedures for such reacquisition are to be determined by national law (Article ()). Expiry of the residence permit is in no case to entail withdrawal or loss of the status (Article ()). It is finally provided that, where withdrawal or loss of the status does not lead to removal, the person concerned is to be authorised to remain if he/she fulfils conditions provided for in national law and/or he/she does not constitute a threat to public policy or public security (Article ()). 8. Procedural Guarantees In relation to procedural guarantees, reasons are to be given for any decision rejecting an application or withdrawing the status: Such decisions are to be notified in accordance with procedures under national legislation and the notification is to specify the redress procedures available and the time limits (Article ()). The person concerned is to have the right to mount a legal challenge where an application is rejected, the status is withdrawn or lost or the residence permit is not renewed (Article ()). 

Council Regulation //EC, OJ  L , .



John Handoll 9. Equal Treatment In order to constitute a genuine instrument for the integration of long-term residents into the society in which they live,24 equal treatment of long-term residents with nationals is prescribed in a number of areas (Article ()): (a) access to employed and self-employed activity (subject to the possibility of national, EU or EEA preference under existing law25) and conditions of employment and working conditions; (b) education26 and vocational training (with the possibility of requiring proof of necessary language proficiency and the fulfilment of “specific educational prerequisites” for access to university27) including study grants in accordance with national law;28 (c) recognition of professional diplomas, certificates and other qualifications in accordance with the relevant national procedures; (d) social security, social assistance and social protection as defined by national law (with member states able to limit equal treatment for the latter two to “core benefits”29); (e) tax benefits (but no longer social benefits); (f ) access to goods and services and the supply of goods and services made available to the public and to procedures for obtaining housing; (g) freedom of association and affiliation and membership of representative workers’ or employers’ organisations or other specific occupational organisations, without prejudice to national provisions on public policy and public security; (h) free access to the entire territory of the member state, within limits provided for by national legislation for reasons of security. Member states may decide to grant access to additional benefits in these areas and may also decide to grant equal treatment in other areas (Article ()). In relation to certain of these areas ((b) and (d) to (g)), member states may restrict equal treatment to cases where the registered or usual place of residence of the long-

  

 





Recital . Article ()(a). According to Recital , the member states should remain subject to the obligation to afford access for minors to the educational system under conditions similar to those laid down for their nationals. Article ()(b). In relation to study grants, Recital  makes it clear: (a) that such grants in the field of vocational training do not cover measures financed under social assistance schemes; (b) that access to study grants may be limited to persons fulfilling on their own the conditions for acquiring long-term resident status; and (c) that member states may take into account the fact that Union citizens may benefit from this same advantage in the country of origin. Article (). Recital  states that with regard to social assistance, the notion of “core benefits” covers at least minimum income support, assistance in case of illness, pregnancy, parental assistance and long-term care, with the modalities for granting such benefits to be determined by national law.

The Long-Term Residents Directive term resident – or that of family members for whom benefits are claimed – lies within the territory of the member state concerned (Article ()). 10. Protection against Expulsion In relation to protection against expulsion, it is stated that such “reinforced protection” is based upon the criteria determined by the decisions of the European Court of Human Rights.30 It is provided that a decision to expel may be taken solely where the long-term resident constitutes an actual and sufficiently serious threat to public policy or public security (Article ()) and that this decision may not be founded on economic considerations (Article ()). Member states must have regard to the duration of residence, the age of the person concerned, the consequences for the person concerned and family members, as well as links with the country of residence or the absence of links with the country of origin (Article ()). Where there has been an expulsion decision, a judicial redress procedure is to be available (Article ()). Legal aid is to be given to long-term residents lacking adequate resources, on the same terms as apply to host nationals (Article ()). 11. More Favourable National Provisions It is made clear that “harmonisation of the terms for acquisition of long-term resident status promotes mutual confidence between Member States”.31 The provisions do not preclude more favourable national provisions. It is made clear that permanent or openended residence permits may be issued on terms more favourable than those laid down by the LTR Directive: however, such other permits will not confer the Chapter III right of residence in other member states (Article ). D. Chapter III – Residence in the Other Member States 1. General Chapter III contains provisions on residence by long-term residents in the other member states. These “should contribute to the effective attainment of an internal market as an area in which the free movement of persons is ensured” and “could also constitute a major factor of mobility, notably on the Union’s employment market”.32 In principle, a long-term resident is to acquire the right to reside in member states other than the one in which he/she was granted long-term residence status for a period of more than three months where the conditions of Chapter III are met (Article ()). This covers residence for the exercise of employed/self-employed economic activity, the pursuit of studies or vocational training or ‘other purposes’ (Article ()). In the case of employed/self-employed activity, the member state may examine the state of its labour market and apply national procedures for filling a vacancy and exercising such activities (Article ()). For reasons of labour market policy, member states may give preference to EU nationals, to nationals of third countries (where provided for by Community   

Recital . Recital . Recital .



John Handoll legislation) and third-country nationals who reside legally and receive unemployment benefits (Article ()). There was a fundamental schism between those member states that felt that the conditions attaching to long-term residence set out in Chapter II were sufficient and those member states that felt that certain additional restrictions – such as a quota system or restrictions on access to the labour market – should be available. The latter group has succeeded in that member states may limit the total number of persons entitled to be granted right of residence, where such limits are already set out in existing legislation at the time of adoption of the LTR Directive (Article ()). Posted workers and cross-border service providers are not covered by Chapter III, and seasonal workers and cross-border workers may be subject to specific provisions of national law (Article ()). Chapter III is stated to be without prejudice to relevant Community legislation on social security with regard to third-country nationals (Article ()). 2. Conditions for Residence The LTR Directive then sets out the conditions for residence in a second member state. The long-term resident is to apply as soon as possible, and no later than three months, after entry. Member states may accept applications whilst the applicant is still resident in the first member state (Article ()). The right to reside may be made subject to the provision of evidence on stable and regular resources and sickness insurance (Article ()). The member state may also require compliance with integration measures in accordance with national law, though only if this has not already been required in the first member state, and attendance at language courses (Article ()). There are provisions on the documentary evidence to be supplied to ensure that the relevant conditions are met – including with regard to “appropriate accommodation” – in particular in cases of economic activity or study/vocational training (Article ()). 3. Family Members There are specific provisions on family members,33 designed to preserve family unity and to avoid hindering the exercise of the long-term resident’s right of residence.34 Where the family was already constituted in the first member state, family members fulfilling the conditions in Article () of the  Family Reunification Directive35 shall be authorised to accompany or join the long-term resident (Article ()) and family members not fulfilling these conditions may be so authorised (Article ().36 The provisions of Article () in relation to the time of submission of applications apply (Article ()). The family members concerned may be required to present together with their applications: (a) their residence permits and valid travel documents; (b) evidence that 

  



Defined in Article (c) as the third-country nationals who reside in the member state concerned in accordance with the  Family Reunification Directive: Directive //EC, OJ  L , . Recital . Note . According to Recital , member states should pay special attention to the situation of disabled adult children and of first-degree relatives in the direct ascending line who are dependent on them.

The Long-Term Residents Directive they have resided as family members in the first member state; and (c) evidence of stable and regular resources and sickness insurance (Article ()). Where the family was not already constituted in the first member state, the Family Reunification Directive is to apply (Article ()). 4. Refusal of Application on Public Policy/Public Security/Public Health Grounds Applications for residence by long-term residents or family members may be refused where the persons concerned constitutes a threat to public policy or public security: In taking the relevant decision, the member state is to consider the severity or type of offence committed by, or the danger emanating from, the person concerned (Article ()). This decision is not to be based on economic considerations (Article ()). Applications may also be refused on public health grounds (Article ()). The only diseases justifying a refusal to allow entry or the right of residence are those defined by the relevant applicable instruments of the WHO and other infectious or contagious parasite-based diseases, which are the subject of protective provisions in relation to host nationals: Member states are not to introduce new more restrictive provisions or practices (Article ()). Diseases contracted after issue of the first residence permit are not to justify a refusal to renew the permit or expulsion (Article ()). Medical examinations may be required of persons to certify that they do not suffer from any of the above diseases; these may be free of charge and must not be performed on a systematic basis (Article ()). 5. Processing of Applications In relation to the examination of applications and issue of a residence permit, applications are to be processed within four months of being lodged, though in certain cases the time limit may be extended for a further period not exceeding three months (Article ()). 6. Issue of the Permit Where the conditions under Articles  to  are met, and subject to the public policy/ security/health provisions under Articles  and , the long-term resident is to be issued with a renewable residence permit: The second member state is to inform the first of its decision (Article ()). Family members are to be issued with residence permits valid for the same period as that issued to the long-term resident (Article ()). 7. Procedural Guarantees The person concerned enjoys a number of procedural guarantees (Article ). Reasons are to be given for any decision rejecting an application for a residence permit: Such decisions are to be notified in accordance with procedures under national legislation and the notification is to specify the redress procedures available and the time limits (Article ()). Any consequences of no decision being taken by the end of the period referred to in Article () is to be determined by the national legislation of the relevant member state. The person concerned is to have the right to mount a legal challenge where an application is rejected or the residence permit is not renewed or withdrawn (Article ()).



John Handoll 8. Equal Treatment In order to avoid rendering the right of residence nugatory,37 long-term residents are in the second member state to enjoy equal treatment in the areas and under the conditions referred to in Article  (Article ()), though there may be limits on changing jobs in the first year and member states may decide, in accordance with national law, the conditions under which persons not admitted to carry out employed/self-employed activity may have access to such activity (Article ()).38 Family members are to enjoy the rights listed in Article  of the Family Reunification Directive (Article ()). 9. Withdrawal and Obligation to Readmit The LTR Directive contains provisions on the withdrawal of the residence permit and the obligation to readmit. Until the third-country national has obtained long-term resident status, member states may refuse to renew or to withdraw the permit and oblige the long-term resident and family members to leave the territory on grounds of public policy or public security, where the conditions for residence are no longer met or where the third-country national is not lawfully resident (Article ()). Removal decisions may not, save where they have been made on grounds of public policy or public security, be accompanied by a permanent ban on residence (Article ()). The first member state then has the corresponding obligation to readmit (Article ()), though this is to be without prejudice to the possibility of the persons concerned moving to a third member state (Article ()). Without prejudice to the obligation to readmit, and in accordance with the provisions in Article  on protection against expulsion, the second member state may decide to expel the third-country national from the Union on serious grounds of public policy or public security (Article ()). 10. Acquisition of LTR Status in the Second Member State Finally, although the long-term resident is free to retain his status in relation to the first member state, there are provisions for acquiring that status in the second member state after five years of legal residence, and for the consequent withdrawal of that status by the first member state (Article ).39 E. Chapter IV – Final Provisions Chapter IV of the LTR Directive contains some final provisions. 1. Reporting Periodically – and for the first time no later than  January , the Commission is to report on the application of the LTR Directive in the member states and propose any necessary amendments (with priority to be given to Articles , , ,  and to Chapter III) (Article ).  





Recital . Recital  also makes it clear that the granting of social assistance benefits is without prejudice to the possibility for the member states to withdraw the residence permit if the person concerned no longer fulfils the requirements set by the Directive. A number of provisions in Chapter II are incorporated by reference.

The Long-Term Residents Directive 2. Exchanges of Information Member states are to appoint contact points responsible for exchanges of information under the LTR Directive and to provide “appropriate cooperation” in this exchange (Article ). 3. Transposition Member states are to bring into force the provisions to comply with the LTR Directive by  January  at the latest, with national measures containing a reference to the LTR Directive or be accompanied by such reference when officially published (Article ). 4. Entry into Force and Addressees The LTR Directive entered into force on  January  – the day of its publication in the Official Journal of the European Union (Article ) and is addressed to the member states in accordance with the EC Treaty (Article ). V. Equality And The Long-Term Resident A. The Framework for Comparison The Tampere Conclusions were rather ambiguous on the framework within which rights for long-term residents were to be defined. In relation to legally resident thirdcountry nationals generally, it was stated that “a more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens”. The legal status of third-country nationals “should be approximated to that of member states nationals” and long-term residents, as defined, “should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens”.40 The Tampere Conclusions on legal status and the rights of long-term residents were referred to in the Preamble to the LTR Directive, but no further mention was made of any relationship between the rights of long-term residents and rights of Union, or national, citizens. As far as the primary status of long-term residents is concerned, the main point of reference should be the citizen of the host member state. The free movement and residence rights of Union citizenship are not enjoyed by (non free-moving) host member state nationals and it would, at first sight, seem somewhat contradictory for longterm resident third-country nationals to enjoy rights defined with reference to rights of Union citizens. Looked at more closely, however, it could be argued that rights of Union citizenship are an appropriate, but not the only, point of reference. The LTR Directive creates a Community status of long-term resident, harmonising the terms of acquiring the status in member states in order to promote “mutual confidence between Member States”, more specifically to enable the long-term resident to move and reside



Presidency Conclusions of the Tampere European Council  and  October , paras.  and , .



John Handoll in another member state. In arriving at the necessary degree of harmonisation, it is possible to look at the status of Union citizens in the host member state as a comparator. This is not inimical to the idea of national citizenship. In the final analysis, the status and rights of long-term residence, as well as the status and rights of free movement and residence of Union citizens, have to be seen in the context of the host member state framework of rights and obligations, with treatment of host nationals providing the basis for the operation of the equality principle. At the same time, Union citizenship provides a ceiling for the application of the equality principle to long-term residents. As will be seen, the member states have decided to recognise a lesser degree of equality vis-à-vis host nationals for long-term residents than for citizens from other member states, reflecting national attitudes towards non-nationals as well as the idea that Union citizenship is a privileged status. In relation to the primary status of long-term residents in the host member state, it is clear that national conceptions of the relationship between host member state citizens and long-term resident third-country nationals have strongly influenced the content of the Community status of long-term residents, giving member states considerable discretion in areas such as integration requirements. The comparator of Union citizenship is more obviously appropriate for the right of long-term residents to reside in other member states. Again, Union citizenship rights are seen as higher level rights to which long-term residents can only aspire unless they acquire the nationality of a member state and thereby acquire the privileged status of Union citizen. B. Degrees of Equality 1. General The Tampere Conclusions made it clear that the rights to be granted to long-term residents in the host member state were to be ‘as near as possible’ to those enjoyed by EU citizens. This can be seen positively as an aspiration to get as close as possible to the level of Union citizenship rights, and less positively as a recognition that the rights of long-term residents would necessarily be at a lower level. This also reflected different attitudes between member states, and within individual member states, on the status to be accorded to long-term residents. It is not proposed here to discuss systematically the similarities and differences between the statuses of long-term residents and Union citizens. However, it is instructive to look at the status of the long-term resident vis-à-vis the ‘permanent resident’ status of Union citizen under the  Residence Directive,41 as well as the more general framework for the application of the equality principle set out in the Equality Directives and Article  EC, as interpreted by the Court of Justice.





European Parliament and Council Directive //EC of  April  on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states: Dir. /, OJ  L , -.

The Long-Term Residents Directive 2. The 2004 Residence Directive The treatment of long-term resident third-country nationals under the LTR Directive should be compared and contrasted with the position of Union citizens under Directive //EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states.42 The following paragraphs discuss some of the similarities and differences in relation to qualifying periods, to treatment, restrictions on public policy, security and health grounds and to expulsion. As a general rule, Union citizens who have resided legally for a continuous period of five years in the host member state are to have the right of permanent residence and this right is not to be subject to the specific conditions contained in Chapter III of the Directive in relation to specific categories of free-mover. In contrast to the LTR Directive, there is no requirement to provide evidence of stable and regular resources and sickness insurance and the host member state may not require compliance with integration conditions. The right is also to be enjoyed by family members who are not nationals of a member state and who have legally resided with the Union citizen in the host member state for a continuous five-year period. The five-year period will not be required for certain persons no longer working in the host member state and family members. There are more generous provisions than in the LTR Directive in relation to qualifying periods and the circumstances in which continuity of residence will not be affected. The right of permanent residence will be lost only through absence for two consecutive years, in contrast to the  months in the LTR Directive. In relation to equal treatment, the Residence Directive provides that, subject to specific provisions expressly provided for in the Treaty and secondary law, all Union citizens residing in the host member state on the basis of the Directive are to enjoy equal treatment with host member state nationals within the scope of the Treaty. Family members who are not nationals of a member state are to benefit from this right where they have the right of residence or permanent residence. By way of derogation, the host member state is not obliged, prior to the acquisition of the right of residence, to grant maintenance aid for studies. In contrast, long-term residents under the LTR Directive enjoy equality with nationals only in prescribed areas and there is no general rule of equality with host member states’ nationals.43 Moreover, member states are able to restrict the application of the equality principle in a number of these areas – access to employment or self-employed activities, entitlement to social assistance (which can be limited to ‘core benefits’), and the imposition of language and other requirements for education and training. This results in a materially inferior equality regime for longterm residents vis-à-vis Union citizens, which is only partly mitigated by the permission given to member states to grant access to additional benefits in the specified areas or to decide to grant equal treatment with regard to other areas. The Residence Directive recognises that free movement and residence of Union citizens and their family members may be restricted on grounds of public policy, public security or public health. None of these grounds may be invoked to serve economic ends. There are detailed provisions on the permitted scope of the public policy and public security derogations, reflecting Court of Justice case law. Rather more discre 

Dir. /, OJ  L , -. See, further, the discussion in V.B., below.



John Handoll tion appears to be available to the member states under the LTR Directive, though this would not preclude the Court of Justice from interpreting each directive to arrive at a broadly similar result. It appears that permanent residence cannot be denied on public health grounds and this is also the case for the primary right to long-term residence status under the LTR Directive. The right to reside in other member states may be denied on public health grounds for both permanent residents and long-term residents, though the latter enjoy slightly less favourable treatment. Permanent residents enjoy an enhanced measure of protection in relation to expulsion, with expulsion orders permitted only where there are serious public policy or public security grounds. This is, perhaps, not too different from the requirement in the LTR Directive that the long-term resident must constitute “an actual or sufficiently serious threat to public policy or public security”. Persons who have resided in the host member state for the previous ten years (whether or not as permanent residents) and minors (save where the expulsion is necessary in the best interests of the child under the  UN Convention on the Rights of the Child) may be expelled only on imperative grounds of public security as defined by member states. This higher standard is not expressly available to those covered by the LTR Directive. 3. The Equality Directives Resident third-country nationals will, in principle, benefit from the June  Directive implementing the principal of equal treatment between persons, irrespective of racial or ethnic origin44 and from the November  Directive establishing a general framework for equal treatment in employment and occupation,45 both taken on the basis of Article  of the EC Treaty.46 The first Directive applies, “within the limits of the powers conferred upon the Community”, to “all persons” in relation to: access to economic activity; access to vocational training; employment and working conditions; membership of trade unions, employers’ bodies and professional organisations; social protection; social advantages; education; and access to and supply of goods and services, which are available to the public, including housing.47 The reference to “all persons” suggests that third-country nationals should enjoy the benefit of the Directive and this is confirmed in the preamble.48 However, it is also made clear in the preamble and in the text of the Directive itself that the Directive does “not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence 



  



Council Directive //EC of  June  implementing the principle of equal treatment between persons irrespective of racial or ethnic origin: Dir. /, OJ  L , . Council Directive //EC of  November  establishing a general framework for equal treatment in employment and occupation: Dir. /, OJ  L , . This Directive, which covers much of the same substantive scope as Directive / addresses discrimination on grounds of religion or belief, disability, age or sexual orientation. See, generally, the article by Birgit Weyss and Alexander Lubich in this volume, -. Article () of Directive /. Recital  of the preamble to Directive /.

The Long-Term Residents Directive of third-country nationals and stateless persons on the territory of member states, and to any treatment that arises from the legal status of the third-country nationals and stateless persons concerned.”49 The same approach is taken in the later Directive for equal treatment in employment and occupation,50 which applies, “within the limits of the areas of competence conferred on the Community, to ‘all persons’ in relation to: conditions for access to economic activity; access to vocational training; employment and working conditions; and membership of trade union, employers’ bodies and professional organisations”. The reservations for third-country nationals are at the same time understandable and potentially troubling. They are understandable because it could not be expected that the equal treatment directives would undermine legitimate distinctions between Community nationals and third-country nationals (regarding for example access to the public sector employment) or rules relating to admission and residence. However, they are potentially troubling because considerable scope seems to be left to the member state implementing the directives to determine what “differences of treatment based on nationality” are and to define the nature of “treatment which arises from the legal status of the third country nationals … concerned”. These limitations, or clarifications, may not, however, be as troubling as they seem. They apply only within the limits of Community powers or competence and their purpose seems to be to assure the integrity of Community rules relating to the admission and treatment of third-country nationals. It is for the member states, and ultimately the Court of Justice, to ensure that the Community regime relating to third-country nationals is applied in a uniform and liberal manner enabling the fullest possible application of the equality directives. 4. Article 12 EC and the Court of Justice In its  Sala judgment,51 the Court of Justice made it clear that, apart from the specific rights of free movement and residence available to specific categories of freemovers, a national of one member state lawfully residing in another member state was, as a Union citizen, entitled to rely on Article  EC, stating the general principle of non-discrimination on grounds of nationality falling within the scope of application of the EC Treaty. Later cases applying the same principle have based the wide reading of Article  on a somewhat futuristic understanding that “citizenship of the Union is destined to be the fundamental status of nationals of the Member States”.52 The “limitations and conditions” to which Article  EC right of free movement and residence is made subject have been overridden by a creative interpretation of Article  where Union citizens are, on the basis of lawful residence, entitled to equal treatment with host member state nationals. A generous interpretation is given of what is “[w]ithin the ‘scope of application of this Treaty’, even undermining attempts in Article () of the Residence Directive to allow Member States not to grant maintenance aid for studies    

Article () of Directive /. Recital  of the preamble to, and Article () of Directive /. ECJ, case C-/, Sala, judgment of  May , [] ECR I-. See, for examples, ECJ, case C-/, Grzelczyk, judgment of  September , [] ECR I-, para. ; case C-/ Chen, judgment of  October , not yet reported, para. ; and case C-/, Bidar, judgment of  March , not yet reported, para. .



John Handoll prior to the acquisition of the right of permanent residence, to persons other than workers, self-employed persons, persons who retain such status and family members”.53 Where it falls within the scope of application of the EC Treaty, overt discrimination on grounds of nationality is outlawed. Minimum residence requirements may be acceptable where objectively justified and proportionate. Where not so justified or disproportionate, the requirement will constitute indirect, or covert, discrimination. This is exampled in the March  Bidar judgment,54 where the Court of Justice made it clear that, in the case of assistance covering the maintenance costs of students, it was legitimate for the UK to grant assistance only to students who had demonstrated a certain degree of integration into its society, and had thus “established a genuine link” with it. Whilst a three-year residence requirement could be acceptable in this context, a requirement that students be ‘settled’ in the UK could not, since it was in fact impossible for a national of another member state to obtain settled status. It is generally thought that Article  applies only to prohibit discrimination on grounds of member state nationality, though there have been arguments to the contrary, which are not contradicted by the specific wording used in the Article.55 The case law referred to above has been predicated by the possession of a special status of Union citizenship, and it would be difficult to extend this to third-country nationals, even those with a long-term resident status, without undermining this special status. 5. Conclusion It may be questioned whether the promise of Tampere – to deliver a set of rights to the long-term resident “as near as possible” to those enjoyed by the Union citizen – has been effectively delivered by the LTR Directive. The package that has emerged is less generous than that originally proposed by the Commission and, looking at this package in contrast to that applying to free-moving Union citizens, there is a fundamental divide between the long-term resident third-country national and Union citizens. VI. Integration And Citizenship The Preamble to the  Residence Directive states that “[e]njoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union”. The corresponding provision in the preamble to the LTR Directive states that the “integration of third-country nationals who are long-term residents in the Member States is a key element in promoting economic and social cohesion, a fundamental objective of the Community stated in the Treaty”. There is no reference here to ‘citizenship’ of any kind. It is perhaps too fanciful to suggest that the LTR Directive could have given long-term resident third-country nationals complete equality of treatment with Union   



See ECJ, case c-/, Bidar, judgment of  March , not yet reported, para. . Ibid., paras. -. Professor Kees Groenendijk has recently reiterated this argument in a colloquium on the free movement of persons in the EU at Louvain-la-Neuve on  April .

The Long-Term Residents Directive citizens, thereby leaving the ‘hard core’ of national citizenship intact vis-à-vis individuals in each group. This bold step was not favoured, presumably because it would have contradicted the idea of a privileged category of Union citizenship (complementary to member state citizenship) reflecting the special relationship between the peoples of the member states. After all, the Union citizen status reflects a desire (in the words of the preamble to the Treaty on European Union) to deepen solidarity between the peoples of the member states and to continue the process of creating an ever-closer union among the peoples of Europe. This would be contradicted were third-country nationals to accede to the special status of Union citizenship. The path to Union citizenship is the same as that for national citizenship – acquiring a member state nationality. It is significant that the Tampere Conclusions state the objective that long-term resident third-country nationals should be given the opportunity to obtain the nationality of the member state of residence. This appears to belong to the intergovernmental side of its function: It is unlikely that any Community measure will dictate the scope of a member state’s nationality policy in this respect. This is not, however, to say that a special citizenship status, albeit one falling short of national and EU conceptions of citizenship, should not be recognised for long-term third-country national residents. Suggestions for a status consisting of a common set of core rights and obligations – described as ‘civic citizenship’ – were made by the Commission in its November  Communication on a Community immigration policy56 and developed in its June  Communication on a Immigration, Integration and Employment.57 Such civic citizenship, which would involve the accrual of rights and obligations over a period of time and would culminate in an enhanced package for long-term residents, envisaged the participation of immigrants in civic, cultural and political life. The Commission also suggested that member states should consider extending political rights, at least at local level, to long-term residents. It should be stressed that the Commission did not envisage “civic citizenship” as a creature of Community law. Its ideas on such a citizenship were to be seen in the context of reinforcing policy coordination in the field of integration policy, which it accepted was primarily a matter for the member states. Nonetheless, these ideas have to be seen in the context of its ideas of an ‘open method of coordination’, which the Commission saw as providing a mechanism for the progressive coexistence of national and Community policies.58 In its later conclusions on the development of a policy at EU level on the integration of third-country nationals legally residing in the territory of the EU,59 the Thessaloniki European Council conspicuously failed to take up the suggestions of developing the concept of civic citizenship, giving the third-country rights of political participation even at local level and adopting the open coordination method. Though the European Council did not address the question of participation of legally resident third-country nationals in civic and especially in local political life in order to respect    

COM()  final. COM()  final. See COM()  final. See Presidency Conclusions of the Thessaloniki European Council (Doc. /), paras. -.



John Handoll the reserved domain of member state powers, the EU has here lagged behind the work of the Council of Europe.60 The focus of the Union in the area of integration will be on supportive action within the framework set in Thessaloniki and developed in the November  Hague Programme.61 This is already being seen in the work of the National Contact Points on Integration, which provides a forum for the exchange of information and ideas. Common problems can be identified, recommendations can be made, and ‘good practices’ highlighted. At the same time, due deference can be paid to significant differences between member states, in terms of the differences of approach to integration and the challenges encountered. There will be increased coordination, but no harmonisation. The concept of civic citizenship is likely to continue to be developed by the Commission, but in a low-key way. The question of the civic participation of immigrants is again a matter that is being addressed – cautiously – by the National Contact Points on Immigration. Although an important contribution to the debate, the idea of ‘civic citizenship’ should be treated with some caution. There is an obvious danger that the grant of the status may be purely cosmetic, in that it may state rights and obligations that apply to the third-country national anyway. There is also no clear basis for such a ‘citizenship’ in the Treaties. It is questionable whether Article () EC can, or should, provide the basis for a Community measure providing for the grant of such a status. An additional ‘citizenship’ emanating from the European Union is also likely to be treated with suspicion by the nationals of the member states, who ultimately form the basis of government and must give their ‘consent’ to the expansion of citizenship. As seen above, Union citizenship can be characterised as complementing and not replacing national citizenship. ‘Civic citizenship’ as a status conferred in the state of residence of the third-country national is more akin to national citizenship and the introduction of Community-based citizenship status could be seen as intruding into sensitive areas of national self-definition. That said, there may be a potential for a ‘mixed’ citizenship status. A ‘civic citizenship’ granted by the member state under its own citizenship regime, with a set of member state-specific rights and obligations forming part of the new compact with the member state, could be married with a complementary ‘Community civic citizenship’ with a common core of Community-based rights and obligations. The internal rules of the member state must, of course, comply with international fundamental rights principles and with the European Union ‘community of values’ referred to in Article () TEU. The critical point is that the Community cannot legislate in member states’ reserved domains, so some form of ‘mixed Citizenship’ status is desirable.







See, in particular, the  Convention on the Participation of Foreigners in Public Life at Local Level (ETS No. ) and the  Recommendation of the Council of Ministers on the Security of Residence of Long-Term Migrants (Rec ()). See The Hague Programme: strengthening freedom, security and justice in the European Union, OJ  C , -, especially point ..

The Long-Term Residents Directive VII. Long-Term Residents And The New Constitutional Treaty The new Treaty establishing a Constitution for Europe was signed in Rome in October  and is due to come into force on  November , or later if not all instruments of ratification have been deposited by that date. The Treaty basis for the “fair treatment of third-country nationals residing legally in the Member States” has been tidied up to cover “the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States”. The desire of the member states to keep the substance of integration policy within the reserved domain of member state competence is seen in Article III-() of the Constitutional Treaty which provides: European laws or framework laws may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States.

Early suggestions by the Commission that the new Constitutional Treaty might contain provisions granting local political rights to third-country nationals came to nothing. The substantive provisions of Union citizenship in the EC Treaty have been transplanted largely unchanged. The Charter of Fundamental Rights of the Union – to be incorporated into the new Treaty as Part II and with a new binding force – confirms that the Union citizenship right of free movement and residence is one that is directly guaranteed by the Constitution. Article II-() states that “[f ]reedom of movement and residence may be granted, in accordance with the Constitution, to nationals of third countries legally resident in the territory of a member state”. According to the explanations relating to the Charter contained in a Declaration to the new Treaty, Article II-() refers to the power granted to the Union by Articles III- to III- of the Constitution (covering policies on border checks, asylum and immigration): The granting of this right consequently depends on the institutions exercising that power.62 It may be concluded that the new Constitutional Treaty does not materially change the legal framework within which the treatment of long-term resident third-country nationals is to be defined.



See the explanation to Article  of the Charter (Article II- of the Constitution) in Declaration .



Olivier De Schutter *and Annelies Verstichel **

Integrating the Roma into European Society: Time for a New Initiative

I. Introduction This article seeks to explore the different avenues that can be followed to improve the situation of the Romani minority under Union law. The importance of the question of the Roma in the enlarged European Union is widely recognized.1 “Although precise figures are unavailable, there are possibly over ten million Roma in Europe as a whole, a population many times the size of the total population of a number of European member states. … Around one and a half million Roma joined the European Union when the ten new member states acceded to the Union in May . Roma are the European Union’s largest minority ethnic community.”2 But currently, the Roma are placed in a situation of structural discrimination, being segregated, in particular, in the fields of housing, employment and education, not only in certain member states of the Union where they are most numerous, such as in the Slovak Republic or Hungary, but also in the ‘older’ member states, where their situation has been ignored for many years. *

**

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

Professor of Human Rights Law at the University of Louvain (Belgium), Member of the Global Law School Faculty at New York University; Co-ordinator of the EU Network of Independent Experts on Fundamental Rights. The author writes in his personal capacity and his views commit neither the Network, nor the European Commission, which has mandated the Network. PhD Researcher at the European University Institute, Florence (Italy). The author worked as an Associated Expert to the EU Network of Independent Experts on Fundamental Rights on Thematic Comment No. : “The Rights of Minorities in the European Union”, March . This article uses the term ‘Roma’ as the plural noun form, as well as to name the group as a whole, and ‘Romani’ as the adjective, in line with emerging and converging uses. The term ‘Roma’ or ‘Romani’ is also used as shorthand for the broad umbrella of groups and individuals. In no way should this choice of terminology be taken as an endorsement of approaches aimed at homogenizing Roma and other groups perceived as ‘Gypsies’ in Europe or at eliminating the rich diversity among Roma, Gypsies, Travellers and other groups perceived as ‘Gypsies’. European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma in an Enlarged European Union” (), , at .

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 411-443. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Olivier De Schutter and Annelies Verstichel Proposals have been made in order to remedy this, in particular, by the EU Network of Independent Experts on Fundamental Rights, a group of experts that was set up in  by the European Commission, acting upon the request of the European Parliament, in order to monitor the Union and the member states on the basis of the Charter of Fundamental Rights.3 This article proposes to explore these solutions, and more generally, the potential of Union law to address the situation of the Roma. II. The Current Protection of Roma under EU Law A. Equality and Non-Discrimination under EU Law The principle of equality and non-discrimination under EU law has known an expansive evolution in several ways. First, originally inserted in the EC Treaty in several articles as a market integration tool,4 the principle soon fulfilled a social integration objective.5 It has obtained the status of general principle of Community law,6 and, arguably, has transformed into a human rights standard at the EU level.7 Second, apart 

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

 



See in particular the EU Network of Independent Experts on Fundamental Rights (CFRCDF), “Report on the Situation of Fundamental Rights in the European Union in ”, January , -, and the “Synthesis Report: Conclusions and Recommendations on the Situation of Fundamental Rights in the European Union and Its Member States in ”, ( February ), . These reports are available at . See Article  EC (equal pay for men and women) and Article  EC (non-discrimination on the basis of nationality), in combination with Article  EC (free movement of workers), Article  EC (freedom of establishment) and Article  EC (freedom to provide services). Lisa Waddington, “The Expanding Role of the Equality Principle in European Union Law”, European University Institute, RSC Policy Paper No /, October , -, at . On the relationship of Article  EEC (currently Article  EC) to the economic objectives of the common market, see esp. Catherine Barnard, “The Economic Objectives of Article ”, in Tamara Hervey and David O’Keeffe (eds.), Sex Equality Law in the European Union (Chichester, Wiley, ). See e.g. in the Deutsche Telecom AG v. Schröder (case C-/, judgment of  February , [] ECR I-), the ECJ found that the economic aim pursued by Article  – elimination of distortions – is secondary to the social aim of that provision. Sacha Prechal, “Equality of Treatment, Non-discrimination and Social Policy: Achievements in Three Themes”,  CMLR (), -, at -; and Waddington, “The Expanding Role …”, -. Christopher McCrudden, “The New Concept of Equality”,  ERA-Forum (), -, at -. For example the references to human rights treaties in the preamble of Directives // EC and //EC, adopted on the basis of Article  EC (Council Directive // EC of  June  implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ  L , ; Directive //EC of  November  establishing a general framework for equal treatment in employment and occupation, OJ  L , ). See Dagmar Schiek, “A New Framework on Equal Treatment of Persons in EC Law?”, () European Law Journal (), -, at . For a mixed approach and further references, see McCrudden, “The New Concept of …”,

Integrating the Roma into European Society: Time for a New Initiative from direct discrimination, also indirect discrimination became prohibited8 and this – together with the introduction of positive measures9 and the mainstreaming idea10 – marked an important shift from a formal conception of equality to a more substan-







; and Prechal, “Equality of Treatment …”, -. According to Prechal, equality and non-discrimination cannot become an entirely autonomous and all-embracing human right as both Article  and the EU Charter of Fundamental Rights are linked to the competence of the EU (at ). See also Gillian More, “The Principle of Equal Treatment: From Market Unifier to Fundamental Right?”, in Paul Craig and Gráinne de Búrca (eds.), The Evolution of EU Law (Oxford University Press, Oxford, ), -; and Mark Bell, Anti-Discrimination Law in the European Union (Oxford University Press, Oxford, ), in particular Chapters  and . The concept of indirect discrimination was first developed with respect to discrimination on grounds of nationality and sex. It was codified in Article () of 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 ,  (now amended by Directive //EC of  September , OJ  L , ) as well as in the Burden of Proof Directive (Directive //EC, OJ  L , ), and was further developed by the European Court of Justice (on this case-law, see Olivier De Schutter, “Le concept de discrimination dans la jurisprudence de la Cour de justice des Communautés européennes”, in Emmanuelle Bribosia et al. (eds.), Union européenne et nationalités (Bruxelles, Bruylant, ), -. In  the prohibition of indirect discrimination was included in Directive //EC as well as in Directive //EC. When Directive //EC amended Directive // EEC, the same prohibition was included in this latter instrument. See Prechal, “Equality of Treatment …”, -. In Union law, positive action was first recognized under 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 (OJ  L , ). Article () of this Directive provides that the prohibition of discrimination on grounds of sex in its scope of application “shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities in the areas to which the directive applies.” This exception to the principle of equal treatment between men and women was later introduced in the Treaty of Rome: The Treaty of Amsterdam, which entered into force on  May , introduced in Article  EC (ex-Article  EEC) a fourth paragraph stating that “[w]ith a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.” The directives adopted under Article  EC in order to implement the principle of equal treatment with regard to the other grounds of discrimination listed in this provision explicitly allow for the adoption of positive action measures: see Article  in Directive //EC and Article  Directive //EC. See e.g. Article () EC with regard to gender discrimination. See on this, Jo Shaw, “Mainstreaming Equality in European Union Law and Policymaking”, Report for European Network Against Racism, April , .



Olivier De Schutter and Annelies Verstichel tive understanding of equality at EU level.11 However, many authors state that both the European Court of Justice (ECJ) in its case law and EU primary and secondary legislation send out mixed messages as to the nature of equality, which often still appears instrumental to the aims of the internal market or, now, to the objectives of the European Employment Strategy.12 Third, whereas at the beginning only discrimination on the basis of sex and nationality was prohibited, five more prohibited discrimination grounds were added by Article  EC,13 and a general prohibition of discrimination not limited to specific grounds was imposed by Article  of the EU Charter of Fundamental Rights, with eight supplementary grounds enumerated by way of example.14 This expansion of the grounds of prohibited discrimination is remarkable, yet each prohibition of discrimination on these different grounds fulfils a different function, and is stipulated under a distinct legal form: the prohibition of discrimination on the basis of sex and nationality is directly imposed by the EC Treaty in the field of application of that Treaty; Article  EC empowers the Council to adopt measures combating discrimination on the grounds of sex, race and ethnic origin, religion or belief, age, disability and sexual orientation, but does not in itself create directly applicable rights; and Article  of the EU Charter of Fundamental Rights will, upon incorporation in the European Constitution,15 prohibit all forms of discrimination in the field of application of Union law. However, it shall not expand the powers of the institutions of the Union to combat discrimination, and shall instead operate negatively, as a shield against action by the Union or the member states implementing Union law. For the protection of the Roma in the European Union, Article  EC and Directive //EC adopted on the basis of Article  EC and implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (hereinafter “the Racial Equality Directive”) represent the single most important of these developments. Initially inserted into the EC Treaty by the Intergovernmental Conference of , which led to the adoption of the Treaty of Amsterdam, in force since  May ,













Prechal, “Equality of Treatment …”, -. For an examination of this shift in the case law of the European Court of Justice in the areas of nationality- and gender-based discrimination, see De Schutter, “Le concept de discrimination …”. For a reading in this light of Directives //EC and //EC, see Olivier De Schutter, Discriminations et marché du travail. Liberté et égalité dans les rapports d’emploi (P.I.E. Peter Lang, Bruxelles, Bern, Berlin, Franfurt/M., New York, Oxford, Wien, ); Prechal, “Equality of Treatment …”, ; Waddington, “The Expanding Role …”, -; and Schiek, “A New Framework … ?”, -. Apart from discrimination on the basis of sex, Article  EC also mentions discrimination on the basis of racial or ethnic origin, religion or belief, disability, age and sexual orientation. Apart from discrimination on the basis of sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation, Article  of the Charter of Fundamental Rights also prohibits discrimination on the basis of colour, social origin, genetic features, language, political or any other opinion, membership of a national minority, property and birth. Article  of the Charter of Fundamental Rights appears as Article II- of the Treaty establishing a Constitution for Europe currently submitted for ratification by the EU member states. See OJ  C , .

Integrating the Roma into European Society: Time for a New Initiative Article  EC was further enriched by the addition of a second paragraph by the Treaty of Nice,16 which entered into force on  February . Article  EC now reads: .

.

Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. By way of derogation from paragraph , when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph , it shall act in accordance with the procedure referred to in Article .

Article  EC only provides a legal basis, rather than a self-executing prohibition or a freestanding principle.17 It was carefully worded so as to ensure that it would not have direct effect.18 The initial scepticism regarding the political support needed to adopt legislation proved incorrect, however,19 and in  the Council adopted two directives designed to combat discrimination, the already mentioned Racial Equality Directive and Directive //EC establishing a general framework for equal treatment in employment and occupation (hereafter “the Framework Employment Directive”), as well as a programme of action for - to combat discrimination.20 The change to the legal basis in Article  EC through the Nice Treaty, which introduces a qualified majority voting in the Council for programmatic actions should preclude any future programmes after  (which is the date of expiry of the existing action plan) being held hostage by one or two hostile governments.21 However, the potentialities of Article  EC remain to a certain extent uncertain, because both its mandate – does it limit itself to empowering the Council to adopt measures fighting discrimination or may such measures include provisions which seek to affirmatively enhance equality? – and the concept of equality on which it is based22 – the article does not expressly aim at the establishment of substantive equality23 – remain a subject of debate. Before examining the Racial Equality Directive in further detail in the next section, a brief comment of the significance of the constitutionalisation of fundamental   

    

OJ  C . Shaw, “Mainstreaming Equality …”, . Waddington, “The Expanding Role …”, ; id., “Testing the Limits of the EC Treaty Article on Non-Discrimination”, () Industrial Law Journal (), -, at ; and Gabriel Toggenburg, “The Race Directive: A New Dimension in the Fight against Ethnic Discrimination in Europe”,  EYMI (/), -, at . Waddington, “The Expanding Role …”, . Council Decision / establishing a Community action programme to combat discrimination (-), OJ  L , . Shaw, “Mainstreaming Equality …”, . Prechal, “Equality of Treatment …”, . Toggenburg, “The Race Directive …”, .



Olivier De Schutter and Annelies Verstichel rights in the legal order of the European Union through the adoption of the Charter of Fundamental Rights is discussed. Article  of the Charter of Fundamental Rights (Article II- of the Treaty establishing a Constitution for Europe) prohibits discrimination on the basis of, amongst others, membership of a national minority, in the scope of application of Union law, and Article  of the Charter (Article II- of the Constitution) provides that the Union is to respect cultural, religious and linguistic diversity. These two articles are of interest to Roma. These provisions are located in Chapter III, “Equality”, of the Charter. The very title of this chapter might be significant. It suggests a shift from a focus on negative rights not to be treated differently without a justification, towards a positive right to equal opportunity and status.24 However, the seven articles of this chapter reveal a diverse approach to equality. Some rights adopt a traditional justiciable and constitutional form, whilst others are more inspirational. The five articles addressing specific grounds of discrimination adopt different forms and perhaps even different models of equality. Whereas one could criticize the Charter’s failure to embrace a single concept of equality, Lisa Waddington nevertheless argues that this diverse approach: could be seen as a move towards a new kind of constitutionalism which recognizes that, because of different histories and origins of disadvantages and discrimination, vulnerable groups need targeted and diverse approaches to achieve the goal of equality. Taking the equality principle seriously may therefore require different policy responses in order to accommodate diversity.25

Yet another source to the benefit of Roma is the Commission’s commitment to mainstreaming race issues26 in its report of January  on the implementation of the action plan against racism “Mainstreaming the Fight Against Racism”. Mainstreaming involves the integration of equality and non-discrimination goals into all phases of law and policy formulation and implementation. It involves “the recognition of, and appropriate response to, the fact that … minority groups will be unable or less able to access certain policy areas unless specific account is taken of their particular needs.”27 At times, the provision of targeted financial support will be sufficient to meet the demands of mainstreaming. However, on occasions, a specific additional policy element, which ‘reaches out’ to an otherwise excluded group, will be needed. The rhetoric of anti-racism mainstreaming has gradually infiltrated into a number of EU initiatives. These include Commission funding for a project to raise awareness of science and technology amongst ethnic minority groups across the EU, to stimu-



  



Mark Bell, “The Right to Equality and Non-Discrimination”, paper presented to the Conference on Economic and Social Rights and the EU Charter of Fundamental Rights, University of Nottingham, - June , as cited by Waddington, “The Expanding Role …”, . Waddington, “The Expanding Role …”, . See Shaw, “Mainstreaming Equality …”, : The language of mainstreaming has entered into EU anti-racism policy since the  Action Plan against Racism. Waddington, “The Expanding Role …”, .

Integrating the Roma into European Society: Time for a New Initiative late access to science careers,28 and the creation of a special unit on anti-racism within the Directorate General on Education and Culture concerned with Youth Affairs. Promoting diversity and in particular reducing all forms of racism and xenophobia was one of five priorities for action on youth matters in  and has been one of the priorities since .29 This priority allows for anti-racism networking projects to be supported with funding. However, these have been small and isolated steps only.30 Contrary to gender mainstreaming, which has had a treaty basis in Article () EC since the Treaty of Amsterdam, anti-racism mainstreaming has no constitutional basis yet. The Treaty establishing a Constitution for Europe provides in Article III- that: In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

The provision might offer the platform for an integrated constitutional foundation for equality ‘mainstreaming’ and could, plausibly, constitute the basic framework for a positive duty on Community institutions and EU member states.31 A crucial element of effective mainstreaming strategies is moreover the principle of participatory democracy: stakeholders – in this case the Roma – should be consulted throughout all phases of law and policy formulation and implementation. This principle again is included in the Treaty establishing a Constitution for Europe in Article I-.32 Whether these developments shall take place depends, of course, on the fate of the text proposed for ratification by the member states. B. Directive 2000/43/EC: The Racial Equality Directive As stated above, the Racial Equality Directive, which implements the principle of equal treatment of all persons irrespective of racial or ethnic origin, currently offers Roma the best opportunities to combat discrimination against them. This Directive, adopted by the EU Council of Ministers at the end of June , establishes a “framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment” (Article ). The deadline for the transposition of the Directive was  July .33    

 

See Euractiv Report, “EU stimulates science careers for ethnic minority groups”,  July , at . For details on how this priority was pursued in , see . Shaw, “Mainstreaming Equality …”, . Ibid., at . See also Prechal, “Equality of Treatment …”, footnote  at ; and Olivier De Schutter, “Mainstreaming Fundamental Rights in the Union”, in Philip Alston and Olivier De Schutter (eds.), Monitoring Fundamental Rights in the EU: The Role of the EU Fundamental Rights Agency (Hart Publishers, Oxford, ), -. Shaw, “Mainstreaming Equality …”, . Regarding the implementation of the Racial Equality Directive, see the comparative EUMC report “Migrants, Minorities and Legislation: Documenting Legal Measures and



Olivier De Schutter and Annelies Verstichel 1. The Directive and the Concepts of Equality and Discrimination The notions of direct and indirect discrimination and harassment are defined in Article  of the Directive. It is for the first time that a legislative definition is provided of the concept of direct discrimination. Indirect discrimination, in contrast, was defined in sex equality legislation, although only as late as  under the Burden of Proof Directive (//EC). As a consequence, the ECJ was initially called upon to develop and interpret the concepts of direct and indirect discrimination in sex discrimination cases.34 Direct discrimination is defined in Article ()(a) as follows: “direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin”. Crucial for the application of this definition is the identification of a “comparable situation”, and no legislative guidance is given on this matter. The identification of a suitable comparator has proved vital, and at times problematic, under sex discrimination law. Whereas the ECJ previously rejected reference to hypothetical comparators outside the scope of discrimination on the grounds of pregnancy, the reference in the new legislative definition to one person being treated less favourably than “another … would be” arguably suggests that references to hypothetical comparators is allowed.35 According to Article ()(b), indirect discrimination occurs “where an apparent neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” This definition differs from the one in the Burden of Proof Directive, which requires that “the apparently neutral provision … disadvantage a substantially higher proportion of the members of one sex”. This reference to proportionality was often understood as requiring the production of statistical evidence.36 If statistical evidence were necessary to prove racial or ethnic discrimination, the burden of proof would be very weighty. As is known, statistical data seldom refer to racial or ethnic origin,37 let alone to Romani origin.38 Moreover, in several member

 

  



Remedies against Discrimination in  member states of the European Union” (December ), online retrievable at EUMC at , and the Migration Policy Group’s “Country Reports on European Anti-Discrimination Law”, online retrievable at the Migration Policy Group at . In September , DG Employment and Social Affairs (Unit Fundamental Rights and Anti-Discrimination) published the report “Equality, Diversity and Enlargement. Report on measures to combat discrimination in acceding and candidate countries”, providing a first appraisal of the transposition of the Directive by the new member states and the candidate states. Lisa Waddington and Mark Bell, “More Equal Than Others: Distinguishing European Union Equality Directives”,  CMLR (), -, at -. Ibid., -. For critical observations on the comparability test as being nontransparent and its reasoning often difficult to follow, see Prechal, “Equality of Treatment …”, . Prechal, “Equality of Treatment …”, . Toggenburg, “The Race Directive …”, ; and Shaw, “Mainstreaming Equality …”, . European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma …”, -.

Integrating the Roma into European Society: Time for a New Initiative states, including Sweden and Denmark, data protection legislation prevents the collection of data about an individual’s ethnic origin.39 Odile Quintin, the Director-General for Employment and Social Affairs at the Commission, defended the new definition on the grounds that it removed the need to demonstrate statistically that indirect discrimination had in fact occurred. According to her, “statistical assessment is something which is extremely complicated to develop for other areas of discrimination [than sex discrimination].”40 However, the preamble states that member states are permitted to utilise tests for identification of indirect discrimination in accordance with national law and practice. Such tests may include the examination of statistical evidence.41 The use of evidence may therefore remain an element of case law42 and the burden of proof may differ between the member states.43 Although the Commission has been presented with a study on the collection of data to measure discrimination,44 which shows a willingness on its part to explore whether the EU member states should better monitor the existence of discrimination through statistical means, the question whether or not to use such indicators in order to identify discrimination still is left to the choice of each national constituency. In addition to the prohibition of direct and indirect acts of discrimination, the Directive also forbids acts of racial harassment. Article () states that harassment “shall be deemed to be discrimination within the meaning of paragraph , when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with national laws and practice of the Member States.” That harassment also covers actions that do not directly intend to cause racial harassment (as indicated by the use of the expression “purpose or effect”) imposes an obligation on the member states to ensure a wide protection against such harassment.45 However, of concern is the reference to national law and practice in the last sentence. On the one hand, this should not take away from those elements of harassment already defined in Article (). On the other, it would logically imply that those aspects of harassment not defined in   

  



McCrudden, “The New Concept of … ”, . Waddington and Bell, “More Equal Than Others …”, . Recital  of the preamble. It has been noted that this constitutes progress if compared with the wording of the Burden of Proof Directive, as the production of statistical evidence is not necessarily required in order to prove indirect discrimination. See Schiek, “A New Framework …”, . On the other hand, to the extent the member states are allowed, but not obliged to, provide for the possibility of statistical proof of discrimination, disparate impact discrimination may not be prohibited with the same level of efficacy throughout the Union. Waddington and Bell, “More Equal Than Others …”, . Toggenburg, “The Race Directive …”, . Comparative study on the collection of data to measure the extent and impact of discrimination within the United States, Canada, Australia, the United Kingdom and the Netherlands, December  (available on the website of the European Commission, DG Employment and Social Affairs). Toggenburg, “The Race Directive …”, .



Olivier De Schutter and Annelies Verstichel Article () remain a matter for national law; for example, the liability of employers, schools, universities, hospitals, landlords for failing to prevent harassment.46 Article (), finally, forbids the act of incitement to discriminate against persons on grounds of racial or ethnic origin. It is argued that such provision should cover not only explicit, but also implicit acts of incitement.47 2. Scope of Application Article  of the Directive establishes a particularly far-reaching material scope of application for the Directive.48 In addition to the four employment-related areas covered by the Framework Employment Directive (employment, occupation, vocational training and professional organizations), the Racial Equality Directive also covers: social protection, including social security and healthcare; social advantages; education; and access to and supply of goods and services that are available to the public, including housing.49 With the exception of some aspects of social security provisions, none of these areas are covered with regard to the other grounds of discrimination mentioned in Article  EC; and it is only recently that the principle of equal treatment between men and women has received in its turn such an expanded scope of application.50 As a result, victims of race discrimination have achieved the greatest level of protection available under Community law, far exceeding the level of protection offered under the other grounds of Article  EC.51 That the Directive also covers the supply of goods and services – however, limited to those “which are available to the public”52 and which certain member states seek to understand narrowly as limited to the economic relationships falling under the remit of European Community law – is particularly significant, as much discrimination against Roma appears to occur on a daily basis in the process of, for example, renting accommodation, in restaurants, bars, shops and swimming pools.53     



 



Waddington and Bell, “More Equal Than Others …”, . Adam Tyson, “The Negotiation of the European Community Directive on Racial Discrimination”, () EJML (), -, at . Waddington and Bell, “More Equal Than Others …”, ; Toggenburg, “The Race Directive …”, -. Articles ()(e)-(h). On  December , Council Directive //EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services was adopted, on the basis of Article  EC (OJ  L , ). Waddington and Bell, “More Equal Than Others …”,  and ; and Leo Flynn, “The Implication of Article  EC Treaty – After Amsterdam, Will Some Forms of Discrimination Be More Equal Than Others?”, () CMLR (), -. Of course, other hierarchies between the different grounds could be established, using other criteria than the scope of application ratione materiae of the protection from discrimination under EC Law: see Schiek, “A New Framework …”, - (for an evaluation: -). This is a compromise position emerged from the drafting process; see Tyson, “The Negotiation of …”, . See for example the five Bulgarian landmark cases regarding discrimination against Roma in access to services by a clothing shop and an electricity provider and regarding employ-

Integrating the Roma into European Society: Time for a New Initiative Despite the fact that the Directive also applies to third-country nationals,54 it does not expressly prohibit differential treatment on the basis of nationality. Article () states: This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of the Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

In the eyes of some member states, an extension of the prohibition against discrimination to include differential treatment on the basis of nationality would have meant that sovereignty and flexibility in the fields of immigration, asylum and (more plausibly) social welfare systems would be placed at risk.55 The sensitivity of this issue also explains why, in the Charter of Fundamental Rights, discrimination on grounds of nationality is dealt with separately in Article () and is explicitly restricted in scope.56 In its Written Comments to the European Commission’s Green Paper “Equality and Non-Discrimination in an Enlarged European Union”,57 the European Roma Rights Center (ERRC) reacted fiercely against this nationality exclusion. The ERRC argues that this partial and insufficient definition of discrimination on grounds of racial or ethnic origin thus introduced into EU law by the Directive is discordant with international law and will create dilemmas for member states due to divergent approaches between the EU acquis and the international law acquis in this matter. Moreover, according to the ERRC, the nationality exclusion and the limited guidance provided by the EU institutions as to how to regulate the ban on discrimination on grounds of nationality has had a pernicious impact, as it opened, amongst others, the possibility for discrimination on racial or ethnic grounds under the pretext that such discrimination is on grounds of nationality.58 In the light of the precarious situation of many non-nationals

    

ment, based on the newly adopted Bulgarian anti-discrimination legislation which entered into force on  January , enacted pursuant to the requirements of the Racial Equality Directive (European Roma Rights Center Press Release, ). Toggenburg, “The Race Directive …”, . Ibid., . Shaw, “Mainstreaming Equality …”, . See also criticism by Waddington, “The Expanding Role …”, . COM() final, Brussels,  May . Referring to Articles () and () of the Racial Equality Directive, which respectively ban discrimination, direct and indirect, on grounds of race and ethnic origin, and exempt differences of treatment on grounds of nationality from that prohibition, the report on “The Situation of Roma in an Enlarged European Union”, , states that “[t]he friction between these two provisions gives rise to the concern that individuals may suffer racial discrimination and not have any recourse if the discriminator justifies the action on grounds that the person concerned is a third-country national”.



Olivier De Schutter and Annelies Verstichel in Europe – including in particular dark-skinned and Romani nationals – the nationality exclusion is currently contributing significantly to social exclusion in Europe.59 The EU Network of Independent Experts on Fundamental Rights has taken the position, however, that although the prohibition of all direct or indirect discrimination on grounds of racial or ethnic origin, while benefiting also third-country nationals, does not concern differences in treatment on grounds of nationality – this, which is explicitly stated by Article () of the Racial Equality Directive, is further confirmed by Recital  of its preamble – it cannot be ruled out that the very conditions for granting nationality constitute a form of discrimination prohibited by the Directive: Indeed, where they create differences in treatment between certain categories of persons, the conditions for granting nationality do not create a difference in treatment between nationals and non-nationals, but between different categories of foreigners, which makes those differentiations come under Directive //EC.60 Toggenburg has further argued that differences in treatment based on nationality could result in indirect discrimination on grounds of race or ethnic origin, and thus fall under the prohibition of the Directive to the extent that they are imposed by private persons: indeed, the exception of Article () of the Directive, which exempts nationality-based differences of treatment from the scope of the prohibition, should be read narrowly in accordance with its status as an exception, and would therefore only apply to nationality-based differences established by law or, at least, by the public authorities, without exempting those differences in treatment from the prohibition of indirect discrimination on grounds on race or ethnic origin when adopted by private parties.61 Moreover, although EU law has traditionally drawn sharp delimitations between EU citizens and third-country nationals, it has been noted that the distinction is progressively blurring.62 Categories of ‘semi-privileged’ third-country nationals exist; for example, those who are members of the family of an EU citizen or Turkish nationals already resident in one of the member states, enjoying protection by virtue of the Association Agreement between the EU, its member states and Turkey. Furthermore, the recently adopted Directive on long-term resident third-country nationals,63 to be transposed by  January , provides a generalized protection against discrimination on grounds of nationality for all third-country nationals enjoying long-term legal residence in one of the member states.64 Despite the distinction between EU citizens and third-country nationals is blurring, Romani non-nationals do not benefit from it, as they in general do not belong to 



   



Written Comments of the European Roma Rights Centre to European Commission “Green Paper: Equality and Non-Discrimination in an Enlarged European Union”,  August , . EU Network of Independent Experts on Fundamental Rights, Thematic Comment No. : “The Rights of Minorities in the European Union”, March , para. ... This question will be addressed again later in the article. Toggenburg, “The Race Directive …”, . Shaw, “Mainstreaming Equality …”, -. Council Directive /, OJ  L , . This Directive, however, does not apply to students, those taking vocational training, refugees or those enjoying temporary protection under international law.

Integrating the Roma into European Society: Time for a New Initiative the categories of ‘semi-privileged’ third-country nationals. Indeed, the status of longterm legal resident is often difficult to obtain by virtue of a lack of personal documents or because of living in informal settlements.65 The obstacles the Roma face in access to nationality or to the status of long-term legal resident are in that respect representative, more generally, of the precariousness of their administrative situation, which has an impact in a number of fields, including access to public services or social benefits.66 It is clear that, in order to fully tackle the question of the integration of the Roma, the situation of de facto or de jure statelessness of many members of this community needs to be addressed, and solutions ought to be found to the difficulties they face in establishing their nationality or in acquiring a nationality, as well as simply in being afforded an administrative status. 3. Positive Action The Racial Equality Directive establishes minimum requirements in the field of antidiscrimination: the member states may introduce or maintain more favourable provisions to the protection of the principle of equal treatment than those laid down in the Directive (Article ). Article  in particular allows the member states to introduce measures of positive action, without imposing on them an obligation to do so: With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.67  



European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma …”, . Referring to the concerns expressed by the European Roma Rights Centre at the hearing of  October , the EU Network of Independent Experts on Fundamental Rights noted in its “Report on the Situation of Fundamental Rights …”, , that the exclusion of Roma from a number of public services and essential social goods “is the result of their precarious administrative situation, their statelessness and, worst of all, the total lack of administrative documents attesting their legal status. These documents are often expensive to obtain for a highly impoverished people. A specific obstacle to their obtaining these documents is also the requirement to furnish proof of a fixed address to which social benefits can be paid, which de facto has the effect of excluding Roma/Gypsies who lead an itinerant or semiitinerant life”. This is also noted in the report “Breaking the Barriers – Romani Women and Access to Public Health Care” published by the Council of Europe with the collaboration of the OSCE High Commissioner on National Minorities, the Office for Democratic Institutions and Human Rights (ODIHR) and the EU Monitoring Centre on Racism and Xenophobia (September ), : “Many Roma lack identity cards, birth certificates and other official documentation of their legal status. Such documents are often required to access public services. Statelessness, and the lack of status within the State of residence, as well as problems with documentation impede access to a range of rights including access to health care.” This formulation is almost identical to the analogous one for affirmative action regarding sex discrimination in Article () EC: “With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activ-



Olivier De Schutter and Annelies Verstichel The purpose of ensuring full equality in practice implies a notion of substantive equality. However, as affirmative action is permitted and not required, Barnard observes that the Racial Equality Directive does “not focus on the achievement of equality in the broader, more results-oriented, redistributive sense”.68 Moreover, it remains to be seen how the ECJ will react when the first cases concerning racial and ethnic affirmative action are brought before the Court. In the context of positive action measures favouring the professional integration of women, which both Directive //EC and Article () EC authorize the member states to adopt,69 the ECJ has emphasized that such measures – insofar as they afford preferential treatment to women – should be seen derogating from the individual right of equal treatment of men and women laid down in Community law. It has therefore taken the view that such measures were only acceptable to the extent that they comply with the principle of proportionality, and thus remain within the limits of what is appropriate and necessary in order to achieve the aim in view. This aim is to eliminate or reduce actual instances of inequality that may exist in the reality of social life. Any measure which guarantees an equality of result, and does not restrict itself to equalizing opportunities, is considered disproportionate: Thus, all schemes which establish an automatic and absolute preference in favour of women are considered in violation of the principle of equal treatment, and incompatible with the requirements of Community law.70 In sum, positive measures appear to be acceptable to the extent only that they ensure an improved functioning of a system based on an objective appreciation of the situation of each individual – including the need to facilitate









ity or to prevent or compensate for disadvantages in professional careers.” Article  of the Racial Equality Directive omits the positive element of this article, notably the possibility of conferring “specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity”. According to Waddington and Bell, Article  of the Racial Equality Directive is more restrictive than Article () EC. Waddington and Bell, “More Equal Than Others …”, . Catherine Barnard, “The Changing Scope of the Fundamental Principle of Equality”, () McGill Law Journal (), -, at . See also McCrudden, “The New Concept of …”, . Article () EC provides: “With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers”. Since the amendment of Directive //EEC by Directive //EC, the wording in that directive is similar: see Article () of Directive //EEC, as amended. Although we believe that this is a fair summary, we may not here offer a detailed discussion of this case law. The relevant decisions are ECJ, case C-/, Kalanke, judgment of  October , [] ECR I-; case C-/, Marschall v. Land Nordrhein Westfalen, judgment of  November , [] ECR I-; case C-/, Badeck, judgment of  March , [] ECR I-; case C-/, Abrahamsson v. Fogelqvist, judgment of  July , [] ECR I-; case C-/, Schnorbus, judgment of  December , [] ECR I-; case C-/, Lommers, judgment of  March , [] ECR I-; case C-/, Serge Briheche, judgment of  September , [] ECR I-. Reference can also be made to the judgment delivered by the EFTA Court on  January , Surveillance Authority v. The Kingdom of Norway, case E-/, EFTA.

Integrating the Roma into European Society: Time for a New Initiative overcoming the prejudice or stereotyping that an individual may be encountering – but without substituting a group-based conception of justice to an individualistic conception. It may be anticipated that this understanding of the limits of affirmative action will also guide the Court in its interpretation of the Racial Equality Directive.71 4. Reasonable Accommodation The Framework Employment Directive requires in its Article  reasonable accommodation of people with disabilities: In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to provide training for such a person, unless such measures would impose a disproportionate burden on the employer. When this burden is, to a sufficient extent, remedied by existing measures as an element of disability policy in the Members State, it should not be considered disproportionate.

This concept of reasonable accommodation – Waddington and Hendriks prefer to call it ‘effective accommodation’, as the adjective ‘ reasonable’ may misleadingly suggest that a reference is made to what is expected from the employer or any other responsible party, rather than to the efficiency of the accommodation itself 72 – is linked conceptually to the idea of ‘special measures’ for ethnic, religious and linguistic minorities, i.e. measures designed to protect and promote the separate identity of those minority groups.73 Both concepts contain an element of permanence, to take into account the specific characteristics of the groups in question, to the contrary of affirmative action, which is of a temporary nature, i.e. as long as such action is needed to correct discrimination in fact.74 Roma with an itinerant lifestyle, for example, will have to be accommodated by a state system based on the majority of the population being sedentary. The requirement of permanent residence as a condition, for example, to have access to social security and  





Shaw, “Mainstreaming Equality …”, ; Waddington, “The Expanding Role …”, -; Toggenburg, “The Race Directive …”, . Lisa Waddington and Aart Hendriks, “The Expanding Concept of Employment Discrimination in Europe: From Direct and Indirect Discrimination to Reasonable Accommodation Discrimination”, () International Journal of Comparative Labour Law and Industrial Relations (), -, at , footnote . The prohibition of discrimination and special measures constitute a double track of minority protection, already expounded by the Permanent Court of International Justice in its advisory opinion on the minority schools of Albania in , see Kristin Henrard, Devising an Adequate System of Minority Protection. Individual Human Rights, Minority Rights and the Right to Self-Determination (Martinus Nijhoff Publishers, The Hague, ), . UN Human Rights Committee, General Comment , Non-discrimination (Thirty-seventh session, ), para. : “Such [affirmative] action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.”



Olivier De Schutter and Annelies Verstichel unemployment benefits will have to be adapted to the itinerant lifestyle of a minority of the population. This adaptation has to be of an intrinsic and permanent nature, in order to respect and take into account the itinerant lifestyle as part of the identity and the minority culture of Roma. In many jurisdictions, the obligation to accommodate in employment matters is not confined to people with disabilities, but also applies to members of minority religions.75 In Canada an obligation to make a reasonable accommodation exists in relation to all grounds covered by the Charter of Fundamental Freedoms and the Federal Human Rights Act, which include all grounds mentioned in Article  EC.76 However, reasonable accommodation and ‘special measures’ for minorities are different concepts. Reasonable accommodation consists of an obligation to identify solutions which, in the specific context in which the individual faces certain obstacles in his/her social or professional integration (for example, in having access to certain modes of transportation or to a particular professional position), may remove these obstacles in order to facilitate that integration. Reasonable accommodation therefore is seen in principle as possessing an individualised character77 and, indeed, the duty to accommodate in non-discrimination legislation is generally framed in terms of an individual right. However desirable reasonable accommodation may be, especially in the context of anti-discrimination on grounds of disability because of the wide variety of the disabilities that may be obstacles to participation in professional and social life, it will be easily seen that, from a broader perspective of equality, this approach cannot constitute a substitute for more structural solutions, not limited to the ‘accommodation’ of individual needs. In most instances, individual accommodation leaves unchallenged and unaffected the underlying discriminatory policy that resulted in the initial exclusion.78 It therefore is preferable to keep the two concepts separated and to use them complementarily with one another in a multifaceted anti-discrimination strategy. 5. Enforcement and Remedies The Racial Equality Directive places considerable emphasis upon the effective enforcement of the principle of non-discrimination on the grounds of race,79 more than is the case under the earlier gender anti-discrimination instruments.80 Article () obliges member states to ensure that judicial and/or administrative procedures are available, including where appropriate conciliation procedures. Article () requires member states to ensure that associations, organisations or other legal entities, which have a 



   



Waddington and Hendriks, “The Expanding Concept …”,  and . See also, for a systematic examination in this regard of the situation in the EU member states, EU Network of Independent Experts on Fundamental Rights, Thematic Comment No. : “The Rights of Minorities in the European Union”, para. .., -. Waddington and Bell, “More Equal Than Others …”, . Indeed, it is in a case concerning freedom of religion that an obligation to provide reasonable accommodation was first explicitly put forward: see Central Alberta Dairy Pool v. Alberta []  R.C.S. . Waddington and Hendriks, “The Expanding Concept …”, . Ibid., -. Toggenburg, “The Race Directive …”, . Waddington and Bell, “More Equal Than Others …”, .

Integrating the Roma into European Society: Time for a New Initiative legitimate interest in ensuring that the provisions of the Directive are complied with, may engage “either on behalf or in support of the complainant, with his or her approval” in any judicial and/or administrative procedure. This formula falls short of collective action understood as the granting of an autonomous locus standi to associations,81 but goes nevertheless one step beyond individual litigation in order to make it more effective. Article  reverses the burden of proof for not only discrimination but also harassment cases.82 This move initially attracted opposition as the Directive also applies to situations outside the labour market, in which parties may be of equal bargaining power. The ratio behind this provision, however, is to facilitate the burden of proof in discrimination cases, which the victim may find difficult to prove whatever the context is in which the alleged discrimination has occurred. In combination with the limitation of the scope of the Directive to the supply of those goods and services which are “available to the public”, the move to reverse the burden of proof was approved by the Council.83 In contrast to the  Burden of Proof Directive for sex discrimination cases,84 which does not apply the burden of proof provisions to occupational social security schemes, the burden of proof provisions in the Racial Equality Directive apply throughout its material scope, which includes social protection (Article ()(e)). However, the shifting of the burden of proof does not apply to criminal procedures (Article ()). As several member states have hitherto relied mainly on criminal law sanctions for racial discrimination – whereas civil law procedures are more familiar in the context of sex discrimination – the real application of the burden of proof provisions to racial discrimination cases may be considerably more restricted in practice.85 According to Article , member states moreover have to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished and that any provisions contrary to the principle of equal treatment which are included in individual or collective contracts or agreements, internal rules of undertakings, rules governing profit-making or non-profit-making associations, and rules governing the independent professions and workers’ and employers’ organisations, are or may be declared null and void. The phrasing of “are or may be declared” indicates that member states are not necessarily required to declare null and void each contradictory term in any form of agreement, as it is sufficient that the validity of such is determined in those cases where the respective provisions are challenged.86 Article  in addition obliges member states to “lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive”. These sanctions may comprise the payment of compensation to the victim and must be effective, proportionate and dissuasive.      

Schiek, “A New Framework …”, . Article  makes reference only to “direct and indirect discrimination”, but Article  interprets harassment as a subform of discrimination. Tyson, “The Negotiation of …”, . Council Directive /. Waddington and Bell, “More Equal Than Others …”, . Tyson, “The Negotiation of …”, .



Olivier De Schutter and Annelies Verstichel As regards extra-court implementations, Article  requires the member states to take adequate measures to promote the social dialogue between the two sides of industry with a view to foster equality and to encourage them to conclude agreements laying down anti-discrimination rules. Article  obliges member states to engage in dialogue with non-governmental organisations. This provision reflects the prominent role of NGOs in the genesis of the Directive and corresponds to the enhanced role of such bodies within the EU system.87 Article  of the Directive calls upon member states to establish bodies for the promotion of equal treatment. These bodies must, as a minimum, be able to provide “independent assistance to victims of discrimination in pursuing their complaints”, conduct “independent surveys concerning discrimination”, and publish independent reports and make recommendations on any issue relating to such discrimination. Article  obliges the member states to communicate to the Commission by  July , and every five years thereafter, all the information necessary for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive. This report shall take into account the views of the European Monitoring Centre on Racism and Xenophobia (EUMC) as well as the viewpoints of the social partners and relevant NGOs. The report moreover shall, in accordance with the principle of gender mainstreaming, provide an assessment of the impact of the measures taken on women and men. This last requirement is significant, as many Romani women indeed suffer from double discrimination.88 C. EU Policy Framework and Roma89 A Community Action Programme to Combat Discrimination (-) was adopted in  alongside the Racial Equality Directive and the Framework Employment Directive.90 It is managed through the Directorate General for Employment and Social Affairs of the European Commission. The Programme is designed to support and complement the implementation of the Directives through the exchange of information and experience and the dissemination of best practice. It promotes measures to combat discrimination based on racial or ethnic origin, religion or belief, disability, age or sexual orientation. The  work programme of the Community Action Programme defined eight priority areas for the establishment of transnational actions. One priority was specifically targeted at Romani integration into education and employment, and has 

  



Toggenburg, “The Race Directive: A New Dimension …”, ; Isabelle Chopin, “The Starting Line Group: A Harmonised Approach to Fight Racism and to Promote Equal Treatment”, () EJML (), -; and id., “Campaigning Against Racism and Xenophobia: from a Legislative Perspective at European Level” (European Network Against Racism, ), at . European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma …”, -. The following section is largely based on European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma …”, -. See Council Decision //EC of  November  establishing a Community action programme to combat discrimination ( to ), OJ  L , .

Integrating the Roma into European Society: Time for a New Initiative le,d to the selection of four Roma-specific transnational partnerships and actions for the preparatory phase in , to be followed by a two-year implementation period.91 Moreover, in the  Plan of Work and Budget Breakdown of the Programme, a call for proposals for the support towards the operating cost of a Roma network is foreseen. This network would act as an interlocutor at European level on Romani issues. The Commission believes that “in order to ensure the mainstreaming of Romani issues in EU policies, it will be necessary to provide ad hoc funding to a representative Roma network.”92 Regarding the EU social inclusion policy framework, the Union has applied the Open Method of Coordination (OMC). In the common objectives, member states are urged to ‘mainstream’ social inclusion policies in employment, education and training, health and housing policies, and to develop priority actions in favour of specific target groups such as minorities.93 Two components of the EU Structural Funds are of relevance to Romani populations: the European Regional Development Fund and the European Social Fund. The former is the principle instrument of regional policy. It is not a pure infrastructure fund. Apart from infrastructure which accounts for % of expenditure, % of the fund goes to human resource development and % to productive sectors. The fund may therefore finance a number of activities of interest to Romani populations, including basic infrastructure for Romani settlements, social inclusion measures and lifelong learning facilities.94 The Community Support Frameworks for - agreed with the Czech Republic, Hungary, Poland and Slovakia in recognising the importance of Romani issues and have adopted strategies to combat Roma exclusion. The actions supported by the structural funds, however, suffer particularly from the unavailability of ethnic data which may influence the targeting of the actions and their effectiveness.95 The European Social Fund finances activities aimed at improving involvement in the labour market, including streams on women’s participation, lifelong learning, social inclusion, labour adaptability and an active labour market. The Fund has already been used to finance activities of relevance to Roma, Gypsies and Travellers, including the National Programme for the Spanish Roma Community (ACCEDER), which inter alia has established  specialist employment offices, serving , Roma and resulting in the work placement of , of them, and supported a further , through

 



 

European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma …”, . Community Action Programme to combat discrimination ( to ), “The  Plan of Work and Budget Breakdown”, July , , at . Council Document //,  November , “Fight Against Poverty and Social Inclusion: Common Objectives for the Second Round of National Action Plans – Endorsement”. European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma …”, . Ibid., .



Olivier De Schutter and Annelies Verstichel employment-related training programmes. The European Social Fund provided EUR . million of the EUR  million programme cost.96 The EQUAL Community Initiative is financed by the European Social Fund and seeks to test new approaches to fighting discrimination and inequalities in the employment market, to disseminate good practice and to ensure subsequent mainstreaming. A number of projects aimed at the inclusion of minority ethnic communities in the workplace have been financed through ‘development partnerships’, including a number aimed specifically at Romani communities and a number that benefited Romani communities among others.97 The Directorate General of Education and Culture has in the past taken a particular interest in Romani issues, having issued a number of documents on the subject, including the  Resolution on “School Provision for Gypsy and Traveller Children”, but has yet to effect significant change within Roma education through such documents or through its Socrates II and Leonardo da Vinci Community Action Programmes. A limited number of specific projects aimed at the establishment of transnational partnerships have produced successful outcomes. One such project, financed through the Socrates II programme, led to the development of Parent Held Educational Records for nomadic Gypsy and Traveller pupils, which has subsequently been adopted as a policy by the Department for Education and Skills (DfES) in England.98 Prior to enlargement, many candidate member states benefited from funding through the Phare programme for their national Roma projects.99 The annual reports on the state of affairs of the candidate member states concerning the satisfaction of the accession criteria, which the Commission submitted to the European Council between  and , revealed that the situation of Roma was a serious cause of concern. From  to  the Phare programme contributed EUR  million to Roma projects in the then accession and candidate states, covering a range of infrastructure, public awareness and sector-specific projects.100 The study “The Situation of Roma in an Enlarged European Union”, commissioned by the Directorate General for Employment and Social Affairs of the European Commission, evaluates this contribution by the Phare programme as welcome, although it assesses the scale of the problem and the fact that many of the interventions were project- specific as meaning that many more resources need to be committed over a long period of time in order to make a real impact. According to the study, the Phare programmes clearly demonstrated that existing policies and practices in Central and Eastern Europe were failing Roma. The overall lack of vision and direction means that Ibid., . Ibid., -. Ibid., . The Phare programme is one of the three pre-accession instruments financed by the European Union to assist the applicant countries of Central and Eastern Europe in their preparations for joining the European Union. See further .  European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma …”, . See also .

   



Integrating the Roma into European Society: Time for a New Initiative there was no clear underpinning policy direction or commitment. Although the issues facing Roma have moved to a position of higher priority on the political agenda, the operational environment surrounding policy making for Roma remains fragile as it became more political and partisan. Moreover, there is a vast gap between the policy level and the operational reality.101 There are several policy initiatives of relevance to Roma being undertaken by other international organisations. These include the Council of Europe, OSCE, United Nations Development Programme (UNDP), and the World Bank. There are a number of joint initiatives between the European Union and other actors. An example is the project “Roma under the Stability Pact”, which the Commission is funding under the European Initiative for Human Rights and where it is cooperating with the Council of Europe and the OSCE. Moreover, the Commission is represented by several Directorate Generals at the Informal Contact Group of International Organisation on Roma and Sinti, co-organised by the OSCE. And the EU Presidency also takes an active part within the Steering Committee of the Roma Inclusion Decade (-) political initiative.102 III. Remaining Insufficiencies and Possible Solutions A. Why Directive 2000/43/EC is Insufficient? The above description of the equality and non-discrimination framework under EU law shows a patchwork of models.103 Racial discrimination receives the highest protection through the broad scope of application of the Racial Equality Directive and racial and  European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma …”, -.  The Decade of Roma Inclusion grew out of the conference “Roma in an Expanding Europe: Challenges for the Future”, hosted by the Government of Hungary in June  and organised by the Open Society Institute, the World Bank, and the European Commission, with support from UNDP, the Council of Europe Development Bank and the governments of Finland and Sweden. Prime Ministers, or their representatives, from eight countries (Bulgaria, Croatia, the Czech Republic, Hungary, Macedonia, Romania, Serbia and Montenegro, and Slovakia) made a political commitment to close the gap in welfare and living conditions between the Roma and the non-Roma and to break the cycle of poverty and exclusion. The Decade will run from  to  and the objective is to speed up and scale up social inclusion and the economic status of Roma by setting a limited number of quantitative national goals for improvements in priority areas (education, employment, health and housing), and the establishment of the necessary information base to measure progress toward these goals; developing and implementing national action plans to achieve those goals; and regular monitoring of progress against the goals, and adjusting action plans as necessary over the Decade. See . The Decade was launched during the Central European Summit on Discrimination against Roma in Sofia on  February .  Schiek, “A New Framework …”,  and -; Shaw, “Mainstreaming Equality …”, ; Waddington, “The Expanding Role …”, ; and McCrudden, “The New Concept of …”, - (distinguishing four meanings of equality).



Olivier De Schutter and Annelies Verstichel ethnic belonging stands at the peak of the ‘hierarchy of equalities’. However, although the Directive is qualified as a ‘quantum leap’ forward in the protection against racial discrimination,104 there remains scope for improvement in order to tackle effectively the current exclusion of Roma from mainstream society. The Report on the Situation of Fundamental Rights in the EU in  prepared within the EU Network of Independent Experts on Fundamental Rights points out that the Racial Equality Directive is inappropriate for achieving the integration of Roma in a number of respects.105 First, and most importantly, to achieve integration, the mere prohibition of direct and indirect discrimination does not suffice. Positive action is needed, and this is allowed and not obliged by the Directive (Article ). Second, the material scope of application of the Racial Equality Directive is too limited for the needs of Roma. The Directive does not prohibit discrimination in the issuing of administrative documents. Such documents, however, are often required to access certain social benefits and a number of public services that constitute, particularly for marginalized peoples, an essential aid to integration. As already mentioned, Roma often lack identity cards, birth certificates and other official documents attesting their legal status. These documents are often expensive to obtain for a highly impoverished people. Moreover, the requirement to furnish proof of a fixed address to which social benefits can be paid de facto excludes Roma who lead an itinerant or semi-itinerant life.106 A third insufficiency may be added, which concerns the exclusion of discrimination on the basis of nationality from the scope of the Directive. Roma often face difficulties in many countries having access to citizenship and in extreme cases are even in the situation of statelessness. As such, they belong to the category of non-nationals in many states. Although this does not exclude them from the benefit of the Racial Equality Directive, the fact that the Directive is without prejudice to differences of treatment based on nationality means that it is doubtful whether such differences in treatment, even if they appear to create an indirect discrimination on the grounds of race or ethnic origin, could be challenged under the Directive. Moreover, the rules relating to the acquisition of nationality may not be challengeable under the Racial Equality Directive, even if they have a discriminatory impact on certain racial or ethnic groups, either because of their content or because of the way in which they are applied. We may elaborate somewhat on these arguments. The introduction of positive action measures is required in order to ensure the desegregation of Roma in the area of housing and in particular of education. Studies clearly show alarming figures of racial segregation of Roma in these and other fields.107 But there still are doubts as to the ability of an anti-discrimination approach to tackle effectively such a situation. First, from the point of view of the legal requirement of non-discrimination, the question of whether segregation should be considered a form of direct discrimination is debatable,  European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma …”, .  EU Network of Independent Experts on Fundamental Rights, “Report on the Situation of Fundamental Rights …”, -.  See also European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma ... .”, -.  See e.g. ibid., -, and the recommendation at .



Integrating the Roma into European Society: Time for a New Initiative at least where segregation is not combined with unequal treatment. The “Report on the Situation of Fundamental Rights in the Union in ” prepared within the EU Network of Independent Experts on Fundamental Rights notes108 in this regard that, according to Council Directive //EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services,109 that “[t]he principle of equal treatment in the access to goods and services does not require that facilities should always be provided to men and women on a shared basis, as long as they are not provided more favourably to members of one sex”, and that a restrictive interpretation of the requirements of Council Directive //EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin – not extending the prohibition of discrimination formulated in this instrument to instances of racial or ethnic segregation, unless it is accompanied by unequal advantages – risks being encouraged by the distinction made between “separate facilities” and “discrimination” in Directive //EC. Second and more importantly, a discrimination-based approach to the situation of Roma, although of course essential, is still an inadequate answer to a situation of structural discrimination, where the exclusion they are subjected to is not attributable to any single act or, indeed, regulatory framework, but to the entrenched caste-like situation they face in all areas of social life, particularly employment, education and housing. Combating discrimination in access to employment and working conditions is not sufficient to ensure an adequate professional integration of a minority if its members, on average, are widely deprived of access to adequate levels of education. Both education and employment are hardly accessible to a minority whose life conditions, especially housing, constitute an obstacle to children attending school and to adults taking up regular employment, quite apart from the discriminatory attitudes or even policies they may be facing in those two spheres. And conversely, lack of employment, and thus of revenue, impedes both the education of children and the improvement of living conditions. Together these vicious circles constitute what we may call institutional racism: a situation of race-based exclusion, which may not be attributed to any specific act, regulation, or policy, but which is the result of a particular racial group being systematically placed in a disadvantaged position in all areas of social life, so that classical antidiscrimination tools are insufficient to ensure the social and professional integration of its members.110 Third, whether or not the Racial Equality Directive now provides them with an adequate protection against discrimination, the Roma have been subjected in the past to widespread discrimination which, for many years, went unpunished. There is some naivety in thinking that the sudden imposition of a prohibition of discrimination will suffice to remedy the resulting consequences. We should not only ask whether the Racial Equality Directive effectively prohibits discrimination. We should also ask whether it is an adequate tool to ensure desegregation, as this is the situation the Roma inherited.  EU Network of Independent Experts on Fundamental Rights, “Report on the Situation of Fundamental Rights …”, .  OJ  L , .  See for a detailed exploration of this notion Christopher McCrudden, “Institutional Discrimination”, () Oxford Journal of Legal Studies (), -.



Olivier De Schutter and Annelies Verstichel Fourteen years after the United States Supreme Court had found, in Brown v. Board of Education, that racial segregation (the “separate but equal” educational system) was unconstitutional under the th Amendment to the United States Constitution,111 it had to acknowledge that the simple affirmation of the principle of non-discrimination would not achieve the aim of desegregation, and that affirmative action – in particular, the ‘bussing’ of children from predominantly African-American neighbourhoods to predominantly white neighbourhoods and conversely – could be required to fulfil the mandate of the Constitution. The Supreme Court considered that ensuring freedom of choice for the children was not necessarily sufficient. What mattered, in its view, was not the means chosen (freedom or, indeed, more affirmative measures), but the end result. In a landmark judgment of  May , it concluded that the “freedom-ofchoice” plan adopted by a school board to put an end to segregation should be judged by its effectiveness in achieving that aim, and that freedom (or “colour-blindness”) could not be seen as an end in itself.112 It quoted from a lower federal court: “If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end. The school officials have the continuing duty to take whatever action may be necessary to create a ‘unitary, non-racial system’”.113 The Racial Equality Directive adopted on  June  should be judged according to the same criterion. Indeed, while the Racial Equality Directive presents the adoption of positive action measures by the EU member states as optional, this should not obfuscate the fact that, under international human rights law, the adoption of such measures may be required in order to effectively combat institutional discrimination, and thus be a component of the more general requirement of equal treatment. The UN Human Rights Committee’s General Comment No. () on Non-Discrimination points out in its paragraph  that: the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.

Brown v. Board of Education of Topeka,  U.S. , ,  S.Ct. , ,  L.Ed.  () (Brown I). See also Brown v. Board of Education of Topeka, Kan.,  U.S. , ,  S.Ct. , ,  L.Ed.  () (Brown II), according to which the boards of education should proceed “with all deliberate speed” in moving towards desegregation.  Charles C. Green et al. v. County School Board of New Kent County, VA et al.,  U.S. ,  S.Ct. ,  L.Ed.d  ().  The quote is from Bowman v. County School Board of Charles City County,  F.d ,  (C.A.th Cir. ) (concurring opinion).





Integrating the Roma into European Society: Time for a New Initiative One specific difficulty in the choice of the integration measures which, beyond the Racial Equality Directive, might be adopted in order to achieve the aim of desegregation is that such measures should respect the Romani minority identity, including the attachment to an itinerant lifestyle which some members of the Romani community may still have. It should be recalled in this regard that, according to the European Court of Human Rights, the traditional lifestyle of the Roma/Gypsies forms part of the right to respect for private life, family and home, which is protected under Article  of the European Convention on Human Rights. As explained in the judgment delivered in Chapman v. the United Kingdom, the occupation of a caravan by a Roma/Gypsy “is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or by their own choice, many Gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures affecting the applicant’s stationing of her caravans therefore have an impact going beyond the right to respect for her home. They also affect her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition”.114 These integration measures should provide for ‘special measures’ or, in terms of the Framework Equality Directive (Article ), ‘reasonable accommodation’, which take into account the Romani minority identity in fields such as employment, services, housing, education, health care and transport. For example, Roma should be able to have access to employment or obtain services without being prevented from doing so by the fact of them wearing traditional clothing, even where a justification may be given to support in general the prohibition of such clothing in general: Only in the instances where there is a justification for not providing for an exception benefiting the Roma to a general vestimentary policy should the refusal to provide reasonable accommodation be considered acceptable. Also, Roma should be able to choose to lead an itinerant or semi-itinerant lifestyle, even where there are good justifications for land use regulations, which in principle deny them the availability of stopping places for caravans. In regard to education too, flexible structures are necessary to meet the diversity of the Roma population and to take into account the itinerant or semi-itinerant lifestyle of a part of them. Having recourse to distance learning, based on new communication technologies, might be envisaged. With regard to healthcare, the recommendations of Part IV of the report “Breaking the Barriers – Romani Women and Access to Public Health Care”,115 could be referred to. These present mechanisms that would make it possible to take better account of the specific situation of Roma, and particularly that of Romani women, in access to healthcare services. The policy of ‘openness’ advocated by this report implies that healthcare workers become more familiar with Romani practices relating to health care and thus are able to make the necessary accommodations for those practices in  ECtHR, Chapman v. the United Kingdom, judgment (Grand Chamber) of  January , para. .  “Breaking the Barriers – Romani Women and Access to Public Health Care”, report published by the Council of Europe with the collaboration of the OSCE High Commissioner on National Minorities, the Office for Democratic Institutions and Human Rights (ODIHR), and the EU Monitoring Centre on Racism and Xenophobia, September .



Olivier De Schutter and Annelies Verstichel order to ensure a non-discriminatory access to healthcare for Roma. Concerning transport, the EU Network of Independent Experts on Fundamental Rights has insisted that the concept of universal service, which the Green Paper on services of general interest116 cites among the obligations that are traditionally associated with the concept of services of general economic interest, should in particular take into account the special situation of communities living in conditions of segregation, isolated from the rest of the community, such as Roma, especially when low income forms an obstacle to the use of paid transport. In , the Commission built on the consultation launched by the Green Paper117 to present a White Paper in which it presented its proposals in the field of services of general economic interest and the respective roles of the member states and Union law in defining their status.118 Regrettably, the need to accommodate the specific situation of minorities such as the Roma is not taken into account in the most recent communication. Special measures are also recommended by the UN Committee on the Elimination of Racial Discrimination (CERD/C) in its General Recommendation No. XXVII () on Discrimination against Roma. In the field of education, the CERD/C recommends the adoption of the “necessary measures to ensure a process of basic education for Romani children of travelling communities, including by admitting them temporarily in local schools, by temporary classes in their places of encampment, or by using new technologies for distance education” (para. ). In the field of living conditions – more precisely housing – the CERD/C encourages states “to take the necessary measures, as appropriate, for offering Romani nomadic groups or Travellers places for encampment for their caravans, with all possible facilities” (para. ), which implies that exceptions may have to be provided in generally applicable land use regulations to accommodate the specific needs of these families. We may conclude, then, that the Racial Equality Directive presents two major deficiencies, if it is to serve as an instrument to ensure the social and professional integration of the Roma. First, the Directive adopts a reactive, post hoc approach to the question of discrimination, ensuring that the victims of discrimination will be protected against any measures causing that discrimination and will have effective remedies at their disposal, when what would be required is a proactive, ex ante, approach, affirmatively ensuring the integration of the Roma even where there is no identifiable discriminatory measure targeting them or de facto, imposing on them a particular disadvantage. Second, the Directive does not include a requirement that special measures are adopted in order to ensure that the specific situation of racial or ethnic minorities is taken into account, without obliging them (in the case of ethnic minorities) to sacrifice a dimension of their identity. But another problem, as has been mentioned above, is that the Racial Equality Directive has a limited scope of application which does not extend to the rules relating to the acquisition of nationality (Article ()). This restriction to its scope  COM() final of  May .  For the results of the public consultation, see “Report on the Public Consultation on the Green Paper on Services of General Interest, Commission Staff Working Paper”, SEC()  ( March ), at .  COM()  final of  May .



Integrating the Roma into European Society: Time for a New Initiative may be justified under the present case law of the European Court of Justice, which has recognized that “[u]nder international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality”.119 On the other hand, the Directive should not be used as a pretext by the member states for escaping their other international obligations,120 such as, in particular, those defined in the International Convention on the Elimination of All Forms of Racial Discrimination. Although it does not in principle affect the legal provisions of states parties concerning nationality, citizenship, or naturalization,121 this Convention has been interpreted by the Committee on the Elimination of Racial Discrimination to encourage the states parties to ensure “that particular groups of non-citizens are not discriminated against with regard to access to citizenship or naturalization, and to pay due attention to possible barriers to naturalization that may exist for long-term or permanent residents”.122 It is legitimate to ask therefore whether, without questioning the right the EU member states have in principle to define the rules relating to nationality, citizenship, or naturalization, their freedom of appreciation in this regard should not be limited in order to ensure that no discrimination, direct or indirect, on grounds of race or ethnic origin, results from the way those rules are formulated or applied. It is – we should recall – “having due regard to Community law” that the Court of Justice has recognized the right of states to define those rules, and under a broad reading of Article  EC, this provision could allow for the adoption of an instrument prohibiting a discriminatory application of rules relating to nationality. Indeed, the formulation chosen by the UN Committee on the Elimination of Racial Discrimination, according to which states should “take into consideration that in some cases denial of citizenship for long-term or permanent residents could result in creating disadvantage for them in access to employment and social benefits, in violation of the Convention’s anti-discrimination principles”,123 could apply, mutatis mutandis, to the situation of the Roma under the Racial Equality Directive: Where the rules or practices relating to nationality create an obstacle to the exercise by the Roma of the right not to be discriminated against in the access to employment, to vocational guidance and training, to social protection or social advantages, to education, or to goods and services that are available to the public, including housing, should these rules and practices not be challenged as discriminatory in precisely the very fields the Directive covers? The Racial Equality Directive also exempts differences of treatment based on nationality from its prohibitions of discrimination (Article ()). But neither this provision nor Recital  of the preamble of the Directive excludes that differences of treatment based on nationality, which constitute indirect discrimination on grounds of race  ECJ, case C-/, Mario Vicente Micheletti and others v. Delegación del Gobierno en Cantabria, judgement of  July , [] ECR I-, para. .  Article () of the Racial Equality Directive.  Article () of the International Convention on the Elimination of All Forms of Racial Discrimination.  Committee on the Elimination of Racial Discrimination, General Recommendation : Discrimination against non-citizens, adopted at the th session of the Committee,  February- March  (CERD/C//Misc./rev.), at para. .  Ibid., para. .



Olivier De Schutter and Annelies Verstichel or ethnic origin, are exempted from the general prohibition of discrimination imposed under Article  of the Directive. Apart from the argument put forward by Toggenburg, according to which Article () might not exempt nationality-based differences of treatment practiced by private persons, this provision could also be read as clarifying that although differences of treatment based on nationality as such remain allowable and are not affected by the Directive, where such differences of treatment have a discriminatory impact on groups defined by the race or ethnic origin of their members, they might have to be justified under the criterion defined in Article ()(b), according to which provisions which are apparently neutral as to race or ethnic origin, but which put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, may only be admitted if they are objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. B. Moving beyond the Racial Equality Directive We would conclude from what precedes by paraphrasing Christopher McCrudden: Generally, the inclusion of groups excluded from the mainstream of society, especially when this exclusion is entrenched across a diversity of sectors as is the case of the Roma, is seen as an issue of social policy; the EU Network of Independent Experts on Fundamental Rights has argued, in substance, that it should be seen as an issue of legal policy.124 In its most recent Thematic Comment on the Rights of Minorities in the European Union, the Network explores two avenues for reform. First, it has put forward the idea of a Directive addressed to the situation of the Roma, which would make it possible to take into account their specific needs, especially in the fields of education and housing. There are two problems with this proposal. One is that it may be undesirable to adopt an instrument specifically addressing the situation of one community, where other groups may be in need of a similarly reinforced protection. But, of course, the counter-argument is that there exists no other group whose situation is comparable to that of the Roma in the enlarged European Union, and that the adoption of such an instrument would send a strong political signal that the situation of the Roma is seen as a priority by the Union. The second problem, however, is that of the legal basis on which such a Directive could be proposed. Article () EC states that the Council “may take appropriate action to combat discrimination” based on, inter alia, “racial or ethnic origin”. The argument has sometimes been put forward that a directive promoting integration has an objective distinct from combating discrimination, and that, therefore, it would not be possible, on the basis of Article () EC, to adopt an instrument imposing the adoption of affirmative action measures or desegregation. This argument is debatable. Segregation is a form of discrimination, although the definitions of discrimination contained in the Racial Equality Directive do not explicitly include the notion of segregation, and indeed, as we have argued, may be considered insufficient to effectively address that problem. There is  McCrudden, “Institutional Discrimination …”, : “The continuing absence of racial minority groups from important areas of British life has become a major issue of social policy. It will be the argument of this article that it should also become an important issue of legal policy”.



Integrating the Roma into European Society: Time for a New Initiative a need for more far-reaching, affirmative active initiatives to tackle more effectively the exclusion of Roma: this is because they face a situation of institutional discrimination, as defined above, and which we may presume is included in the conception of discrimination in Article () EC. The real difficulty in the use of Article () EC, in fact, is political rather than legal. Measures adopted under this provision require the member states to agree unanimously within the Council. In the present context, and considering the extremely sensitive character of the issues, it is implausible that a proposal for a Roma-specific directive can be adopted in the near future. Therefore, as recognized by the Network, this route is probably unrealistic. The Network has therefore proposed that, as an alternative, a more open form of coordination of the measures adopted by the member states could be devised in order to tackle the situation faced by the Romani minority. Indeed, since the entry into force on  February  of the Treaty of Nice, Article () EC has provided the possibility for the Council, acting by a qualified majority in co-decision with the European Parliament, to adopt Community incentive measures, excluding any harmonisation of the laws and regulations of the member states, to support action taken by the member states in order to contribute to combat discrimination based, inter alia, on racial or ethnic origin or on religion. The Network considers that this provision provides an adequate legal basis for the launching of a process of collective learning and exchange of best practices between the member states: Under a decision to launch an open method of coordination between the Member States in order to achieve the integration of the Roma/Gypsies, an initiative for which Article () EC offers the adequate legal basis, each Member State would submit at regular intervals a report on the measures which have been adopted in order to make progress towards that goal, which should result in a process of mutual evaluation and contribute to collective learning. The information contained in the reports submitted by the Member States on these measures should be evaluated not only from the point of view of their success in achieving desegregation, but also, no less importantly, in their ability to do so while respecting the right of the Roma/Gypsies to maintain their traditional lifestyle, nomadic or semi-nomadic, where they choose to do so, and on the basis of the international and European standards applicable.125

The Network has also proposed that the template on the basis of which such a process could be launched should be based on Recommendation Rec() on improving the economic and employment situation of Roma/Gypsies and Travellers in Europe addressed by the Committee of Ministers of the Council of Europe to the member states of that organisation, and on the General Recommendation XXVII on discrimination against Roma adopted by the Committee on the Elimination of Racial Discrimination at its th session in . It is important, indeed, that any initiative adopted within the European Union fits within the framework of the international law of human rights, and builds on the acquis of international and European human rights law. This requirement of coherence is especially important from the point of view of the EU member  EU Network of Independent Experts on Fundamental Rights, Thematic Comment No.: “The Rights of Minorities in the European Union”, para. ..

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Olivier De Schutter and Annelies Verstichel states, which should not be facing different expectations – and certainly not conflicting requirements – within the Union, on the one hand, within the Council of Europe and the United Nations human rights treaties, on the other. This option, it should be acknowledged, may encounter scepticism as well, especially in the present context where the tendency is clearly to limit and consolidate the number of open method of coordination processes in the Union. There is however little doubt that the visibility of the Roma in the present OMCs is unsatisfactory. The  study “The Situation of Roma in an Enlarged European Union”, which was commissioned by the Directorate General for Employment and Social Affairs of the European Commission, found that in the field of social inclusion policy, although those new member states with significant Romani populations did name Roma explicitly as a target group for their social inclusion policies, in the old member states only five countries out of  (Finland, Greece, Ireland, Portugal and Spain) have to date named Roma as a target group with their National Action Plans. Roma are not cited in the National Action Plans of Austria, Belgium, Denmark, France, Germany, Italy, the Netherlands, Sweden or the United Kingdom, although reports from all of these countries indicate that Roma are in need of targeted policy actions aimed at social inclusion and eliminating existing discriminatory practices.126 C. Inadequacy of the European Policy Framework It is clear that, however tempting it may be to rely on the adoption of new legal instruments or on the improvement of the institutional framework such as one that could be provided by the inauguration of an open method of coordination for the integration of the Roma, these solutions – quite apart from their political acceptability in an enlarged Union – should not be considered in isolation. Indeed, there remains a lot to be done even with the existing instruments, in order to ensure that they will function more effectively for the benefit of an improved integration of the Roma. The conclusions which the report on “The Situation of the Roma in an Enlarged European Union” draws with respect to the existing initiatives that have been taken to address this situation are quite explicit on the inadequacy of the approaches chosen, and on their failure to deliver what they promise. Even in situations in which the needs of a minority are identified clearly, it is often the case that the level of policy response is inconsistent with the level of assessed need. Where Roma-specific policies exist, few have yet to demonstrate durable impact. Several of the old member states began undertaking policies in the s or even earlier. In some areas, these have yielded results, but according to the study the Commission was presented with, not nearly to the level required under current anti-discrimination and social inclusion policy. Most of the comprehensive government policies in effect in Central and Eastern Europe date from no earlier than  (Hungary) and in most cases were adopted even more recently. To date, they remain underfunded, at very preliminary stages of implementation, and often resemble more a menu of desired outcomes than viable and realistic outcomes. Universally there also appear to be significant deficiencies in terms of targets  European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma …”, -.



Integrating the Roma into European Society: Time for a New Initiative for assessing the success of the existing policies, making it thus difficult to see to what standards policy makers aspire in the implementation of many Roma-related policies. Consultation with Roma and Roma participation in the design and implementation of policies intended to benefit them is currently very modest, where existing at all, and generally hesitant. In some cases, member states have adopted measures which eliminated previous gains. In , for example, the United Kingdom (UK) adopted an act removing the obligation of municipalities to provide halting sites for gypsies and travellers, effectively eroding close to three decades of progress in the area of traveller accommodation, education and other positive measures.127 Furthermore, a very powerful force for undermining social inclusion projects targeting Roma is local opposition. Local authorities frequently use discretionary powers to block the implementation of projects aimed at improving the situation of Roma. Examples are given by the report delivered to the Commission.128 Central policies and funding through EU programmes – such as the European Regional Development Fund – may be rendered ineffectual by inadequate commitment and knowledge at the local level. There is scope for using structural funds for the improvement of capacity at the local levels.129 Another problematic issue is the accessibility of funding of EU policies. EU funding is fragmented, complex and is very difficult to access particularly for civil society actors. Moreover, complexity of funding does not encourage transparency in the application for, and use of, funds. The experience with the Phare Programme has shown that it has been particularly successful where projects have been designed with an eye to building stakeholder capacity to work under future structural funding mechanisms, facilitating future access to EU discretionary funds.130 IV. Conclusion Article I- of the Treaty establishing a Constitution for Europe defines the values of the Union as “respect for human dignity, freedom, democracy, equality, the rule of law

 Ibid., . It is this policy that was challenged in a series of cases presented to the European Court of Human Rights, which however did not consider that it could identify a violation of Article  ECHR – either alone or in combination with Article  ECHR – as a result of this policy. See ECtHR, Buckley v. the United Kingdom, judgment of  September , ECHR -IV; ECtHR, Chapman v. the United Kingdom, Appl. /, judgment (Grand Chamber) of  January ; ECtHR, Beard v. the United Kingdom, Appl. /, judgment (Grand Chamber) of  January ; ECtHR, Coster v. the United Kingdom, Appl. /, judgment (Grand Chamber) of  January ; ECtHR, Jane Smith v. the United Kingdom, Appl. /, judgment (Grand Chamber) of  January ; ECtHR, Lee v. the United Kingdom, Appl. /, judgment (Grand Chamber) of  January .  European Commission, DG Employment and Social Affairs, Unit D, “The Situation of Roma …”, -.  Ibid., .  Ibid., .



Olivier De Schutter and Annelies Verstichel and respect for human rights, including the rights of persons belonging to minorities”.131 This text thus mentions for the first time explicitly the rights of persons belonging to minorities in the primary law of the Union. For the moment at least, at best until , the Constitutional Treaty has been swept aside by the results of the referenda held in France and in the Netherlands on  May and  June , respectively. This of course does not mean that the rights of minorities may be ignored in the law- and policymaking of the Union: The Charter of Fundamental Rights, which will continue to be the main reference document on fundamental rights in the Union, whether or not it is incorporated in the Treaties, not only prohibits any discrimination based on, inter alia, ethnic origin, language, religion or membership of a national minority;132 it also protects rights such as freedom of religion, the right to respect for private life, or freedom of association, which have an important role to fulfil in ensuring that the members of minorities may express, preserve and develop their identity. More importantly, it would be a complete misunderstanding to believe that, simply because the notion of minorities does not appear in the current Treaties, there would be no possibility for the European Community to take action in order to promote the rights of minorities in the Union. As recalled by resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe, which the European Parliament adopted on  June , Article  EC provides a legal basis for the promotion of certain aspects at least of minority rights: … this legal basis, which is the most far reaching as regards the protection of minorities, [is one on the grounds of which] the Union could, on the basis of its experience, develop ... initiatives that have already been implemented and strengthen various articles of the FCNM, such as Article (), Article () and () and Articles  and  thereof.133

The message of this article has been very simple. On the basis of Article  EC, important legal instruments have been adopted, which go a long way towards addressing the needs of ethnic and religious minorities in particular, and among the former, the 

The expression in italics did not figure in the Draft Treaty establishing a Constitution for Europe submitted by Mr Valery Giscard d’Estaing, the president of the European Convention, to the European Council. It was inserted during the Intergovernmental Conference which followed, at the initiative of Hungary.  As has been recalled, Article () of the Charter of Fundamental Rights states that “[a]ny discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.” The enumeration of Article  of the Charter is strange, however. It is well known that the concept of ‘national minority’, such as it appears in particular in the Council of Europe Framework Convention on the Protection of National Minorities (FCNM), includes ethnic, cultural, linguistic and religious minorities (see, for instance, the th Recital of the preamble to that Convention). Thus there is a certain redundancy in the enumeration, in any event not limitative, of Article  of the Charter.  European Parliament Resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe (/(INI),  June , para. .



Integrating the Roma into European Society: Time for a New Initiative needs of the Roma. But confronting the situation of the Roma with the provisions of the Racial Equality Directive shows that more can and should be done. Article () EC could be relied upon by the European legislator either to improve further on that Directive, for instance in order to extend its scope of application to the delivery of administrative documents, in order to explicitly include segregation as a form of prohibited discrimination, or in order to adopt another instrument, complementary to the Racial Equality Directive, addressing in a more focused manner the specific needs of the Roma, while remaining attentive to the preservation of their traditional lifestyle for those wishing not to renounce it, and ensuring that such a measure is based on a consultation of the Roma themselves. Article () EC could be relied upon to encourage the member states to share the best practices they are developing in order to accelerate the integration of the Roma, and to monitor, better and more systematically than they do at present, the situation of the Roma in fields such as housing, education, employment, or healthcare, where the Roma are not specifically considered in the national action plans or the social inclusion plans of most member states at present. To those who would ask why such far-reaching measures would be required in order to combat discrimination against the Roma, and why we could not afford to wait and see whether the Racial Equality Directive effectively improves their situation to the full extent desirable – and we believe their question is an entirely legitimate one – our answer has been that the form of the discrimination faced by the Roma may not be reduced to discrete acts by individual actors, or to the existence of certain pieces of legislation, which will be weeded out as the Racial Equality Directive becomes more widely known, and more systematically invoked. The discrimination the Roma are facing has lasted for generations. It affects them in all the spheres of life that matter for social integration. Entire groups of Romani children, today, are sitting in separated classes meant for mentally disabled children; entire communities of Roma are confined to ghettos where they are living in substandard conditions; as documented for instance in the reports on the progress made by the new member states towards accession, and the life expectancy of the Roma is significantly lower than that of the average of the population. The question is not simply that any individual Roma applying for a job, or seeking to have his or her child attend a school, is denied employment or the possibility to register; it is that a whole community should be integrated when it has for so many years been subjected to systematic exclusion and segregation. Of course, real integration requires active social and economic policies targeted towards this aim. But, while it should not exonerate us from encouraging the adoption of such policies, the law also is a powerful tool; it is our responsibility to use it the best way we can.

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D. SPECIAL FOCUS: THE CAUCASUS REGION

Jonathan Wheatley*

Integrating Minorities in Weak States: The Case of Georgia

I. Introduction By focusing on the case of Georgia, this paper explores what happens when a state lacks the capacity to integrate national minorities by providing basic public goods and by ensuring the participation of minorities in the political and economic life of a country. Modern states are expected to perform a number of functions, including the provision of security, the supply of public goods such as pensions, healthcare and education, and the establishment of certain mechanisms to ensure that citizens somehow identify with the state and perceive it as legitimate.1 In Georgia and other successor states of the USSR, the state often fails to perform these core functions and this adversely affects the prospect of integrating national minorities into civic life in a peaceful manner. First, security is undermined by contested borders and disputed territories, by ineffective armies and by corruption within law enforcement agencies. This affects minorities disproportionately, as they often lack the capacity to protect their own vital interests from arbitrariness and banditry. Secondly, public goods such as healthcare and education are not provided and basic infrastructure (roads, electricity, etc.) is not maintained. Of course, this undesirable state of affairs is not confined to those areas in which national minorities are concentrated, but it still makes the integration of national minorities into civic life problematic. Finally, due to bad governance, immature democratic institutions and (often) a lack of knowledge of the state language on the part of national minorities, minorities are unable to participate in the social, economic and political life of their own state as citizens and often identify instead with a neighbouring kin-state. The functions of the state identified above correspond to the three core functions of statehood described by Milliken and Krause: providing security, providing welfare

*



Research Associate for the project “Accounting for State-Building, Stability and Violent Conflict” (funded by the Volkswagen Foundation) at the Osteuropa Institut, Free University of Berlin. Max Weber highlights the importance of legitimacy in his definition of the state as “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory” (emphasis added). See Max Weber, “Politics as a Vocation”, in H. H. Gerth and C. Wright Mills (eds.), From Max Weber: Essays in Sociology (Oxford University Press, New York, ), .

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 447-460. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Jonathan Wheatley and providing representation.2 A weak state is one that fails to fulfil these three functions. As I shall show below, state weakness makes it difficult for members of national minorities to exercise their full rights as citizens. This paper will limit itself to a discussion of the two most numerous national minorities in Georgia. These are the Azeris, who live in the Kvemo Kartli province of southeastern Georgia and make up . % of the country’s total population, and the Armenians, who are concentrated in the southern region of Javakheti close to the border with Turkey and Armenia and make up . % of the population (according to the  population census). I will begin with an overview of events in Georgia since  and will describe how the collapse of the Soviet state and the overthrow of Georgia’s first president, Zviad Gamsakhurdia, left Georgia as what is often described as a ‘failed state’ and increased the pressure on national minorities both from hard-line Georgian nationalists and from paramilitary gangs. I will then describe how, in the mid-s, President Shevardnadze was able to partially restore state authority in those areas in which the Azeri and Armenian minorities were concentrated. At the same time, I will show that he did not achieve this by establishing institutions of representation through which members of minorities could participate in the political and economic life of the country, but instead used a process of cooptation. Thus, he ‘bought’ certain influential figures within the two communities by offering them state posts in exchange for their loyalty. Next, I will briefly discuss the ‘state of the state’ in Georgia during Shevardnadze’s presidency in terms of state provision of public goods to minority communities. The inability of the Georgian state either to provide public goods or to establish any form of democratic accountability, I will argue, led to a lack of identification on the part of minorities towards the Georgian state and reinforced the role of kin-states (i.e. Armenia and Azerbaijan) as mediators between minorities and the Georgian government. Finally, I will turn to the events after the ‘Rose Revolution’ in  and discuss how President Mikheil Saakashvili’s stated desire to integrate national minorities into a strong nation-state has affected the relationship between the state and minorities. II.

The Collapse of the Soviet State and Georgia’s ‘Time of Troubles’

Following the events of  April , when Soviet Interior Ministry troops used violence to crush a peaceful pro-independence demonstration in Tbilisi, resulting in the deaths of  protesters, the political initiative in Georgia passed to a group of hard-line nationalist ex-dissidents, of whom the most prominent was the foreign literature scholar, Zviad Gamsakhurdia. The Georgian Communist Party, which nominally remained in power until the victory of Gamsakhurdia’s “Round Table–Free Georgia” bloc in the parliamentary elections of October , became increasingly anxious to demonstrate its ‘patriotic credentials’ and more and more adopted the policies and rhetoric of the nationalist opposition. Given the categorization by Gamsakhurdia and other nationalist leaders of national minorities as (often ungrateful) guests, by mid- pressure on Georgia’s minorities had begun to mount. In Kvemo Kartli, many Azeri industrial managers and directors of collective farms were replaced by Georgians, some of whom had 



Jennifer Milliken and Keith Krause, “State Failure, State Collapse and State Reconstruction: Concepts, Lessons and Strategies”, () Development and Change (), -.

Integrating Minorities in Weak States: The Case of Georgia recently arrived from the mountainous region of Svaneti after avalanches and landslides had forced them from their former homes. Nationalist groups intimidated members of national minorities, often with the covert backing of the communist authorities. One result of this intimidation was that almost all Azeris were forced to leave the town of Bolnisi, resettling either in neighbouring rural areas, where they still made up a majority, or moving to neighbouring Azerbaijan. In the Armenian-populated areas of Javakheti (Akhalkalaki and Ninotsminda districts), the local population put up much stiffer resistance to pressure from Georgian nationalists. In , the Javakh movement had been founded in Akhalkalaki as a coordination committee of local public organizations, ostensibly to defend Armenian culture, to protect national institutions and to promote the development of the region. Increasingly it came to constitute a kind of ‘popular front’ for local Armenians advocating greater autonomy for Javakheti and resisting encroachments from Georgian nationalists. During Gamsakhurdia’s term in office, Javakh dominated political life in the region and even prevented Gamsakhurdia from imposing his choice of prefect (district administrator or gamgebeli) on Akhalkalaki district, eventually forcing the Georgian government to accept one of its own leaders, Samvel Petrosyan, as prefect instead. In Kvemo Kartli, the Azeri intelligentsia formed a similar public organization, called Geyrat, which was founded in Marneuli in February  to prevent the Azeri population from being forced out of the country. While Geyrat was partially successful in this respect, it was not as influential as Javakh and failed to prevent the out-migration of Azeris in the more peripheral areas of Kvemo Kartli, such as Dmanisi. Following Gamsakhurdia’s overthrow in January , Georgia entered a period of near statelessness.3 Real power rested with a number of paramilitary groupings, the most prominent of which were the National Guard and the Mkhedrioni (Horsemen). The National Guard had originally been established as an official body by Zviad Gamsakhurdia in January  under the leadership of Gamsakhurdia’s childhood friend, Tengiz Kitovani, but Kitovani had turned on Gamsakhurdia in August of the same year and had taken part in his overthrow. The Mkhedrioni, on the other hand, was not formed as a state structure; instead, it had been founded as a patriotic military formation in  by the charismatic bank robber turned theatre critic, Jaba Ioseliani. By , both organizations were heavily-armed mafia-type groupings that resorted to extortion and theft to obtain resources. Both were involved in the illegal arms trade, often with Russian army units that were still stationed in Georgia. In addition to these two main paramilitary organizations, many other smaller armed groupings or ‘brotherhoods’ flourished and used very much the same methods as their larger and more wellorganized counterparts. Thus, law and order had virtually completely broken down and rival militias were engaged in nightly gunfights throughout the country. In Javakheti, the local Armenian community was relatively successful in protecting itself from the worst ravages of this period of chaos. The leaders of Javakh were in effective control of the region and set up armed patrols to prevent the various paramilitary bands from entering the region. In Kvemo Kartli, it was not so easy to maintain order, especially as the main roads into Azerbaijan and Armenia passed through this region and were favourite routes for drug traffickers and traders of other forms of contraband. 

Zviad Gamsakhurdia had been elected President of Georgia in May .



Jonathan Wheatley For example, the mainly Azeri village of Vakhtangisi near the border with Azerbaijan acted as a trading post for drug traffickers from both Georgia and Azerbaijan. As a result, much of society was criminalized and addiction rates amongst young men were very high. Geyrat did, however, mobilize to protect Azeri citizens: under the organization’s initiative, patrol groups of vigilantes were formed in many villages to protect local residents from marauders. III. Shevardnadze’s Consolidation of Power In the  months that followed Eduard Shevardnadze’s return to Georgia on  March , the former First Secretary of the Georgian Communist Party was unable to reverse the chaos and disorder that gripped the country. However, following Georgia’s defeat by Abkhaz forces in Sukhumi in September , Shevardnadze decided to act. He reinforced and revitalized the old Georgian Ministry of Internal Affairs (i.e. the police), which, as a union-republic ministry, had not been ‘decapitated’ by the collapse of the Soviet state and which Shevardnadze himself had headed during his time as Georgian Minister of Internal Affairs from  to .4 Gradually he rebuilt a chain of command by reactivating the old police, Communist Party and Komsomol networks with which he was already familiar. However, this did not come without a price, as he was often forced to coopt members of paramilitary groups into the police force as well as powerful ‘strongmen’ from many of Georgia’s regions in order to undermine the unofficial armed formations (see below). In Javakheti and Kvemo Kartli, the criminal situation improved significantly. In March , a joint operation between the law enforcement bodies in Georgia and Azerbaijan defeated the criminal gangs that controlled Vakhtangisi. The restoration of law and order led many members of national minorities and, more particularly, their leaders to view Shevardnadze as the best leader to protect their interests. However, besides contributing to a reduction in violence, the state provided few ‘solutions’ to the everyday problems faced by the population and made little effort to integrate the minorities. The Georgian government under Eduard Shevardnadze was able to reestablish a ‘chain of command’, linking the leadership of the state in the capital with the national minorities in the regions by coopting the most influential figures from within their communities. Cooptation meant providing these local leaders with posts in official power structures at a local level and allowing them to amass wealth through corruption. These local leaders, their associates and members of their families would then be able to control the local economy by dividing up the key economic resources of the district amongst themselves. In exchange, they would demonstrate their loyalty both to Shevardnadze and to the provincial governor and refrain from pursuing a political agenda or demanding special status for the ethnic minorities to which they belonged. 



In the USSR, there were two categories of ministries: all-Union ministries and Unionrepublican ministries. All-Union ministries had no counterparts at republican level. The Ministry of Defence was an all-Union ministry. Union-republican ministries, on the other hand, existed at the level of the republic, although they also had their counterparts at allUnion level, which would exercise a supervisory role.

Integrating Minorities in Weak States: The Case of Georgia Probably the two most powerful Armenians to be coopted by the Georgian government were the businessmen Enzel Mkoyan and Melik Raisyan. Mkoyan had begun his career as a Komsomol (Communist Youth League) official in Akhalkalaki region and, during the last days of communism, had established his own enterprise exporting stones for building materials. In , he was elected majoritarian MP for Ninotsminda and a member of his close circle, Artush Ambartsumyan, became Administrator (gamgebeli) of Akhalkalaki district. Raisyan was part of a powerful local family whose business interests dated back to the s or even earlier. His father, Karlos Raisyan, had been the head of a Soviet gas bottling factory and, after the collapse of the USSR, he bought gas from Azerbaijan and sold it to Armenia (the border between these countries having been closed as a result of the conflict in Nagorno-Karabakh).5 In the  parliamentary elections, Raisyan was elected as member of parliament for the single mandate constituency of Akhalkalaki with the support of the ‘ruling party’, the Citizens’ Union of Georgia (CUG), of which Shevardnadze was chairman. From the mid-s, Javakh’s power gradually began to diminish. In , despite the movement’s opposition, the Georgian government created a de facto Georgian province out of Samtskhe-Javakheti and Shevardnadze appointed his own ‘authorized representative’ or governor to the province. The merger of the mainly Georgian Samtskhe with Javakheti was a clear signal that Tbilisi had no intention of granting any form of autonomy whatsoever to the Armenian population of Javakheti. In addition, the Georgian government adopted a strategy of ‘divide and rule’ with respect to Javakh by offering leading members of the organization administrative offices in the police and other local power structures.6 This strategy was put into effect by Gigla Baramidze, who was the governor of Samtskhe-Javakheti from  to .7 As a result of the cooptation policy promoted by Shevardnadze and Baramidze, Javakh fell apart as other former leaders of the movement emigrated to Russia. Meanwhile, economic life in Javakheti was dominated by so-called ‘clans’ – economic groups led by Mkoyan, Raisyan and certain former leaders of Javakh. Baramidze favoured the interests of Mkoyan and his associates and became a kind of ‘sponsor’ for this group, while Raisyan relied more on the support of the chairman of the Georgian parliament, Zurab Zhvania. In , Shevardnadze had appointed Levan Mamaladze as governor of Kvemo Kartli. Mamaladze was an ambitious young politician who had previously belonged to the Green Party and he rapidly built his own power base by controlling the local economy and by allotting patronage to influential figures within both the Georgian and Azeri communities. Members of Geyrat were coopted into the local power structures, first by being offered posts in the local administration and later by playing an active role in the pro-government party, the CUG. In the  parliamentary elections, Zumrud Qurbanov, one of the leaders of Geyrat, was elected to parliament on the CUG party list  



Rusiko Mumladze, “Clan-based rule in Samtskhe-Javakheti”, Rezonansi,  March . Samvel Petrosyan became a deputy head of the local traffic police, another of Javakh’s founders became head of the local pension fund and a third was made head of the local registration office. Gigla Baramidze was the last ever First Secretary of the Georgian Komsomol. He had also been ambassador to Armenia – a post which he held simultaneously with the post of governor for several years.



Jonathan Wheatley and another Azeri, Azer Suleimanov, was elected as single mandate member of parliament for Marneuli with Geyrat’s backing.8 However, there were significant differences in the way patronage networks were built in Kvemo Kartli and Javakheti as regards local administrative posts. In Javakheti, district (rayon) administrators (gamgebelis) were invariably Armenian, as were the holders of most of the top posts at district level such as chief of police, head of the district tax inspectorate, head of the local education department and prosecutor. In Kvemo Kartli, by contrast, all these posts were held by Georgians, even in Marneuli district where more than four fifths of the population is Azeri. Ethnic Azeris were allotted far more minor posts in the local administration – of which deputy gamgebeli was the most senior – and, at village level, loyal Azeris were granted privileged access to land. The differential treatment of the two communities was partly due to the fact that the Armenian minority totally dominated the two districts of Javakheti numerically, while in Kvemo Kartli the Azeri population was more intermingled with Georgians; however, it was also due to the relative weakness of Azeri society in defending its own interests in comparison with the more organized Armenians of Javakheti. Like other regions of Georgia, Kvemo Kartli and Javakheti lacked effective representative bodies capable of articulating the interests of the local population. The Organic Law on Local Self-Government and Administration established locally elected councils or sakrebulos for each of Georgia’s districts, cities, towns and communities (temi in Georgian, which usually refers to clusters of villages).9 However, in reality, these new representative bodies were virtually impotent as real power rested with the local administrators – governors and gamgebelis – who were appointed by the president. In , the Organic Law was amended somewhat to ensure that all gamgebelis first be elected members of sakrebulos before being appointed by the president, but this new requirement made little difference. In all districts of Javakheti and Kvemo Kartli, the incumbent gamgebelis were able to retain their posts after the  local elections by using the ‘administrative resources’ they had at their disposal to get elected to town and community sakrebulos. Governance in both regions was implemented not by local self-government but by the centre placing trusted clients in top administrative posts and allowing these clients to run their districts more or less as they saw fit. In terms of providing representation and welfare, the regions in which national minorities were concentrated were virtually neglected by the Georgian state. IV. Non- Provision of Public Goods The Georgian state’s failure to provide basic goods such as health, education, electrical energy and a reliable transport infrastructure was marked, even in comparison with other former Soviet successor states. Table  shows how, in terms of public expenditure as a percentage of GDP, Georgia spent less money on health and education in 





Georgia Press Digest,“ICCC Press Review”, - October , at , accessed February , quoting Rezonansi , October . The Organic Law on Local Self-Government and Administration was approved on  October .

Integrating Minorities in Weak States: The Case of Georgia  than all other former Soviet republics, with the exception of Tajikistan. Given the fact that GDP in Georgia had contracted by over  % in real terms since , these sums were paltry indeed. Health and education as public services had virtually ceased to function and informal under-the-table payments exceeded state funding by many times. State pensions were also insignificant –  Lari (USD.) per person per month. Unemployment benefit was even more paltry: the United Employment Fund that is supposed to provide support for the unemployed received just GEL . million Lari in  – approximately enough to pay every unemployed person GEL  per year!10 Finally, outside the capital Tbilisi, virtually no electricity was provided at all unless one either paid – or had a personal rapport with – someone within the local power distribution network. While the inability of the state to fulfil the basic function of providing public goods was felt throughout Georgia, in Kvemo Kartli and Javakheti the resulting disenchantment often took on an ethnic hue. The perception was that these two regions were being deliberately neglected because ethnic minorities were living there. In Javakheti, the state’s incapacity to provide public goods was exacerbated by the severe climate (night-time temperatures in winter are known to fall below minus  degrees Celsius) and by the distance from the capital, which increased the relative isolation of the region, given the poor state of the roads connecting it with the rest of Georgia. The desperate state of the local economy that resulted from this state of affairs led many local Armenians to travel to Russia for seasonal work, arousing suspicions amongst the local population that there was a deliberate and covert policy of neglect or ‘white genocide’ to force members of national minorities to leave the country. In Kvemo Kartli, on the other hand, the main problem was the scarcity of well-irrigated land and the fact that the Georgian state’s incapacity to provide impartial institutions of arbitration meant that much of the best land fell into the hands of individuals who were close to the local and national political elites (most, though not all, of whom were ethnic Georgians).

 United Nations Development Programme, National Human Development Report, Georgia , at .



Jonathan Wheatley Table . Expenditure on Health and Education in the Former USSR11 Republic Armenia Azerbaijan Belarus Estonia Georgia Kazakhstan Kyrgyzstan Latvia Lithuania Moldova Russia Tajikistan Ukraine Uzbekistan () Lower Middle Income Average

GDP per capita (USD)              

Spending on education (% GDP) . . . . . . . . . . . . . . .

Spending on health (% GDP) . . . . . . . . . . . . . . .

Probably the key public good that affected the relationship between national minorities and the majority was education, specifically the teaching of the state language (Georgian). Georgian is the only state language in Georgia (although the Georgian state has conceded that Abkhaz should be a second official language in the breakaway republic of Abkhazia), all central state offices operate only in Georgian and, thus, official documents are published only in Georgian. Moreover, virtually all of Georgia’s state and independent mass media work in Georgian. Lack of knowledge of the state language amongst members of national minorities in those regions in which they are concentrated (Kvemo Kartli and Javakheti) therefore bars their participation in the political life of the country and limits the possibility of them obtaining employment in the state sector. Due to their lack of knowledge of the state language, both Armenian and Azeri communities became increasingly isolated from the Georgian population and ever more alienated from the state. In Javakheti and Kvemo Kartli, most members of the national minorities could not speak Georgian and this made communication with Georgians problematic. The language barrier increasingly became a barrier to contact between 



Expenditure fgures for Armenia only include central government expenditure. The true figures may therefore be somewhat higher. Figures given for GDP per capita for Azerbaijan may be artificially low, since official population statistics are probably exaggerated. For Georgia, the figures given for health expenditure include funds spent by the extra-budgetary State Medical Insurance Company (SMIC). The relevant data on expenditure by SMIC was taken from the UNDP’s National Human Development Report (). To calculate figures for GDP per capita in Uzbekistan, an estimate of the unofficial exchange rate of USD : UZS  was made. This estimate was based on IMF data.

Integrating Minorities in Weak States: The Case of Georgia young people as Russian began to lose its role as the language of interethnic communication. The youth, especially Georgian youth, could no longer speak Russian fluently enough to communicate. State programmes to teach Georgian to national minorities were underfunded and poorly organized. As a result, they were mainly symbolic and virtually totally ineffective. Their lack of success was compounded by suspicions amongst some members of minorities (especially the Armenian minority) that the ultimate goal of the Georgian state was forced assimilation. The result was that educated members of ethnic minorities would obtain their higher education in Yerevan and Baku (or even Moscow) and would belong more to the Armenian or Azeri ‘cultural space’ than to the Georgian. The rest of the population meanwhile – unable to read Georgian newspapers, watch Georgian television or understand Georgian laws – remained in total ignorance of their rights and of what was going on in their country. Cynics attributed this to a deliberate policy of the Georgian government to keep minorities ignorant in order to more effectively ‘deliver’ their vote to the president and to the CUG. Whatever the case, the situation was hardly conducive to the goal of building a ‘demos’ or nation based on the principles of citizenship and equal rights. In the case of the Azeri population, who were almost totally unrepresented in local state structures, it meant total estrangement from the Georgian state. Sources: Tajikistan – International Monetary Fund, “Republic of Tajikistan: Selected Issues and Statistical Appendix”, IMF Country Report No. / ( January ); Kyrgyzstan – International Monetary Fund, “Kyrgyz Republic: Selected Issues and Statistical Appendix”, IMF Country Report No. / (February ); Moldova – International Monetary Fund, “Republic of Moldova: Statistical Appendix”, IMF Country Report No. / (February ); Uzbekistan – International Monetary Fund, “Uzbekistan: Recent Economic Developments”, IMF Staff Country Report No. / (March ); Azerbaijan – International Monetary Fund, “Azerbaijan Republic: Statistical Appendix”, IMF Country Report No. / ( January ); Armenia – International Monetary Fund, “Republic of Armenia: Statistical Appendix”, IMF Country Report No. / (October ); Georgia – International Monetary Fund, “Georgia: Selected Issues and Statistical Appendix”, IMF Country Report No. / (November ); Paata Bolashvili, “Fiscal Autonomy Problems of Local Government in Georgia”, Paper for the Open Society Institute’s Local Government and Public Service Reform Initiative, at ; United Nations Development Programme, National Human Development Report Georgia, ; Ukraine – International Monetary Fund, “Ukraine: Statistical Appendix”, IMF Country Report No. / ( June ); Kazakhstan – International Monetary Fund, “Republic of Kazakhstan: Selected Issues and Statistical Appendix”, IMF Country Report No. / ( July ); Belarus – International Monetary Fund, “Republic of Belarus: Statistical Appendix”, IMF Country Report No. / (May ); Russia – International Monetary Fund, “Russian Federation: Statistical Appendix”, IMF Country Report No. / (September ); Latvia – Latvian Department of Statistics at ; Lithuania – Organization for Economic Co-operation and Development (Directorate for Financial, Fiscal and Enterprise Affairs, Centre on Tax Policy and Administration), “Fiscal Design Across Levels of Government Year  Surveys, Country Report: Lithuania FINAL” (rd May ); Estonia – Organization for Economic Co-operation and Development (Directorate for Financial, Fiscal and Enterprise Affairs, Centre on Tax Policy and Administration), “Fiscal Design Across Levels of Government Year  Surveys, Country Report: Estonia FINAL” (rd May ).

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Jonathan Wheatley V. ‘Nation-Building’ in the Aftermath of the ‘Rose Revolution’ Following the ‘Rose Revolution’ of November , it became the stated policy of the new government to integrate national minorities on the basis of a Georgian citizenship that could be shared by all inhabitants of Georgia, irrespective of ethnicity. Although this was the official state policy prior to Shevardnadze’s overthrow, it was stated far more explicitly by the new government than by the previous one. Here, an extract from President Mikheil Saakashvili’s speech to the congress of his party, the National Movement on  November  is illustrative: True heroes are Shorena [a young teacher who addressed the conference earlier] and hundreds of other young idealists like her, remarkable people for whom their homeland is more than simply empty words and drum-beating, or some general flag waving or preservation of rituals, although the preservation of rituals is very important when talking about the state. This is her daily work. Shorena did not tell you that every morning – when I met her, I specifically asked her about it – she gets up at six o’clock and takes four different buses to go from Tbilisi to Sadakhlo [a place with a large ethnic Azeri population]. She spends more than half her salary on these buses, so that she can teach not just the Georgian language, but also Georgian national consciousness. These are the kind of people who are building the new Georgia.12

This new nation-building initiative can be criticized on normative grounds, namely: It is not the aim to “teach … Georgian national consciousness” contrary to the undertaking enshrined in Article  of the Council of Europe Framework Convention for the Protection of Minorities “to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage”?13 Just as nineteenth-century nation-building in France was based on the principle of turning “peasants into Frenchmen”,14 was not the new Georgian government trying to turn members of national minorities into Georgians? Disquiet grew amongst minorities over proposed reforms of the education system, not so much because children from minorities were expected to learn the Georgian language, but more because they feared that they would be taught a ‘Georgianized’ version of history and would no longer be taught the history of their own nation (hitherto Armenian schools in Javakheti and Azeri schools in Kvemo Kartli have obtained their history books from Yerevan and Baku). Georgia signed the Council of Europe Framework Convention for Protection of National Minorities (FCNM), but is yet to ratify it. The Georgian government agreed to ratify the treaty by September  but, at the time of writing, it was unclear whether it would do so. The reluctance to ratify a treaty that gives members of national minori  



BBC International Reports (Former Soviet Union)  November . Original Source: Imedi TV, Tbilisi, in Georgian,  GMT,  November . Article , FCNM. See Eugene Weber, Peasants into Frenchmen: The Modernization of Rural France – (Stanford University Press, Stanford, ).

Integrating Minorities in Weak States: The Case of Georgia ties the right to “enjoy the freedoms flowing from the principles enshrined in the present Framework Convention individually as well as in community with others”15 (emphasis added) can be attributed to a general tendency in Georgian constitutional law to privilege individual rights over collective rights. Thus, the Constitution of Georgia states that “citizens of Georgia are equal in social, economic, cultural and political life regardless of national, ethnic, religious or language origin” and affirms “the right [of all citizens] to develop their culture freely without any discrimination and interference”16 but fails to make any provisions for the collective rights of minorities. Often, the reality on the ground was that the Constitution failed to protect even individual rights: in fact, the inability of members of minorities to speak Georgian effectively prohibited them from participating in “social, economic, cultural and political life”. One main pillar of Saakashvili’s ‘nation-building’ project is the removal of the Russian military presence in Georgia. This has major repercussions for relations between the Georgian government and the Armenian community, since one of the two main bases that remain on Georgian soil is the nd Divisional Russian base, located in Akhalkalaki. This base is important for the local population both economically and psychologically. In the first place, it provides employment to many inhabitants of Akhalkalaki and a source of income for a large proportion of families in and around the city; estimates vary widely as to the number of jobs the base provides, but range from , to ,. Moreover, as Russian military vehicles are not stopped at customs, the base serves as a black market for a variety of goods (particularly cigarettes) that are imported from Russia, which can then be sold on for a profit.17 Finally, as well as the economic benefits that it provides to local residents, the Russian base also provides psychological reassurance as a guarantee of defence against neighbouring Turkey. In the minds of the population, Turkey is still seen as a hostile power, especially given its refusal to recognize what they refer to as the Armenian genocide of , and the base provides psychological reassurance against the perceived threat that nearby Turkey represents. Another problem is that bad governance at the local level has threatened to undermine the effectiveness of any political initiative with regard to minorities. In Javakheti, the old practice of coopting influential figures from within the Armenian community was not abandoned even after the ‘Rose Revolution’. The leaders of the so-called ‘clans’ or strategic economic groups were all brought on board by the new government and given responsible posts. Thus, Enzel Mkoyan was put in charge of Saakashvili’s campaign in the presidential elections of January  and subsequently ran the campaign for the National Movement–Democrats in the parliamentary elections in March of the same year. His former close associate, Ambartsumyan, who had previously been ultraloyal to Shevardnadze, was made special advisor to Saakashvili. Meanwhile, Raisyan was elected to parliament on the party list of the National Movement–Democrats in the March elections and a close associate of his, Artur Eremyan, was made gamgebeli   

Article , FCNM. Article , Constitution of Georgia. Rostom Sarkissian, “Javakhk: Socio-Economic Neglect or Ethnic Unrest?”, DWA Discussion Paper No.  (April ), available at .



Jonathan Wheatley of Akhalkalaki rayon. At the same time, no attempt was made to forge a link between the local political elites and the local population and there was little sign that the old paradigm of ‘governance by patronage’ was changing. By contrast, in Kvemo Kartli, much of the former Azeri elite lost all authority as Geyrat became virtually totally marginalized. MPs close to the organization were not reelected to parliament in  and the new government associated its leaders with Shevardnadze’s discredited government and no longer turned to them for advice. However, in Kvemo Kartli, the key posts at rayon level had never been allocated to national minorities and the most significant development following the ‘Rose Revolution’ was the replacement of Mamaladze’s clients by new (Georgian) personnel in these posts. Many of the new appointees were those who had actively supported Mikheil Saakashvili’s National Movement during the ‘Rose Revolution’. Some were young, came from outside the region and had little knowledge or experience of the complex power balance that existed there. Others had been long-time opponents of Mamaladze but their opposition had been more personal than ideological and their style of governance was little different from that of their old adversary. The mode of governance remained unchanged and was still based on the arbitrary exercise of power. Moreover, the state remained unable to solve the most pressing problem faced by the Azeri population – that of the distribution of land. Land disputes between the local population and various powerful business interests remained unsolved and one such dispute led to violence. In December , local residents from the village of Kulari, in Marneuli district, staged a protest meeting demanding land belonging to a ,-acre horse farm, leased by the Tbilisi-based Jockey Club. The demonstrators, who had gathered around the farm, were fired upon by unknown assailants and a -year-old Azeri woman was killed. This provoked widespread anger amongst the Azeri population of Kvemo Kartli, who accused the management of the farm of firing at peaceful protestors. This outbreak of violence may reflect the fact that Geyrat, which had previously played a kind of intermediary role between the Azeri population and the authorities, was no longer able or willing to mediate. The reduced influence of Azeri elites on political life in Georgia is further reflected in the underrepresentation of Azeris in the Georgian parliament; the parliament elected in - had just three Azeri deputies, compared with six in the previous parliament. VI. Attitudes of ‘Kin-States’ The relationship between the Georgian authorities and national minorities has been dependent to a very significant degree on the relationship between the Georgian government and the governments of Armenia and Azerbaijan. A significant element of this was the personal relationship between the Georgian president and the presidents of the other two republics. Thus, the aspirations of the leaders of Javakh for greater autonomy for Javakheti were effectively quashed by an agreement between Shevardnadze and the then president of Armenia, Levon Ter Petrosian, not to countenance any separatism in southern Georgia. Shevardnadze and Ter Petrosian met in Javakheti in  and the Armenian president made it clear that attempts to destabilize the situation in Javakheti



Integrating Minorities in Weak States: The Case of Georgia would not be supported by the Armenian government.18 This policy was continued by Ter Petrosian’s successor, Robert Kocharian. Good relations with Georgia are particularly important for Armenia as Georgia provides the only transit route for Armenian goods to western markets: the trade route west into Turkey has been blockaded since the war in Nagorno-Karabakh. Armenia is thus dependent on Georgia for trade. The personal relationship between Eduard Shevardnadze and Azerbaijan President, Heidar Aliyev, was probably even stronger than that between Shevardnadze and the Armenian president. During the s, Shevardnadze and Aliyev had been first secretaries of neighbouring republics and had enjoyed a good rapport. As a result of this rapport, Shevardnadze enjoyed the support of much of the Azeri population. It is said that in presidential elections in Kvemo Kartli, local Azeris even looked for the name of Heidar Aliyev on the ballot paper.19 Following the replacement of both Georgian and Azeri presidents, Mikheil Saakashvili and Ilham Aliyev moved quickly to cement their own personal relationship. Georgian President Mikheil Saakashvili visited his new counterpart, Ilham Aliyev, in March , describing Aliyev as his “brother”,20 and Aliyev returned the visit in June when he also came to Marneuli and received a horse as a gift from the new Georgian President. However, in December , tensions emerged between the Georgian and Azeri sides when the Azeri authorities prevented a cargo of goods from entering Georgia on the grounds that they believed the goods were bound for Armenia. It would seem that this may have been a pretext rather than the true reason for the Azeri authorities’ actions: it coincided with the Kulari incident and with a clampdown on the Georgian side on the trade in contraband with Azerbaijan. At the same time, Azeri newspapers were publishing interviews with Geyrat’s leaders in which they complained of discrimination against Azeris in Kvemo Kartli. Also, in December, the speaker of Azerbaijan’s parliament, Murtus Aleskerov, accused the Georgian government of failing to employ local Azeris in the construction of the Tbilisi-Ceyhan oil pipeline, which passes through Kvemo Kartli, and of discriminating against Azeris over land issues.21 VII. Conclusion It now remains for me to summarize what we can learn from the Georgian case in terms of the possibility of establishing peaceful and mutually beneficial relationships between majorities and minorities in multiethnic states. The main lesson to be learnt is that state capacity matters insofar as weak states fail to represent the interests and identities of members of national minorities. Declarations and laws passed to protect the rights of  

 

Voitsekh Guretski, “The Question of Javakheti”, () Caucasian Regional Studies (), available at . Zaza Baazoz, “Georgian Azeris Locked Out By Language”, September . Source: Minelres Archive, at . “Georgian, Azeri Presidents Pledge Friendship”, Civil Georgia: Online Magazine,  March , at . Tamar Mtchedlishvili, “Georgia-Azerbaijan Relations: Contraband Problem Gaining Ethnic Character”,  Hours, No.  ,  December .



Jonathan Wheatley minorities mean nothing unless the state has the capacity to draw minorities into the social, economic and political life of a country and to be perceived by these minorities as legitimate. The Georgian case illustrates how the state’s inability to maintain security, its incapacity to provide basic public goods and its failure to establish impartial institutions for conflict resolution alienated national minorities and hindered their participation in civic life. Due to these shortcomings, the Georgian state failed to protect even the individual rights of members of national minorities that were enshrined in the Georgian Constitution, let alone their rights as a group. Under circumstances of weak statehood, stability in Javakheti and Kvemo Kartli depends to a very large extent on the relationship of the government of Georgia with the governments of the kin-states of Armenia and Azerbaijan. Any deterioration in this relationship, or any destabilization within these two neighbouring countries that could involve their ethnic brethren in Georgia could undermine the capacity of these societies to promote the peaceful transformation of ongoing conflicts. Finally, as well as encouraging Georgia to ratify Council of Europe treaties and declarations, the international community must focus more on good governance, on the establishment of representative institutions and, even more importantly, on the revival of the local economy so that basic public goods can be provided. It must also develop a coordinated policy for the southern Caucasus as a whole, bearing in mind that political processes in all three countries are highly interdependent.



Shavarsh Khachatryan*

Building a New Regime of Interethnic Cooperation in Armenia?

I. Introduction At the opening of a regularly scheduled roundtable, Ms. Hranush Kharatyan, the Head of Armenia’s Department for National and Religious Minorities (hereinafter DNRM) declared that “Armenia is modeling its relationship between ethnic minorities and the state on the principle of ethnic democracy”. “States like Israel have taken a similar concept of building relationships”, she said.1 The roundtable took place at the office of Mr. Manuk Topuzyan, Minister and Chief of Staff of the Republic of Armenia on  October . It was dedicated to the discussion of the Draft Law on National Minorities prepared by the DNRM. This article will examine two issues. Firstly, does the new draft law on national minorities discussed at the roundtable prove that the current regime qualifies as an ‘ethnic democracy’, as defined by Professor Smooha in his working paper “The Model of Ethnic Democracy”?2 Secondly, the article attempts to provide an insight into the future impact of the draft law that is currently under review for adoption in terms of improving the situation of the rights of the ethnic communities in Armenia. There is an immense gap between the claim of building an ethnic democracy in Armenia and the situation for minorities during Armenia’s  years of independence. Present-day Armenia has inherited a territory of , sq km with  ethnic communities. It is the third republic in the contemporary history of the Armenian nation. The first republic was short-lived, existing from  to . Thereafter, Armenia existed as a member state of the Union of Soviet Socialist Republics, gaining its independence from the latter in . During the  years of independence that have followed, the country’s minorities have seen the size of their communities diminishing *

 

Shavarsh Khachatryan is an expert on national and religious minorities as well as legal political affairs at the Helsinki Committee of Armenia, and is also cooperating with the NGO Center for Collaboration for Democracy and the Armenian Center for National and International Studies. This roundtable “Discussing Guiding Principles of Drafting a Law on the Rights of National Minorities” took place in Yerevan, Armenia,  October . S. Smooha, “The Model of Ethnic Democracy”, ECMI Working Paper #, October , at .

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 461-479. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Shavarsh Khachatryan in comparison to the ethnic Armenian majority. From a registered level of .%3 in the census of , the total percentage of the population consisting of minorities went down to as little as . %.4 Changes affecting minority communities have not only been quantitative, but also qualitative – one example is the disappearance of a large Azeri community from Armenia,5 in which several factors played a major role. War waged by Armenia and the Karabakh Armenians against Azerbaijan, the economic blockade by Turkey and Azerbaijan, and the transition from a centrally planned economy to a free market economy all took their toll. Armenia’s first president, Levon Ter Petrosian, was too preoccupied by war and economic transition up to his resignation in  to take steps towards addressing the needs and rights of ethnic minorities. The minority communities have enjoyed different degrees of socialization and inclusion into the economic and political life of the country. There are several factors that affect the degree of vitality of the communities in Armenia. The length of their presence in Armenia and coexistence with ethnic Armenians, as well as the support of a kin-state are among the major ones. The Russian minority enjoys both the financial and cultural support of the Russian Federation. However, this feature has become a negative factor affecting the viability of the Russian community in Armenia: the support of the kin-state can be a lure for those minorities whose kin-state is more stable and economically prosperous to leave Armenia for their motherland. As a result, the Russian minority currently numbers ,. By comparison, in the  census, the Russians numbered ,. The Greek community, whose members counted for , in the census of , are now about ,. On the contrary, the Assyrians, who historically coexisted with the Armenians in the Asia Minor region and moved to present-day Armenia in the early nineteenth century, are less affected: from , their numbers came down to ,.6 Additionally, they have some command of spoken Armenian and their religious affiliation is close to the official denomination of most Armenians. This long coexistence has not been a crucial factor in stopping the exodus of the Assyrian minority, however. As recent research has indicated, the Assyrians, like the Molokans, suffer from poor knowledge of Armenian. The case of the Molokans illustrates the language issues strikingly. The community of Molokans who speak Russian is a confessional group. Since the Armenian language became the state language, with almost % of Armenia speaking it, the sectarian traditions of the Molokans, where the Armenian language is not actively learnt, led to their exclusion from participation in the economic and political life of the country.7 Both the Molokans and the Assyrians have used their  

  



National Census of the Population in  (Finance and Statistics, ), -. Table , “De Jure Population (Urban, Rural) by Ethnicity, Sex and Educational Attainment”, in The Results of the Census of the Republic of Armenia (National Statistical Service of Armenia, Yerevan, ), -. According to the statistical publication National Census of the Population in , the Azeris were the largest ethnic minority group in Armenia, numbering ,. G. Asatryan and V. Arakelova, The Ethnic Minorities of Armenia (Caucasian Center for Iranian Studies, Yerevan, ), -. ‘Hazarashen’, Armenian Center for Ethnological Studies, “The Situation with the Education of the National Minorities in Armenia”, Nationwide qualitative and quantitative ethnographic study commissioned by UNICEF in Armenia (forthcoming ).

Building a New Regime of Interethnic Cooperation in Armenia? knowledge of Russian to look for better living conditions in Russia. By contrast, the Kurds and Yezedis’ (Yezids) Russian skills are much more limited. Being an animal stockbreeding people, they mostly depend on the sale of their cattle. They are less affected by the transition from Russian to Armenian as the country’s official language. Their knowledge of Russian was not good in the Soviet period, while their command of spoken Armenian is sufficient to maintain relations with the majority. However, their numbers fell too: from , (this number included both Yezedis and Kurds), their numbers fell to , and , Yezedis and Kurds, respectively. Thus, two factors played a role in convincing the minorities to leave the country: poor command of the Armenian language and the presence of a kin-state. As a result, the Russians and Greeks dropped to one quarter of their initial numbers, while the Assyrians dropped by one half, and the Yezedis and Kurds by one-third each. The reduction of numbers of Kurds and Yezedis is not that extreme, due to the fact that neither community has a national state of its own. The beginnings of a change in attitude towards the situation of minorities in Armenia can be seen from the period of the presidency held by Robert Kocharyan from . The change from mere passive observation of minorities’ flight from the country was probably prompted by the limited recovery of the economy. It was further prompted by the ratification of the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages in  and , respectively. The regime of Kocharyan, who is currently holding his second term as president, consolidated its power by  and achieved some economic growth. There was also a growing sense of moral justification in granting minorities protection and cultural development. At least some Armenian intellectuals perceived the issue of minority rights as bearing a parallel to the sufferings of the Armenians as minorities in Turkey and Azerbaijan in the past.8 Nonetheless, there was restraint in shaping the policy towards minorities. It was grounded in a number of factors: firstly, the new regime has shown its resistance to any attempt to further democratization; secondly, the continuing economic growth has been too slow to afford more control in the areas of culture, education and religion, particularly in terms of addressing the needs of ethnic groups; thirdly, since the country is under the strong political influence of the Russian Federation, there have been subdued fears that any specific legislative measures for minorities may serve as a back door for even more pressure; fourthly, minorities themselves watched the policy of rights development with significant caution. At least some of them were sceptical of the possibility



Parallels on the situation of the Armenians as minorities in Turkey in the past and at present in diasporas were made at a television roundtable and a seminar, respectively. The television roundtable (H channel) was organized by S. Danielyan, the chairman of the NGO “Collaboration for Democracy”,  March . The seminar “The Rights of National Minorities in Armenia: Armenia’s Prospects after Admission to the Council of Europe” was held by the Armenian Center for National and International Studies (ACNIS) on  July , at .



Shavarsh Khachatryan that invoking special clauses in the legislation would actually allow them to benefit at the hands of an undemocratic regime.9 The development of legislative mechanisms for the protection of the rights of national minorities was rudimentary up to . There are eight Articles directly or indirectly related to minorities in present legislation. The current Constitution (effective as of ), while addressing basic freedoms and rights as applied to all citizens of the country, mentions that minorities “are entitled to the preservation of their traditions and the development of their language and culture” (Article ).10 Legislation deals with language rights (three relevant articles), culture (one article) and judicial proceedings ( Article). Also, there are two articles in the Law on Radio and TV Broadcasting. Article  of the Law on Language encourages use of the minority languages in the territory of the republic of Armenia, gives minorities the right to education and upbringing in their language, and the right to use a minority language in their non-governmental organizations (NGOs). Article  of the Criminal Code of the country gives all citizens and non-citizens alike the right to use their mother tongue in legal proceedings. According to this Article, the translation to mother tongue during legal proceedings should be provided free of charge. From , the Law on Administrative Governance has stated that representatives of minorities elected into local self-government have the right to present official letters in their mother tongue accompanied by their translation in Armenian. The Law on Radio and TV Broadcasting gives minorities the right to transmit information in minority languages and forbids any propaganda against minorities. II. Development of the Draft Law for National Minorities of Armenia From the end of  to , several projects were also under way to design a law on national minorities. The aim of the projects was to design a policy vision in respect of minorities. Four projects have resulted from the activities of the various working groups. One working group represented a party that has seats in the National Assembly. The representative of the party in the National Assembly said that the draft law project was under way, but the final results have not been so far presented for public discussion.11 Another draft was prepared by the Department for Refugees and Migration and presented to minority representatives who eventually declined it in . The same department was responsible for a further draft during the same year. The contents of 

 



Representatives of the Kurdish community expressed their disbelief that any legislative changes could do any good for them. See Zhanna Alexanian, “Armenia Debates Ethnic Rights”, IWPR,  August , at . Constitution of the Republic of Armenia, adopted by the National Assembly in , Art. , at . V. Khachikyan, a deputy of the National Assembly of the Republican Party (Hayastany Hanrapetakan Kuskatsutsun), and a deputy of the Union Party (Dashnaktsustun) made statements that their parties were working on a draft law for the national minorities of Armenia. This took place during the seminar “The Rights of National Minorities in Armenia: Armenia’s Prospects after Admission to the Council of Europe” held by ACNIS on  July , at .

Building a New Regime of Interethnic Cooperation in Armenia? the draft simply declared that minorities have cultural rights and educational rights. It did not go on to propose concrete mechanisms that would enforce any of those rights. Given the inefficiencies of the draft, it was eventually revoked without further broad discussion.12 The most thorough approach that considered the task of designing the law on national minorities in all its complexity was proposed by the DNRM. The DNRM had no blueprint to offer. Instead, it suggested that its proposed draft law should be able to provide a basis that would regulate the relations between the government and the minorities, and between the majority and the minorities, as well as allow the minorities to maintain their identity and protect them from any expressions of racism and extreme nationalism. Although initial approval of the government for such an approach was apparently secured, it was also made clear that while minority rights are to be safeguarded, the state belongs to the majority in whose name it is established. The draft law was to answer a number of questions.13 What is an ethnic minority? What kind of rights should apply to them? What are the major criteria – both quantitative and qualitative – according to which a minority is recognized by this law and becomes the subject of the law or, in other words, who is to benefit from the law? The development of the law presupposed that a selection of rights should apply to the minorities of Armenia in addition to rights that they enjoy equally with other citizens. The set of rights that was chosen indicated how much of a free hand was allowed in designing the law. The choice also indicated what Armenia’s minority policy should look like as a result of the drafting of the law. No limitations to political and civil rights were to apply to minorities. Individual and collective rights were allowed in designing the law. The overall attitude was to ensure full equality, not only in terms of individual rights, but also in terms of all those rights that secure support and development of minorities’ identities. Special rights that may apply to indigenous minorities were considered inapplicable because no minority group in Armenia can be considered indigenous. Special attention was paid to the prohibition of any discrimination. III. Ethnic Democracy The question that may be asked here is whether the draft law met the minimum definition of the rights that are generally provided by so-called ethnic democracies. Let us consider first what rights, according to Smooha’s explanation, are accorded by ethnic democracies to ethnic minorities so that we can check their availability in  

This draft law, dated August , was kindly provided by the Head of the DNRM, Ms. H. Kharatyan. This article considers the provisions of the draft law worked out by the DNRM. The draft has been presented for discussion at a number of roundtables organized for communities of national minorities throughout August, September and November . The version referred to in this article is the English translation of the draft law as of  June . Both Armenian and English versions have not been published.The author was employed as the main expert in the work on the draft law. All of the remarks on the rights of national minorities made by Ms. H. Kharatyan are in relation to the draft version only.



Shavarsh Khachatryan the draft law. The minorities are allowed to use their own language and have their own religious institutions, schools, cultural organizations and various forms of cultural activities. Apart from these rights, the state recognizes other ethnic groups as distinct entities and renders some collective rights to them.14 These can be defined as minority specific rights. The draft law contains all such rights that can be considered minority specific rights. The chapters and terminology used include protective rights ensuring non-discrimination, equality not only of individuals but also equality of groups in their ability to support and develop their identity. The latter chapters include broad special cultural and educational rights as well as some rights of local self-governance. These rights affirm the role of the minority self-governance system. The draft also emphasizes the role of the majority both in its preamble and by making further reference to Armenia’s Constitution. The Armenian Constitution states that “[t]he Armenian People … having fulfilled the sacred message of its freedom-loving ancestors for the restoration of the sovereign state…”. The preamble is also interesting because it also lays down the fundamental principle that grounds the majority’s approval of all minorities’ rights as being based on a similar principle. It further states, “[t]o restore its sovereign and independent state the Armenian people has withstood the most severe test of history. It highly values the right of the peoples to maintain and develop their mother tongue and culture.”15 The use of the terms “the right of the peoples” and “the Armenian people” shows that the Constitution contains wording where only ethnic Armenians are those who are treated as people. Consequently, it is the ethnic groups’ right to have collective rights for maintaining and developing their mother tongue and culture. The wording hides a convenient reference presuming collective rights. The question is, what collective rights does the draft law support? It recognizes that the support and development of the language, culture and education of the minorities is an individual as much as a collective right. The draft law mentions on numerous occasions that it supports the financing and development of this set of minority rights when a given group meets certain numerical criteria.16 It sets several numerical and two qualitative criteria that acknowledge the applicability of full government support to the development of the minority identity. It goes short of providing minorities with the right to implement these rights on their own. In other words, the draft law does not confer the rights on the group but rather it confers them on the individuals. According to Marlies Galenkamp, those rights that are “materially” conferred on the individual but which serve to benefit the collectivity are “imperfect” collective rights.17 The right to cultural development and the right to know one’s own language are among such rights. When an individual may use his/her right to know, study and    



Smooha, “The Model of Ethnic Democracy …”, -. Preamble, Constitution of the Republic of Armenia. Draft Law on National Minorities, Art. ()-(); Art. ()-(); Art. -(); Art. ()(). M. Galenkamp, “Collective Rights”, Report drawn up at the request of the Advisory Committee on Human Rights and Foreign Policy of the Netherlands, , at .

Building a New Regime of Interethnic Cooperation in Armenia? develop the knowledge of the Assyrian language he/she uses his/her individual right. However, the use of this right presupposes the development and knowledge of the language by the Assyrian community. Otherwise, it is difficult to imagine how such an individual right can serve to support the minority in question. When the government supports the development and study of this right, it certainly does it for the minority community even though the carrier of the right remains an individual of the community. However, the government refrains from conferring to the community alone the right to decide how it is going to implement its collective rights. There are two reasons for the recognition of such a collective right: firstly, it is recognized that the support and development of ethnic identity is effectively possible with the support and development of the minority group and by the group itself; secondly, the recognition of this right also presupposes that there should be effective equality of all the groups to have their own cultural and educational systems. As the preamble of the Constitution states, it recognizes that the right to existence is associated with the right to develop one’s ethnic culture. As stated above, the government declares that for financial and administrative reasons it cannot recognize any groups as a holder of such collective rights. It uses several criteria to set out who are the subjects of the collective rights by defining what is a ‘collective right’ according to this draft law. Unsurprisingly, the definition in the terminology sector of the draft states that the “‘collective right’ is such right that is intended for the needs and interests that are possible to protect and develop in the presence of a group even when the carrier of the right is an individual”.18 It further provides quantitative and qualitative criteria: the quantitative criteria are the requirements that a given group be at least , in number and/or in a given area such as a village, city or a district of the city; the given community numbers at least  % of the local residents provided that the overall population in such area is at least , people. The qualitative criterion is the requirement that a given minority community has been living in Armenia for at least  years. This length of time is justified by the fact that the given minority “recognizes the cultural norms available in the area and/or it is able to be tolerant towards them”.19 The other qualitative criterion is the non-availability of its own national state for the given minority. This criterion is applicable to groups such as the Assyrians, Kurds and Yezedis. In other words, the collective mechanism is used to justify the financial and administrative mechanism of the support of all of these groups where the mechanisms of control mostly remain in the hands of the state. The state recognizes that collective and individual rights are applied equally to all groups, but only those groups that fit under the law’s definition of a group are carriers of the special collective rights. The chapter “Ethnic Equality” of the draft law obliges not only teaching the minority the ethnic majority’s mother tongue, history and culture but it also obliges the majority to know about the culture of the minority.20 Special rights of the minority include detailed descriptions of the rights of ethnic minorities to develop their own culture and to receive education in their mother tongue and teach   

Draft Law on National Minorities, Art. (). Draft Law on National Minorities, Art. ()-(). Draft Law on National Minorities, Art. ()-().



Shavarsh Khachatryan their language, as well as to study their own history and culture. Two chapters of the draft specifically recognize cultural and educational rights as well as language rights. The chapter “Language Rights” endorses the right of all minorities to use their language in public and private. They have the right to use it both orally and in writing in their organizations as well as at the local self-governing authorities where they constitute at least % of the local population. Here they can use their language along with the official language of the country. They have the right to impart and disseminate information in their own language.21 The chapter “Right to Education” states that all ethnic minorities are given the right to receive education at all levels in their mother tongue.22 This right is given irrespective of whether the given community is recognized as the bearer of individual or also collective rights. The state is responsible for organizing courses of minority mother tongue languages, culture and history at all public schools. However, the bearers of these rights are only those communities who fit the criteria for collective rights. These rights must be implemented even when the given minority is dispersed across the country provided it still fits the quantitative minimum of , people. As such, in classes where seven pupils belonging to an ethnic minority can be gathered together, the state is bound to provide teaching of courses on the minority language, history and culture. Where the minorities benefit from the collective rights, the state is bound to finance the publication of books and preparation of teaching materials for the minorities’ language, culture and history. It is obligated to finance the preparation of school programmes for minorities from the state budget. The preparation of teaching materials and the programmes must be effected in collaboration with and with the participation of the representatives of the minorities and their experts. In relation to teaching staff, the representatives of the minorities are given priority for admission to the institutions of higher education provided that their knowledge is equal to other candidates. This right is applied to cases when students apply to study a minority language, culture or history. The training and retraining of teaching staff is to be carried out by the state. All minorities have the right to establish their own private schools, institutes and universities. They are entitled to apply to the government for financing and support in order to solve issues related to the implementation of their educational needs through these institutions. In the earlier part of this article it was mentioned that recent research indicated that the flight of minorities from Armenia is accounted for by their poor knowledge of Armenian, which makes them more isolated. As a result of this fact, the draft law insists that all minorities, in addition to the knowledge of their own language, history and culture, should also know the official language of the state according to the state approved curriculum. This obligation is also related to the abovementioned private ethnic educational institutions. The obligation was also introduced bearing in mind that the support and inculcation of the study of minority culture and language should not lead to the creation of what Kymlicka calls ‘parallel societies’.23 In other words, the state

  



Ibid., Art. ()-(). Ibid., Art. ()-(). W. Kymlicka, “Multiculturalism and Minority Rights: West and East”,  JEMIE (), .

Building a New Regime of Interethnic Cooperation in Armenia? makes it clear that is opposed to the phenomenon of culturally separate entities that do not communicate and develop themselves in cultural exchange. The drafting of cultural rights was based on a reflection of the current world trends concerning the maintenance of traditional cultural attributes by minorities. The decision of the French republican democracy to ban the display of cultural symbols at French public schools was justified as being necessary to maintain the secular nature of the state.24 The provisions of the Armenian draft law, however, give much more freedom than the French government does in this area, although it is essential to note also that the regime in Armenia does not perceive a threat from the existing minorities. The specific cultural rights of the ethnic minorities in Armenia include the right to development of the traditions of their family and culture, to preserve intracommunal and intercommunal relations, to raise their children according to their own cultural traditions, to have their own calendar of festivities and rites, to have their own religious rites and to celebrate them, to hold and publish their own literature and periodicals in their mother tongue, to hold and develop their own cultural institutions of any kind such as theatres, museums, art exhibitions, libraries, etc., and to preserve and develop their ethnic cuisine. Members of the ethnic communities in Armenia are allowed to retain and develop their own traditional clothes and wear these anywhere without limitations. The members of the ethnic communities have the right to establish funds aimed at the development of their own ethnic culture. They also have the right to found their own NGOs, and scientific and research centres, whose aim will be the development, preservation and propagation their ethnic culture. All cultural monuments belonging to the members of ethnic communities are protected by the draft law on all the territory of the Republic of Armenia. All written and printed literature belonging to members of ethnic communities are also protected by this law. The small size of the ethnic communities – which altogether constitute only .% of the total number of the population – does not provide sufficient grounds for giving them special quotas for representation in the National Assembly. However, to ensure that ethnic communities are able to organize themselves and to make themselves heard, the law envisages several mechanisms. The mechanisms are based mainly at the level of local self-governments and ethnic communities’ self-government. Wherever members of an ethnic community constitute at least % of the inhabitants of a certain area, they must be elected as representatives of the ethnic community at the working group of that area’s council. If no representative of the ethnic community is elected in a given area, then the law requires that a representative should be appointed to the local council. The appointment should relate to the position aimed at control of the issues of culture, education and interethnic relations. In areas where members of an ethnic community constitute at least % of the local population, local self-governments must establish an ethnically mixed committee. The special area of the function of the committee must be cultural, educational and intercommunal conflict management. The second level of the empowerment of the ethnic community is based on giving them the right to organize their community’s self-government. According to the chap

See Noelle Knox, “Effort to Ban Head Scarves in France Sets Off Culture Clash”, USA TODAY,  March , at .



Shavarsh Khachatryan ter “Self-Governing Communities of the Republic of Armenia”, ethnic minorities have the right to establish their own sociocultural councils.25 The goal of the work of such a council is to address issues regarding the social, cultural and educational needs of the communities. The councils are formed by direct secret vote and obtain a public legal personality after their registration with the Ministry of Justice. On behalf of the ethnic communities, the councils have the right to present the minorities’ interests and needs to all levels of the government of the country. According to the same law, the government must have a special office that will act as an overseeing mechanism for the implementation of the rights of ethnic minorities. According to the proposed version, this office should be represented by at least some minority communities. Apart from the basic package of rights described above, the ethnic communities should receive support from the state to make their own television and radio broadcasting programmes. The government has the obligation to assist in the establishment of the programmes and partially finance them. The establishment of a special public channel for minorities is difficult for financial reasons rather than a lack of will.26 In the same section related to mass media and television and radio broadcasting, the draft law suggests that the government must assist ethnic communities in their external relations with other ethnic communities and international organizations. From the level of protection the currently worked law provides to minorities it appears that Armenia fits within the procedural definition of an ethnic democracy in terms of the rights it provides to minorities. The draft law contains most of the so-called cultural rights and reasonably broad educational rights. It prohibits any assimilation and discrimination. Most importantly, it recognizes ethnic minorities as groups and applies some of the rights as group rights. However, collective rights are not fully employed. The minorities do not have rights of proportional representation, which are rather difficult with minorities numbering less than %. They have, however, community selfgovernment and rights to be represented at the levels of local self-government. By strict interpretation, it seems to be quite a liberal law within the framework of the Eastern European states. However, when compared to other laws that seem supportive of minority rights, it is essential to keep in mind that the Armenian law applies to relatively small minority communities that have not claimed indigenous peoples’ rights from the majority at any time in Armenia’s Soviet past. The same numerical criteria must be borne in mind when comparing the level of state support that should be offered to the minorities so as to ensure that the majority does not become disgruntled with the law. The conditions set out in the law were not meant to apply to a country with an ethnically divided society. However, the crucial issue is that, apart from the rights of ethnic minorities, there should be a political framework so that it is possible to define it as a democracy. In other words, it shall meet at least some procedural definition of democracy as a whole.

 



Draft Law on National Minorities, Art. (). As explained to the author by the Head of the DNRM in .

Building a New Regime of Interethnic Cooperation in Armenia? IV. Present-Day Realities of Armenia and the Regime A. The Political Framework According to Smooha, even though ethnic democracy is a diminished type of democracy, it can still be considered democracy because citizens are granted all basic rights such as “citizenship, including human, social, civil and political rights”.27 It is clear from this description that ethnic democracy is still democracy because, procedurally, it fits the definition of democracy. I will further argue that the case of Armenia does not meet the minimum level of requirements of this definition. In the event that the draft law is approved, the question will arise whether Armenia will form a new type of regime that further supplements Smooha’s definition. How will a procedurally non-democratic regime and ethnic rights work for the ethnic communities of Armenia? It is true that the expansion of democratic state systems has led to different types of democracy. Accordingly, the vast area that includes the former influence zone of the Soviet Union contains some very different regime types. Some of them can hardly qualify as democratic systems, as is the case with the South Caucasus states of Georgia, Armenia and Azerbaijan. According to the minimal definition of democracy, it must include free elections, universal suffrage, change of governments and respect for civil rights. As Smooha notes, the diminished type of democracy may be qualified as a “restrictive type” of democracy because it may “prevent certain political parties from participating in elections and violate the right of every party to vote”.28 Given this description, it is possible to infer that a restriction or restrictions can apply to various sectors of a given political system. However, can restrictions be endemic across the entire system of a restricted democracy? What type of political regime may be applied to Armenia, judging from the assessments made by international and national organizations? The country is a presidential republic. The Constitution gives extensive powers to the president. The presidential power and pro-presidential majority were able to introduce decrees and laws that procedurally allow the president to control the judiciary. Human rights are also infringed because of the judiciary’s dependence on administrative and executive bodies.29 The legal mechanism for rights protection has consequently become a puppet of the system as a whole.

  

Smooha, “The Model of Ethnic Democracy …”, . Ibid., . “The preconditions for independence of judges include the selection of candidates for office, acquisition of knowledge, appointment, the procedure for a disciplinary action, termination of powers and the entire process including on the annual lists for promotion. All of the above is done in Armenia by the executive authorities; thus the independence of judges is ruled out absolutely”, T. Janoyan and L. Simonian, “Human Rights Protection as Function of the Judiciary” in Ditord/Observer, Issue , , . For an extensive coverage of the situation with the judiciary and human rights, see the issue on the webpages of HCA at . See also, Armenia: Armenian Law, Legal Research, Human Rights at .



Shavarsh Khachatryan The country has a multiparty system of representation in the unicameral National Assembly according to the Constitution (Article ).30 The elections can take place both by proportional and majority system. The system appears to allow representation of competing interests. The practice of internal politics has shown a different trend, however: most leading parties’ ideology represented at the National Assembly is based on either nationalist, ultra-nationalist or near-nationalist ideology. This is the platform both of Armenia’s oldest party, the Democratic Party (Ramkavar), as well as the Union Party (Dashnaktsutsun). The relatively new Republican Party, Conservative Party and United Labor Party do not represent anything more than the narrow economic interests of specific parts of society.31 The right to vote has not been implemented in practice, as was witnessed by independent human rights observers in the country.32 Two elections held in the year  – presidential and parliamentary – demonstrated the fact that the processes of both the election campaign and elections were not held freely and fairly.33 Moreover, the very procedure of the elections was deliberately undermined with the introduction of legislation.34 Violations that took place during the elections corroborate the very narrow existence of political liberties. The coalition of opposition parties, consisting of  members (against ), were both outnumbered and marginalized in their ability to oppose the moves of the pro-presidential majority. Since none of the elections were fair, no proper representation was possible. The fraudulent elections to the National Assembly produced both a non-representative and non-responsive parliament. The resulting situation was that both civil liberties and political rights were infringed across a wide spectrum. Between the years  and , the Armenian parliament adopted and amended laws that restricted freedoms of media, freedom of assembly, freedom of expression and defamation.35  

 







Constitution of the Republic of Armenia, Art. . All of the parties mentioned above were represented at the National Assembly by owners of large businesses, “local criminal and semi-criminal networks”. See A. Dashtents, “ROA Parliamentary Elections”, in Ditord/Observer, Issue , , . Ibid., -. “The  presidential election and its aftermath mark the most sustained, extensive abuses in the last seven years” in Human Rights Watch, “An Imitation of Law: The Use of Administrative Detention in the  Armenian Presidential Election”, Human Rights Watch Briefing Paper,  May , . “Mass-scale violations during the  presidential elections and the fact that their perpetrators went unpunished laid the groundwork for the parliamentary elections to be accompanied by mass-scale violations” in Dashtents, “RoA Parliamentary Elections” …, . “Under the terms of the current Election Code, each electoral commission consists of  members –  appointed by the President of the Republic and  by each of the  factions that emerged from the poll in . … It is abnormal that the President of the Central Electoral Commission should be appointed by the President of the Republic.” See this opinion on Art. , “Honoring of Obligations and Commitments by Armenia”, Rapporteurs: Mr. René André, France, Group of the European People’s Party, and Mr. Jerzy Jaskiernia, Poland, Socialist Group (Parliamentary Assembly of the Council of Europe,  January ). A. Zrvandian, “Freedom of Expression and Defamation”, Ditord/Observer, Issue , , -; and Law on TV and Radio, in Helsinki Committee of Armenia, Human Rights in

Building a New Regime of Interethnic Cooperation in Armenia? Ordinary citizens have so far had numerous difficulties in enjoying civil liberties. The right to property, for example, used to be infringed in practice even though no specific laws were adopted that restricted this right.36 Other rights are severely mishandled as a result of the dependency of the court system on the administrative and executive powers of the country. The present legislation, for example, does not provide mechanisms for the protection of anyone from inhuman and degrading treatment in the area of human rights.37 Put in perspective, the overall situation seems to be mitigated by the fact that Armenia has been a member state of the Council of Europe (CoE) since early . Like other states, it faces obligations and needs to follow the route of democratization and human rights protection. A recent report from the CoE praised Armenia for its “excellent collaboration with the Council of Europe”.38 There is a certain discrepancy between the way the situation is described by human rights organizations based in and outside Armenia and by the CoE. The discrepancy between the reality and the above comment made by the rapporteur of the CoE may need to be addressed beyond this paper. The situation is tense, particularly in regard to freedom of conscience. While ethnic minorities do not present a specific problem for the government, religious minorities do. They are much more numerous, assertive and challenging. The Armenian Apostolic Church used to be considered a traditionally strong institution of the sociocultural life of the majority. Its role is affirmed in one of the earliest laws of independent Armenia. The Law on Freedom of Conscience and Religious Organizations is known for its multiple deficiencies. It contains contradictions and uncertainties that have long been considered in need of change.39 At the same time, the provision about the leading role of the Armenian Church as a national religious institution has put the current government into a predicament. The law emphasizes the symbolic and strategic role of the church for the identity of the ethnic majority: “… recognizing the Armenian Apostolic Church as the national church of the Armenian people, an important bulwark that





 

Armenia in  Report (Helsinki Committee of Armenia, December ), ; as well as L. Simonian, “The Right to Freedom of Assembly and Law on Conducting Gatherings, Rallies, Marches and Demonstrations” in Ditord/Observer, Issue -, , -; and also, “Article  Press Statement on the State of Armenia’s Media Legislation”, posted by International Freedom of Expression Exchange at . To become familiar with the wave of the government eviction of property owners, read R. Karapetian and S. Petrosian, “Armenia: Displaced by a Prestige Project”, Institute of War and Peace Reporting,  November , at ; and A. Zrvandian and R. Bagratunian, “Right to Property”, Ditord/Observer, Issue , , -. Extensive information on the situation, including information about torture and degrading treatment, can be read in “Report to the Armenian Government on the visit to Armenia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment” (CPT), , at . Resolution  (), at . The deficiencies of the law can be read in European Commission Against Racism and Intolerance: Report on Armenia, CRI () , -; and S. Khachatryan, “Jehova Witnesses”, Ditord/Observer, Issue , , -.



Shavarsh Khachatryan establishes its spiritual life and preservation …”.40 The Church is often praised for being the foundation of the very survival of the Armenian culture and identity throughout difficult passages of the national history. The government attempts to ensure that the ethnic ascendancy, and the cultural and spiritual unity of the Armenians, is supported via the Armenian Church and the role of the Church continues to stand out.41 The issue is that the Church itself does not identify its role in the present reality of the nation. It appears mainly engaged in the activity of opposing all sectarian movements,42 which it views as opposing its vision of the Armenian identity. It considers them rivals to its legitimate leading position, but it does not appear to be able to mount the task envisaged both by the previous government in its law and the current government with its tacit support to this institution. The combination of a near-reactionary approach maintained by the Church and the deficiencies of the existing law characterize the situation in this area. B. The Position of Minorities in the Political Framework There is no specific party that either represents the interests of minorities in the National Assembly or consists of mixed composition and includes members of ethnic minorities as their community representatives. Minorities were not subject to specific persecution as minorities and were not denied rights and civil liberties as minorities. At the same time, many of the minority representatives have been disgruntled both with the social insecurity and absence of any general political rights. No political rights, however, were known as having been denied to the ethnic minorities either. Nevertheless, the entire climate of political arbitrariness of the power holders in the country undermines faith in the government and its good will. Mass-scale machinations with property and land rights in recent years have touched both the ethnic Armenians and ethnic minority groups, particularly the Yezedis.43 This sense of insecurity has created fears among them that there can potentially be acts of discrimination against them. The situation of deep distrust towards the ruling class – at least among some layers of society – was reflected by independent polls conducted in .44 Unsurprisingly, the debates over minority  



 



Law on Freedom of Conscience and Religious Organizations , Preamble. The celebration of the th anniversary of Christianity in Armenia was conducted by direct support and financial resources of the government. The government established a commission with the aim to organize the celebration of the th anniversary of Christianity in Armenia pursuant to government decision number ,, on  July . Following the registration of Jehovah’s Witnesses, representatives of the Armenian Apostolic Church expressed their concern about this fact in a number of TV discussions on the channel H in October and November . European Commission Against Racism and Intolerance: Report on Armenia, . % of the public and  % of the surveyed experts considered the institution of the Presidency the most antidemocratic.  % of the public and  % of the surveyed experts considered the judicial authorities (courts, prosecutor’s office) the most antidemocratic too. See Table , “Armenia’s Thirteen-year-old Independence and Sovereignty, Presentation of Expert and Public Poll Results” (Armenian Center for National and International Studies, October ), .

Building a New Regime of Interethnic Cooperation in Armenia? rights that were run by some NGOs throughout - created an atmosphere of unease and worry rather than a desire to engage in discussion of the law. Some of the minorities gave cold shoulder to the promises of working out a law for them and the process of the discussion of the very law.45 How do these data define the regime in Armenia? In his paper, Smooha takes the Freedom House criteria for suggesting procedurally minimum requirements that a democracy needs to meet to be qualified as such.46 Two main scales are used by this organization: one is political rights and the other one is civil liberties. According to other definitions, for example, “accountability must lie at the centre of any model of democracy …”.47 Therefore, whatever the mode of functioning of modern democracy it should not be an exaggeration to say it needs to be representative and responsive. It must include protection of some important civil liberties and human rights protection. While this article does not provide an exhaustive study of the qualifiers of democracy in Armenia, a conclusion is still possible here. With very little space for political rights (if at all) and civil liberties being entirely dependent on the political system it is very hard to qualify the present day Armenia as a democracy. It is currently not possible to say that political parties are representative of layers of society. Instead, they seem to present and support oligarchic circles. No elections that have taken place in recent years can be credited as free and fair. Rights are infringed upon by the regime throughout all its branches. Both the judiciary and parliament have been made puppets of the regime.48 In other words, there are no checks and balances that can be said are applicable to the type of democracy with the executive dominance. Legislation on human rights and freedoms as well as on political liberties is either rudimentary or inefficient. Considering the above assessment, even the minimal interpretation of democracy can hardly match the Armenian political regime. Considering the optimistic approach of the CoE and Armenia’s own time schedule to work on building democracy with human rights safeguards, it may be cautiously noted that the country perhaps has a prospect for becoming fully democratic some day.

   

See Alexanian, “Armenia Debates Ethnic Rights…”. Smooha, “The Model of Ethnic Democracy …”, -. P. Geraint and M. Moran, “Democracy and Democratization”, in P. Geraint and M. Moran (eds.), Democracy and Democratization (Routledge, London, ), . “It is the President who appoints and dismisses the Prime Minister and the members of the government; he fills all the civil posts; … there is no countervailing power, whether parliamentary or judicial, in respect of this dominant executive; the President can dissolve the National Assembly, decline to promulgate a law, and ask the Assembly to make a fresh reading, appoints and dismisses the State Prosecutor and the other prosecutors, the members and the presiding judge of the Constitutional Court and judges at every level of jurisdiction, and authorises any judicial or administrative proceedings that may be brought against them”. See the Opinion on Art. , “Honoring of Obligations and Commitments by Armenia …”.



Shavarsh Khachatryan V. The Perspectives of the Law and the Minorities of Armenia The general description of the situation with the draft law and the regime existing in the country appears to be in contradiction to the statement that the country is modelling itself as an ‘ethnic democracy’. It may perhaps be ethnonationalistic, which both the draft law and the constitution as well as the existing law on the freedom of conscience indicate. It is not ultra or aggressively nationalistic either though. Clearly, it is not a democracy either. How do these criteria fit or conflict those that Smooha gave in his working paper on ethnic democracy? What does the overall situation portend for minorities in Armenia? There are a number of features that, according to Smooha, describe ethnic democracy. The ethnic nation consists of the core ethnicity that forms the nation and precedes the formation of the democratic state. Citizenship is “neither a necessary nor sufficient condition for inclusion in the core nation”.49 Here, some differentiation should be made between other types of restricted or quasi-democratic regimes. Ethnic democracy differs from Herrenvolk because it does not exclude other groups.50 Instead, it offers rights and recognition to other ethnic groups. It emphasizes the role of the core ethnic nation and the role of the state in promoting the goals of the core ethnicity. It is possible to say that the legislation of the state marks out what plays the most essential role in the development and the protection of the core ethnicity. It differs from ‘control democracy’ because the latter consists of deeply divided societies and it tends to prevent access to the dominant group and tends to divide and rule.51 It is not ethnocracy because ethnocracy is marked by segregation across society. There is discrimination that minorities face by the state at the hands of the majority.52 Both the Armenian Constitution and the new draft law, as well as the law on the Freedom of Conscience and Religious Organization, variously make these important emphases on institutions that are vital to the life of the ethnic nation. The state and the church are named as institutions that have been established and have played a role in the preservation of the identity, culture, and language of the ethnic Armenians. Citizenship is not the most essential feature that marks membership in the nation. The Armenian Constitution offers a relatively simplified procedure for the members of the core ethnic group to acquire citizenship rights (Article ),53 but otherwise it offers all the rights and freedoms to its citizens on the basis of equality (Article ).54 The state is identified with and serves the majority. On the other hand, while the state does not tend to assimilate the minorities, it also does not act directly to discriminate against them. The state and society have conceded the need to provide minorities with such rights that preserve and develop the identity of the minority communities. The state recognized the minority communities as groups and their right to be different from      



Smooha, “The Model of Ethnic Democracy …”, . Ibid. Ibid., . Ibid., . Constitution of the Republic of Armenia, Art. . Ibid., Art. .

Building a New Regime of Interethnic Cooperation in Armenia? the majority, both individually and as a group. Moreover, minorities can represent their communities when they elect their representatives into minority self-governing councils. Although there are problems for minorities in fully securing civil and political rights, the ethnic majority faces the same difficulties in enjoying its own political and civil rights. A multi-party system exists in the political system of the regime but it neither represents various groups nor plays an essential role in democratizing society. The state readily acknowledges the right of minorities to be represented within sublevels of the existing organs of the political system. It is also ready to allow the minorities to voice their needs and it does not discriminate against their presence in governing bodies. The problem is that, with the current deficiencies of the power succession, even such a law offers very limited space to advance. The same situation is applied equally to the citizens in the majority community. The draft law, however, offers important leverage to the minorities who are willing to stay in the country and are able to cooperate with the majority. The leverage has practical grounds that can serve those minorities that have come to grips with the realities of independent Armenia. There are some important challenges and benefits that the draft law offers to the minorities. The biggest and most contentious issue is the issue of language. In the Soviet period, Russian used to be second in status and first in official use in the republic. The official use presumed the use of the language as the business and institutional language. The result was that parents preferred to send their children primarily to Russian language schools rather than to Armenian language schools. Since independence, the Armenian language has regained its official status and, most importantly, become the language of institutions and business. Those minorities who benefited from the fact that instead of the language of the titular nation they mostly used Russian found themselves in a difficult position. Such was the case with the Assyrians and Russian minority in particular. Some of the Assyrian representatives even protested against the fact that the new draft law recognized the right of the minorities to receive education in and knowledge of their mother tongue. The paradox is explained, in their own words, by the fact that, over time, the Russian language became the main language of their education. They argued against the use of the term ‘mother tongue’. In the argument on the draft law, a minority representative marked as necessary to remove the term ‘mother tongue’ in every paragraph of the draft.55 The research carried out in cooperation with UNICEF showed that, contrary to the above, the Assyrians are willing to study their own language and receive education in that language.56 The issue is complicated by the fact that the government is concerned that insufficient knowledge of the official language is the major reason for the minorities leaving the country. The government is unlikely to support a programme of studies that makes Russian a language of minority education. 



The Draft Law marked with “to remove from use” and other comments were sent to me by a representative of the NGO ‘Ashour’ headed by an ethnic Assyrian, I. Gasparyan, in October . ‘Hazarashen’, Armenian Center for Ethnological Studies, “The Situation with the Education of the National Minorities in Armenia”, Nationwide qualitative and quantitative ethnographic study commissioned by UNICEF in Armenia (forthcoming ).



Shavarsh Khachatryan All of the above-mentioned indicates some pros and cons in the adoption of the draft law on national minorities. The ‘cons’ include that Armenia is unlikely to be qualified as a procedural democracy in practice, despite the fact that the political system contains ‘democratic institutions’ and legislation to support them. The most important issue remains the fact that minority communities and individuals alike will have difficulties in effectively enjoying political rights and/or civil rights. This, however, applies equally to the majority. The current political system is not known for providing space to local self-government and the ability of the ethnic communities to make use of the mechanisms of the community self-government in practice is rather doubtful. The ‘pro’ is that the regime undersigning the draft will recognize moral need and pragmatic interests to support minorities on the basis of equality with the majority. The regime will not favour assimilation and will effectively prohibit discrimination. Given that the minorities do not challenge the majority’s right on sovereignty and they do not have land claims, neither group rights nor individual rights will be denied to the minorities. The other ‘pro’ of the current draft law is that, if accepted, it is effectively aimed at providing support to the minorities’ vast cultural and educational rights. The draft law legitimizes for the minorities the right to present and meet their needs in this sphere. It will possibly stem the flow of minorities out of the country if other general conditions, such as the resumption of hostilities, or the severe downfall of the economy do not change dramatically. It will provide them with practical tools to preserve their identity and, thus, preserve the ethnic communities in Armenia to which the draft law is most specifically designed. There is a negative argument here too: even the enjoyment of this level of rights may largely depend on the system rather than law. A full-scale enjoyment of any rights, including cultural and educational ones, may therefore remain on paper more than in practice. VI. Conclusion As time goes on, Armenia indeed needs to face its obligation on the road to democratization and to the strengthening of human rights. While most reforms are cosmetic or declarative, in essence the country undergoes pressure to meet pending obligations. The European political structures are expanding to the east. The country may gradually need to adapt its system. Even if it does not fully accept the character of the western institutions, the pattern of interaction with institutions modelled upon the European countries may eventually lead to greater democratization. Under such circumstances, the law will pave the way and prepare ethnic communities for the turn towards a better future. The adoption of the law contains essential features that speak in favour of the majority and its future development no less than it does for minorities. The adoption of such a law will mean that the society of the ethnic Armenian majority will not succumb to the danger of negative effects of ethnic conflicts, with which it is surrounded externally. The de facto war situation with Azerbaijan and de jure closed borders with Turkey will not negatively influence the societal mood to cooperate and regulate its interethnic relations inside the country. There is potential within the nation to influence and develop its ethnic identity to be inclusive of ethnic diversity and to manage such relationships peacefully. Even though persecutions or discriminations on the grounds of 

Building a New Regime of Interethnic Cooperation in Armenia? ethnic origin are not currently known in Armenia, the draft law strengthens the residual capacity of the majority to develop broad moral and cultural perceptions and to tolerate ethnic variety. Furthermore, it is also likely to influence the majority to integrate into the realities of a multicultural Europe.



Arif Yunusov *

Ethnic Profile of Post-Soviet Azerbaijan

I. Introduction Following the breakdown of the USSR, interethnic conflicts and rising self-identification processes in many nations were among the most serious problems that emerged within the territory of the former superpower. Azerbaijan not only failed to avoid these processes but, due to various circumstances, found itself at the forefront of the standoff. It was in Azerbaijan that the first interethnic conflict in the former USSR started between Armenians and Azeris over Nagorno Karabakh in the late s. This conflict is still unresolved and remains a stumbling block, not only for the relationship between the two Caucasian nations, but also for stability in the entire region. Azerbaijan is a multiethnic country and the progressing ethnic self-identification trends have become a baseline for the emergence of ethnic secessionism within the republic. All these processes have occurred against the background of an independent nation-state construction in Azerbaijan, where the Azeris are the indigenous/titular people. The interethnic conflict with the Armenians over Karabakh, the construction of the nation-state and the upsurge of self-identification movements among the many ethnicities of Azerbaijan are all processes that are occurring simultaneously and significantly affect other developments unfolding in the republic. How have these processes been developing and what shapes are they going to acquire in the future? What measures have the republican government been applying to solve the minority issues in Azerbaijan? These are the focal issues addressed in this article. II. Ethno-linguistic Situation in Azerbaijan before the Dissolution of the USSR The roots of the current ethnic conflicts and interethnic collisions within the territory of Azerbaijan lie in the distant past when, at the beginning of the nineteenth century, the Russian empire conquered the South Caucasus and started pursuing a policy of reshaping the region’s existing ethno-confessional profile. Not only in Azerbaijan, but also on the territory of neighbouring Armenia, Muslims constituted the majority of the population. Such a demographic situation did not suit the authorities of the Russian *

Arif Yunusov, Dr. of History, Head of the Department of Conflict and Migration Studies, Institute of Peace and Democracy, Azerbaijan.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 481-494. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Arif Yunusov empire and the decision was made to expel the Muslim peoples and settle Christians in their place. This decision primarily applied to Azerbaijan where, according to the official Russian statistics of , the Turkish-speaking Azeris, as well as Persian-speaking Kurds, Tats, Talysh, etc., were the overwhelming majority of the , population.1 It was natural that the Turks, constituting the majority of the South Caucasian population, were expected to be expatriated first. A Russian population was to replace them in the region. The first group of Russian settlers in Azerbaijan, comprising the so-called sectarians or Raskolniks (Molokans, Subbotnics, Dukhobors, Baptists, etc.), began to appear in Azerbaijan after  and settled in rural areas. As the political situation stabilized these groups were followed by Orthodox Christians. As a result, Azerbaijan had about  Russian settlements by . In the late s, as Baku was turned into an industrial centre of the South Caucasus, the country was flooded by a third surge of Russians. Consequently, the Russian population grew from , (slightly over  % of the total country’s population) in the middle of the nineteenth century to , (, Orthodox Christians and , sectarians).2 Other Christian peoples followed the Russians to settle in Azerbaijan. As early as , , Germans were resettled there to establish their colony of Yelenendorf (today’s Khanlar) near the town of Ganja. By , about , Germans (. % of the country’s total population) lived in four colonies.3 More Christian peoples (Greeks, Ukrainians, etc.) appeared in Azerbaijan during the same period, although in extremely insignificant numbers, which meant that the Russian Empire relied more on the Armenians, the major Christian group in the region, especially in the first half of the nineteenth century. Another factor that played an important role was that a small group of Armenian-speaking peoples had lived in the mountainous parts of Karabakh for a significant period, with more living in Turkey and Iran. With their shared Christian heritage, these peoples might become reliable supporters of Russian policy in the region. This was why Tsar Nikolai I issued a decree on the establishment of a separate, so-called Armenian, oblast within the territories of the Irevan and Nakhchevan Khanates, conquered after the Russian-Turkish and Russian-Persian wars in the first quarter of the nineteenth century.4 Later, the Russian authorities started the resettlement of Armenians from Turkey and Iran. This time the resettlement process took place on a much larger scale. In this regard, it is edifying to refer to the information provided by Russian officials at the beginning of the twentieth century: as Mr. N. N. Shavrov pointed out in , more than ,, Armenians living in the South Caucasus at that time belonged “to the native population of the region and were settled by Russians”.5 A sizeable number were resettled in the former     



See details in K. U. Verdiyeva, Resettlement Policy of the Russian Empire in the North Azerbaijan (Altay, Baku, ),  (in Russian language). See details in ibid., -. Ibid., -; see also, Gamarshakh Djavadov, National Minorities and Minor Ethnicities of Azerbaijan (Elm, Baku, ), - (in Azeri language). For an overview of the history of the Armenian people, see Collected Acts, Part  (Moscow, ), - (in Russian language). N. N. Sahvrov, The New Threat to the Russian Policy in the Transcaucasia, (Ministry of Finance Publishing House, St. Petersburg, ), - (in Russian language).

Ethnic Profile of Post-Soviet Azerbaijan Irevan Khanate (today’s Republic of Armenia) and Azerbaijan. As a result, as early as , about , Armenians ( % of the total population) were registered in the former Elizavetpol and Baku provinces (currently Azerbaijan’s territories), whereas before the resettlement there were only ,.6 The Armenian population had particularly grown in Karabakh: according to  sources, the Armenian population in the future Nagorno Karabakh Autonomous Oblast (the Shusha, Djebrai and Zangezur uezds/districts) totalled ,, while the Azeri population was reduced to , people (or . % of the region’s population).7 Thus, as a result of the colonial policy of the Russian Empire, significant demographic changes occurred in Azerbaijan. During the period -, over a million people settled in the country: , of them were Armenians; , Russians; and over , Greeks, Germans, Ukrainians and other Christian peoples. Considering the emigration of the Azerbaijani population (predominantly Sunnites, as a result of which the number of Shiites became prevalent by the end of the nineteenth century, totalling  % of the Azeris in the present day), it is quite clear that such ethno-demographic changes could easily cause ethnic collisions. This issue became particularly aggravated in Karabakh and industrial centres such as Baku and Ganja, then the areas of colonial settlements. As the majority of settlers were Armenians they were in conflict with the local population during - and -, which, in the majority of cases, resulted in fatal collisions. After the Soviets came to power in Azerbaijan, the Communists managed to stall the Armenian-Azeri stand-off. In Karabakh, they established a new administrative territorial structure – the Nagorno Karabakh Autonomous Oblast (NKAO) – where Armenians constituted the majority. Another wave of Russian migrants poured into Azerbaijan during the Soviet period, the majority of whom were soldiers and their families. This portion of Russian expatriates settled in the cities, predominantly in Baku, Ganja, Sumgayit and Mingechaur. By , the number of Russians reached a peak of , people (or . % of the country’s population). From the s to the s, different trends began to take shape. Russians started leaving Azerbaijan, an exodus that took place mainly from the rural areas of the republic. As a result, by the time of the  population census, the Russian population in Azerbaijan totalled , people (. % of the republic’s population), which was concentrated mostly in the Baku, Ganja, Sumgayit, Shemakha, Ismayilly and Lenkoran districts. The beginning of the s witnessed an increased outflow of Russian emigrants from Azerbaijan: the last Soviet census registered a little over , Russians (. % of the country’s population), , of whom resided in Baku. Similar trends of decline were observed in the ethnic populations that had settled in Azerbaijan in previous centuries. These movements were particularly visible among Armenians: by , , Armenians (. % of their total number) were registered in Azerbaijan compared to , in . The majority of Armenians resided in former NKAO (,) and in the capital (, ). All these changes occurred against the background of constant increases in the local population of native/titular peoples. The last Soviet census in  registered   

K. U. Verdiyeva, Resettlement Policy …, -. The Caucasus Calendar for  (Tiflis, ), - (in Russian language).



Arif Yunusov nationalities and minor ethnic groups, ,, people in total. The majority of the country’s total population consisted of ,, Azeris ( % of their total number). Other ethnicities also experienced certain demographic changes during the Soviet period. In the s, many minor ethnicities had their own schools, issued numerous magazines, newspapers and produced theatrical stagings. All these activities were coordinated by special governmental structures. During the same period, alphabets were created for those ethnic communities that lacked written languages. However, all these activities had been wrapped up by the s, as Stalin’s regime became tougher and Soviet ethnic policies underwent radical changes. This policy had its effect on the native Turks, who in  were renamed and became ‘Azerbaijani’. One way or another, all Soviet population censuses deliberately understated the numbers of minor ethnic populations or, rather, they were classified as parts of bigger ethnicities, while some of them simply vanished from the Soviet ethnic map. As a result, serious inconsistencies occurred between the official statistical data and the actual numbers of people in such minor ethnic groups as the Kurds, Tats, Talyshs, Tsakhurs and others. However, in addition to the USSR’s malicious ethnic policies, these deliberate distortions were caused by other factors as well. The fact is that, as early as the nineteenth century, a process of rather intensive ethnic identity changes was taking place among many Muslim ethnicities. In the official Russian statistics, the Kurds, Tats, Talyshs, Tsakhurs and Lezgins were often referred to as ‘Turks’ or ‘Azerbaijani Tatars’. In other words, this was a natural process of assimilation of minor ethnicities in the regions of Azeri ethnic predominance. Contrary processes started to occur by  when some of the ethnicities began to restore their ethnic identity. The  census reflected these changes. III. Ethnic Migration Processes After the Dissolution of the USSR The conflict with Armenia, which started in February  over Nagorno Karabakh, and the dissolution of the USSR in  triggered further mass-migration processes. On the one hand, nearly , Armenians fled from Azerbaijan to Armenia, Russia and other countries. Some of them, however, returned to Nagorno Karabakh with time. Simultaneously, starting from , approximately , Russians left Azerbaijan along with , Ukrainians and , Byelorussians. A considerable number of people from other ethnic groups left the country as well: for example, , Jews left for Israel during - (nearly  % of the Jews officially registered by the  census). In total, nearly , citizens of nonindigenous ethnicities left Azerbaijan during -, the majority belonging to the Christian denomination, who had settled in the country during the nineteenth and twentieth centuries.8 On the other hand, around , Azeris and , Kurds arrived in Azerbaijan from Armenia along with up to , Meskhetian Turks from Uzbekistan. The May  armistice in Karabakh failed to cease the migration processes, as emigration, at that time, was caused by a difficult economic situation in the country. 



See Yunusov, “Ethnic Conflicts and Migration Processes in the South Caucasus”, The New Eurasia: Russia and Countries of the Near Neighbourhood, Selection of Articles No.  (), -.

Ethnic Profile of Post-Soviet Azerbaijan To acquire a realistic picture of the demographic changes in the country, the republican authorities conducted a population census from  January to  February . The census results showed that the country’s residents totalled ,, people, ,, or . % of whom were ethnic Azeris. It was obvious that the number of Azeris in the country had increased. In rural areas, as well as in Nakhchevan autonomous region and major cities, Azeris made up - % of the population on average. Their number was comparatively smaller only in the capital –  % of the city’s total population. The Karabakh conflict and the subsequent violent events, along with labour migration, led to serious structural changes among the Azeri population. As a result, women became the majority of the population (. %), while more Azeris moved to larger urban areas of the country (. %). The outflow of the Russian-speaking population from the country led to there being an increased number of Azeris who spoke their native language: their number grew from . % in  to . % in . Only , Azerbaijani citizens (. %) considered Russian their mother tongue. The socio-political processes that occurred in Azerbaijan in the late s and early s significantly increased the exodus of Russians from the republic. The war with Armenia, deployment of the Russian troops in Baku in , internal political instability, economic crisis, a drastic decrease in Russian language usage and growing psychological discomfort led to the isolation of ethnic Russians from political developments in the country during the early years following independence. The  census demonstrated that the number of Russians during these nine years had decreased three times – their population at present totals ,, or only . % of the country’s population. However, due to their number, Russians still play a significant role in Azerbaijan. Nevertheless, there are alarming factors as well: there is a significant gender misbalance in the local Russian community, where Russian men make up only  % of the population, as opposed to the  % of women. People of a more senior age are the majority – the average age is , while that of the other ethnic groups ranges over -. Currently, the overwhelming majority of Russians (. %) live in the cities, mainly in Baku ( %). By their number they constitute the second largest ethnic group in Baku (comprising . % of the population), Ganja (. %) and Sumgayit (. %). Predominantly, they are highly qualified engineers and technical specialists employed in governmental, scientific and educational institutions. This is explained by the fact that Russians make up  % of the total number of specialists with higher education in the country. Therefore, the ‘Russian factor’ is expected to play a significant role in the social life of the Azerbaijan republic. The majority of Russians in the rural regions reside in Ismail (. %), Khachmaz ( %), as well as in the Gedabey, Djalilabad and Geranboi districts of Azerbaijan. The prevalence of the other Slavic group in Azerbaijan, the Ukrainians, is rather insignificant – , Ukrainians lived in Azerbaijan at the time of the  census. Practically all of them live in the capital and only a very insignificant number reside in Sumgayit and other cities, as well as in other regions of the country. Their statistical characteristics are rather similar to those of the Russians. However, their strong Russification is worth mentioning: only  % of them indicated that the Ukrainian language is their mother tongue, while  % feel that their native language is Russian. As mentioned above, the Karabakh conflict had its strongest impact on the Armenian community of Azerbaijan. However, it is highly incomprehensible how the 

Arif Yunusov census could be conducted and the number of Armenians determined with violent conflict ongoing in the country. For quite a long time, the official Azerbaijani authorities claimed that between , and , Armenians resided in Azerbaijan beyond the conflict zone and the occupied territories. However, the  census demonstrated that almost , Armenians currently live in Azerbaijan. A more careful analysis of the statistical data, however, shows that the census refers to the Armenians staying in the occupied zones of the Azerbaijan Republic. Even this figure is too rough and clearly overestimated. The census data sometimes looks even comical: on the one hand, it is stated that , Armenians are children under  while, on the other, the same census results indicate that the average age of the Armenians in Azerbaijan is . In fact, the census covered only those Armenians who live outside the occupied territories in mixed families where these people on average are indeed older. Keeping in mind the data on Armenians living outside the occupied territories, it becomes clear that there are only  Armenians ( men and  women) left in Azerbaijan, the majority of whom ( people or  % of the Armenians’ total) stay in Baku, while the rest of them live in villages. In fact, the realistic number of Armenians should be a little bigger – perhaps ,-, – as many of them have changed their family names and were thus neglected by the census. The census data on the Caucasian ethnic groups in Azerbaijan is of special interest for researchers. These groups include the Avars, Lezgins, Tsakhurs, Ingiloys, Cryzs, Udins, Budugs and Khinaligs (who have lived in the republic since ancient times), with the Lezgins playing a leading role in this group. They mainly live in the southeast of Azerbaijan in the basin of the Samur river, as well as on the eastern slopes of the Greater Caucasus Range. Right before the breakdown of the USSR, the Lezgins were the fourth biggest ethnic group in Azerbaijan after the Azeris, Russians and Armenians. In , their number totalled , or  % of the country’s population. These figures were constantly disputed by the Lezgin nationalist movement leaders (Sadval in the Russian Federation and Samur in Azerbaijan), who brought up figures nearing ,-,. Nevertheless, the  census showed that neither the Lezgin population nor their percentage ratio had changed significantly: the census registered , Lezgins who comprised . % of the country’s total population, although it is very unlikely that these data are close to the actual number of the Lezgin population. Ethnographic research conducted by the Institute of Peace and Democracy in the northeastern regions of the country in - showed that the number of Lezgins in Azerbijan ranges between , and , people.9 One way or another, the Lezgins, according to the  census data, have grown into the second biggest ethnic group in today’s Azerbaijan. The majority of Lezgins (. %) live in Gusar district, where they constitute the absolute majority of the rayon’s population (. %). . % live in the capital, while the majority (. %) stay in rural regions. The census demonstrated that the majority of Lezgins are able-bodied citizens between the ages of  and  (. %). . % are under the legal age of adulthood, which raises favourable demographic prospects for this people – the average age of the Lezgins is . 



See Arif Yunusov, “Ethno-demographic Processes in the South Caucasus during PostSoviet Period”,  Caucasus Collect (Moscow, Russian Panorama, ), at  (in Russian language).

Ethnic Profile of Post-Soviet Azerbaijan The Avars are the biggest ethnic community after the Azeris. They mostly dwell in the northwest of the country, in the Sheki-Zakatala zone. By the time of the  census, their number totalled ,. Over the last ten years, their number has remained practically unchanged and currently stands at , people or . % of the country’s population. They mainly live in Belakan ( %) and Zakatala ( %) districts, with the majority staying in villages (. %). Only . % of the Avars reside in urban areas. The Tsakhurs live in the same Sheki-Zakatala zone and are very closely related to the Lezgins in terms of language. In , , of them were registered, whereas ten years later their number had reached , people, or . % of the total country’s population at that time. Their major settlement areas are Zakatala ( %) and Gakh districts ( %). Like Avars, they are mostly villagers: a meagre  % live in the district centres of Zakatala and Gakh. Another ethnic group in the northwest of the country is the Ingiloys. This is a very interesting ethnicity from a scientific point of view. The specifics of their origin are still debated by researchers and much remains unclear. They are considered to be one of the oldest local ethnicities who, in early medieval times, accepted Christianity (its Georgian branch) and with time started to speak Georgian. Later on, in the seventeenth and eighteenth centuries, local Georgian-speaking populations converted to Islam and were renamed ‘Ingiloys’, i.e. ‘proselytes’. After the conquering of Azerbaijan by the Russian Empire, many Ingiloys reconverted to Christianity. Today’s Muslim part of the Ingiloys identify themselves as Azeris while the Christians claim they are Georgians. Their habits and cultural features are similar in many aspects. The Ingiloys did not count as a separate ethnicity during the Soviet period and, therefore, were constantly neglected by the population censuses. Yet some sources claim there were as many as , Ingiloys in Azerbaijan in .10 The problem was that the majority were registered as Azeris while the minority counted as Georgians. By the  census, Azerbaijan had as many as , Georgians. With the exception of the , Georgians residing in Baku and Ganja, all Georgians live in provinces. Therefore we can call them Georgian-speaking Ingiloys who mainly live in rural regions, namely in Gakh (, people), Zakatala (, people) and Belakan districts (,). The Udins live eastwards from the Sheki-Zakatala zone, in the north of Azerbaijan, in Gabala and Oguz districts. They belong to the Gregorian branch of Christianity and this fact has had a serious effect on their culture and life, as the Armenians are affiliated with the same confessional branch of Christianity. By the  census, there were , Udins in the USSR, , of whom lived in Azerbaijan, with their majority (,) residing in the village of Nidzh in Gabala district. This is why the Udins have always been trilingual, speaking Udin, Armenian and Azeri. After the inception of the Karabakh conflict, some Udins left the country and moved mainly to Russia. The  census registered , Udins in the village of Nidzh and some  of them in the Gakh rayon. The majority of Udins are rural residents. In the highlands, at the foot of Mount Shakhdag, in the Kuba district of Azerbaijan, a group of ethnicities known as ‘Shakhdags’ reside. These minor ethnic groups are Khinaligs, Budugs and Kryzs – residents of the villages of Khanalig, Budug and Kryz. 

Aliaga Mamaedov, “Certain Aspects of the Current Ethnic Situation in Azerbaijan”, () Central Asia and Caucasus (), at  (in Russian language).



Arif Yunusov The Budugs also live in two more villages – Dali Gay and Guney Budug. The Kryzs stay in the villages of Alik, Djek and Gaput Ergydge. All these villages are located in remote mountainous areas. The Budug language is very similar to the Lezgin language, while the Khinalig language stands apart from all others, even though it belongs to the Caucasian group of languages. None of the censuses counted them, including the last one in , however their number is estimated at , people. The group of Persian/Iranian peoples includes basically the Tats, Kurds and Malishs. The Tat settlements are located in the northeast of Azerbaijan. Their language belongs to the Persian group and is very close to Farsi. The name of their ethnicity is of Turkic origin. Over the centuries, they split into three confessional groups: the majority accepted Islam and nowadays the Muslim Tats constitute the majority of the population in the villages of the Apsheron peninsula around Baku (they live in  of the  villages of the peninsula) and the Ismail district (villages of Lagidg, Baskal and Zarnava). Muslim Tats also live in Khyzy, Davachi, Guba and other districts. As a result of being neighbours for centuries, the Azeris and Muslim Tats both acquired each other’s cultural and habitual similarities. The diffusion of the Azeri language among the Tats led to significant changes in their ethnic self-identification. Many of them have lost their language and ethnic identity, identifying themselves as Azeris. These changes were reflected in the results of all population censuses. Thus, in , the number of Tats in Azerbaijan stood at , people, while in  their registered number was reduced to ,. Right before the dissolution of the USSR, in , their official population totalled ,. Ten years later, in , only , people identified themselves as Tats, indicating that the language they used at home was the Tat language ( %) and the language they used in public was Azeri. The second group of Tats is comprised of those who accepted Judaism and who became referred to as ‘Mountainous Jews’. However, over the centuries they have been extensively mixing with the Jews and nowadays associate themselves with this ethnic group. As a result, the  census registered , Jews in Azerbaijan, , of whom were the so-called Mountainous Jews. They mostly lived in Guba district as well as in Gusar, Oguz, Khachmaz districts and Baku city. These figures, however, raised considerable doubts and the widespread estimate was that the total number of Jews, including the Tats, was no less than ,. According to the Jewish Sokhnut agency, , Jews had left Azerbaijan over the period -,11 i.e. more than the number of resident Jews ten years ago. Consequently, there should have been no Jews left in Azerbaijan. Nevertheless, the  census discovered , Jews, although this time the Jews had not been categorized and it was hard to detect how many of them were the Mountainous Jews. The third group of Tats comprise those who accepted the Gregorian branch of Christianity. They resided in the villages of Matrasa (Shemakha district) and Kilvar (Khachmaz district). During Soviet rule they had been practically Armenianized and fled after the inception of the Karabakh conflict, leaving the country for Russia. The far western edge of Azerbaijan had traditionally been populated by the Kurds. According to the  census, there were , of them. The Karabakh conflict 



“Black Sea Press”, Agency announcement (Tbilisi), dated  July ; Yejednevnie Novosti newspaper, (Baku),  January  (in Russian language).

Ethnic Profile of Post-Soviet Azerbaijan brought the most radical changes to their lives: initially about , Muslim Kurds were deported from Armenia together with the Azeris. They resettled mainly among their compatriots in the Lachin, Kelbadjar, Gubadly and Zangelan districts. In , all these districts were occupied by the Armenian army, turning the Kurds into forced migrants. Some of the Kurds who had fled from Armenia in - left the country in the early s and resettled in the North Caucasus. The others initially headed towards Baku (nearly  %), but later, as the political situation in the country stabilized, moved to Karabakh in considerable numbers (nearly  %), settling mainly in Agdjabedi district, which is currently around  % Kurd. By the  census, the total population of Kurds in Azerbaijan neared , people. In reality their number must have been larger: by several expert estimates their total population should be between , and , people.12 The Kurds have never been a majority except in the abovementioned areas, being clearly outnumbered by the Azeris elsewhere. As early as the beginning of the twentieth century, many Kurds spoke the Azeri language, which resulted in their rapid Azerbaijanization. The  census showed that only . % of the Kurds regarded Kurdish as their native language. This is the second lowest rate among the ethnicities of Azerbaijan after the Ukrainians, which in many aspects helps to explain the Kurd’s assimilation. The Talysh are settled in the southeastern part of Azerbaijan, mainly in the Lenkoran, Yardimly, Masalli, Lerik and Astara districts. Some of the Soviet censuses ignored their existence: in  their registered population totalled , people ( % of Azerbaijan’s population). The  census showed that their number increased to , citizens while,  years later, in , there were only  officially registered Talysh. In  and , they simply disappeared from the list of Soviet ethnicities, reappearing in the  census data totalling only ,, or . % of the country’s total population. Significant changes have occurred in Talysh self-identification over the last  years. Socio-political changes in the republic were reflected in the  census, which registered ,  Talysh residents ( %) in the republic. However, a larger number of their population seems to be more realistic: by our expert estimates, there are at least ,-, Talyshs in Azerbaijan. Primarily, they are rural residents (. %). Judging by the census data,  % of them reside in Masally district, whereas  % stay in Lenkoran district. The rest are settled in the Lerik, Astara and Yardimly districts. Apart from the mentioned areas the latest census registered their presence in the cities of Sumgayit and Baku. Finally, it is worth mentioning those belonging to the Turkic ethnic group, which include mainly the Azeris, as well as Tatars and Meskhetian Turks. The Tatar community comprised , citizens (. % of the total population) according to the  census data. The Tatar community started to form in Azerbaijan in the second half of the nineteenth century. Over the past decade, the number of Tatars has not changed and currently totals , people. The majority reside in Baku (,) and Sumgayit (), as well as in other cities. They have retained their native language and have good command of both the Azeri and Russian languages. Akhyska Turks or Meskhetian Turks, who are related to the Azeris in culture and language, were deported by Stalin’s decree from Georgia to the Middle Asian republics. 

Yunusov, “Ethno-demographic Processes …”, .



Arif Yunusov After Stalin’s death, the  resolution of the Supreme Soviet of the USSR allowed them to resettle in any of the Soviet republics except Georgia. That was when they first appeared in Azerbaijan, identifying themselves as Azeris. Later, in the s, they started arriving as ethnic Turks. The  census registered , Turks who mainly resided in rural areas ( %). An additional ,-, Turks lived in the country and were registered as ‘Azeris’. In the same year (), another influx of Turks brought them to Azerbaijan as refugees. At present, their total population has officially reached , people, registered as refugees from Uzbekistan. They have settled in rural areas, mainly in the Saatly and Sabirabad districts. According to the Turk’s organization Vatan there are over , Turks living in Azerbaijan. They have been categorized into two groups: those registered as ‘Turks’ or ‘Azeris’; and refugees.13 The  census clarified the issue of their numbers: , citizens of Azerbaijan (. % of the country’s total population) were registered as ethnic Turks. This time the census data showed that their number grew in cities (. %), although their majority (. %) still stayed in rural locations, mainly in the Saatly ( %), Sabirabad ( %) and Khachmaz ( %) districts, as well as in Beylagan, Davachi, Shamkir and other districts of the country. IV. Interethnic Collisions in Present-day Azerbaijan Before the breakdown of the USSR, interethnic relations in Azerbaijan had not been overshadowed by any serious collisions. Even the Azeris – the indigenous people of Azerbaijan – did not identify themselves as the titular ethnicity. The USSR communists pursued their own ethnic policy, which envisaged the denationalization of non-Russian ethnic groups and their further assimilation into the Russian ethnos. Formally, this process was often referred to as the ‘flourishing and rapprochement of nations and peoples in achieving total unity’. To achieve this goal, a law, issued in , made national language studies at schools optional and nonobligatory. Parents now had to choose between Russian and non-Russian schools for their children. In practice, this led to the formation of the so-called ‘Russian-speaker’ strata among the USSR ethnicities. Other additional measures were taken to prevent the usage of ethnic/national languages in the Soviet republics. Nearly all official record keeping was carried out in Russian, even if there were no Russians in the area. The ‘Soviet Nation’ formation process was under way, which in fact represented nothing but the Russification of the USSR republics. Minor ethnicities primarily suffered from these policies: they were simply associated with bigger kindred ethnicities or titular nations. As a result of such policies, many smaller ethnicities of the Caucasian group had been reckoned among the Lezgins. At the same time, a process of ‘internationalization’ of titular nations (i.e. Russification) was proceeding simultaneously with this. Therefore, the Azeris suffered from these policies no less than the other ethnicities. Formally, the Russians were the second biggest ethnic group or the second titular ethnicity in Azerbaijan as well as in many other Soviet republics. For this reason, when Gorbachev declared the beginning of Perestroika in , the most acute problem turned out to be an ethnic issue and not political or economic 



See Arif Yunusov, Meskhetian Turks: Twice Deported People (Zaman, Baku, ), - (in Russian language).

Ethnic Profile of Post-Soviet Azerbaijan problems. Azerbaijan was flooded by numerous organizations and associations focusing on the history and culture of the nation. In other words, this period witnessed the rapid growth of ethnic identity. For many reasons, these issues were foremost for Azeris at that time. The most frequently discussed issue during this period was: why do the Azeris, being the predominant ethnicity, have to speak and write in Russian? Why doesn’t the Azeri language occupy the place it deserves in its own republic? Why do the Azeris, in their significant numbers, prefer to study in Russian schools, especially in the capital? The Azerbaijan Communist party elite were unable to lead this process, as it mainly consisted of Russian-speaking Azeris, who had become isolated from the rest of the nation. The Karabakh conflict that erupted in  further aggravated these issues. Not only was the conflict with the Armenians imposed on the Azeris, but they also simultaneously acquired a strong incentive for the restoration of their national identity. This process was particularly intensive among the so-called “Russian-speaker” Azeris, who tried to return to their ethnic roots. Growing violence in the Karabakh conflict and the influx of tens of thousands of refugees into the country and its capital rapidly transformed the situation. The majority of the refugees were rural residents who, at the end of the s and at the beginning of the s, created an unfavourable environment for the Russian-speaking Azeris, the majority of whom chose to leave for Russia. The situation was further aggravated after the National-Democratic movement – led by the Popular Front of Azerbaijan (PFA) – came to power in May . Democrats by their creed, but inexperienced in interethnic issues, the movement leaders created a mass of problems, which, even now, have not been eliminated. The policy of accelerated rapprochement with Turkey, the pan-Turkic slogans (“Only a Turk can be a Turk’s friend”, etc.) only served to scare the ethnic minorities and Russian-speaking Azeris away from the first National-Democratic government. In this respect, a highly negative role was played by the Law on Language, adopted by the Milli Medjlis (the parliament) of Azerbaijan on  December , according to which the Azeri language was renamed into ‘Turkic’, automatically turning all Azeris into ‘Turks’. Formally, the leaders of the national front were right – up until  both the language and the nation bore this title. However, over the past  years, very serious changes had taken place in the lives of the Azeri peoples – the emerging new generation of people now identified themselves as the ‘Azeris’. Nevertheless, more important was that the Law was very unclear in defining such a sensitive issue as: does the term ‘Azeri’ imply being an ethnic Azeri or does it apply to all inhabitants of Azerbaijan?14 Up until then a significant part of Azerbaijan’s citizens, including Tats, Talyshs, Kurds and Lezgins, and especially those who lived in regions with an Azeri ethnic predominance, have always considered themselves as to be ‘Azeris’ and have been registered as such in all the Soviet censuses. The law caused a radical change in the existing situation: it separated the titular/native ethnicity, or ‘Turks’, as they were then called, from the rest of Azerbaijan’s citizens – the ‘Azeris’, or many Muslim ethnicities of the republic. Thus, by adopting the Law on Language, the Azeri national movement leaders 

Rauf Guseinov, “The Azerbaijan Republic in the Mirror of Poly-Ethnicity: History, Current Situation, Prognosis, Recommendations”, () The Central Asia and Caucasus (),  (in Russian language).



Arif Yunusov unintentionally promoted an upsurge of ethnic self-identification among minorities. In other words, the very slow process of self-identification among national minorities of Azerbaijan was strongly accelerated by the adoption of the Law on Language, which suggested the actual status of the minorities in the country. Consequently, all other measures taken by the government failed to have any effect on ethnic minorities. On  September , the president issued a decree on the “Protection of Rights and Freedoms” and on “State Support to the Development of Languages and Cultures of the National Minorities and Ethnic Groups of Azerbaijan”.15 Rather democratic in its contents and implications, this document continued to be overshadowed by the controversial Law on Language. It became clear that the Law on Language had been passed too hastily and had not been thought through. Not only national minorities, but also many Azeris were quite unprepared to accept the Law. In fact, the National-Democrats split the country’s society into supporters and opponents of the law. Similarly, even the Azerbaijani National Front (ANF) government’s rather important  decision on shifting from the Cyrillic alphabet to Latin caused a rather controversial public reaction and was perceived as a political decision aimed at the further integration of Azerbaijan into Turkey. All these events were taking place alongside the war with Armenia over Nagorno Karabakh and rising tensions between the Azeri government and Russia and Iran. Other negative processes accompanied the emigration of the Russian population: national minorities started establishing organizations to seek ‘their own niche’ and retain their cultural and ethnic identity. The so-called ‘split ethnicities’ – such as Lezgins and Talysh – were particularly active. Autochthonous peoples who, due to various historical circumstances, had been split in two parts between Russia and Azerbaijan (Lezgins) or Iran and Azerbaijan (Talysh) found themselves in opposition to the National-Democratic movement of Azerbaijan. They were the first among the ethnic minorities to create their own ethnic political parties in  and never concealed their negative attitude towards the PFA. The fact that these ethnic movements found strong support in Russia and Iran also played a role. An explicitly anti-Azeri secessionist organization Sadval was established in Russia, which aimed at the establishment of a Lezgistan state to be located on a certain part of the Azeri territory. The Talysh found support in Iran while Russia provided them with considerable support as well. It is worth mentioning that the future Talysh leader, Aliakram Gumbatov, in - was one of the founders of the PFA and an active fighter against communist rule. It was he who in January  liquidated Soviet governance in Lenkoran district and for a long time fought for Azerbaijan’s independence. However, in , Gumbatov, while he was heading the Talysh movement, declared the establishment of the Talysh-Mugan Autonomous Republic (TMAR) within Azerbaijan. The republic was declared to have its own state symbols and armed forces. Gumbatov declared himself a president of the self-proclaimed autonomous state. The PFA, which was in power between  and , encountered regular problems with other nationalistic movements as well: instigated by the Armenians, the ‘Kurd 



The Decree of the President of the Republic of Azerbaijan on  September , “On Protection Rights and Freedoms, State Support of Development of Language and Culture of National Minorities and Ethnic Groups Living in Azerbaijan”.

Ethnic Profile of Post-Soviet Azerbaijan issue’ emerged on the political scene from time to time, although this contrivance failed to find any considerable support in Azerbaijan as Muslim Kurds were expelled from their lands in Armenia and Azerbaijan during - and bore negative feelings towards the Armenians. The Armenians attempted to establish an Armenian controlled ‘Kurdistan Republic’ on the occupied territory. However, these attempts regularly failed as the Kurd-Yezids residing in Armenia were reluctant to embark on shady enterprises. Yet a certain proportion of the Muslim Kurds in Azerbaijan were not particularly excited by the pro-Turkish PFA leadership’s actions, which clearly raised secessionist inclinations among them. The rise to power of Heydar Aliyev in the summer of  had been a logical consequence of the failure of the PFA’s rule. An experienced politician, Aliyev soon halted Gumbatov’s rebellion and arrested him, as well as many other Talysh activists. Gumbatov was sentenced to death, which was later commuted to life imprisonment. Both the Talysh and Lezgins parties were banned. At the same time, Aliyev initiated public discussions on changing the language and finally achieved the result that had been long awaited by many citizens: the law was repealed and the titular people and their language were renamed ‘Azeri’. A November  referendum approved the country’s new constitution, which came into force on  November. The Azeri language became a state language again. Other interethnic stabilization measures were taken as well: confessional institutes pertaining to all religious groups in Azerbaijan were reopened in the areas of compact minority settlements; native languages were reintroduced in elementary school curricula; syllabuses for minority schools were drawn up; and text books, newspapers, magazines and other printed publications were released in minority languages. Additionally, radio and TV programmes are regularly broadcast and amateur art/theatrical groups conduct regular performances in minority languages. Following the admission of Azerbaijan to the Council of Europe (CoE), closer attention was given to minority issues. Before entering the CoE, as early as  June , Azerbaijan accepted the Framework Convention for the Protection of National Minorities (FCNM) and agreed to join another fundamental convention on minority rights – the European Charter on Regional and Minority Languages. All these events, along with the restored political stability in the country, considerably improved the language situation in Azerbaijan. However, there had been many problems and alerting circumstances that served as a timely reminder of the fact that the recently achieved stability remains fragile and weak. In addition, the government is yet to elaborate a clear ethnic policy and, rather, tries to avoid solving the problematic issues by postponing them while the socioeconomic situation in the country continues to decline. The government’s inaction in addressing minority and interethnic issues may raise the prospect of aggravated consequences. The problems of Talyshs and Lezgins may easily re-emerge again, as the process of national revival among these ethnicities is on the rise. These ethnic groups possess native territories and maintain connections with their compatriots in Russia and Iran. On the other hand, it is more likely that the Azeri language will keep strengthening its position in society while the Russian language will further lose its importance, which can lead to only one result: the Russian-speaking population will have to leave Azerbaijan, being unable to adjust to the new post-Soviet reality. These processes will 

Arif Yunusov particularly affect Russians, in the first place, but not only them. The ethnicities that entered Azerbaijan as a result of the Russian Empire’s ethnic policies may return to the countries of their original settlement. Armenians may be an exception; however, they will hardly be likely to decide to resettle in Azerbaijan anywhere outside Nagorno Karabakh in the near future. Thus, as a result of the democratic development of the national state, the Azeris will become the actual titular nation of the country, while Baku will turn from a cosmopolitan city into a truly national capital. Ethnic minorities residing in the country will have to adjust to these new realities. On the other hand, much will depend on the opposition and titular nation dominating the country. In these circumstances, much depends on the course chosen by the country: whether it will opt for a return to authoritarian rule and plunge into inevitable ethnic collisions or embark on a course of democratic development of a state where minority rights will be observed and guaranteed not only on paper.



Andrei Khanzhin*

Durable Solutions for Meskhetian Turks: The Issue Revisited

I. Introduction Meskhetian Turks, with their bitter experience of two deportations and  years of living in exile, have been perhaps the most neglected group among the peoples forcibly uprooted by Stalin’s order in . They remain one of the few groups not to have been officially rehabilitated or allowed to return. It is striking how shabby is the state of discourse and analysis in academic and policy circles about the history, culture and current situation of Meskhetian Turks. Though lately the number of publications on the issue seems to have increased, genuinely profound studies of the Meskhetian Turks are still lacking. In-depth knowledge on the level of their integration in different regions, on their preferences regarding repatriation or resettlement, on their lifestyle, practices, history and culture in general is in demand. Indeed, it is urgently needed, for wellinformed solutions of their problems are long overdue. Meskhetian Turks want to be officially allowed to return to the region they were deported from; they seek assistance, not obstruction, in their endeavours to integrate into countries they have been living in for decades; many of them long to find a place where they could be spared harassment and the haunting fear of another displacement. Until recently, the international community largely kept aloof from the problems of the Meskhetian Turks. Unfortunately, notwithstanding some seemingly positive recent developments, thus far, progress with regard to their repatriation tends to zero. Problems related to Meskhetian Turks’ integration in receiving societies have not had their fair share of attention either. This article reviews recent attempts to deal with the problems of Meskhetian Turks through the lenses of the three durable solutions, i.e. repatriation, integration and resettlement. It offers observations and reflections upon the appropriateness of these solutions. Finally, the paper seeks to accentuate that it is time to get the issue off the ground and galvanize international support for actions aiming to settle the Meskhetian Turks’ issue.

*

Research Associate, European Centre for Minority Issues (ECMI), Tbilisi, Georgia.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 495-511. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Andrei Khanzhin II. Background To The Issue The Meskhetian Turks, also known as Meskhetians, Muslim Meskhetians or Ahiska Turks are an ethnic group who originally settled in Georgia.1 The question of the ethnic origin of this group has for a long time been the object of debate among scholars and experts and a subject of political speculation. Some claim that they are ethnic Turks, while others insist on their Georgian origin. Until , they lived in the region of Meskhetia, a territory today forming part of the Samtskhe-Javakheti region, which is located along Georgia’s border with Turkey. The Meskhetian Turks speak an EastAnatolian dialect of Turkish. Their traditional religion is Sunni Islam. A. Deportation On Stalin’s orders, between  and  more than  major population groups, including eight entire ethnic groups, were displaced from their ancestral homelands. Among these eight peoples totalling over . million people, was the ,-strong rural Muslim population of Meskhetia, who Stalin ordered to be deported in -. Under the watchful eye of NKVD troops, the entire Muslim population from  villages of the region was rounded up, herded into cattle wagons and dumped thousands of kilometres away in Central Asian republics, primarily in the Fergana Valley, Tashkent and Samarkand in Uzbekistan, as well as South Kazakhstan. People were given as little as two hours to pack up their belongings and food for the trip. Many of them recall that there were no explanations whatsoever given as to their new destination or the reasons for their sudden uprooting. Moreover, they were promised that they would be brought back within two months. Thousands are believed to have died during this journey – which lasted  days – and in the course of the first months upon their arrival in Central Asia. Their movement to places of new residence was confined to very limited zones - so-called ‘special settlements’. The punishment for disobedience was - years of hard labour in the Gulag camps. In , the Supreme Soviet decreed that the ‘special settlers’ were to stay in their new places of residence forever. The reasons for Stalin’s decision to deport hundreds of thousands of Meskhetians, Chechens, Ingush, Crimean Tatars, Balkars, Kalmyks and others remain unclear. Officially, all these minorities were accused of collaborating with German troops. As for the Meskhetians in particular, it is believed that Stalin wanted to cleanse Southern Georgia of so-called ‘unreliable elements’, as he eyed Turkey’s Kars-Ardah region with the intent to reclaim it after the end of World War II. Stalin’s death – and the subsequent execution of Beria, who was personally in charge of the deportation in - – put an end to the regime of collective condemnation and forced transfer of people simply because they belonged to a particular ethnic 



There is no consensus among researchers, activists or politicians concerning the term that should be used to refer to the Muslim population deported from the Georgian province of Meskhetia in . ‘Meskhetians’ is the term widely preferred in Georgia, whereas the majority of Meskhetian Turks in Turkey refer to themselves as ‘Ahiska Turks’. This paper does not endorse any of the terms. The term Meskhetian Turks is used for convenience, for it is widely used among international experts and policy makers.

Durable Solutions for Meskhetian Turks: The Issue Revisited group. In February , five of the eight peoples (the Karachai, Kalmyks, Chechens, Ingush and Balkars) were named in Khrushev’s famous speech at the XX Communist Party Congress, in which forced transfers were referred to as one of the crimes committed by Stalin. In , these five groups were granted the right to return. In this speech, Krushev did not, however, mention Meskhetian Turks, Crimean Tatars and Volga Germans. In , the special settlement regime for Meskhetian Turks, Crimean Tatars and Volga Germans was lifted, but they continued to be barred from returning to their homelands. Meskhetian Turks were not allowed to return because Southern Georgia was still considered a strategic area due to its proximity to the Turkish border. To date, Meskhetian Turks have not been officially rehabilitated or allowed to return en masse to the region from which they had been forcibly deported in . Moreover, in the course of the following decades, this people endured repeated displacements. In June , Meskhetian Turks living in Fergana province in Uzbekistan became victims of violence and riots. The attacks, specifically targeting Meskhetian Turks, resulted in more than  deaths.2 By order of the Soviet government, approximately all , Meskhetian Turks living in this region were evacuated to Central Russia.3 In the course of the following two years, more than , Meskhetian Turks spontaneously moved to Russia and Azerbaijan while a smaller number migrated to Ukraine and Kazakhstan. As a result, Meskhetian Turks were scattered over seven republics of the Soviet Union. Nowadays, there are compact settlements of Meskhetian Turks in Russia, Uzbekistan, Kazakhstan, Kyrgyzstan, Azerbaijan and Ukraine. There is also a considerable number of Meskhetian Turks in Turkey, where they are known as Ahiska Turks. B. Overview of the Current Situation It is hardly possible to determine the precise number of Meskhetian Turks. Current estimates vary significantly. Many Meskhetian Turks residing in Commonwealth of Independent States (CIS) countries have been registered as Azeris or Uzbeks. Furthermore, for decades, neither respective states nor international bodies were seriously concerned about collecting comprehensive data on Meskhetian Turks. Studies and surveys conducted to date suggest that the population of Meskhetian Turks on the territory of the former Soviet Union totals between , and ,. Out of this figure, Kazakhstan and Azerbaijan host over , Meskhetian Turks apiece, ,–, reside in Kyrgyzstan, ,-, in Uzbekistan, ,-, in





Arif Yunusov, Meskhetinskie Turki: Dvazhdi Deportirovanni Narod (Zaman, Baku, ), ; Nana Sumbadze, “Muslim Population of Southern Georgia: Challenges to Repatriation” in Ghia Nodia (ed.), Ethnic-Confessional Groups and Challenges to Civic Integration in Georgia (Caucasus Institute for Peace, Democracy and Development, Tbilisi, Georgia, ), . Sergei Ryazantsev, “Ethnic Migration and Condition of the Meskhetian Turks at the South of Russia”, an unpublished report prepared for the United Nations High Commissioner for Refugees and the Danish Refugee Council (Stavropol, ); Alexander Osipov,“Narushenie Prav Vinuzhdennikh Migrantov I Etnicheskaya Diskriminatsiya v Krasnodarskom Kraye – Polozhenie Meskhetinskikh Turkov” (Memorial, Moscow,  and ), at .



Andrei Khanzhin Russia and , in Ukraine.4 There is also a large Meskhetian Turkish community in Turkey. At present, it is estimated that about ,-, Meskhetian Turks live in Turkey.5 Yet, again, it should be noted that these statistics are hardly reliable, for no comprehensive and representative census of Meskhetian Turks has been carried out. III. Durable Solutions for Meskhetian Turks A. Early Attempts to Tackle the Issue Before the demise of the Soviet Union, the issue of durable solutions for the Meskhetian Turks largely fell outside the international community’s scope of attention. As this group was displaced within a sovereign country, responsibility for the determination of an optimal solution for the Meskhetian Turks rested squarely with the USSR authorities. In spite of the efforts of some Meskhetian activists, notably leaders of ‘Vatan’,6 Soviet authorities neither officially rehabilitated nor facilitated the return of Meskhetian Turks. Even after all official restrictions on their movement were abolished, Meskhetian Turks could not return to southwestern Georgia due to the special status of this frontier area and the reluctance of Georgian authorities to receive returnees. Still, a small number of Meskhetian Turks were allowed to settle in the central part of Georgia between  and . The scarcely visible return of Meskhetian Turks that slowly took place in the s and s soon stopped in . In , the authorities of Georgia recommended that the government of the USSR should restrain from the repatriation of Meskhetian Turks to their places of previous residence. In justification, major arguments were given: dearth of land and housing in the regions of previous residence of Meskhetians; overpopulation in the regions; the necessity of relocating people from areas exposed to recurring natural disasters; inability to provide work for repatriates; and fear of interethnic conflicts.7 The first years of perestroika and glasnost saw increasing attention being given within the USSR to a whole range of human rights and minority issues, including the ones pertaining to deported peoples. During the last two years of the Soviet Union, the problems of the deported peoples were addressed on two significant occasions. On  November , a Declaration was adopted by the USSR Supreme Soviet: “On recognizing as unlawful and criminal the repressive acts against the peoples subjected to forced resettlement and guaranteeing their rights”.8 This declaration became   







Yunusov, “Meskhetinskie Turki …”, Sumbadze, “Muslim Population …”, ; O. Malinovska, Meskhetian Turks in Ukraine (Kiev, Ukraine, ). Draft chapter written by Aysegul Aydingun for the ECMI project “Meskhetian Turks: Between Integration and Resettlement”; personal correspondence with Aysegul Aydingun. ‘Vatan’ (meaning homeland in Turkish) is the most prominent Meskhetian Turkish organization. It was established in . Vatan held the view that Meskhetian Turks are essentially ethnic Turks. It advocates repatriation only to Samtskhe-Javakheti. Svetlana Chervonnaya, “The Problem of the Repatriation of the Meskhet-Turks: Appendix to the Fact-finding Mission of the FUEN Delegation to Georgia, November ”, -, at . Ryazantsev, “Ethnic Migration and Condition …”, .

Durable Solutions for Meskhetian Turks: The Issue Revisited instrumental in the initial implementation of the plans for resettlement of the Crimean Tatars in Crimea. On  April , a Law on the Rehabilitation of Repressed Peoples was adopted by the Supreme Soviet of the Russian Federal SSR. The law was not valid in Georgia, but marked a general boost for the organizations working for the rehabilitation of the deported peoples of the former Soviet Union. The disintegration of the USSR further complicated prospects for the return and settlement of displaced people. On the other hand, with the former Soviet republics becoming independent states, the problems of the Meskhetian Turks were put on the international agenda for the first time. However, early attempts by the former Soviet republics to tackle these problems proved largely feeble. A number of conferences and consultations devoted to the problems of the Meskhetian Turks did not result in anything but symbolic declarations of intents. Initially, after the collapse of the Soviet Union, Georgia simply did not discuss the issue of repatriation of the Meskhetian Turks. Only in March  did Georgia initiate talks with the authorities of the southwestern Russian region of Krasnodar Krai. However, the approved “Conceptual plan of repatriation of people, deported in  from Meskhetia-Javakhetia of Georgian SSR”9 did not suggest any concrete measures for its implementation. The Bishkek Agreement, signed in October  between the CIS countries, acknowledges the right of the deported peoples to return to their places of residence at the moment of their deportation. Unfortunately, this agreement also did not lead to any specific steps, for Russia and Georgia never ratified it. In , Georgian president Shevardnadze signed the enactment “On regulation of some social problems of deported peoples”.10 The Cabinet of Ministers of the Republic of Georgia had to undertake measures aimed at facilitating the return of those families of the Meskhetian Turks who were unlawfully and forcibly deported from Georgia.11 Shevardnadze’s subsequent decree in  proposed the start of a repatriation movement of , Meskhetian Turks, who were to return by .12 However, both provisions remained paper accords, as no actions envisaged in them have ever materialized. The CIS Conference on migration in May  and the consultations that followed it in the Hague and Vienna were envisaged to enhance cooperation and interaction between the countries of the CIS and international organizations in relation to migration matters in general and the problems of the Meskhetian Turks in particular. The Hague consultations on the Meskhetian Turks in September  took place under the auspices of the OSCE High Commissioner on National Minorities (HCNM), The United Nations High Commissioner for Refugees (UNHCR) and the Open Society Institute’s Forced Migration Project (OSI-FMP), and included participants from the governments of Russia, Georgia and Azerbaijan, and the Meskhetian Turk organizations Vatan and Hsna. Its objective was to formulate a joint approach to the various problems of Meskhetian Turks and to create a framework for future solutions.    

Ryazantsev, “Ethnic Migration and Condition …”, . R. Kumysheva, “Turkey and Georgia are ready to accept the Meskhetian Turks”, Severny Kavkaz, , . Enactment signed on  May . IOM, “Focus on the Meskhetians of the former Soviet Union: the deported people history has forgotten”, IOM News, , No. , .

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Andrei Khanzhin However, according to some accounts, participants spent most of the time disputing over the term was henceforth to be used when referring to this people. On - March , the informal follow-up consultations – also hosted by the HCNM, UNHCR and OSI-FMP – took place in Vienna. Participants at the Vienna consultations identified a broad spectrum of issues pertaining to the Meskhetian Turks (rehabilitation, repatriation and regularization of their status in their places of residence, but no concrete decisions were made or actions planned.13 B. The Issue Revisited Even though The Hague and Vienna consultations did not bring any tangible results and did not clearly determine the responsibilities of the different actors, they marked the beginning of an international discussion about durable solutions for the Meskhetian Turks. As the years pass by, other durable solutions besides repatriation come to be seen by the international community as possible options for the Meskhetian Turks. Actors involved in the Meskhetian Turks’ problems hold to different, often contradictory, views as to the prospects for durable solutions for this group. In principle, everybody agrees that the Meskhetian Turks themselves should be allowed to choose whether to stay indefinitely in the place of their present residence, to move within the country of their residence or to return to Georgia. However, when it comes to concrete steps and decisions, all parties concerned prefer to drag out the process. Discussions on the viability of repatriation, integration and resettlement ramble on and it remains to be seen whether they will ever lead to concrete results. C. Repatriation Europe half opened its doors to an independent Georgia when it approved Georgian membership in the Council of Europe in . While beckoning and hinting at underlying prospects for pre-accession talks, the European community obliged Georgia to start the process of adjusting its legislation and policies to European standards. Upon accession to the Council of Europe, among other obligations, Georgia promised to settle the issue of the Meskhetian Turks. Within two years, Georgia had to adopt a law on repatriation, in five years launch a process of repatriation and to finish it by . Georgia, however, did not seem to take these demands, as well as their own obligations, seriously. It faced a knot of unsolved problems and, perhaps, hoped that the Council of Europe would not put pressure on them until problems with the separatist regions were solved. For four years, following accession to the Council of Europe, Georgia continued to conduct a policy of ‘avoidance and procrastination’ with regard to the Meskhetian Turks. Moreover, according to some scholars and activists, Georgian authorities did everything to make an impression that repatriation was simply impos-





Oscari Pentikäinen and Tom Trier, “Between Integration and Resettlement: Meskhetian Turks”, ECHI Working Paper No. , September , , at ; interviews with Marat Baratashvili (president of the NGO “Union of Georgian Repatriates”) and Arif Yunusov.

Durable Solutions for Meskhetian Turks: The Issue Revisited sible.14 Georgia did not even bother to collect data on the numbers of Meskhetian Turks residing in other countries. Nor was it seriously concerned about creating a legal framework for repatriation. Two versions of draft laws on repatriation were prepared – by the head of the Georgian Repatriation Service Guram Mamulia and by the Georgian Young Lawyers’ Association (GYLA). The former was rebuffed by authorities as too radical whereas the latter was heavily criticized by different experts because it basically made repatriation en masse impossible. For instance, paragraph  of the GYLA draft stated that this law allowed for the repatriation of the Meskhetian Turks from the countries with which Georgia had an agreement on legal rehabilitation of deportees and their families.15 To date such agreements have not been signed with any country concerned. The law was never adopted and the issue was put on hold. The ‘Rose Revolution’, in November , brought the new Georgian leadership a convincing victory. They came to power on the promise of drastic and swift changes in virtually all spheres. Georgia’s revolution was also an eloquent appeal for inclusion in the world community. Georgia is now heralded as a democratic model for other Soviet republics. In turn, the new government sees the solution of numerous problems currently confronting the country in closer ties with Europe and the United States. Since the November  changes, Georgian leaders, on numerous occasions, have reiterated their intention to join the European Union. In order to attain this far-reaching goal, however, the country is expected not only to declare its intentions, but also to demonstrate its willingness and ability to comply with certain requirements. The Rose Revolution’s ability to meet its goals is far from assured. The new government is also expected to fulfil promises made to European institutions by their predecessors. This is the legacy it ought to deal with, however improbable and inappropriate some of the obligations undertaken by Shevardnadze might seem to the new political establishment. One of the burning issues, albeit often overshadowed by a protracted stand-off with the two breakaway regions of South Ossetia and Abkhazia, remained the one pertaining to durable solutions for the Meskhetian Turks. The first year of the Georgian ‘Rose Era’ did not bring any significant progress to the solution of the repatriation of the Meskhetian Turks. Despite admitting that these issues should be addressed and that some measures should be undertaken to facilitate repatriation, until recently the Georgian government did not appear to be inclined to move forward on this matter. The following ‘insurmountable’ obstacles to repatriation (mainly taking the form of previous arguments against repatriation) were voiced by new leaders: the fear that, in the long-run, a large-scale repatriation of Meskhetian Turks will dramatically change the demographic balance of Samtskhe-Javakheti, currently predominantly populated by Armenians. It is believed that, as soon as the province becomes entirely ‘Turkish’, Meskhetian Turks will eventually put forward demands for autonomy or, in the worst scenario, for independence. A further obstacle is the fear generated by Georgia’s recent 



Interviews with Marat Baratashvili and Emil Adelkhanov (Deputy Chairman of the Caucasus Institute for Peace, Development and Democracy, Tbilisi, Georgia) carried out in March-April . GYLA draft law, “On repatriation of persons deported from Georgia in s by the Soviet Regime”.

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Andrei Khanzhin history of interethnic strife. There are concerns that the return will cause ethnic conflicts between Meskhetian Turks and Armenians. The record of conflict between Turks and Armenians adds credibility to these fears. Ethnic Georgians who were forcibly brought and settled in the houses of deportees in Samtskhe-Javakheti fear the repatriates will reclaim their land. The general economic and political situation in Georgia is another argument routinely mentioned to justify Georgia’s inability to accommodate a large number of repatriates. The dire economic situation prevents Georgian authorities from allocating sufficient financial resources for repatriation and integration. It is often mentioned that, prior to the repatriation of the Meskhetian Turks, the country must settle issues pertaining to internally displaced people from Abkhazia. It is argued that there is no land to accommodate a large number of refugees from Abkhazia and South Ossetia, let alone the Meskhetian Turks. However, as Georgia has proclaimed that it is determined to do everything to integrate into Europe and declared itself a champion of democratic, pro-western changes in the post-soviet space, it is obliged to accelerate a process aimed at fulfilling the obligations it assumed upon accession to the CoE. Furthermore, the CoE has intensified pressure on Georgia to honour its obligations. In its Resolution  (), the CoE, while commending Georgia for succeeding in implementing some of its commitments, urged it to establish “without any further delay, [the] legal, administrative and political conditions for the start of the process of their [Meskhetian Turks] repatriation with a view to its completion by ”.16 During his visit to Georgia in April , Terry Davis, General Secretary of the CoE, once again called on Georgian officials to speed up the work on this matter. As a result, the spring of  has seen some progress in Georgia’s effort to address the repatriation issue. The president of Georgia, the minister of foreign affairs and other high-ranking officials have, on numerous occasions, reiterated that Georgia will comply with its CoE commitments, including the repatriation of Meskhetian Turks.17 In November , a special Governmental Commission was established to deal with the issue of repatriation to Georgia. However, the work of the Commission only really started when, in March , the Georgian State Minister for Conflict Resolution Issues, Georgi Khaindrava, was appointed head of the Commission. Mr. Khaindrava declared that he intends to take this issue seriously and to accelerate the process. The official government rhetoric on the repatriation issue has changed slightly as well. Members of the Commission contend that the issue of repatriation is one of the most significant and urgent problems that Georgia currently faces. The current discourse suggests that Georgian society should regard Meskhetian Turks as a part of the nation, which had been coercively removed. Officials, at least on paper, state that it is incorrect to discuss the repatriation of the Meskhetian Turks exclusively in the context of international obligations. On the contrary, according to the members of the Commission, repatriation must happen not because Georgia assumed international obligations but

 



CoE Resolution  () at . “Georgian, CoE officials discuss repatriation of Meskhetians”, Civil Georgia: Online Magazine,  May , at .

Durable Solutions for Meskhetian Turks: The Issue Revisited because the country has a moral obligation towards “the exiled part of its society”.18 It is also notable that, according to some members of the Commission, the policy towards Meskhetian Turks must be premised on the assumption that the right to return is not connected to their ethnic identity. Thus, regardless of their ethnic identity, all deportees and their descendants have a right to return. Currently, the Commission is working on an action plan for repatriation to be approved by the president. Its representatives have also declared that Georgia might be able to accommodate between , and , repatriates. On the other hand, Georgian officials emphasize that the repatriation should not jeopardize the security situation in the country, that it should be carefully phased and that the majority of returnees could not be allowed to settle in SamtskheJavakheti. As Georgia will not accept the responsibility to settle the Meskhetian Turks exclusively in Samtskhe-Javakheti, they should be offered other regions in Georgia for settlement where there is seen to be adequate economic conditions and less risk of ethnic tension. Georgia still refuses to adopt the law on rehabilitation, as it refuses to be held responsible for atrocities committed by the Soviet regime. Whether Georgia will awaken to its responsibilities and opportunities remains to be seen. Whatever the rhetoric is, no progress has been visible thus far. It is clear that the obligations regarding the Meskhetian Turks are largely perceived by the Georgian leadership as a burden. As of the time of writing, an action plan looks very raw. Some activists have already raised concerns that the Commission – which includes neither representatives of the Meskhetian Turk community nor anybody from SamtskheJavakheti – is not a representative structure and hence cannot be entrusted with the task of designing an action plan for repatriation. Furthermore, they say that it is up to the Meskhetian Turks to choose their place of residence within Georgia, for there are no restrictions on movement for citizens of the country. It is also essential to issue a law on rehabilitation and grant citizenship unconditionally to all deportees and their descendants.19 On the other hand, it is highly doubtful that the current pressure on Georgia is timely and well-informed. Although seen by many politicians, experts and researchers as most the ‘natural’ and favourable option, in many cases repatriation has turned out to be a most problematic and difficult solution to implement. Repatriation of the Meskhetian Turks to Georgia is indeed going to be problematic and difficult: firstly, the ‘home’ country has been less than welcoming; secondly, certain host countries, such as Russia, have been too forceful in encouraging their return; and thirdly, there has been only very limited assistance to Georgia from the international community. The situation is further complicated by the fact that there is no reliable information on the number of potential repatriated, or their views, aspirations and perceptions of home and homeland. It is all too often assumed that, regardless of a lengthy period of life in exile, the uprooted population is seeking to return home against all odds. This universal desire to return is ascribed to all categories of displaced populations. Not only are people supposed to be 

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Ghia Nodia (member of the Governmental Commission on Repatriation), “Repatriation of Muslim Meskhetians: Goals and Responsibilities”, ()  Hours (), , see . Interviews with Marat Baratashvili and Naira Gelashvili (Head of the NGO ‘Caucasus House’, Tbilisi, Georgia) conducted in March-April .

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Andrei Khanzhin administratively attached to a country, but it is also taken for granted that they have an emotional and psychological attachment that is difficult and traumatic to adjust. There is an implicit idea that the displaced have left a home in a fixed geographical location and to which they will continue to be drawn while they stay in other locations. What different external actors tend to overlook is the returnees’ points of view on repatriation and their perceptions of home. For second and third generations of deportees, a return to their country of origin does not necessarily mean ‘going home’. Concepts of home vary greatly between different societies and between different individuals within societies and it cannot be assumed that, for that matter, the Meskhetian Turks will necessarily want to return to Samtskhe-Javakheti. Although some Meskhetians may look to a particular piece of territory as their permanent homeland, the concept of home usually includes more than a physical location, but also the community associated with that place. Furthermore, Georgia and its society have changed beyond all recognition for those Meskhetian Turks who still remember the deportation and they themselves may have changed during their exile, not to mention their descendants born and raised in completely different societies and cultures. The aforesaid is not to insinuate that repatriation is highly undesirable or impossible, but to emphasize that the current situation does not allow for superficial and ungrounded decisions. For repatriation to be effective, a profound understanding of the context is vital, as well as careful consideration of the views and interests of different actors, particularly the Meskhetian Turks. D. Integration Integration is viewed as another durable solution for the Meskhetian Turks. However, integration in current host countries should not be reduced to access to legal status (citizenship or refugee status) or suffrage, etc. Integration is a complex process of structural and social adjustments and relationships, which is relative, culturally determined and effects both hosts – i.e. a receiving society – and ‘guests’ or newcomers. There are several frameworks within which integration has been conceptualized. One is concerned with the legal and functional aspects of integration. It means that different categories of newcomers are entitled to exercise certain rights. These rights include access to a certain legal status, social services and social protection. Assistance in accommodation, education, language training and access to the labour market is normally rendered by the governments of receiving states.20 In the latter context, researchers and experts describe integration as a process by which individuals and groups of newcomers maintain their cultural identity while actively participating in the larger societal life of local communities. Hence, within this framework of analysis, integration should focus on issues such as identity, belonging, recognition, etc.21 Conditions of Meskhetian Turks vary from country to country. An analysis of the situation in each country of residence is beyond the scope of this paper. In short,  



A. Bloch, “Refugee Settlement in Britain: the Impact of Policy on Participation”, () JEMS (), -. J. Berry, “Immigration, Acculturation, and Adaptation”, () Applied Psychology: An International Review (), -.

Durable Solutions for Meskhetian Turks: The Issue Revisited some countries conduct more favourable policies towards national minorities in general and Meskhetian Turks in particular, whereas others are, to put it mildly, less tolerant to ‘guests’, as Meskhetian Turks are frequently referred to in statements of a governor of Krasnodar province in the Russian Federation. In terms of functional integration, in some countries Meskhetian Turks have integrated with relative success. In Kazakhstan, Kyrgyzstan, Ukraine and to some extent, Azerbaijan, Meskhetian Turks are relatively well-integrated, hold citizenship and, generally, are treated on an equal footing with natives. Cultural and religious similarities also make for better integration into these countries. In Uzbekistan, however, the trauma inflicted by the Fergana events in  has not yet fully healed. Meskhetian Turks were disposed to be wary after what had happened to them: many of them are registered as Uzbeks and prefer to keep a lowprofile, blending in to the Uzbek society.22 However, there are common obstacles hindering the cultural and societal integration of Meskhetian Turks into their adopted societies. After the collapse of the Soviet Union, most former Soviet republics embarked on nation-building projects that were often accompanied by nationalist policies and rhetoric blaming minorities for numerous difficulties faced in the early days of independence. These policies generated fear among the Meskhetian Turks – particularly in Central Asia – and led to their relative marginalization and self-isolation.23 Secondly, a large number of Meskhetian Turks moved to Ukraine and Russia shortly before the demise of the Soviet Union. The short history of their stay in these regions is often cited as an obstacle to their integration into these countries. Moreover, it made them most vulnerable to the attacks of nationalists, as they were often perceived and portrayed as a ‘last gift’ of the crumbling empire. Thirdly, the dire extent of economic conditions in most of these countries has not allowed for the successful and swift economic integration of the Meskhetian Turks. On the other hand, in some countries, particularly Azerbaijan, Kyrgzstan and Kazakhstan, Meskhetian Turks are often better off compared with the natives. This also antagonizes the local population. Fourthly, due to a lack of funds and goodwill, most countries have not formulated coherent policies to encourage the integration of the Meskhetian Turks. Perhaps, they constitute too small a group to command significant attention in these countries. Finally, as Meskhetian Turks tend to live in rather confined and closed communities, maintain their own rites and, often in contrast to their neighbours, work hard and live modestly, they have, to a certain extent, wittingly or unwittingly alienated themselves from the rest of the population. This hampers their cultural and societal integration. Due to these factors, compounded with the collective history of two deportations, even in the most favourable and minority-friendly countries, like Kazakhstan and Ukraine, they often concede that they still live in constant fear – as they put it, on a powder keg – of being displaced again. Quite a few of them perceive their presence in these countries as temporary. The situation of Meskhetian Turks in Russia deserves more attention. It is estimated that between , and , Meskhetian Turks reside in Russia and that between , and , of them are forced migrants from Uzbekistan. According  

Interviews with Meskhetian Turks in Uzbekistan carried out in March . Interviews with Meskhetian Turks in Kyrgyzstan, Kazakhstan and Uzbekistan carried out in March .



Andrei Khanzhin to a very approximate assessment, , Meskhetian Turks live in Krasnodar Krai, , to , in Rostov-Don province and a smaller amount in ten other provinces of the Russian Federation.24 In the course of the years following their evacuation from Uzbekistan, most of them have integrated into local society and acquired Russian citizenship. The situation of Meskhetian Turks in Krasnodar Krai, however, remains precarious. They are denied access to citizenship procedures and are maintained in a situation of de facto statelessness. Considering their presence as temporary, the local authorities refused to grant Meskhetian Turks permanent residence registration, the so-called ‘propiska’. They are required to regularly renew their temporary registration. In addition to lacking rights to registration and citizenship, Meskhetian Turks are not allowed to pay taxes to the authorities in Krasnodar Krai, which is one of the main arguments against their presence in the region. Generally speaking, they are deprived of basic civil, social, political and economic rights. This policy clearly infringes the  Law on citizenship, as well as the Russian Federation’s Constitutional and Supreme Courts’ ruling that residence registration is not a precondition for citizenship. By turning a blind eye to the violation of basic civil rights of Meskhetian Turks in the region, Moscow implicitly encourages the regional authorities to continue current policies towards Meskhetian Turks – the policies forcing Meskhetian Turks out of the region. Meanwhile, Russia abdicates all responsibility for deportation and hence a solution to the Meskhetian Turks’ problems. Russia frequently refers to the issue in connection with Georgia’s international obligations. At the same time, Russia does not seem to be too enthusiastic, to put it mildly, about sharing responsibility for repatriation. Nor is it creating favourable conditions for integration of the Meskhetian Turks in the different regions of the Russian Federation. The international community, also, has done very little to foster the integration of Meskhetian Turks. The OSCE High Commissioner on National Minorities, the UN High Commissioner For Refugees, the Secretary General of the CoE and the Director of the International Organisation for Migration, in their letter addressed to the President of the Russian Federation, dated  September , voiced their concern over the de facto statelessness of the majority of the Meskhetian Turk population in Krasnodar Krai. They expressed their hopes that “the difficult situation of the Meskhetians could be resolved quickly if the Russian federal authorities take the necessary legal/regulatory measures to ensure, with immediate effect, the official recognition of the Meskhetians within the territory of the Krasnodar Krai as citizens of the Russian Federation”.25 CoE Resolution  () states that legal status in the Russian Federation should be urgently clarified and re-established.26 International and Russian NGOs like Human

 





Ryazantsev, “Ethnic Migration and Condition …”, -. Memorial, “The Situation of the Turks-Meskhetians – The Violation of the Rights of Forced Migrants and Ethnic Discrimination in Krasnodar Territory”, Memorial Human Rights Centre, at . CoE Resolution  (), at .

Durable Solutions for Meskhetian Turks: The Issue Revisited Rights Watch (HRW)27 and Memorial28 have also called several times on Russia to comply with its own law on citizenship and the Supreme Courts’ rulings and to stop administrative practices of systematic harassment and discrimination of Meskhetian Turks, but to no avail. In the case of the Meskhetian Turks in Krasnodar Krai, neither functional nor cultural integration have been possible. When the prospects for repatriation are unclear and integration is impossible, the only solution left for a displaced population is resettlement. E. Resettlement In February , the US Department of State presented a plan for the voluntary resettlement of a group of Meskhetian Turks from Krasnodar Krai to the US. The US refugee programme Overseas Processing Entity (OPE) in Moscow welcomed P- applications (refugee status) from  February to  August  from individuals of Meskhetian Turk ethnicity who: fled from Uzbekistan after the riots in ; arrived in Krasnodar Krai before  January  and continued to live there; have had problems obtaining Russian citizenship; and have been unable to attain permanent, legal residence. The programme accepts resettlement applications only from Meskhetian Turks residing in the Krasnodar region and not from neighbouring parts of Russia. The US Department of State has charged the International Organization for Migration (IOM) with launching a programme of assistance in the resettlement of Meskhetian Turks to the US.29 As of March , some  persons moved to the US and some , submitted a P- application. At the same time, it is not clear what will be the situation of those Meskhetian Turks who are not found eligible for the programme and would have to remain in Krasnodar Krai after the closure of the resettlement programme. American officials said that a total of ,-, persons are expected to benefit from this resettlement programme. It is not clear why the US Department of State singled out Meskhetian Turks for the resettlement programme. According to the official US stance, the settlement programme pursues purely humanitarian purposes. There are different speculations on that matter, some of them sounding rather dubious. For instance, according to some statements, Meskhetian Turks presume they are invited to the US as cheap labour, as they are regarded as hard workers.30 Another frequently voiced reason is that the US decided to take Meskhetian Turks in order to demonstrate their tolerance to Muslims. Other speculations suggest that this move was meant to irritate Russia and/or to relieve Georgia’s burden.

   

See . Alexander Osipov, “Rossiiskii opyt etnicheskoi chistki: Meskhetintsy v Krasnodarskom Kraye” (Memorial, Moscow, Russia, ). Pentikäinen and Trier, “Between Integration and Resettlement …”, at -. Interviews with Meskhetian Turks in Voronesh and Krasnodar Krai, Russian Federation, carried out in November-January -.



Andrei Khanzhin Whatever the reason is, this programme is a solution for Meskhetian Turks. Some of them were quite cautious when the programme began, but now more and more of them are willing to move to the US.31 Another option, contemplated by many Meskhetian Turks, is resettlement to Turkey. In the course of the last  years, Meskhetian Turks have bonded closer in their sense of “Turkishness”. Most Meskhetian Turks consider themselves to be Turks and a considerable number consider Turkey to be their homeland. In , the Turkish parliament adopted a law stipulating that  families of Meskhetian Turks would be allowed to resettle in the town of Igdir. During -, Turkey received only  families that comprised  persons. In the following years, the country reconsidered its stand on the resettlement of Meskhetian Turks and the programme was halted. Apart from legal immigrants, a considerable number of Meskhetian Turks, who arrived as tourists, have settled in Turkey. Turkey, however, has tolerated the presence of illegal Meskhetian Turks. In other words, those Meskhetian Turks whose visas expire are not subjected to deportation from Turkey. Thus, without explicitly encouraging resettlement en masse, Turkey implicitly acknowledges Meskhetian Turks’ historical and cultural bonds with the country.32 Over , people who moved to Turkey before  hold the status of “national refugees” under the Law on Settlement No.  that refers to “people of Turkish ethnic descent and Turkish culture”. Those falling into this category are entitled to settle in the country and eventually receive citizenship. This status gives them access to work, education and healthcare. The permit is to be renewed every two years. Holders of the permit could theoretically acquire Turkish citizenship in two years, but in reality the process lasts longer.33 Currently, more than half of the Meskhetian Turks in Turkey do not have Turkish citizenship. The application of existing laws is a matter of political decision. However, it seems that Turkey presumes that any acceleration of this process might give the wrong message to Meskhetian Turks in other countries. Therefore, at least officially, Turkey has favoured the repatriation of Meskhetian Turks to Georgia. Resettlement either to the US or to Turkey is indeed an option for some Meskhetian Turks. Furthermore, if given the opportunity, the majority of Meskhetian Turks would probably have ‘voted with their feet’ to settle in either of these states. However, the problem is that this option remains open for a very limited number of Meskhetian Turks. Obviously, as neither the US nor Turkey is willing to accept hundreds of thousands of Meskhetian Turks, sooner rather than later the US programme will end and Turkey will have to restrict and control illegal immigration. Therefore, international actors and nation-states should not be lulled into a false sense of progress. They should summon all their good will, expertise and knowledge to foster integration and, if need be, assist in facilitating the repatriation of Meskhetian Turks.

  



Personal correspondence with Steve Swerlow, researcher working for the ECMI project “Between Integration and Resettlement: Meshetian Turks”. Draft chapter written by Aysegul Aydingun for the ECMI project “Meskhetian Turks: Between Integration and Resettlement”; personal correspondence with Aysegul Aydingun. Ibid.

Durable Solutions for Meskhetian Turks: The Issue Revisited IV. Conclusion As this paper has tried to demonstrate, none of the solutions should be viewed as the indisputably right or wrong one for Meskhetian Turks. While sharing the same ethnic origin, Meskhetian Turks of different age, class and gender hold to different views on their present and future. True, the right to return has had a central place in nearly all Meskhetian Turks’ demands, not because any of their leaders supposed that Georgia could take back , Meskhetian Turks and their descendants, but because of a deeply felt need for acknowledgement, encompassing recognition that the initial expulsion took place and that a primordial wrong was committed. Despite pessimism regarding the prospects for repatriation of the Meskhetian Turks, the new Georgian leadership should keep faith with its own stated commitments. In order to be effective, the repatriation policy should be implemented in close dialogue with the international community. It is out of the question that repatriation should be viewed as the only option for the Meskhetian Turks. It is now obvious that the majority of Meskhetian Turks prefer to stay permanently at the place of their current residence. Others would opt for resettlement in Turkey or the US. The international community – Georgia, Russia and the US – should handle this issue with extreme caution for, as history teaches us, when governments, politicians and bureaucrats make mistakes and refuse to reexamine them, there is little victims can do to correct them.

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Part II Reports

A. INTERNATIONAL DEVELOPMENTS

Alain Chablais *

Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities

I. Introduction The year  witnessed many developments in the monitoring of the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention” or FCNM).1 The work of the Advisory Committee on the FCNM (hereinafter “Advisory Committee”) was marked by the completion of the first monitoring cycle for the overwhelming majority of state parties, which now makes it possible to have a wider perspective in terms of comparative analysis. States having ratified the Framework Convention more recently, such as Portugal and the Netherlands, now remain the only ones on which the Advisory Committee has not adopted an opinion. At the same time, it is encouraging to see that the second monitoring cycle has started for several countries. A number of second country visits have already been organized by delegations of the Advisory Committee and the pace of the adoption of opinions even seems to have accelerated in the second cycle: Indeed less than  months elapse, as a rule, between the submission of second state reports and the adoption of the corresponding second opinions. These welcoming developments do not seem to have taken place at the expense of follow-up activities, which have continued to be actively supported by the Advisory Committee so as to maintain a constructive dialogue with the governments between the reporting cycles. The Committee of Ministers (CM) has continued to rely, to a large extent, on the work of the Advisory Committee to carry out its own monitoring functions. Some ele*

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JD, Administrator at the Secretariat of the Framework Convention for the Protection of National Minorities, Directorate General of Human Rights, Council of Europe, Strasbourg (France). The views expressed herein are solely those of the author. For a review of earlier developments see Rainer Hofmann, “Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities”,  EYMI (/), -, id.; “Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities”,  EYMI (/), -; and Catrin Pekari, “Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities”,  EYMI (/), -.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 515-540. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Alain Chablais ments, however, suggest that the complementarity between the Committee of Ministers and the Advisory Committee will deserve particular attention in order to ensure a meaningful impact of the monitoring mechanism in the future. These elements include a lower number of resolutions adopted by the Committee of Ministers in , longer delays between the adoption of opinions and corresponding resolutions, as well as signs of increasing differences in perception – or in some cases even discrepancies – on the substance between the two monitoring bodies. The real test of the progress achieved in the implementation of the Framework Convention in Europe will, however, largely depend on the results of the second monitoring cycle which will, to a large extent, focus on the follow-up given by the states to the findings of the first cycle. II. Procedural Aspects of the Monitoring Process The monitoring process under the Framework Convention has experienced a significant evolution over the last seven years, i.e. as from the establishment of the Advisory Committee in . Whereas Resolution () of the Committee of Ministers continues to govern key features of the supervisory mechanism, a number of important working methods of both the Advisory Committee and the Committee of Ministers have subsequently been fixed through ad hoc CM resolutions and emerging practices established over time by the Advisory Committee. An extensive overview of the procedural aspects of the monitoring process has already been given in earlier reviews. It may therefore suffice to make a short reference to those developments of relevance to the monitoring process that took place in . A. Practice of the Advisory Committee The period under reference was marked by the beginning of the second monitoring cycle for  state parties, which were due to report in . Bearing in mind that country visits and opinions pertaining to the first monitoring cycle were still being finalized, defining updated working methods for the second monitoring cycle while simultaneously dealing with the renewal of half of its membership has been a challenging situation for the Advisory Committee. This transitional period has nevertheless resulted in certain important developments drawing on the experience from the first cycle with a view to improving further the functioning of the monitoring mechanism. One of the most visible changes relates to the structure of the second state reports: Following the outline for the second state reports prepared by the Advisory Committee and adopted by the Committee of Ministers on  January ,2 state parties are now required to put the main emphasis on the follow-up given to the results of the first cycle, i.e. to the opinion and the corresponding resolution, when reporting on the implementation of the Framework Convention. Furthermore, the new outline already includes the submission of specific questions by the Advisory Committee to states before they draw up their second reports. This possibility was proposed by the Advisory Committee 



ACFC/INF(), .

Review of the Monitoring Process of the Council of Europe Framework Convention in order to limit the need to draw up lengthy questionnaires following the submission of the report – a practice followed in the first cycle – and to speed up the monitoring procedure. Since the replies to these specific questions form an integral part of the second state reports, they automatically became public upon receipt by the Council of Europe (COE), which was not the case in the first cycle. In order to make sure that the state parties have enough time to address the specific questions and to carry out necessary consultations, the Advisory Committee decided that the questionnaires should be sent to the party concerned at least eight months before the second state report at issue is due. In order to ensure that minority organisations and other non-governmental actors also have a possibility effectively to take part in the reporting process, the Advisory Committee decided, at its th meeting in November , to seek information from them on similar questions. Such lists of similar questions, country by country, can therefore be found on the website of the Secretariat of the Framework Convention and this – coupled with the new outline – has led to more focused contributions from NGOs, including in the context of the preparation of shadow reports.3 During its th and th meetings, held in November  and May  respectively, the Advisory Committee held preliminary exchanges of view on the conduct of state visits and on the structure of the opinions in the second cycle. In this context, it agreed to focus state visits increasingly on specific issues, identified prior to the visit, rather than repeating the general approach followed in the first monitoring cycle. Moreover, working groups now as a rule comprise three members of the Advisory Committee and no longer four as was the case in the first cycle, a measure which should inter alia facilitate the organisation of country visits at short notice. Country visits should also be facilitated in the second cycle as the blanket authorisation given by the Committee of Ministers no longer makes reference to the need to receive an invitation from the government concerned.4 As regards the structure of the opinions, it was concluded that, while maintaining its article-by-article approach, the Advisory Committee should develop further the concluding remarks contained in the opinions. As a result of this new approach and other reflections of the Advisory Committee, the structure of the second opinions has undergone substantial changes: These now systematically include thematic subheadings with a view to facilitating the accessibility of the text. The last section has also been revised and a set of draft recommendations for the attention of the Committee of Ministers has been coupled with concluding remarks highlighting both positive developments and issues of concern. It remains to be seen how the Committee of Ministers will receive these second cycle opinions and in particular to what extent its own conclusions and recommendations will continue to rely on the last section of these opinions.

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. See Framework Convention for the Protection of National Minorities – Renewal of authorisations granted to the Advisory Committee for the first monitoring cycle (CM/ Del/Dec()/., /.).



Alain Chablais Based on these revisited working methods, the Advisory Committee has started to adopt country specific opinions for the second cycle and has to date adopted eight opinions on Croatia, Liechtenstein, Moldova, Hungary, Denmark, Italy, the Czech Republic and Estonia. The objective of the second cycle is to adopt such opinions no later than one year from the receipt of the respective state reports, which will represent a significant improvement in reducing the monitoring delays. As was the case in the first monitoring cycle, several state parties have unfortunately experienced excessive delays in submitting their second reports, which may lead the Advisory Committee to ask the Committee of Ministers to authorize it to commence the monitoring in the absence of state reports. This unfortunate step might be taken as early as February  for the first states concerned, unless the sizeable number of states that are already late for more than one year in the submission of their second report manage to meet their reporting obligation by then. B. Practice of the Committee of Ministers 1. General Remarks Most of the general comments made in previous contributions as regards the practice of the Committee of Ministers remain valid today. It seems, however, appropriate to elaborate on two important issues, namely the length of the confidential process and the general functioning of the monitoring work of the Committee of Ministers. A first observation is that the average duration of the country-by-country monitoring process by the Committee of Ministers, which remains largely confidential, has certainly not been shortened despite the fact that the Committee of Ministers itself has recognised “the need to speed up, at all levels, the monitoring procedures relating to the Framework Convention”.5 This situation even seems to have deteriorated, as illustrated by the fact that some draft resolutions have been pending before the Committee of Ministers for more than two years.6 Different factors may explain this regrettable state of affairs, including the fact that an increasing number of state parties tend to disregard the four-month deadline to submit their comments on the opinions, the increasing workload of the Ministers’ Deputies’ Rapporteur Group on Human Rights (GR-H) which convenes less frequently than in the past, as well as divergences of views from the part of states on the substance of pending draft resolutions. The resulting situation is admittedly a problem and pleads for a review of the working methods of the Committee of Ministers in its capacity as the body entrusted with the final responsibility in the monitoring of the Framework Convention, as recognised by the former co 



See Committee of Minister’s reply, adopted on  June , to the Parliamentary Assembly Recommendation () on the rights of national minorities. The opinions on Slovenia were adopted by the Advisory Committee on  September , but the Committee of Ministers has still not adopted its corresponding resolution. Furthermore, the Advisory Committee’s opinion on Austria was adopted on  May  and the Committee of Ministers adopted its resolution on this country only on  February ; the Advisory Committee’s opinion on Albania was adopted on  September  and the Committee of Ministers adopted its resolution on this country only on  May .

Review of the Monitoring Process of the Council of Europe Framework Convention chairman of the GR-H himself.7 The Advisory Committee warned on its part against this negative trend when it noted that “such delays regularly prompt questions and criticism from [its] interlocutors in the countries concerned”.8 A second observation needs to be made on the general functioning of the monitoring work of the Committee of Ministers. As in previous years, it can be stated that the spirit of confidence and cooperation has continued to prevail in the regular oral exchanges that the representatives of the Advisory Committee have had with the delegations of the Council of Europe member states involved in the monitoring procedure. This is an expression of the complementary interaction in the relationship between the Advisory Committee and the Committee of Ministers, a sine qua non for the proper functioning of the monitoring machinery of the Framework Convention. Notwithstanding this positive finding, one cannot hide the fact that it becomes increasingly difficult to have a significant number of states taking active part in the discussions at the GR-H on the implementation of the Framework Convention. This has been regretted by the Advisory Committee, which “considers it important that discussions leading to the country-specific resolutions … are not to be restricted only to the State Party directly concerned and the ‘kin states’, but that other delegations take active part in them”.9 In the same vein, the former co-chairman of the GR-H referred to the task of ensuring the genuinely collective aspect of the monitoring mechanism as an ongoing challenge for the Committee of Ministers.10 2. The Monitoring of the Framework Convention in Kosovo A development of particular significance which deserves mention is the signature on  August  of an agreement between the Council of Europe and the United Nations Interim Administration Mission in Kosovo (UNMIK) on technical arrangements related to the Framework Convention for the Protection of National Minorities in Kosovo.11 This agreement provides for ad hoc monitoring arrangements largely inspired from Article  of the Framework Convention and from the Committee of Ministers’ Resolution () and gives the Committee of Ministers the task to monitor the implementation of this instrument in Kosovo, with the assistance of the Advisory Committee. This involves inter alia the obligation for UNMIK to submit a report to the Committee of Ministers12 – to be made public – containing full information on the legislative and other measures taken to give effect to the principles set out in the Framework 



   

See Pietro Ercolo Ago, “Opening Speeches” in Filling the Frame – Five Years of Monitoring the Framework Convention for the Protection of National Minorities, (Council of Europe Publishing, Strasbourg, ), -. See fourth Activity Report of the Advisory Committee, para. , at . Ibid. See Ercolo Ago, “Opening Speeches” Filling the Frame …, -. The full text of the agreement is available at. . The due date of submission was  February  and the report was received on  June .

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Alain Chablais Convention. The Advisory Committee shall be authorized to request further information from UNMIK and other sources in Kosovo and hold meetings with them for this purpose, which suggests that a visit is likely to be organized by the Advisory Committee in the context of the preparation of its opinion. It is also foreseen that the Committee of Ministers may invite UNMIK to attend meetings in which information on compliance with the Framework Convention in Kosovo is considered, which should be the case when the Committee of Ministers prepares its own conclusions and recommendations in respect of Kosovo. UNMIK shall participate in such meetings in an observer capacity. These innovative arrangements will set a precedent in that they will, for the first time, make it possible for a human rights treaty body to monitor the situation in Kosovo and thereby to review the practice of key international actors like UNMIK and OSCE in this province. 3. The Conclusions and Recommendations of the Committee of Ministers The Committee of Ministers adopted six resolutions in .13 This is the lowest figure as compared to previous years since seven resolutions were adopted in , seven in  and nine in . This reduction is mainly due to the impeding factors mentioned above and may very well persist in the future if remedial measures are not taken by the Committee of Ministers to speed up its work. Moreover, the Committee of Ministers adopted only two resolutions in the first half of .14 Generally speaking, it can be stated that the resolutions adopted by the Committee of Ministers have continued to rely, to a large extent, on the concluding remarks of the corresponding opinions adopted by the Advisory Committee, with perhaps two exceptions, namely the resolutions on Spain and Albania. As has been the case in the past, the Committee of Ministers has occasionally introduced a slightly different wording than the one used by the Advisory Committee in order to soften certain forms of criticism. Other changes of substance – be they of a positive or a negative nature – have been introduced by the Committee of Ministers with a view to taking into account certain important developments that took place after the adoption of the corresponding opinions and which could not, therefore, be addressed by the Advisory Committee in its opinions. Bearing in mind the difficulty to rely on an objective assessment of the situation in the absence of a view expressed by the Advisory Committee, the Committee of Ministers has understandably made cautious use of this possibility. All in all, these various nuances represent what the former co-chairman of the GR-H called the necessary “political backing” of the Committee of Ministers to the monitoring mechanism.15 This contribution will focus on these nuances, which can sometimes be perceived as

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



These are the resolutions on the implementation of the Framework Convention by the following state parties: Austria (ResCMN()), Azerbaijan (ResCMN()), Ireland (ResCMN()), Poland (ResCMN()), Spain (ResCMN()) and Serbia and Montenegro (ResCMN()). These are the resolutions on the implementation on the Framework Convention by the following state parties: Bosnia and Herzegovina (ResCMN()) and Albania (ResCMN()). See Ercolo Ago, “Opening Speeches”, Filling the Frame …, at .

Review of the Monitoring Process of the Council of Europe Framework Convention discrepancies, rather than on the issues that have been addressed in a largely identical way in the opinions and corresponding resolutions. With regard to Azerbaijan, the Committee of Ministers echoed, without altering them, the concluding remarks of the corresponding opinion including the assessment made concerning the situation in Nagorno-Karabakh and its consequences for the implementation of the Framework Convention. The only change made pertains to the  Law on the State Language, which the Advisory Committee said “should be amended” with a view to making it compatible with the Framework Convention:16 In its resolution, the Committee of Ministers called for the continuation of “the process of amending the said law”. This more positive statement was justified to reflect the fact that after the adoption of the opinion of the Advisory Committee, a legislative process aimed at improving the  Law on the State had been initiated by the Azerbaijani authorities. With regard to Austria, the resolution of the Committee of Ministers is also very much in line with the main message of the opinion of the Advisory Committee. This is particularly important in the light of the fact that the resolution was adopted almost two years after the opinion, which shows that an apparently difficult and lasting debate at the GR-H was eventually settled on the basis of the work done by the Advisory Committee. The assessment made concerning the situation prevailing in Carinthia, including in the field of bilingual topographical indications, was also backed by the Committee of Ministers. The only small change concerns the call for further measures in favour of Roma, which should be taken especially in the fields of education and employment but not “housing”, in contrast with the concluding remarks of the Advisory Committee.17 With regard to Ireland, the resolution supports the main points raised by the Advisory Committee, although a whole paragraph of the concluding remarks was left out in the resolution.18 This paragraph did, however, not detect shortcomings in the implementation of the Framework Convention by Ireland: It rather expressed a general statement on the current and future relationship between the Good Friday (Belfast) Agreement and the Framework Convention, which may have not been deemed politically appropriate by the Committee of Ministers. The only other noticeable change is linked to the deletion of the explicit reference to the Roma as a group affected by the rise in racism.19 Although the Roma can still be considered as covered by the expression “new immigrant communities” contained in the relevant paragraph of the resolution, the fact that they have been taken out indicates some reluctance from the Committee of Ministers to follow the approach of the Advisory Committee on the personal scope of the Framework Convention. With regard to Poland, there is only one difference to note. This concerns the assessment made concerning the situation of Lithuanian schools. Whereas the Advisory Committee considered there was reason for concern about the threats of closure of a    

See concluding remarks of the Advisory Committee in para. . See concluding remarks of the Advisory Committee in para. . See concluding remarks of the Advisory Committee in para. . See concluding remarks of the Advisory Committee in para. .



Alain Chablais number of these schools,20 the resolution simply notes that the situation of such schools “has recently been given increased attention by the authorities”. This apparently important change is, however, mainly to be seen as an updating: the comments of the government of Poland indeed make it clear that positive developments subsequent to the opinion of the Advisory Committee improved the situation and seriously reduced the threats of closure at stake.21 With regard to Serbia and Montenegro, the resolution is, to a large extent, based upon the concluding remarks of the opinion, although one important paragraph has been substantially redrafted and completed by the Committee of Ministers:22 the changes at issue were meant to reflect the dramatic rise in the reports of manifestations of intolerance and hostility towards certain national minorities – mainly the Hungarians and the Croats – in Vojvodina in late  and early , i.e. after the adoption of the opinion. The new wording introduced by the Committee of Ministers thus mentions that efforts to build tolerance and trust should be expanded further “in other parts of Serbia and Montenegro including notably in Vojvodina” and that greater attention should be paid “regarding especially the effective investigation and prevention of violent incidents recently committed against persons belonging to Hungarian and some other national minorities”.23 Such language, which is understandably not substantiated in the opinion of the Advisory Committee, suggests that an intense exchange of views between the countries more directly concerned took place at the GR-H. In addition to this important point, the resolution also includes minor adaptations, which mostly aim at softening the language used by the Advisory Committee. This is notably the case for the deletion of the reference to the “aggressive policies” of the past regime and the legacy “of the resulting conflicts”, which are no longer deemed to “seriously” affect interethnic relations in today’s Serbia and Montenegro.24 Similarly, variations between regions in terms of the efforts made to protect the languages and cultures of national minorities are noted but no longer considered “wide”.25 With regard to Bosnia and Herzegovina, the resolution of the Committee of Ministers is very much in line with the corresponding opinion and faithfully reflects the concluding remarks of the Advisory Committee. With regard to Spain, the resolution is probably the one, together with Albania, which deviates the most from the opinion of the Advisory Committee. This state of affairs results in a clear discrepancy between the two texts as opposed to the other five resolutions adopted by the Committee of Ministers in . The contrast appears clearly in the paragraph dealing with two interrelated aspects, namely the personal scope of    

 



See concluding remarks of the Advisory Committee in para. . See points  and  of the comments by the government of Poland on the opinion of the Advisory Committee. See fourth indent, item  of the resolution as opposed to para.  of the concluding remarks of the Advisory Committee. The Committee of Ministers further emphasises that “all attempts to exploit inter-ethnic tensions for political purposes, be it locally, nationally or internationally, should be immediately stopped and unconditionally condemned”. See concluding remarks of the Advisory Committee in para. . See concluding remarks of the Advisory Committee in para. .

Review of the Monitoring Process of the Council of Europe Framework Convention application of the Framework Convention and the general policy for the implementation of this instrument.26 While the concluding remarks of the opinion clearly stress the absence of an effective state policy for implementing the principles set out in the Framework Convention and point to the fact that such a policy is closely linked to the personal scope of application of this instrument, the resolution does not embrace at all this reasoning. Indeed, the Committee of Ministers starts by making a blanket reference to the “detailed explanations given by the Spanish Government in its written comments, including with respect to the personal scope of application”, which appears at odds both with the practice followed so far and the findings made by the Advisory Committee. It is difficult to understand why such a prominent status is given to the state comments in the case of Spain as this is the case in no other resolution adopted so far. Moreover, the opinion of the Advisory Committee makes it very clear that the monitoring process has not made it possible to obtain the necessary information to make a comprehensive assessment of the state policy at issue, not least of all because of the lack of explanations contained in the state report and in the subsequent exchange of correspondence with the government as well as the impossibility to conduct a country visit to Spain.27 As a result of this difference of approach between the opinion and the resolution, the call made by the Advisory Committee for “future consultations with the groups potentially concerned”, which might also include a “dialogue with the population of Berber origin living in Ceuta and Melilla”, has been turned into a much weaker call for a “consultation with those concerned” in the context of the consideration, the government is invited to give to its “policy for implementing the principles set out in the Framework Convention”. This reflects a noticeable divergence of views between the two monitoring bodies on the personal scope of application that could be given to the Framework Convention in Spain. Apart from the discrepancy pertaining to this paragraph of the resolution and as is the case in a number of other resolutions, one can note a few tiny changes meant to soften criticism expressed in the opinion: The Committee of Ministers considers that attitudes of rejection or hostility as well as incidents of discrimination towards Roma and other vulnerable groups “appear on occasion” as opposed to “persist” and did not consider worth retaining the reference to the fact that such problems “sometimes involve public authorities”.28 With regard to Albania, it is striking to see that, apart from the Roma in relation to the national strategy of integration,29 the resolution refrains from mentioning any minority in particular. This is all the more surprising that the concluding remarks of the opinion of the Advisory Committee clearly identified certain issues of concern for specific minorities. For example, the resolution does not name the Montenegrin, Roma and Aromanian/Vlach minorities nor the Greek and Macedonian minorities in certain geographical areas - in relation to the need to extend minority language education.30     

See second indent, item  of the resolution as opposed to para.  of the concluding remarks of the Advisory Committee. See in particular general remarks of the Advisory Committee in paras. - and specific comments in paras. -. See concluding remarks of the Advisory Committee in para. . See sixth indent, item  of the resolution. See first and fifth indents, item  of the resolution



Alain Chablais Similarly, the resolution does not single out the Egyptians and their historic presence in Albania in the context of the call for further consideration of the personal scope of application of the Framework Convention.31 The time elapsed between the adoption of the opinion on Albania and the corresponding resolution, namely more than two and a half years, suggests that it was extremely difficult for the Committee of Ministers to find an agreement on the text, including on the naming of the minorities living in Albania. While the issues raised in the concluding remarks of the opinion are to a large extent reflected in the resolution, it is to be hoped that the solution consisting of eliminating the specific mentioning of the minorities concerned in order to find an agreement at the political level will no longer be used by the Committee of Ministers in the future. Indeed, this can only dilute the recommendations made while accentuating the discrepancy between the two monitoring bodies, and thereby weaken the overall impact of the Framework Convention. III. Substantive Aspects of the Monitoring Activities of the Advisory Committee A. General Issues The Advisory Committee has continued to analyse the implementation of the Framework Convention on an article-by-article basis in the opinions that became accessible to the public in .32 This is also the case for the first opinions of the second monitoring cycle, although their structure has been modified with the introduction of a thematic section entitled “main findings”, as well as the systematic inclusion of sub-titles in the article-by-article section, so as to assist the reader to identify key issues at a glance.33 When analysing the substantive aspects of the monitoring activities of the Advisory Committee, it seems appropriate to differentiate between issues of a general character and the actual comments made under the various articles in the opinions under review. The issues of general character addressed in this contribution, namely the restrictions linked to the principle of territoriality, the citizenship requirement and education, should not be seen as exhaustive or even as the first ones in terms of importance. It is nevertheless interesting to note that the opinions made public in  make it possible to infer some useful guiding principles on these matters.

 





See fourth indent of the resolution These were (in chronological order) the first opinions on: Azerbaijan (published on  January ); Serbia and Montenegro (published on  March ); Ireland (published on  May ); Poland and Spain (both published on  September ); “the former Yugoslav Republic of Macedonia” (published on  February ); Slovenia (published on  March ); Bosnia and Herzegovina (published on  May ). The second opinion on: Croatia (published on  April ). See II. A. above.

Review of the Monitoring Process of the Council of Europe Framework Convention 1.

Restrictions Linked to the Principle of Territoriality in the Application of the Framework Convention In its opinion on Slovenia, the Advisory Committee has consolidated its approach regarding restrictions linked to the principle of territoriality in the application of the Framework Convention. Such restrictions are to be found, to a varying degree at least, in many countries which condition the availability of minority rights, notably linguistic rights, to their exercise in a specific part of their territory. This part of the territory of the state is usually the one in which a given minority has been traditionally present or constitutes an autochthonous group. The Slovenian authorities take the view that the Hungarian and Italian minorities can enjoy special protection only in so-called “ethnically mixed areas”, i.e. in their areas of autochthonous settlement. As a consequence, persons belonging to these two minorities who live outside such areas are not entitled to exercise the same rights, although they continue to enjoy some of them in the fields of culture, education and political participation. The decisive factor is, however, that such persons do not lose their status of persons belonging to a national minority – and thereby all protection – by the mere fact that they take residence outside their autochthonous areas of settlement. Indeed, the Advisory Committee accepts that the range of rights and facilities at their disposal can be reduced, provided the authorities ensure that the specific needs of these persons living outside their autochthonous areas of settlement are being catered for.34 This is in line with the reasoning followed by the Advisory Committee in other opinions.35 It is to be stressed that state practice generally corroborates this approach, with the noticeable exception of Denmark.36 2. Citizenship Requirement The Advisory Committee has continued to pay particular attention to the question of the citizenship requirement and was given many opportunities to elaborate on the admissibility to restrict the enjoyment of rights and measures available to persons belonging to national minorities to citizens only. As a basic principle, the Advisory Committee has stressed that a generally applicable citizenship criterion is problematic in relation to guarantees relating to important areas covered by the Framework Convention, such as non-discrimination and education.37 Vulnerable minority groups, such as the Roma, are obviously particularly at risk in this context and problems linked to their lack of citizenship may be exacerbated in countries having regained their independence in the recent past.38 It can be inferred from several opinions that the lack of citizenship should not constitute an obstacle in the enjoyment or realisation of at least the basic rights     

See paras. - of the opinion on Slovenia. See for example para.  of the opinion on Switzerland; para.  of the opinion on Germany; para.  of the opinion on Austria. See para.  of the opinion on Denmark. See for example para.  of second opinion on Croatia; para.  of the opinion on Serbia and Montenegro; para.  of the opinion on Azerbaijan. See in particular paras. - opinion on Slovenia; paras. ,  and  of the opinion on “the former Yugoslav Republic of Macedonia”; paras.  and  of the second opinion on Croatia; para.  of the opinion on Bosnia and Herzegovina; para.  of the opinion on Azerbaijan; para.  of the opinion on Serbia and Montenegro.



Alain Chablais of persons belonging to national minorities, including economic, social and cultural ones.39 The Advisory Committee is, however, of the opinion that a citizenship criterion can be a legitimate requirement in relation to certain measures, in accordance with the principles of the Framework Convention. This is typically the case as concerns provisions guaranteeing minority representation in the legislature,40 although the Advisory Committee understandably has welcomed in the past the extension of political rights to non-citizens, as such a measure may significantly improve the participation of persons belonging to national minorities.41 3. Education The Advisory Committee has continued, in a number of countries, to be confronted with certain recurring problems concerning the Roma in the implementation of the provisions of the Framework Convention pertaining to education. Lack of equal opportunities for access to education, discriminatory attitudes and stereotypes as well as low school attendance and high drop-out rates are among the shortcomings often detected in the opinions at stake.42 One of the most serious issues remains, however, the undue placement of Roma children in special schools for mentally handicapped pupils, which constitutes one of the strongest segregating factors in the educational system. Deep concern has therefore been voiced in this respect in the case of Slovenia,43 Croatia,44 Serbia and Montenegro,45 and Poland,46 as had already been the case in the past for several other countries. This position of principle taken by the Advisory Committee against all forms of segregation of Roma children should, however, not be seen as conflicting with increased efforts by governments to develop Roma language and culture teaching. Rather the contrary: The Advisory Committee has indeed stressed that the promotion of the Roma language and culture, which can also involve the setting up of Roma classes and the development of more focused curricula, is to be supported when this corresponds to the wish of the Roma themselves.47 In sum, a balance is to be found between the need for 

  

    



See for example paras.  and  of the second opinion on Croatia, para.  of the opinion on Slovenia; paras.  and  of the opinion on “the former Yugoslav Republic of Macedonia”. See para.  of the second opinion on Croatia. See para.  of the opinion on Estonia. See for example para.  of the opinion on Bosnia and Herzegovina; para. - of the opinion on Spain; para.  of the opinion on Slovenia; para.  of the opinion on Poland; para.  of the opinion on “the former Yugoslav Republic of Macedonia”; para.  of the opinion on Serbia and Montenegro; para.  of the opinion on Ireland as regards Travellers. See para. - of the opinion on Slovenia. See para.  of the second opinion on Croatia, which indicates that such a phenomenon is becoming increasingly rare. See para.  of the opinion on Serbia and Montenegro. See para.  of the opinion on Poland, where the few remaining “Roma classes” are not primarily meant for handicapped children even though they result in a form of segregation. See a contrario para.  and para.  of the opinion on Poland; paras.  and - of the second opinion on Croatia; see also para.  of the opinion on Bosnia and Herzegovina;

Review of the Monitoring Process of the Council of Europe Framework Convention a better integration of Roma pupils in the educational system in the numerous cases where they are isolated, marginalized and even segregated in substandard schools on the one hand, and the measures to be taken to encourage the development of their cultural and linguistic identity on the other hand. It is important to emphasize that these two objectives are equally important and not mutually exclusive.48 The opinions made accessible to the public in  and the first half of  have explored another complex issue, namely the need to reconcile the sometimes contradictory objectives of promoting separate minority language teaching for persons belonging to a minority, while simultaneously encouraging increased contacts and interaction among pupils and teachers from different communities. In this field, rigid principles cannot be applied since there is a need to take into account the particular circumstances prevailing in each and every state party to the Framework Convention. A number of comments made by the Advisory Committee in respect of Article  () and Article  of the Framework Convention thus represent nothing more than an attempt to come up with guiding principles in this sphere. The Advisory Committee has stressed the importance for the state authorities to do their utmost to keep the existing network of schools providing instruction – be it entirely or through various forms of bilingual education – in a minority language,49 while underlining that such arrangements could also usefully promote contacts between students and teachers from different communities.50 This might require positive measures such as the introduction of a lower minimum number of pupils to open a class or keep an existing one open, additional state funding to cover higher expenditure per capita, etc.51 Legal certainty is crucial in this field and the Advisory Committee has criticised the excessive discretion left to the authorities to decide on these matters.52 At the same time, the Advisory Committee has considered it important to draw the attention of some governments to the need to tackle more vigorously certain attempts to exacerbate ethnic divisions in the field of education, without ignoring that such attempts might – at least partly – also pursue laudable aims, like promoting the further development of language and culture teaching. This has notably been the case in countries having experienced tragic ethnic conflicts in the past, such as Croatia, Bosnia and Herzegovina and Serbia and Montenegro. Concerning Bosnia and Herzegovina, the Advisory Committee has underlined that “the need to promote the reconciliation process and to enhance national cohesion at all levels in the post-conflict rehabilitation phase makes it crucial to eliminate elements of segregation such as using separate entrances for the same school buildings or peer pressure encouraging intolerance towards pupils

    

para.  of the opinion on Slovenia; para.  of the opinion on Spain; para.  of the opinion on Serbia and Montenegro. See in particular para.  of the opinion on Ireland as regards Travellers. See para.  of the opinion on Poland. See paras.  and  of the opinion on Slovenia. See para.  of the opinion on Poland; paras. - of the opinion on Bosnia and Herzegovina; para.  of the opinion on Serbia and Montenegro. See paras.  and  of the second opinion on Croatia; para.  of the opinion on Bosnia and Herzegovina; para.  of the opinion on “the former Yugoslav Republic of Macedonia”; paras. - of the opinion on Azerbaijan.



Alain Chablais from another ethnicity”, but also that “the education reform and the unification process should take place in a manner that fully respects the principles enshrined in article  of the Framework Convention concerning teaching of/in minority languages”.53 In the case of Croatia, the Advisory Committee has acknowledged that “the legitimate concern for interethnic dialogue is essential in the war-affected areas and necessitates concerted efforts which could ultimately facilitate integration”, while stressing that “it needs to be ensured that minority language education is organized in accordance with the law and that no undue differences are made in this respect between various national minorities”.54 As regards Serbia and Montenegro, the Advisory Committee took note of the fact that there was reportedly no instruction available in the Bosniac language in the public educational system in Sandzak. This prompted the following statement: While understanding the need to avoid undue separation in the educational system and while noting that there are different views on this issue amongst the Bosniacs, the Advisory Committee calls on the authorities to review the situation with a view to ensuring that the domestic legislation pertaining to the teaching in or of minority languages is fully implemented also in respect of the Bosniac language.55

B. Analytical Overview of the Comments of the Advisory Committee The following analytical overview concentrates on the opinions made public in  and the first half of . However, reference is made to previous opinions wherever appropriate in order to identify practices already established with respect to certain articles. As in previous opinions, the implementation of certain provisions of the Framework Convention did not give rise to any specific comments by the Advisory Committee. This has mainly been the case for Articles ,  and  FCNM, but by no means implies that enough had been done or that efforts made may be diminished or halted with respect to these articles. All principles enshrined in the Framework Convention should be understood as ongoing obligations for the achievement of the goals of the Framework Convention. Furthermore, in considering the current state of affairs in the respective state party, a certain level of performance may suffice, but this might not necessarily be the case in future monitoring cycles.56 Finally, it has to be pointed out that the focus of this analysis lies in general issues that are relevant for the understanding of the content of the provisions of the 

  



See para.  of the opinion on Bosnia and Herzegovina; see also paras. - and  of the opinion on “the former Yugoslav Republic of Macedonia”, which expresses deep concern at negative reactions against efforts to increase interaction and contacts between Macedonian and Albanian pupils. See para.  of the second opinion on Croatia, which elaborates on the disagreements over the registration of a Serbian school in Vukovar. See para.  of the opinion on Serbia and Montenegro. See para.  of the opinion on Bosnia and Herzegovina; para.  of the opinion on “the former Yugoslav Republic of Macedonia”; para.  of the opinion on Spain; para.  of the opinion on Poland; para.  of the opinion on Slovenia.

Review of the Monitoring Process of the Council of Europe Framework Convention Framework Convention in the light of the opinions of the Advisory Committee rather than in predominantly country-specific problems. For this reason, these problems are dealt with only to a limited extent. 1. Article 3 FCNM The Advisory Committee has consolidated its rather inclusive approach on the personal scope of application of the Framework Convention in that it has continued to encourage, in general terms, governments to consider the application of this instrument on an article-by-article basis to a broad variety of linguistically as well as ethnically distinct groups. This is in keeping with the practice followed in the first cycle, but the first opinions of the second cycle already accessible, suggest that the Advisory Committee may wish to elaborate further on this issue in the future, with a view to giving practical guidance to the state parties, as has already been the case with the citizenship requirement.57 The status of the so-called “constituent peoples” and its impact on other groups has been examined at length in the opinion on Bosnia and Herzegovina. Without repeating the detailed analysis made in the opinion, it is worth stressing that the Advisory Committee came to the conclusion that persons belonging to such constituent peoples de facto live in a minority situation in certain parts of the territory – i.e. entities or cantons – and might also find themselves in a vulnerable situation. They should therefore be given the possibility to rely on the protection provided by the Framework Convention as far as the issues concerned are within the competences of the entities and cantons.58 This reasoning appears logical, bearing in mind the stand taken on earlier occasions by the Advisory Committee on the possibility, for persons belonging to the majority who live in substate entities in which they form a numerical minority, to be covered by the Framework Convention.59 In the presence of groups whose distinct identity, traditional presence on the territory and citizenship status is not questioned, the Advisory Committee has confirmed in the case of Spain60 the approach that it initially developed in the context of Denmark:61 For the government to exclude the application of the Framework Convention to such groups, a genuine consultation process must first take place with them to ascertain whether or not they have an interest to benefit from the protection offered by this instrument. Such a protection can therefore not be denied a priori by the state. This is perhaps even more the case when a state party, like Spain, has entered neither a declaration nor a reservation on the scope of application upon ratification of the Framework Convention, and agreed to protect the language and culture of the groups at issue under the European Charter for Regional or Minority Languages.

    

See III.A.. above. See para.  of the opinion on Bosnia and Herzegovina. See para.  of the opinion on Switzerland; para.  of the opinion on Finland. See paras. - of the opinion on Spain concerning the so-called ‘nationalities’, i.e. mainly the Catalans and the Basques. See paras. - of the opinion on Denmark.



Alain Chablais 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. With respect to the legal framework to fight against discrimination, state parties have been invited to fill any remaining gap in their legislative arsenal to cover all relevant sectors and to ensure that effective remedies are in place. In so doing, the Advisory Committee has encouraged state parties to consider the introduction of a single comprehensive body of anti-discrimination, making in this context extensive reference to the EU Race Directive and the work of the ECRI.62 Particular attention has been given to the institutional framework to combat discrimination, with numerous calls to establish independent human rights institutions intended to monitor the implementation of relevant legislation and renewed support expressed for the work of ombudsman offices in this field, including through the widening of their terms of reference, the reinforcement of their presence in the field and the development of awareness-raising measures – including in minority languages – about their activities.63 In some instances though, the Advisory Committee has warned against the multiplication of institutions and bodies with overlapping tasks in the fight against discrimination.64 A major issue of discrimination tackled under Article  FCNM relates to the fact that persons belonging to national minorities – and in some cases also persons belonging to the constituent peoples – are prevented ex lege from accessing a range of political posts at the state level in Bosnia and Herzegovina. While it may be said that such legal measures pursue a legitimate aim, namely to ensure equal representation of the three constituent peoples, their proportionality is questionable in terms of totally excluding in particular persons belonging to national minorities from accessing key-positions in public life.65 Other issues coming up more regularly have been addressed, such as the considerable socioeconomic differences between many Roma and the majority population, as well as ongoing discrimination faced by Roma and other vulnerable groups in access to healthcare, housing and employment.66 The same holds true for difficulties – which may amount to discrimination and endanger the enjoyment of other human 



  



See para.  of the opinion on Spain; paras. - of the opinion on “the former Yugoslav Republic of Macedonia”; para.  of the opinion on Slovenia; para.  of the opinion on Poland; para.  of the opinion on Ireland. See para.  of the opinion on Slovenia; para.  of the opinion on Poland; paras.  of the opinion on Spain; para.  of the opinion on “the former Yugoslav Republic of Macedonia”. See paras. - of the opinion on Bosnia and Herzegovina; para.  of the opinion on Poland. See para.  of the opinion on Bosnia and Herzegovina. See paras. - of the second opinion on Croatia; paras. - of the opinion on Slovenia; paras. - of the opinion on Bosnia and Herzegovina; paras. - of the opinion on

Review of the Monitoring Process of the Council of Europe Framework Convention rights – encountered by Roma and other groups to obtain confirmation of their citizenship status, particularly in countries having regained their independence in the recent past.67 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. No major new developments have emerged from the practice of the Advisory Committee in respect of Article  FCNM in . A number of opinions have continued to stress the need for consistent, sustainable state support for cultural initiatives launched by national minorities since such support often constitutes for the minorities concerned an important means to preserve and develop their identity. This requires an appropriate legal framework, which is at times lacking.68 It is no surprise that the Advisory Committee has regularly encouraged increased support,69 in particular for smaller minorities under a threat of extinction,70 as well as for those who cannot rely on the assistance of a kin-state.71 Of particular importance is the need to associate national minorities and their representatives in the decision-making on the allocation of state support for cultural activities,72 as well as to provide them readily accessible information on how to access such support.73 4. Article 6 FCNM This 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

  

  



Spain; paras. - of the opinion on ”the former Yugoslav Republic of Macedonia”; paras. - of the opinion on Poland; para.  of the opinion on Serbia and Montenegro. See III.A.. above. See para.  of the opinion on Poland; paras. - of the opinion on Bosnia and Herzegovina; para.  of the opinion on Slovenia. See para.  of the opinion on “the former Yugoslav Republic of Macedonia”; see para.  of the opinion on Bosnia and Herzegovina; see also paras. - of the second opinion on Croatia, where the Advisory Committee notes with satisfaction that the level of budgetary support has been increased for cultural initiatives of national minorities. See para.  of the opinion on “the former Yugoslav Republic of Macedonia”. See para.  of the opinion on Bosnia and Herzegovina; para.  of the opinion on Serbia and Montenegro. See paras. - of the second opinion on Croatia, where the Advisory Committee welcomes that the Council for National Minorities has been entrusted with the allocation of such support; para.  of the opinion on Azerbaijan; para.  of the opinion on Serbia and Montenegro. See para.  of the opinion on “the former Yugoslav Republic of Macedonia”.



Alain Chablais violence as a result of their ethnic, cultural, linguistic or religious identity. Its implementation by the states parties prompted a large number of comments. As in previous opinions, the Advisory Committee has recalled the need to encourage a spirit of tolerance and intercultural dialogue in different contexts. This was in particular the case in relation to the persistence of negative stereotypes affecting the Roma in many countries,74 but also other minorities like the Germans and the Ukrainians in Poland75, and the Albanians, Germans and Muslims in Serbia and Montenegro.76 A particularly serious concern has been expressed as concerns the insufficient interethnic dialogue in “the former Yugoslav Republic of Macedonia” and especially the low level of social interaction in everyday life between Macedonians and Albanians, which requires long-term efforts to foster mutual understanding and defuse persisting tensions.77 With reference to the Advisory Committee’s consideration of the application of certain principles of the Framework Convention to non-citizens, it was stated as in previous opinions that the wide scope of Article  allowed for encompassing groups that have not traditionally inhabited the country concerned, including immigrants and refugees.78 The Advisory Committee therefore identified a number of problems faced by non-citizens, ranging from acts of hostility, violence, intolerance to negative stereotypes and discrimination in various societal settings.79 5. Article 7 FCNM This 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. The legal framework concerning associations and its implementation in practice has been commented on in respect to certain countries where there was a suspicion that undue restrictions could be imposed on people belonging to national minorities wishing to avail themselves of this right. The Advisory Committee therefore invited the Croatian government to monitor how the new tax regime will affect the operations of associations dealing with the protection of national minorities.80 In the case of Poland, the Advisory Committee took note of the fact that the European Court of Human Rights found no violation of the freedom of association in the refusal by the Polish authorities to register an association called “Union of People of Silesian Nationality”. At the same time the Advisory Committee urged the authorities to continue their dialogue with the Silesians – which they do not consider a national minority – and ensure that persons claiming to belong to the Silesian group are able to express their identity.81 As regards Azerbaijan, the Advisory Committee noted shortcomings in the process of        



See for example para.  of the opinion on Spain. See paras. - of the opinion on Slovenia; para.  of the opinion on Poland. See para.  of the opinion on Serbia and Montenegro. See paras. - of the opinion on “the former Yugoslav Republic of Macedonia”. See for example para.  of the opinion on Spain; para.  of the opinion on Slovenia. See paras. - of the opinion on Spain; paras. - of the opinion on Slovenia. See paras. - of the second opinion on Croatia. See para.  of the opinion on Poland.

Review of the Monitoring Process of the Council of Europe Framework Convention registration of non-governmental organisations.82 Finally, in its opinion on Bosnia and Herzegovina, the Advisory Committee invited the authorities to consider amending a legal provision prescribing the systematic additional use of state symbols to the display of symbols of a national minority in the private sphere, as this requirement seems to go beyond the need to protect a legitimate public interest.83 6. Article 8 FCNM This provision obliges the state parties to recognize that every person belonging to a national minority has the right to manifest his or her religion or belief and to establish religious institutions, organizations and associations. The Advisory Committee has continued to comment occasionally on the implementation of this provision, which may be of particular relevance for persons belonging to national minorities. As in other opinions, the Advisory Committee has invited the authorities of Croatia to complete the process of restitution of property of religious communities, a matter hampering the conclusion of an agreement between the state and the Jewish community.84 Statutory requirements for registration of religious communities in the former Yugoslav Republic of Macedonia were considered lacking clarity and the Advisory Committee therefore urged the authorities to clarify the procedure so as to make registration easier in practice.85 In Bosnia and Herzegovina, the Advisory Committee welcomed the adoption of new legislative guarantees protecting the right to manifest one’s religion, but expressed concern at the various obstacles placed with regard to the reconstruction of religious buildings destroyed during the war.86 The Advisory Committee has voiced a number of concerns in the case of Azerbaijan, ranging from the registration process of religious organisations to the obstacles placed on the dissemination of literature and other informational materials of religious content.87 7. Article 9 FCNM Para.  of this provision refers to the freedom of expression and its full applicability to persons belonging to national minorities, including their right to hold opinions and to receive and impart information and ideas in the minority language, without interference from public authorities and regardless of frontiers. Furthermore, the state parties shall ensure the non-discriminatory access of national minorities to the media; this is specified in more detail in paras. -. Issues dealt with in the past in relation to this provision have continued to be scrutinized in the opinions published in . The Advisory Committee has therefore repeated its calls for an increased state support for media broadcasts in minority lan-

     

See para.  of the opinion on Azerbaijan. See paras. - of the opinion on Bosnia and Herzegovina. See paras. - of the second opinion on Croatia. See para.  of the opinion on “the former Yugoslav Republic of Macedonia”. See paras. - of the opinion on Bosnia and Herzegovina. See paras. - of the opinion on Azerbaijan.



Alain Chablais guages so as to extend the duration of existing programmes and develop new ones,88 its calls to expand the geographical coverage of existing programmes so as to reach a larger number of listeners/viewers among the minorities concerned,89 its calls for a more even allocation of resources to different national minorities90 – with a view to improving inter alia the situation of the Roma91 – as well as its calls to develop journalist training92 to report on minority issues and involve more consistently representatives of national minorities in programmes aimed at them.93 The Advisory Committee has also warned against possible restrictive interpretations of broadcasting provisions imposing the use of the state language, including those prescribing quotas, which could not be in compliance with the principles enshrined in Article  FCNM.94 Finally, the Advisory Committee has stressed that Article () FCNM contained a positive obligation on state parties, notably as regards the allocation of frequencies.95 8. Article 10 FCNM This provision concerns the right of persons belonging to national minorities to use their language, including in dealings with administrative authorities. The Advisory Committee has consolidated its practice on the criteria to be used to ensure the possibility to use minority languages in official dealings. As has been stressed in the context of several other opinions,96 the Advisory Committee has repeated that a numerical threshold requiring that at least % of the population concerned belong to the minority to activate the rights foreseen under Article  () FCNM was too high and therefore constitutes an excessive obstacle.97 A precondition to implement this provision is the existence of a proper legal framework authorizing the use of minority      



  



See paras. - of the second opinion on Croatia; para.  of the opinion on Bosnia and Herzegovina. See para.  of the opinion on “the former Yugoslav Republic of Macedonia”; para.  of the opinion on Poland. See para.  of the opinion on “the former Yugoslav Republic of Macedonia”. See paras. - of the opinion on Spain; para.  of the opinion on Slovenia; para.  of the opinion on Serbia and Montenegro. See para.  of the opinion on Spain; see para.  of the opinion on “the former Yugoslav Republic of Macedonia”. See paras. - of the opinion on Slovenia, which welcomes the commendable level of participation of the Hungarians and Italians in the preparation of programmes intended for them; para.  of the opinion on Poland, which calls for further progress in this sphere; para.  of the second opinion on Croatia, which welcomes the introduction of a legal obligation in this respect; see para.  of the opinion on “the former Yugoslav Republic of Macedonia”. See paras. - of the opinion on Slovenia; para.  of the opinion on “the former Yugoslav Republic of Macedonia”; para  of the opinion on Serbia and Montenegro; paras. - of the opinion on Azerbaijan. See paras. - of the opinion on Poland. See paras. - of the opinion on Moldova; paras.- of the opinion on Croatia; para.  of the opinion on Estonia; para.  of the opinion on Ukraine. See para.  of the opinion on Bosnia and Herzegovina.

Review of the Monitoring Process of the Council of Europe Framework Convention languages in relation with administrative authorities, the absence of which is not compatible with the Framework Convention.98 Complete discretion from the authorities to decide on the admissibility of the use of minority languages is not acceptable, as the resulting legal and practical uncertainty would not comply with the requirements of Article  () FCNM.99 When the relevant domestic legislation sets a minimum threshold, which entails an obligation to provide for the use of minority languages, the Advisory Committee has accepted that a margin of appreciation – or even a discretion – be left to the authorities concerned to authorize such a use in an even more permissive manner, a possibility which the authorities concerned have been encouraged to make extensive use of.100 Finally, the Advisory Committee has reiterated the need to ensure the proper implementation in practice of the legislative provisions authorizing the use of minority languages in official dealings.101 9. Article 11 FCNM This provision contains further rights concerning the use of minority languages, such as the right to use surnames and first names in the minority language in para. , the right to display signs, inscriptions and other information of a private nature visible to the public in the minority language in para. , and the right to display traditional local names, street names and other topographical indications intended for the public, also in the minority language in para. . As concerns the use of surnames and first names in the minority language, the Advisory Committee has emphasized that particular care should be taken by the authorities to try to avoid phonetic distortions when names are being transcribed into the alphabet of the state language; moreover, the authorities should ensure that procedures for restoring names that had been forcibly changed in the past are easily accessible for those concerned.102 Regarding the admissibility of numerical thresholds, the need to avoid legal uncertainty in laying down criteria providing for bilingual sign and place names as well as their practical implementation, it can be referred, mutatis mutandis, to the comments made under Article  FCNM above.103 10. Articles 12 and 14 FCNM These articles have already been dealt with under III. A. ., above.  See para.  of the opinion on Poland.  See paras. - of the opinion on Azerbaijan.  See para.  of the opinion on Bosnia and Herzegovina (less than  % but more than  %); para.  of the second opinion on Croatia (less than  %); para.  of the opinion on “the former Yugoslav Republic of Macedonia” (less than  %).  See para.  of the opinion on Slovenia, which pointed at shortcomings mostly due to the insufficient linguistic skills within the services concerned as regards the use of the Hungarian and Italian languages; see also para.  of the opinion on Serbia and Montenegro.  See para.  of the opinion on “the former Yugoslav Republic of Macedonia” concerning the Turkish minority.  See para.  of the opinion on Bosnia and Herzegovina; paras. - of the second opinion on Croatia; paras. - of the opinion on Poland.



Alain Chablais 11. Article 13 FCNM This 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 connection with this provision and in accordance with its previous practice,104 the Advisory Committee has recalled an essential principle, namely that state parties can neither prohibit nor unduly restrict the creation of private educational establishments for persons belonging to national minorities. The prohibition of establishing private primary schools is therefore not compatible with the Framework Convention, even if such a prohibition is generally applicable and not specific to minority schools.105 The freedom of national minorities to seek resources to establish their own private institutions from domestic and international sources should not be limited either.106 Equally inadmissible would be, as a prerequisite for the setting up of a private school offering teaching of a foreign language, the requirement to conclude a bilateral agreement with the country concerned providing reciprocal facilities.107 12. Article 15 FCNM Article  FCNM refers to the necessity of creating adequate conditions 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. The Advisory Committee has continued to consider various approaches chosen by the state parties to address the issue of participation and has regularly underlined both the strengths and the weaknesses of the existing models. The internal organization of Spain, which is characterized by a high degree of decentralisation and broad powers exercised by the Autonomous Communities, was deemed to constitute an effective means of promoting cultural identities and diversity.108 The Advisory Committee commended the facilities for participation that have been introduced in favour of the Hungarian and Italian minorities of Slovenia, including the system of self-governing national communities and the guaranteed parliamentary representation, and stressed that this participation scheme allowed for a high level of participation in political, cultural, social and economic life.109 In the case of Croatia, the Advisory Committee noted with satisfaction a significant improvement in the participation of persons belonging to national minorities, mainly through an increased number of guaranteed seats in the parliament, additional guarantees to be represented in elected bodies at the local and regional level, as well as the introduction of councils for national minorities to be regu-

 See paras. - of the opinion on Switzerland.  See para. - of the opinion on “the former Yugoslav Republic of Macedonia”; see also para.  of the opinion of Serbia and Montenegro, which asks the authorities to adapt the Law on Elementary Schools accordingly.  See paras. - of the opinion on Bosnia and Herzegovina.  See para.  of the opinion on Slovenia.  See para.  of the opinion on Spain.  See paras. - of the opinion on Slovenia.



Review of the Monitoring Process of the Council of Europe Framework Convention larly consulted by the authorities.110 As regards Serbia and Montenegro, the Advisory Committee noted with interest the introduction of the National Councils of national minorities. These bodies are meant to represent national minorities in respect of official use of language, education, information in the language of the national minority and culture. They are also due to participate in the decision-making on issues in these fields.111 The participation of the Roma has been considered largely unsatisfactory in virtually all opinions, either because of the inexistence of proper consultations structures or of the inefficiency of the existing ones.112 As in previous years, the Advisory Committee has continued to examine the representation of persons belonging to national minorities in the civil service, which appears often unsatisfactory, despite the general lack of comprehensive data in this field and renders the adoption of positive measures necessary.113 A potentially impeding factor for further progress in this filed might be linked to the level of knowledge of the state language demanded.114 Finally, the Advisory Committee has devoted a great deal of attention to the impact of the system of the so-called “constituent peoples” in Bosnia and Herzegovina on the participation of persons belonging to national minorities. The constant attention devoted to a strictly equal representation of the three constituent peoples within the authorities, the public administration and a range of public enterprises was thus deemed to negatively affect efforts aimed at improving participation of national minorities. Furthermore, the notion of “vital national interest” giving a quasi veto right to each of the constituent peoples secures a very strong mechanism of protection to those who are already in a dominant position, while national minorities that are in need of specific protection mechanisms do not benefit from this notion, a situation considered problematic by the Advisory Committee.115

 See paras. - of the second opinion on Croatia.  See paras. - of the opinion on Serbia and Montenegro, which highlights inter alia problems in the funding of these National Councils.  See paras. - of the opinion on Bosnia and Herzegovina; para.  of the opinion on Poland; paras. - of the opinion of Slovenia; paras. - of the opinion on Spain; paras. - of the second opinion on Croatia; para.  of the opinion on “the former Yugoslav Republic of Macedonia”; para.  of the opinion on Serbia and Montenegro.  See paras. - of the opinion on Bosnia and Herzegovina; para.  of the opinion on “the former Yugoslav Republic of Macedonia”, which underlines the worrying under-representation of national minorities in the judiciary; para. - of the second opinion on Croatia, which stresses inter alia the massive under-representation of Serbs in the judiciary; see para.  of the opinion on Serbia and Montenegro, which singles out the law-enforcement bodies and in the judiciary in this context.  See para.  of the opinion on Azerbaijan.  See paras. - of the opinion on Bosnia and Herzegovina.



Alain Chablais 13. Article 16 FCNM This provision obliges states parties to refrain from measures that 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 context, the Advisory Committee has stressed that in conflict-affected regions that witnessed displacements of population that substantially changed the proportion of the population, it was important to put in place all conditions for a sustainable return as well as to consider the possibility to return as a permanent entitlement without deadlines.116 14. Article 17 FCNM In its comments made with respect to this Article, the Advisory Committee has continued to express the wish that initiatives to introduce visa requirements would not cause undue restrictions on the rights of persons belonging to national minorities to establish and maintain contacts across frontiers and welcomed in particular steps taken to ease the issuance of free visas.117 The restrictions existing on the crossings of border between Azerbaijan and Armenia have also been addressed.118 15. Article 18 FCNM With respect to this provision, the Advisory Committee has continued to welcome the fact that states parties had concluded bilateral treaties touching upon the protection of persons belonging to national minorities and has encouraged, where appropriate, the conclusion of further such agreements.119 In the case of Poland, the Advisory Committee made a general comment, inspired inter alia by the text of the Polish declaration entered with the instrument of ratification, which stressed that making the implementation of protective measures for national minorities living in Poland systematically conditional to progress recorded on similar issues in neighbouring countries was not in line with the spirit of the Framework Convention.120 As regards Ireland, the Advisory Committee took note of the importance of The Good Friday (Belfast) Agreement () as a contribution towards peace and stability and the protection of human rights in the region.121 Finally, the question of the support provided by a state for its kin-minorities abroad has been briefly addressed in the case of Azerbaijan. In this context, the Advisory Committee noted the creation of the State Committee for Azerbaijanis Abroad and expressed the hope that this body would carry out its activities in bilateral consultation with the countries concerned and pursue them in a manner  See paras. - of the second opinion on Croatia; para.  of the opinion on “the former Yugoslav Republic of Macedonia”.  See para.  of the opinion on Poland; para.  of the opinion on “the former Yugoslav Republic of Macedonia”; para.  of the second opinion on Croatia.  See para.  of the opinion on Azerbaijan.  See paras. - of the second opinion on Croatia; paras. - of the opinion on Bosnia and Herzegovina; para.  of the opinion on “the former Yugoslav Republic of Macedonia”; paras. - of the opinion on Slovenia.  See para.  of the opinion on Poland.  See para.  of the opinion on Ireland.



Review of the Monitoring Process of the Council of Europe Framework Convention that is in conformity with the principles of good neighbourliness, friendly relations and cooperation between states.122 IV. Concluding Remarks This review of the monitoring process of the Framework Convention  and the first half of  shows that the Committee of Ministers and the Advisory Committee have continued to gradually develop and further advance the interpretation of numerous provisions of this instrument. This has essentially be done country-by-country, which admittedly renders the development of general guiding principles difficult, while at the same time being of concrete and practical value. The analysis nevertheless reveals that on a number of issues, the Advisory Committee has consolidated its earlier practice, which has now become firmly entrenched. The Advisory Committee has also tried to elaborate its approach on complex but crucial issues in further detail. This has for example been the case for the citizenship requirement and, in the field of education, as concerns the antagonism between integration and segregation. The real impact of the implementation of the Framework Convention in the different state parties remains to be analyzed. One way of measuring this impact comes from the holding of so-called “follow-up seminars”, which have continued to be the main tool to advance an ongoing dialogue with the national authorities between the monitoring cycles. Such “follow-up seminars” bring together the authorities, civil society as well as representatives of the Advisory Committee to discuss, in situ, how to put the recommendations of the Framework Convention’s monitoring bodies into practice. In  and in the first half of , such follow-up seminars were organised in seven states123 and they were generally excellent occasions to discuss, in a constructive and inclusive atmosphere, the implementation of the Framework Convention. However, in certain cases, these follow-up seminars also revealed that the value of the Framework Convention and its monitoring is not yet fully embraced by all sectors of the public administration and that additional awareness-raising activities are needed. Moreover, since the the holding of such activities largely depends on the goodwill of the governments concerned and is neither imposed by the Framework Convention nor Resolution () of the Committee of Ministers, a number of states have not deemed it appropriate to follow suit. A more comprehensive analysis of the impact of the monitoring under the Framework Convention will therefore be done on the basis of the second opinions, once a significant number of them have been made public, thanks to the extensive references they contain to the follow-up given to the first monitoring cycle. Another important tool to promote a better understanding of the findings resulting from the country specific opinions can be the development of thematic studies, which could in their most advanced form take the shape of general comments adopted by the Advisory Committee. It is with this objective in mind that the Advisory Committee initiated a series of thematic reflections in  on key themes, including education and participation. From the outset, the Advisory Committee has been willing to be as open  See para.  of the opinion on Azerbaijan.  These were Cyprus, Italy, the Russian Federation, Norway, Lithuania, Ireland and Sweden.



Alain Chablais as possible in this process. It has therefore associated external experts and NGOs in the exchanges of views conducted during this exercise, which is due to last until May  for the first theme addressed, namely education. An important difficulty encountered by the Advisory Committee so far has been the frequent change in its membership, as half of the members rotate every two years. It is to be hoped that this difficulty will not prevent the Advisory Committee from being able to endorse thematic studies or general comments at regular intervals in the future. At this point in time, it seems that the impact of the Framework Convention could be much stronger at the domestic level if public discussions on the opinions of the Advisory Committee could be organized immediately after the adoption of these texts and not at the very end of the monitoring process at the Committee of Ministers, as this is too often the case. Similarly, consideration could be given to making the monitoring work of the Committee of Ministers more transparent, for example by declassifying after a certain period of time written comments submitted by third states, statements made by the countries concerned when adopting a resolution, presentations made by representatives of the Advisory Committee to the GR-H and, more generally, minutes of the meetings of the GR-H. These and other measures that are likely to improve the impact of the monitoring process of the Framework Convention would, however, necessitate a revision of the existing rules, notably those contained in Resolution (), which can hardly happen without the strong and decisive support of a number of states.



Vesna Crnić-Grotić *

The Committee of Experts of the European Charter for Regional or Minority Languages: June 2004 – June 2005

I. Introduction During the period between June  and June  five reports adopted by the Committee of Experts of the European Charter for Regional and Minority Languages (hereinafter “the Charter”)1 became public: the first evaluation report concerning the implementation of the Charter in Austria and four second evaluation reports concerning the implementation of the Charter in Hungary, Switzerland, Finland and the Netherlands.2 The Committee of Experts also adopted two other reports: the second evaluation report regarding Croatia and the first evaluation report regarding Spain. Lichtenstein submitted its third report, but since that country has no minority or regional language speakers the Committee of Experts had no evaluation to make. The enumerated reports, however, have not yet become public. In the relevant period only one new state became a signatory: Serbia and Montenegro signed the Charter on  March  so there are now  signatures that have not been followed by ratification. There has been no new ratification. II. First Evaluation Reports: Austria Austria signed the Charter on  November , among the original signatory states, and ratified it on  June . The Committee of Experts adopted the report on the application of the Charter in Austria on  June , based mainly on the information provided by the Austrian authorities in their initial report of  February .3 The Committee of Experts is also entitled to gather information from “bodies or associa* 

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Member of the Committee of Experts for Croatia of the European Charter for Regional or Minority Languages. The opinions expressed are solely those of the author. For a general presentation of the Charter and particularly for the different scope of Parts II and III of the Charter, see Antonio Bultrini, “Developments in the Field of the European Charter for Regional or Minority Languages”,  EYMI (/), -. The reports of the Committee of Experts made public by the Committee of Ministers are available on the Charter’s website at . Austria ratified the Charter on  June  and it entered into force on  October . There was a delay in completing the initial report that had been due on  October .

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 541-555. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Vesna Crnić-Grotić tions legally established in a Party”.4 In order to get a more complete picture of the language situation in Austria, the Committee of Experts organized an on-the-spot visit in December . Based on the Committee of Experts’ report, in accordance with Article  of the Charter, the Committee of Ministers adopted its recommendations on  January . Austria is one of the European countries characterized by the presence of a number of authentic minorities and a long tradition in their protection. For the purpose of the Charter Austria recognized six regional or minority languages spoken by members of six ethnic groups recognized by the national legislation. The six languages are the following: Burgenland Croatian,5 Slovene, Hungarian, Czech, Slovak and the Romany language of the Austrian Roma minority.6 In accordance with Article () of the Charter, the Austrian ratification instrument specified the substantial and territorial scope of the Charter, reflecting Austria’s federal structure, and declared that Burgenland Croatian is protected by a number of Part III provisions in the Burgenland Croatian language area in the Land Burgenland. In addition, the Slovenian language is afforded Part III protection in the Land Carinthia, while Hungarian is protected by the specified Part III undertakings in the Hungarian language area in the Land Burgenland. These three languages enjoy, at the same time, according to para.  of the same Article  of the Charter, protection under Part II of the Charter, together with other enumerated and recognized languages. However, Austria chose some of the provisions of Part III to be applied to Czech, Slovakian and Hungarian in the Land Vienna, as well as the Romany language in the Land Burgenland and Slovenian in the Land Styria. The problem with that part of the Austrian ratification instrument, in the view of the Committee, was that Austria failed to choose a sufficient number of  paragraphs and subparagraphs as required by Article () of the Charter.7 Although appreciating the additional efforts by the Austrian authorities, the Committee considered that these languages were, however, only covered by the Part II protection.8

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Article () of the Charter. The Austrian authorities have been making a distinction between Burgenland-Croatian and the standard Croatian language only since recently. It is possible that the ratification instrument of the Charter is the first significant official document with this distinction. Report of the Committee of Experts on the application of the Charter, ECRML () , para. . Although it was not mentioned explicitly by the Austrian authorities, the Committee of Experts concluded that the Romany language corresponds to the Charter’s definition of non-territorial languages (Article (c) of the Charter). The Austrian authorities informed the Committee of Experts that five groups of Romany speakers have been traditionally present in Austria: Sinti, Lovara, the Burgenland Roma, Kalderash and Arlije. Para.  of the report. The Committee of Experts took a similar view with respect to the German ratification instrument since it had not reached the sufficient number of obligations with respect to some Part II languages. Report on the application of the Charter in Germany, ECRML () , para. .

The Committee of Experts of the European Charter for Regional or Minority Languages Evaluating the accomplishments of Austria in the field of the Charter, the Committee of Experts commended the long tradition of the protection and promotion of minority languages in Austria and, in most cases, a satisfactory legal framework.9 However, it noticed the lack of appropriate implementation measures, especially with respect to judicial and administrative authorities. Although the undertakings provide for the possibility of speakers of particular languages to use their respective languages before courts and administrative bodies, there is often no existing infrastructure (such as minority or regional language-speaking judges or civil servants, or no access to translators and interpreters).10 As also happens in some other European countries, in such circumstances, the minority language speakers are often reluctant to avail themselves of their formally protected rights. The Committee of Experts had to conclude in these cases that the undertaking had only been “formally fulfilled”, a formula used by the Committee when there is a more or less satisfactory legal setting, but no practical result. In view of the Committee, in such cases there is a need to introduce measures that will induce the minority language speakers to use their language in the official environment. The situation seems, however, to be more satisfactory in administration at the municipal level and in oral communications, although there have been signs of reluctance by some responsible officials to encourage the use of minority or regional languages in administrative matters. Especially serious is the situation of the Slovene language in Carinthia since there was no adequate implementation of the Constitutional Court ruling regarding the use of Slovene. These observations led to an adequate recommendation by the Committee of Ministers.11 Hungarian became an official language in Burgenland by virtue of an ordinance only in ; so the Committee of Experts was not able to assess its practical implementation. With respect to education in/of the three regional or minority languages covered by Part III of the Charter, the situation is, in general, satisfactory. The Committee was especially pleased with the possibility offered also to monolingual German speakers living in areas where bilingual education is offered to take part in that education.12 Although that creates some practical problems due to the different language skills of the pupils, it nevertheless helps integration and better understanding of the population.

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The main legal acts with respect to the protection of regional or minority languages in Austria are the following: Basic Law of Austria (Art. ), Federal Constitution Act (Art. ), State Treaty of St. Germain of  (Arts.  and ), State Treaty of Vienna (Art. ), Ethnic Groups Act and the Ordinance of the Federal Government on the Advisory Councils of the Ethnic Groups. Finding L. of the report. Ibid., Recommendation RecChL ()  adopted by the Committee of Ministers on  January , No. : “[E]nsure that the ruling of the Constitutional Court relating to the use of the Slovene language before administrative authorities is implemented without delay.” Ibid., finding H.

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Vesna Crnić-Grotić Specific problems were, however, detected by the Committee. In Burgenland, the teaching of the Burgenland Croatian is in some schools too limited for those schools to be considered bilingual. In Carinthia, on the other hand, recent changes such as making small bilingual schools into external branches of bigger German monolingual schools may be considered as a threat to the maintenance of the so far satisfactory situation. Another problematic area identified by the Committee of Experts relates to the shortage of teaching materials produced in Austria, while there is no federal promotion scheme covering their import from the so-called kin-states. The Committee of Experts also considered that radio broadcasting in Burgenland Croatian and Hungarian, as well as television broadcasting in all the three Part III languages do not fulfil the undertakings under Article . Based on these findings, the Committee of Ministers issued the appropriate recommendation to increase the broadcasting in these languages.13 As for the languages covered only by Part II of the Charter, the Committee of Experts considered that Austria needed a structured and coherent policy furthering their use in public.14 Slovene in Styria, for example, has been neglected for a long time and the Committee welcomed some recent positive steps, notably the inclusion of a representative of the Styrian Slovenes in the new Advisory Council in . The recognition of the Hungarian speakers in Vienna is also of a more recent origin (since ) but an adequate legal framework is still missing. Burgenland Croatian in the Land Vienna also receives little protection, as does the Hungarian language in the field of education in the same Land. The Czech and the Slovak language speakers in the Land Vienna enjoy some rights in the field of education and media. The former is mostly carried out by the Komensky School, a private school of historical significance that is actually facing some financial difficulties since it is not officially recognized as a minority school within the meaning of the national legislation. However, there have been positive developments regarding the Romany language in Burgenland in recent years.15 Since  the Advisory Council for Romany was established. The Romany language is present in regular broadcasts by the ORF studio in Burgenland and there is some, although very limited, presence of Romany on TV. In education, however, the situation is not satisfactory. In spite of some previous attempts, there is very little or practically no Romany in pre-school or primary education due to, mainly, the lack of teaching materials and qualified teachers. As for the study and research efforts, the Committee of Experts was informed of the project carried out by the University of Graz with a view to codifying and standardizing Burgenland Romany. The Committee commended the efforts by the Austrian authorities in this, even in the European context, important field. The Committee of Experts finally underlined the importance of the fact that four out of six protected minority languages in Austria became the official languages of the EU, which might be an opportunity to increase the promotion and protection of these languages.   

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Ibid., recommendation No. . Ibid., finding C. Ibid., finding F.

The Committee of Experts of the European Charter for Regional or Minority Languages III. Second Evaluation Reports The second cycle of monitoring of the application of the Charter is continuing on the first monitoring round. The Committee of Experts therefore examines not only the new developments in the fields covered by the Charter, but it also evaluates how the respective country reacted to the recommendations of the Committee of Ministers, as well as to the specific remarks of the Committee of Experts. The second report will, therefore, in principle, be shorter and less detailed than the first evaluation report and should be read together with the first evaluation report. In collecting the information necessary for the evaluation of application of the Charter in the respective state, the Committee of Experts follows the same pattern used in the first monitoring cycle. The basic information comes from the country’s second report, but the Committee of Experts can ask the authorities additional information in a questionnaire as well as receive communications from the “bodies or associations legally established in a Party”16 and organize an on-the-spot visit to the country. So far, the Committee of Experts has always endeavoured to have an official visit to the monitored states because it keeps the work of the Committee visible to the speakers and other interested parties and it helps keep the contact both with the speakers and the authorities. A. Second Evaluation Report Concerning Hungary Hungary signed the Charter on  November  and ratified it on  April . The Committee of Experts adopted the second report on the application of the Charter in Hungary on  August , based mainly on the information provided by the Hungarian authorities in their second periodical report of  September . Based on the Committee of Experts’ report, in accordance with Article  of the Charter, the Committee of Ministers adopted its recommendations on  June .17 The language situation in Hungary is very complex since there is a relatively big number of various minority or regional languages with different territorial presence. Part III of the Charter, according to the ratification instrument deposited by Hungary, covers six languages: Croatian, German, Romanian, Serbian, Slovak and Slovene. On the other hand, Part II of the Charter covers also Polish, Ruthenian and Ukrainian and a number of non-territorial languages: Romany, Armenian, Bulgarian and Greek. On the positive side, the Committee of Experts commended the Hungarian authorities for establishing minority self-governments. Although there is still room for improvement, they constitute a useful instrument for ensuring minority participation in the drafting of minority language-related policy. Following its findings in the first report and the set of recommendations issued by the Committee of Ministers, the Committee of Experts noted that the situation of regional or minority languages in Hungary is characterized by constant assimilation. It can be seen from the official census that the number of speakers has decreased  

Article () of the Charter. Final report and recommendations adopted by the Committee of Ministers on  December , ECRML () .

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Vesna Crnić-Grotić despite, paradoxically, the presence of an increase in the number of members of particular minorities. One of the reasons for this process is the very low esteem given to bilingualism in general when regional or minority languages are concerned. An additional problem with respect to some of the protected languages continues to be the fact that the Hungarian authorities have not limited the territorial scope of Part III undertakings, but have taken the approach that these cover the entire national territory. In practice, that creates problems in taking measures, in particular, for encouraging the minority language speakers to use their language before courts and administration in areas where their number is considered sufficient for such measures to be adopted. Since this problem has not been solved after the first report, the Committee of Ministers issued another recommendation asking the Hungarian authorities to ensure that these rights are realised in practice.18 In the field of education, Hungary still needs to develop appropriate models of bilingual education, preferably as an integral part of the normal curriculum and try to avoid having classes on Sundays. This practice is especially relevant for the Part II languages. But even for the Part III languages negative trends have been established in decreasing the offer of the teaching of and in particular in the relevant languages. In a society where there is such a strong presence of assimilation, the authorities need to take all the incentives available to reverse that trend. This should cover more than just measures in the field of education, but also, and more importantly, there should be a strong information and incentive campaign addressing the parents and teaching them of the benefits of bilingualism with the aim of increasing the perception of the value of learning regional or minority languages. Furthermore, another trend that is not so specific to Hungary deals with the problem of integration of schools in smaller settlements into bigger schools. Although there are sound economical reasons for such measures, the Committee of Experts has, nevertheless, expressed its concerns that this might result in the loss of the linguistic identities of such small schools. Consequently, this may also lead to the loss of the territorial base of the relevant regional or minority languages, since in many cases schools represent the centre of social life and culture for such small communities. A problem that is not so uncommon also in other European states concerns the Romany and Beas languages. The Roma population has been exposed over the years to a rather strong intolerance and stigmatisation. The attempts of integration have been carried out to the detriment of Romany and the Roma cultural identity, but, at the same time, leaving the Roma outside the economic and social strata of Hungarian society.19 The additional problem is connected to the lack of proper standardization of the Romany language and sometimes to the reluctance of the speakers to have their language learned by strangers. Taking into account all the difficulties the authorities have to face when dealing with this sensitive social and political problem, the Committee of Experts, nevertheless, proposed, and the Committee of Ministers accepted, that recom-

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Ibid., recommendation No. . The Committee of Experts considered especially negative the practice of segregation of the Roma children and their enrolment in schools for the disabled based on their poor command of Hungarian.

The Committee of Experts of the European Charter for Regional or Minority Languages mendation No.  address the need to carry out the integration of Roma into Hungarian society while ensuring the preservation of their linguistic and cultural identity. B. Second Evaluation Report Concerning Switzerland Switzerland signed the Charter on  October  and ratified it on  October . The Committee of Experts adopted the second report on the application of the Charter in Switzerland on  March , based mainly on the information provided by the Swiss authorities in their second periodical report of  January . Based on the Committee of Experts’ report, in accordance with Article  of the Charter, the Committee of Ministers adopted its recommendations on  September .20 The main specific feature of the Swiss ratification of the Charter, reflecting also the federative structure of the state, is that Part III of the Charter is applied to the less widely used official languages, Romansh and Italian, as provided by Article () of the Charter. Although having the status of national languages, these two languages in practice experience many of the difficulties that typical regional or minority languages would face. They are spoken by a smaller proportion of the population and their number, according to the latest census in , as compared with the census in , has dropped some percentage points.21 Furthermore, according to the Swiss Constitution, the Romansh language “shall be an official language for communicating with persons of Romansh language”. It was one of the official languages only in one canton (Grison) where it was co-official alongside German and Italian. Italian, on the other hand, has the official status also in the canton of Ticino where standard Italian is the sole official language on the whole territory. As far as Romansh is concerned, the Committee of Experts examined how the Swiss authorities reacted to the recommendations by the Committee of Ministers in the first monitoring cycle with respect to that language. The Committee was pleased to find that the recommendations were addressed and necessary changes in the legislative framework were made. In particular, the Canton of Graubünden had changed its Constitution and made Romansh, alongside Italian and French, the official language of the canton.22 It had also removed the existing legal obstacles for the use of Romansh before courts, although there are still some practical obstacles. There has been, however, no enactment of legislation in application of the relevant provisions of the federal

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Final report and recommendations adopted by the Committee of Ministers on  September , ECRML () . According to the  census, Italian speakers constituted . % (,) of the population while Romansh was spoken by . % (, speakers). The  census showed the drop to . % of the Italian speakers and another drop to . % of the Romansh speakers. According to the Federal Constitution (Art. ) the Confederation is responsible for the linguistic policy applied in the fields of its competence (professional education, army, federal administration, etc.) and in its relations with legal persons and individuals. The cantons determine their official languages, but are obliged to respect the traditional territorial distribution of languages and to take into account the indigenous linguistic minorities.

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Vesna Crnić-Grotić Constitution, even though the Committee of Ministers issued a recommendation in that respect.23 The Romansh language, however, remains under threat and more measures of encouragement need to be undertaken by the authorities, such as providing sufficient judges and clerks who can use the language in legal proceedings, translation and publication of relevant legal texts, providing a sufficient number of translators and interpreters, and so on. The latter seems to be the problematic issue also concerning the use of Romansh in public debates in the cantonal assembly, which practically never happens. The Committee of Experts has noted similar problems with respect to other languages that do not have a developed standard form and no separate legal education in that language. On the municipality administration level the position of Romansh is very strong and the language is being used in those municipalities where Romansh is the official language. However, in bilingual municipalities, where Romansh is competing with German, the situation is not so favourable. Another novelty in the same canton gave rise to some concern by the Committee of Experts that it might lead to a negative development. Namely, the cantonal authorities decided to publish all the teaching materials in Romansh in one standardized form of Rumantsch Grischun with an aim to introduce that form as the Romansh language of instruction. This step has already caused some controversy in Switzerland, since Romansh does not have one standard written form common to all speakers.24 Introduction of such a form, therefore, must be carried out in a gradual manner and care should be taken that it is followed by the appropriate teacher training. Measures of encouragement also seem to be necessary in the field of electronic media, especially television. The Committee of Experts maintained that the presence of a minority language in media is very important for the visibility of that language in the broader public. The Italian language is, of course, generally speaking, in a much better situation, having its background in an old European language and culture. This is especially true for the Canton of Ticino. However, problems seem to persist in the Canton of Graubünden in the field of judiciary and partly, administration, namely, the use of

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First evaluation report, ECRML () , recommendation No. : “[E]nact legislation in application of Article . of the new Constitution in order to enable the Romansh-speaking community to benefit fully from the protection provided by the Charter.” Five written variants of Romansh exist: Sursilvan, Sutsilvan, Surmiran, Putèr and Vallader. In , a so-called “compromise language”, the Rumantsch Grischun, was created with the aim of reinforcing the position of Romansh in the public sphere. It is based to a large extent on three of the written variants: Sursilvan (Surselva), Vallader (Lower Engadine) and Surmiran (Surmeir/Albula Valley). In many cases, however, it also takes into account the two minor variants Sutsilvan (Val Schons) and Putèr (Upper Engadine), as well as the various regional and local variants. Report on the application of the Charter in Switzerland, ECRML () , para. .

The Committee of Experts of the European Charter for Regional or Minority Languages Italian before the district court in Maloja/Maloggia,25 as well as its use in the cantonal parliament, remains unsatisfactory. The second periodical report also clarifies the situation of two languages that were not mentioned specifically in the instrument of ratification. The first one is a variant of German (Walser) spoken by a very small number of speakers in the municipality BoscoGurin in the Canton of Ticino where Italian is otherwise official. The Committee of Experts considered that it should be covered by Part II of the Charter and in the first evaluation report invited the Swiss authorities to report on the measures being taken for its protection. According to the authorities, the decline of the number of pupils (only three) led to the closing of the local school and the children were transferred to an Italian language school in Cevio. The teaching of German was ensured, however, to a rather small extent of only two hours per week. Taking into account the new information, the Committee of Experts expressed its concern that the time devoted to German might not be sufficient and encouraged the authorities to take measures to improve the status of that language in Bosco-Gurin. The Yenish language was also identified in the first evaluation report of the Committee as a language that needed a more explicit recognition by the Swiss authorities and that the Yenish people should not be considered merely as a cultural minority. The Swiss authorities have managed to improve the overall social status and integration of this community, which had experienced severe discrimination and oppression in the past that had led, consequently, to the disappearance of the language from the public sphere. The Committee of Experts proposed and the Committee of Ministers adopted a recommendation to the Swiss authorities to officially recognize the Yenish language. In addition, the Committee of Experts encouraged the Swiss authorities to develop the standardization of the language, together with its speakers, and to introduce it into regular education. In particular, due to the bad historical experience connected with this issue, it would also be necessary to introduce a campaign addressing the majority population about the existence and the peculiarities of the Yenish community, culture and language. C. Second Evaluation Report Concerning Finland Finland signed the Charter on  November  and accepted it on  November . It entered into force on  March , following a decree of  February . The Finnish authorities presented their second periodical report to the Secretary General of the Council of Europe on  January  and the Committee of Experts adopted its second report on  March . Based on this report and the comments made by the Finnish government the Committee of Ministers adopted a set of recommendations on  October .26 Finland made an interesting choice of languages to be protected by Part III. On the one hand, it protects Swedish, as one of the national languages of Finland and, on  

Maloja District Court normally uses German, despite the fact that the district includes Val Bregaglia, which is Italian-speaking. Recommendation RecChL()  of the Committee of Ministers on the application of the European Charter for Regional or Minority Languages by Finland.

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Vesna Crnić-Grotić the other hand, it protects the Sami language, including North, Skolt and Inari Sami.27 While Swedish is spoken by almost , speakers in Finland and is the official language in neighbouring Sweden, the Sami language is spoken by less than , people in Finland.28 This fact alone required a prudent and a “tailor made” approach from the Finnish authorities. Part II of the Charter covers the following non-territorial languages: Romany, Yiddish, Russian and Tatar. In the period between the two monitoring rounds the Finnish authorities have been involved in developing a new legislation concerning minority languages. First of all, the new Constitution came into force in March . The new Language Act (/), stipulating the use of the national languages of Finland – Finnish and Swedish – entered into force on  January , at the same time as the new Sami Language Act (/). Its purpose is to ensure the constitutional right of the Sami to maintain and develop their own language and culture. This intensive legislative activity shows the determination of Finland to improve the situation of its minority languages. Some features of the new legislation are innovative: It introduces obligations not only for public authorities, but also for private entities to provide services in these languages. The authorities also have a positive obligation to ensure that the linguistic rights guaranteed are implemented in practice. However, due to the recent date of their adoption the Committee of Experts refrained from any practical evaluation and left it for the next monitoring round. In the first evaluation cycle, the Committee of Ministers issued a set of recommendations, mostly concerning the very precarious position of the Sami language. Due to various obstacles, the education in/of Sami was not satisfactory and the language, especially the smaller variants, was on the verge of extinction. In the second monitoring round the Committee of Experts found that the Finnish authorities had removed some of these obstacles (for example, the teacher training improved), but further efforts were still urgently necessary. This is especially true for pre-school education since the Sami language has a generation gap due to severe discrimination and stigmatisation in the past. It is now necessary to revitalize the language in order to preserve it and this calls for resolute and immediate measures.29 The second field of concern for the Committee of Experts was the use of Sami before judicial and administrative authorities. The relevant recommendation in the first monitoring round asked the authorities to “provide favourable conditions to encourage the use of Sami before judicial and administrative authorities in the Sami Homeland”.30 

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

There seem to be an agreement between the Finnish authorities and the Sami speakers to refer to the Sami language as covering all the three variants, although some of them are not mutually intelligible. The North Sami has the strongest position. It is also spoken in Norway. Skolt is spoken by some  and Inari by some  speakers. Recommendation No.  asks Finland to “vigorously pursue the current efforts to improve education in the Sami language and in particular take immediate measures to ensure the survival/viability of the Inari and Skolt Sami languages, which are in grave danger of extinction.” Recommendation No. , RecChL () .

The Committee of Experts of the European Charter for Regional or Minority Languages The Finnish authorities addressed the problem and introduced legislative measures ensuring the right of the Sami speakers to use their language before courts and administration. However, the Committee of Experts had to conclude that the undertaking was still only formally fulfilled because, in practice, very little had changed. On the other hand, some more significant improvement was detected in the field of electronic media, especially for the North Sami, while there has been no change with respect to print media in that Finland had undertaken to encourage and/or facilitate the creation of a newspaper in Sami and despite the relevant recommendation by the Committee of Ministers, there are still no such newspapers in Finland. Another resilient problem seems to remain the availability of Sami, but also Swedish, in the health and social care services. The Finnish authorities tackled the problem and introduced some financial and other measures. However, there is still a lack of staff that is able to speak and provide services in these languages. As for the Swedish language, its position is, of course, much stronger and the situation is not only satisfactory, but also exemplary in most fields covered by the Charter. However, some more persistent problems still exist. The relevant provisions of the new Language Act and the Act on the Knowledge of Languages Required of Personnel in Public Bodies propose a stronger legal basis for the use of Swedish before courts and administrative bodies. However, similar to the problem referred to above, legal texts alone are not sufficient to overcome a lack of staff able to speak the Swedish language. Finland chose the highest option, namely, for the court proceedings to be conducted in Swedish and that requires qualified judicial officials and clerks with appropriate language skills. Furthermore, owing to budgetary restrictions in the public sector, changes have been introduced, which seem to have a detrimental effect on the use of Swedish in situations where it has traditionally been used, for example in the case of emergency call centres. Although one can understand and sympathize with the need to make cuts in public spending, in the view of the Committee, it is still necessary to observe the existing language rights. As for the Part II languages, there has been an interesting development with regard to Yiddish. Even though the language is used only by a handful of people, it seems that the first on-the-spot visit of the Committee of Experts to Finland in  triggered an interest in the Jewish community to take up the teaching of Yiddish. They started classes and it is to be hoped that the Finnish authorities will support these efforts in a constructive manner. On the other hand, the Committee of Experts and the Committee of Ministers found it necessary to address the situation of the Romany language, which remains very weak. Although the authorities are aware of the problem and of the need to promote the Romany language, it is still rarely used in public. Significant efforts have been made to provide teaching materials and vocational training for the teachers of Roma language and culture, which was considered as good practice. Areas that require continuous attention are teacher training, education at all levels, radio and television.31 

Recommendation No.  requires to “further implement measures for the protection and promotion of the Romani language and provide favourable conditions in particular in education, teacher training, radio and television.”



Vesna Crnić-Grotić Finally, the speakers of Russian are a rather heterogenic group consisting of ‘old Russians’, people who have been an integral part of Finnish society for a long time, and the ‘new Russians’ who are basically newly immigrated people to Finland. Although it is rather difficult to cater for their different needs, it would still be the obligation for the Finnish authorities to find an appropriate way to protect the language, especially in the field of education. D. Second Evaluation Report Concerning the Netherlands The Kingdom of the Netherlands signed the Charter on  November  and ratified it on  May  and on  March  the Dutch authorities submitted a Note Verbale. The Committee of Experts adopted the second report on the application of the Charter in the Netherlands on  June , based mainly on the information provided by the Dutch authorities in their second periodical report of  May . Based on the Committee of Experts’ report, in accordance with Article  of the Charter, the Committee of Ministers adopted its recommendations on  December .32 Based on the first report on the application of the Charter in the Netherlands33 the Committee of Ministers adopted a set of recommendations relating to the improvement of the use of Frisian, the language covered by Part III of the Charter, in public, especially in the field of education, before judicial and administrative authorities and in broadcasting in that language. The Committee of Experts in its second report considered that although some progress had been made and efforts had been undertaken, there still remained some obstacles to the wider use of the Frisian language. With respect to the languages covered only by Part II of the Charter, the Committee recommended the Dutch authorities to “develop a general language policy”. In this case, also, the Committee of Experts found that there had been some progress in the promotion and protection of the Low Saxon and Limburger languages. Little progress had been made with respect to Romanes, while some positive steps have been taken by the central government to promote the Yiddish language. As to the more general assessment of the developments with respect to the Charter in the Netherlands the Committee of Experts noted a growing positive attitude towards the application of the Part III undertakings. The Dutch authorities delegated their powers to local and regional authorities as these are closer to the languages and can assess and accommodate the need of the speakers in a more satisfactory manner.34 Furthermore, the language policies with respect to the Frisian language are based on the third Covenant on the Frisian Language and Culture between the central government and the province of Fryslan. However, the Committee noticed that there is still a need for an overall and coherent approach to teaching of and in the Frisian language, including the need to instruct the parents of the benefits of a bilingual child development.

  



Final report and recommendations adopted by the Committee of Ministers on  December , ECRML () . Initial evaluation report on the Netherlands, ECMRL () . One of the peculiarities of both the initial and second report of the Netherlands was that they were partly submitted by the Fryske Academy.

The Committee of Experts of the European Charter for Regional or Minority Languages Although there has been a certain improvement in the field of justice the use of Frisian before courts still remains very rare. As in some other countries, some measures of incentives seem to be necessary in order to encourage the Frisian speakers to use their language in such official and formal settings. The use of Frisian before the state administration and its local offices in the province of Fryslan is still not satisfactory and the Committee of Experts proposed one more recommendation in that respect that the Committee of Ministers adopted.35 As for the Part II languages, the Committee of Experts considered that the teaching of the Low Saxon language also remains unsatisfactory in spite of some positive developments on the provincial and local level, while a more significant success has been achieved with respect to the Limburger language. Romanes, referred to as the “Sinti and Roma language” in the second periodical report, still suffers from insufficient support, especially in the field of education. The other non-territorial language recognized by the Dutch authorities, Yiddish, has, on the other hand, received grants and developed teaching materials with the support of the Dutch authorities and that has strengthened the position of Yiddish as the teaching language. IV. Conclusion The Committee of Experts continues to carry out the entrusted task and monitor the implementation and application of the Charter in the states parties. It is an ongoing process and the workload is growing with every new state party. At the moment there are several first reports awaiting, e.g. Slovakia, Armenia and Cyprus, and a few following reports, like the German second or the Norwegian third report. Looking at the presented reports, one can commend the states parties for taking up the obligation to promote and protect minority languages. Although some of them still need to further improve the situation of some of the regional or minority languages, most of them have, at least, an elaborate legislative framework in place. Most of the states presenting their second reports have taken the necessary measures to follow the recommendations issued by the Committee of Ministers, thus showing progress in the protection and promotion of the languages. The critical areas that seem problematic in most states parties appear first of all in the field of education and in the field of judicial and administrative authorities. As to the former, the provision of teaching materials and teacher training is difficult for several reasons. Usually, the number of copies necessary is rather low and that raises the costs of printing. It is sometimes also possible that it is difficult to find qualified writers with an adequate language background, but the Committee of Experts has met some very innovative teachers who made their own teaching materials, but were not able to get financial support from the authorities. On the other hand, in most states there is a reluctance to import teaching materials from the kin-states.36 However,  

Recommendation No. , RecChL () . Usually there are political reasons behind this and the difference between national curricula. However, one should also take into account that in most cases the language developed in the diaspora is not the same as the standard form developed in the kin-state.



Vesna Crnić-Grotić teacher training is sometimes carried out abroad and that does not seem to raise any problems. Cooperation between states with the same or similar languages is among one of the obligations provided by the Charter. Naturally, this is not possible for languages that have no kin-state and these languages are in a more difficult position. Another problem with respect to education was identified by the Committee. In most states there is very little or no teaching to the majority population of the specific contribution of minority languages and cultures to the country. Most majority pupils are not even aware of the existence of some of the minority language groups and that makes the whole integration and understanding process more difficult. One of the options chosen by practically all states parties, but seldom fulfilled, is regarding a body that will inspect and supervise the teaching in/of minority languages and make its reports public. In most states there are school inspectorates, but they have no specific remit to supervise education in minority languages. The idea of the Charter was to have such bodies in order to be able to detect problems and adopt more appropriate strategies for the minority language education and not to grade or compare schools. The publication of their reports should enable also the speakers to contribute to the improvement of minority language education. As for the field of judiciary and administration, the Committee of Experts found that in many countries minority language speakers feel reluctant to use their language in official settings, such as courts or administration, due to mostly historical reasons of discrimination and stigmatization. Many minority languages are mostly vernacular and are seldom being used in a written form, so their users are not comfortable writing forms or requests in their own language. The vocabulary is not developed sufficiently or accepted by the speakers to cover the new legal or technical terms. Especially for smaller languages, there would be no specific legal education or trained staff and interpreters who would be able to provide legal services in the minority language. All these problems contribute to the fact that minority languages are very rarely used before courts or administration, with the possible exception of local administration, and their users feel like ‘troublemakers’. States have a responsibility to improve that situation and to create conditions that would make the use of minority languages as normal as possible.37 The role of language training of judicial officials and staff is paramount, but so is the education in/of the minority language and its development. A common feature seems to appear in most states parties with respect to the Romany language38 that needs substantial work on its standardization. It was the Committee of Experts’ view that there is also room for a joint European effort to reach that goal. It is difficult to eradicate the existing prejudices vis-à-vis the Roma people without decisive and resolute measures for raising the self-esteem of the speakers of Romany and the respect of the majority population. Possible measures should include  



The idea that “they all speak the official language anyway” shows a deep misunderstanding of the spirit of the Charter. The Committee of Experts uses the term Romany to cover various Roma languages. In some countries we also find other terms in use if there are distinct groups of Roma using different languages, such as Sinti and Roma in Austria, Germany or the Netherlands. In Norway Romanes is the language of the Roma people and Romani the language of the Travellers, etc.

The Committee of Experts of the European Charter for Regional or Minority Languages the increase of the presence of Romany in the public media and, of course, in education. It seems that education is the key to many of the Charter’s goals. In any case, integration policies, although commendable as such, should not be to the detriment of the Romany language.



Roberta Medda-Windischer *

The Jurisprudence of the European Court of Human Rights

In the period under consideration in this volume, the European Court of Human Rights (ECtHR) has delivered some important rulings concerning minority rights, confirming the ever-increasing minority protection under the European Convention on Human Rights. In particular, the Court has delivered two judgments on Chechnya: the first against Russia in which it concluded that the anti-terrorism operations conducted in - were difficult to reconcile with the degree of caution expected by a democratic state;1 the second was delivered against Georgia and Russia and confirmed the alarming phenomenon of persecution and pressure exerted by the authorities on members of minorities who have applied to Strasbourg.2 The Court has observed the same phenomenon in applications brought by Kurds against Turkey3 and, again, against Russia in a judgment concerning the region of Transdniestria.4 The Court also heard oral arguments in two important cases concerning racial violence and discrimination against Roma.5 A judgment on the ban of wearing Islamic headscarves in Turkish higher education establishments will certainly trigger off discussions.6 Two judgments on jurisdiction and imputability will follow.7 This section will conclude with some remarks on the trends of the Strasbourg case law in the period under consideration. In April , the Strasbourg mechanism was further reinforced in the direction of an enhanced minority protection by the entry into force of Protocol No. .8 This provides a right to non-discrimination separate from the other substantive articles of the Convention on the grounds, inter alia, of association with a national minority. The *

       

Researcher at the European Academy of Bolzano, Institute for Minority Rights, Law Degree, LL.M. (University of Essex); currently doctoral candidate in Law (University of Graz). From  to  she worked at the Registry of the European Court of Human Rights. See below under Section I.A. See below under Section I.B. See below under Section I.D. See below under Section V.A. See below under Sections I.C. and II.A. See below under Section II.B.. See below under Sections V.A. and V.B. Protocol No.  to the Convention for the Protection of Human Rights and Fundamental Freedoms, entered into force on  April , ETS No. .

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 557-594. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Roberta Medda-Windischer number of countries that have ratified the protocol is still rather limited – at the time of writing  countries, mainly new member states of the Council of Europe. Considering the date of its entry into force, it is premature to assess the impact that Protocol No.  will exert on the protection of minorities under the jurisdiction of the states that have ratified it. We will report on any relevant developments in this regard in the next issues of this volume. I. Right to Life A. Anti-Terrorism Operations in Chechnya The Court has made some important rulings against Russia concerning the anti-terrorism operations carried out by the Russian Army in Chechnya in -.9 Out of six applications, two10 concerned the extrajudicial executions of the applicants’ relatives; three other applications11 referred to the indiscriminate bombing by Russian military planes of civilians leaving Grozny in , in which two of the applicants were wounded and some of their family members were killed; the last application12 concerned the indiscriminate bombing of the applicant’s village during which some of her family members were killed. Criminal investigations were opened, but they were flawed by serious failures and delays. In Strasbourg, the Court found unanimously that in all six cases there had been a violation of Article  (right to life) and Article  (prohibition of torture) as regards the applicants’ relatives’ deaths and the lack of adequate and effective investigation into the circumstances of these deaths and torture. As regard the alleged violation of the right to life, the Court recalled some general principles set out in its case law.13 The Court recalled that, where potentially lethal force is used in pursuit of a permitted aim, the force used must be strictly proportionate to the achievement of that aim. Operations involving potential use of lethal force must be planned and controlled by the authorities so as to minimise the risk to life. Authorities must take all feasible precautions in the choice of means and methods with a view to avoiding and, in any event, minimising incidental loss of civilian life. In the present cases, the Court first noted that, in reply to its requests, the Russian authorities submitted the relevant criminal investigation files only partially. The Court thus recalled that a failure on the respondent government to submit such information



   



ECtHR, Appl. / and /, Khashiyev and Akayeva v. Russia; Appl. /, / and /, Isayeva, Yusupova and Bazayeva v. Russia; Appl. /, Isayeva v. Russia, judgments of  February . See, Roberta Medda-Windischer, “The Jurisprudence of the European Court of Human Rights”,  EYMI (/), -, at . Khashiyev and Akayeva v. Russia. Isayeva, Yusupova and Bazayeva v. Russia. Ibid. See, amongst other authorities, ECtHR, Appl. /, Avsar v. Turkey, judgment of  July , ECHR , para. .

The Jurisprudence of the European Court of Human Rights without a satisfactory explanation could give rise to the drawing of inferences as to the well-founded character of the applicants’ allegations. In the first two cases,14 the Court established that the applicants’ relatives had been killed by military personnel. As no other plausible explanation as to the circumstances of the deaths had been forthcoming, nor had any justification been relied on in respect of the use of lethal force by the state agents, the Court concluded that there had been a violation of Article  of the Convention. In the following cases,15 the Court observed that it was undisputed that the applicants had been subjected to an aerial missile attack, during which their family members were either killed or wounded. In these cases, the Russian authorities claimed that the aim of the operation was to protect persons from unlawful violence (Article ()(a)). The Court accepted that the air strike had been a legitimate response to an attack. However, the Court further noted that the authorities who were planning the military operations should have known that following the creation of the ‘humanitarian corridor’ to Ingushetia for Grozny residents, there were numerous civilian cars and thousands of people on the road and this fact should have alerted them to the need for extreme caution as regards the use of lethal force in that area. It followed that, even assuming that the military had been pursuing a legitimate aim, the Court did not accept that the operations concerned, in which very powerful weapons had been used, had been planned and executed with the requisite care for the lives of the civilians. In the Court’s opinion, there had therefore been a violation of Article  of the Convention. Likewise, in the last case,16 in which the vehicle used by the applicant and her relatives was bombed by a military plane while they were escaping from heavy fighting, the Court accepted that the situation that existed in Chechnya at the relevant time called for exceptional measures by the state.17 However, a balance had to be struck between the aim pursued and the means employed to achieve it. At the outset the Court observed that its ability to make an assessment had been hampered by the fact that the government had not disclosed most of the documents related to the military action. The documents submitted by the parties and the investigation file nevertheless allowed certain conclusions to be drawn as to whether the operation had been planned and conducted in such a way as to avoid or minimise, to the greatest extent possible, harm to civilians, as was required by Article  of the Convention. The Court regarded it as evident that when the military had contemplated the deployment of aviation equipped with heavy combat weapons within the boundaries of a populated area, they should also have considered the inherent dangers. The Court observed that in the present case the military used heavy free-falling high-explosion aviation bombs, and that using this kind of weapon in a populated area, outside wartime and without prior evacuation of the civilians, was “impossible to reconcile with the degree of caution expected from a law-enforcement body in a democratic society.”18     

Khashiyev and Akayeva v. Russia. Isayeva, Yusupova and Bazayeva v. Russia. Ibid. Ibid., para. . Ibid., para. .



Roberta Medda-Windischer The Court further noted that no martial law and no state of emergency had been declared in Chechnya, and no derogation had been entered under Article  of the Convention (derogation in time of emergency). The operation therefore had to be judged against a normal legal background. Even when faced with a situation where, as the government had submitted, the villagers had been held hostage by a large group of fighters, the primary aim of the operation should be to protect lives from unlawful violence. The use of indiscriminate weapons stood in flagrant contrast with this aim and could not be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by state agents. As in the previous cases, while accepting that the concerned operation had pursued a legitimate aim, the Court did not find that it had been planned and executed with the requisite care for the lives of the civilian population, and thus it found a violation of Article . As regards the inadequacy of investigations, the Court recalled its case law in this area,19 and notably the need, in cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. In the six cases, the Court found that the authorities had failed to carry out an effective criminal investigation into the circumstances surrounding the deaths of the applicants’ relatives, and thus found that there had been a violation of Article  also in this respect. In respect of two applications,20 the Court was unable to find that beyond all reasonable doubt the applicants’ relatives had been subjected to treatment contrary to Article  of the Convention, but, having regard to the lack of a thorough and effective investigation into credible allegations of torture, the Court held that there had been a violation of the procedural requirements of Article . Although a couple of years have elapsed since these events and the delivery of the Court’s judgment the decisions in these six cases represent a response to the alleged inactivity on the part of the Council of Europe towards the plight of the Chechen population. With the present judgments the Court has now taken a firm and clear stand on the Chechen conflict and the reaction of the Russian authorities. B. Chechens Extradition Cases Another case concerning Chechens and the right to life is Shamayev and Twelve Others v. Georgia and Russia.21 This case refers to the arrest in  of  Russian and Georgian nationals of Chechen origin by the Georgian border police for illegally crossing the state border and unlawfully possessing and trading in firearms. As a result, the Georgian authorities ordered their detention for three months pending trial. Afterwards, the Russian authorities requested the Georgian authorities to extradite the detainees, sub  



See McCann and Others v. the United Kingdom, judgment of  September , Series A, No. ; Kaya v. Turkey, judgment of  February , Reports -I. Khashiyev and Akayeva v. Russia. ECtHR, Appl. /, Shamayev and Twelve Others v. Georgia and Russia, judgment of  April . The text of the judgment is only available in French. See Medda-Windischer, “The Jurisprudence of …”, /, -.

The Jurisprudence of the European Court of Human Rights mitting that they were terrorist rebels who had taken part in the conflict in Chechnya. In the light of the gravity of the charges against the persons concerned in Russia, the Georgian authorities decided to authorise the extradition of the applicants. While some of the applicants were detained in Tbilisi, they learned from television and not from official sources that the extradition of some of them was imminent. When prison officers asked them to leave their cells, they refused to comply because they were afraid of being extradited and, as a result, violent clashes took place between them and members of the special forces. On the following day, five of the applicants were extradited from Georgia to Russia. According to the Russian government, at the end of the proceedings against them, these applicants were sentenced from one to ten years’ imprisonment. Those who had not been extradited continued to be detained in Georgia, but they were released between  and . The other two applicants were arrested by the Russian authorities, and are apparently now detained in Russia. Initially, the applicants lodged in Strasbourg a preliminary application contesting their imminent extradition to Russia. Applying its own internal rules, the Court indicated to the Georgian authorities that it was desirable, as an interim measure, not to extradite the applicants to Russia before the Court had had the opportunity to examine the application in the light of the information to be supplied by the Georgian government.22 Subsequently, the Court decided to lift the interim measures in the light of the undertakings given by Russia, which included guarantees of unhindered access for the applicants to appropriate medical treatment and legal advice. The Russian authorities had further undertaken that the applicants would not face capital punishment and that their health and safety would be protected. In Strasbourg, the applicants submitted, among others, that their extradition to Russia, where capital punishment had not been abolished, exposed them to a real danger of death or torture contrary to Articles  (right to life) and  (right not to be subjected to torture or inhuman or degrading treatment or punishment) of the Convention. In  a delegation of the Court took oral evidence in Tbilisi from six applicants who had not been extradited and  witnesses. Subsequently, a fact-finding visit due to be made to Russia had to be cancelled on account of the uncooperative attitude of the Russian authorities. Finally, on  April , the Court delivered a judgment by finding a number of violations against Georgia and Russia. With regard to Georgia, as regards the alleged risks of being sentenced to death and of ill-treatment following extradition, the Court found no violation of Article  by Georgia in the light of the material in its possession. The facts of the case indeed did not support beyond a reasonable doubt the assertion that, at the time when the Georgian authorities took the decision to extradite, there were serious and well-found reasons to believe that this act would expose the applicants to a real personal risk of suffering inhuman or degrading treatment, within the meaning of Article . The Court found, however, that there would be a violation of Article  if the decision to extradite one of the applicants, whose refugee status was pending before the Georgian authorities, were to be enforced. The extradition order made against this applicant had been suspended, but might have been enforced when the proceedings 

Rules of the Court, Rule  (Interim measures).



Roberta Medda-Windischer concerning his refugee status ended. The Court noted, in particular, the “extremely alarming phenomenon of persecution and killings of persons of Chechen origin who had lodged applications with it.”23 According to reports by human rights organizations, there had been a sudden rise in  and  in the number of cases of persecution of persons who had lodged applications with the Court, in the form of threats, harassment, detention, enforced disappearances and killings. Consequently, the Court considered that if the decision to extradite the applicant were to be enforced there would be a violation of Article  of the Convention. In addition, as regards the treatment inflicted on some of the applicants while they were detained in Tbilisi, the Court considered that there was no doubt that the applicants had put up a hostile resistance to the prison officers and special forces, by arming themselves with various objects. In those circumstances the Court considered that the intervention of  special force officers, armed with truncheons, could reasonably be considered necessary to ensure the safety of the prison staff and prevent disorder spreading through the rest of the prison. However, the Court observed that it appeared that the applicants had been only informed that the extradition of some of them was imminent, without being told which ones, and that a few hours later prison officers ordered them to leave their cell giving fictitious reasons. Such conduct on the part of the authorities amounted to attempted deception. In the Court’s view the attitude of the Georgian authorities and the way in which they had managed the extradition enforcement procedure had incited the applicants to resist, so that the recourse to physical force had not been justified by the prisoners’ conduct, who as a result of this confrontation received various wounds and fractures. Consequently, the Court considered that the  applicants detained in Tbilisi were subjected to physical and mental suffering of such a nature that it amounted to inhuman treatment, and thus it found a violation of Article  in this respect. Finally, as regards Russia, the Court noted that by obstructing the Court’s factfinding visit and denying it access to the applicants detained in Russia, the Russian authorities had unacceptably hindered the establishment of part of the facts in the case as provided for in Article  (obligation to furnish all necessary facilities for the adversarial examination of the case) of the Convention. Moreover, the Court observed that there was reason for serious doubt as to the freedom of the extradited applicants to correspond with it without hindrance and to put forward their complaints in greater detail, which they had been prevented from doing by the haste with which they had been extradited. The Court considered that the effective examination of the applicants’ complaints against Georgia had been detrimentally affected by the conduct of the Russian government, and examination of the admissible part of the application against Russia had been impossible. Accordingly, the Court found a violation of Articles  (individual petition) and  of the Convention.24 This case is particularly interesting because, in addition to the aspects relating to Articles  and , it sanctions, on the one hand, the omissions, pressures and unfair  



Shamayev and Twelve Others v. Georgia and Russia, para. . It is interesting to note that the Court held unanimously that Russia was to pay into the budget of the Council of Europe EUR ,. for the costs incurred by the Court for the planned fact-finding visit to Russia.

The Jurisprudence of the European Court of Human Rights behaviour on the part of the authorities towards applicants under their control, and on the other hand, the obstructing conduct on the part of the same authorities towards a supra-national control mechanism. C. Roma/Gypsies: Police Abuse and Non-Discrimination On  February , the Court held a Grand Chamber hearing in the Nachova and Others v. Bulgaria case.25 Following a Chamber judgment, the Grand Chamber panel of five judges accepted the case for referral to the Grand Chamber. The case concerns the shooting by military police soldiers of two Roma conscripts. The victims, who had recently absconded from a military construction crew, were known to be unarmed and not dangerous. The killing, by automatic weapon fire, took place in broad daylight in a largely Roma neighbourhood, where the grandmother of one of the victims lived. Immediately after the killing, a military police officer allegedly yelled at one of the town residents, “You damn Gypsies!” while pointing a gun at him. Relatives of the victims sought redress before the European Court of Human Rights. In the Chamber judgment, the Court unanimously found that both the shootings and the subsequent investigation, which upheld their lawfulness, were tainted by racial animus. The Court found breaches of the right to life (Article ) and non-discrimination (Article ). In particular, the Court held that there had been violations of Article  (prohibition of discrimination), taken together with Article , concerning the soothings and the lack of an investigation into whether discriminatory attitudes played a role in the shootings. The Chamber judgment, the first in the Court’s history to find a violation of Article  on grounds of racial discrimination, made it clear that the right to non-discrimination has both substantive and procedural components. The Court ruled that the importance of the prohibition against discrimination and the difficulties of proof are such that, in certain cases, it may, when examining complaints alleging discrimination, draw negative inferences or shift the burden of proof to the respondent government. At the request of the Bulgarian government, on  July , the Court’s Grand Chamber agreed to review the initial panel decision. As in most applications concerning Roma, amicus briefs have been filed by a number of NGOs - the European Roma Rights Centre, Interights and the Open Society Justice Initiative. This demonstrates the commitment and invaluable support provided by NGOs to this extremely vulnerable, although numerically the most important, minority group in Europe. Another case concerning police brutality against Roma, is the Sándor Balogh v. Hungary case.26 The applicant, Sándor Balogh, is a Hungarian national of Roma ethnic 



ECtHR, Appl. / and /, Nachova and Others v. Bulgaria, judgment (Chamber) of  February . See Roberta Medda-Windischer, “The Jurisprudence of the European Court of Human Rights”,  EYMI (/), -, at -. At the time of writing no judgment by the Grand Chamber had yet been delivered. ECtHR, Appl. /, Balogh v. Hungary, judgment (Chamber) of  July . The application was filed in  as part of a joint strategic litigation project undertaken by the Legal Defence Bureau for National and Ethnic Minorities (NEKI) and the European Roma Rights Centre.



Roberta Medda-Windischer origin. In , he was taken to a local police station, where he was questioned for two hours concerning the whereabouts of a number of fuel vouchers that he and others had allegedly stolen. He claimed that one of the police officers repeatedly slapped him across the face and left ear while the other punched him on the shoulder. The applicant was met on the ground floor of the police station by four of his companions who each testified that he had a red and swollen face and that he must have been beaten. He then consulted the local doctor, who advised him to report to a hospital. Subsequently, an operation was carried out to reconstruct the applicant’s ear drum which had been damaged as a result of the police abuse. Criminal proceedings were initiated against the police officers involved, and a medical expert concluded that it could not be determined whether the injury in question had been caused before, during or after the police interrogation. Criminal proceedings were, first, discontinued, and then resumed. Ultimately, however, the investigating authorities found that it could not be established beyond all doubt when the injuries in question had actually been sustained. After the events, the applicant’s working capacity was declared to have diminished by  % on account of asthma and impaired hearing. He was therefore unable to have his lorry driver’s licence renewed or to obtain employment as a driver. He applied unsuccessfully to the Ministry of Interior for compensation. A further medical opinion found that a traumatic perforation of the tympanic membrane was usually caused by a slap on the ear and that the applicant’s account of how his injury occurred was plausible. Relying on this new evidence, Mr. Balogh’s counsel, affiliated to NEKI, requested that criminal proceedings be reopened. The Public Prosecutor’s Office, however, declined to do so and explained that it was impossible to substantiate Mr. Balogh’s allegations. The Court noted that Mr. Balogh’s four friends confirmed that he left the police station with a red and swollen face, and concluded that he must have been beaten. The Court noted that Mr. Balogh sought medical help several days following the incident, but the Court was reluctant to attribute any decisive significance to this delay. It also took into account that the Hungarian authorities had carried out a reasonably thorough investigation into Mr. Balogh’s allegations and that the prosecutor’s task was made difficult in view of the absence of independent eyewitnesses. However, the Court then pointed out that the Hungarian government was unable to provide any plausible explanation for the cause of the applicant’s injuries, and that it was believable that they had been inflicted in police custody. In its judgment, the Court found, by four votes to three, that the Hungarian government had violated Article  (prohibition of inhuman or degrading treatment), and unanimously, that there had been no violation of Article  (right to an effective remedy), Article  (access to court) and Article  (prohibition of discrimination). The Court’s rulings in both reported cases have particular significance in that the Court has made it clear that Roma unfortunately still frequently suffer from police abuse. In addition, it has stressed that with respect to persons deprived of liberty, any recourse to physical force, which is not made strictly necessary by the conduct of the detainee will amount to a violation of human rights standards. Finally, the Court’s judgment has underscored that the requirements of a criminal investigation and the undeniable difficulties inherent in the fight against crime can never justify placing limits on the protection of an individual’s physical integrity or personal dignity. 

The Jurisprudence of the European Court of Human Rights D. Anti-Terrorism Operations in Turkey In the case of A. and Others v. Turkey,27 the applicants were the parents of an alleged Kurdistan Worker’s Party (PKK) associate, who was found hanging in his cell shortly after he was arrested in a police operation against the PKK. In , the applicant’s son was arrested and taken into police custody with one of his brothers following an identity check. The Turkish authorities maintained that he was found dead having hanged himself from the bars of his cell window with the aid of a bedcover and his shirt. The applicants claimed instead that their son had died as a result of torture in police custody. The police officers concerned were acquitted by national courts for lack of evidence. In Strasbourg, the evidence before the Court did not support the applicants’ allegations that their son had died as a result of torture at the hands of the security forces. In addition, there was nothing in the case file to show that the police officers could reasonably have foreseen that the applicant’s son would commit suicide. Consequently, the Court found that there had been no violation of Article  on that account. However, in view of the lack of an effective investigation into the circumstances surrounding the alleged suicide and the lack of a plausible explanation by the government for the injuries found in the body of the applicant’s son, the Court found that Turkey was responsible for the violation of Articles  and  of the Convention. The case of İkincisoy v. Turkey 28 concerned the circumstances surrounding the death of an alleged PKK affiliate, who was shot dead the day after his arrest while under the control of the authorities. The applicants, the father and brother of the victim, claimed that their relative had died as a result of torture at the hands of police officers. The Court drew very strong inferences from total lack of any evidence indicating that the applicant’s relative had been taken into custody. It recalled that, having regard to the general context of the situation in south-east Turkey at the time, an unacknowledged detention could be life-threatening. The authorities had, moreover, failed to establish the real circumstances surrounding his death. Accordingly, the Court concluded that the applicant’s relative had died in circumstances engaging Turkey’s responsibility. The Court found thus a violation of Article  for the death of the applicant’s relative and for lack of an effective investigation. In addition, the Court found a violation of Article  (individual petition), on account of the pressure exerted by the local public prosecutor who questioned the father of the victim about his application to Strasbourg and eventually forced him to sign a statement expressing his wish to withdraw his application. The Court found that the applicant had been subjected to indirect and improper pressure to make statements in respect of his application, which had interfered with the free exercise of his right of individual petition.

 

ECtHR, Appl. /, A. and Others v. Turkey, judgment of  July . The text of the judgment is available only in French. ECtHR, Appl. /, İkincisoy v. Turkey, judgment of  July .



Roberta Medda-Windischer As a general rule, in assessing evidence the Court applies the standard of proof ‘beyond reasonable doubt’.29 Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In particular, in cases of unacknowledged detention, ill-treatment and disappearance under police custody, and thus, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.30 Moreover, the obligation to protect the right to life (Article ), read in conjunction with the state’s general duty under Article  of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation for deaths occurring under the responsibility of state agents.31 For an investigation into an alleged unlawful killing by state agents to be effective, it may generally be regarded as necessary for the persons responsible for carrying out the investigation to be independent from those implicated in the events. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. Any deficiency in the investigation, which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard. In both cases reported above, the Court could not establish beyond reasonable doubt that the respondent state was responsible for the death of the applicants’ relatives. However, given the fundamental importance of the rights in issue, the right to protection of life and freedom from torture and ill-treatment, the Court found that the respondent state has failed to comply with the obligation to carry out a thorough and effective investigation into the deaths of the applicants’ relatives apt to lead to those responsible being identified and punished. E. Cyprus: Political Dissident’s Death The case of Adali v. Turkey 32 refers to the death of Kutlu Adali, a well-known Turkish Cypriot journalist and writer in the so-called ‘Turkish Republic of Northern Cyprus’ (TRNC). The applicant, Mr. Adali’s wife, alleged that her husband was killed in  on the grounds of his political opinions, by the Turkish and/or TRNC authorities. Mr. Adali was indeed known for having written and published articles strongly criticising    



ECtHR, Ireland v. the United Kingdom, judgment of  January , Series A, no. , para.. ECtHR, Salman v. Turkey, judgment (Grand Chamber) of  June , ECHR VII. ECtHR, Kaya v. Turkey, judgment of  February , Reports -I, para. . ECtHR, Appl. /, Ilkay Adali v. Turkey, judgment of  March . See MeddaWindischer, “The Jurisprudence of …”, /, -.

The Jurisprudence of the European Court of Human Rights 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. Throughout his career, Mr. Adali had also held various civil service posts, including that of private secretary to Rauf Denktas, 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. In Strasbourg, Mrs. Adali alleged that her husband’s murder was a manifestation of a continuing practice on the part of the Turkish-controlled authorities of the TRNC, the aim of which is to suppress and discourage dissent by causing or encouraging the disappearance of dissenters. 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 are not sufficiently independent from Turkey’s influence to make it likely that they would act independently and impartially, considering the particular circumstances of her case. She alleged also that subsequent to the death of her husband, she was subjected to the continuing practices of monitoring, harassment, intimidation and discrimination by the TRNC authorities. At the outset, the Turkish government submitted that Mrs. Adali had failed to comply with the “exhaustion of domestic remedies” rule because she filed her application without having recourse to the local remedies that were allegedly effective, sufficient and easily accessible to her, and capable of providing redress for her complaints within the judicial system of the TRNC. In this regard, the Court observed that the remedies available in the TRNC could be viewed as the ‘domestic remedies’ of Turkey and that, as for their availability and effectiveness, it considered that this question was closely linked to the substance of the applicants’ complaints and that should be joined to the merits. With regard to the allegations concerning the circumstances in which Mr. Adali was killed, the Court observed that they did not go beyond speculation and assumption to enable the Court to conclude beyond all reasonable doubt that Mr. Adali was killed by or with the connivance of any state agent or person acting on behalf of the state authorities. The Court concluded that there had been no violation of Article  on account of the killing of Mr. Adali. However, as the obligation to protect the right to life under Article  also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force, the Court found nevertheless a violation of Article  as the national authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the killing of Mr. Adali. As for the allegation that following the death of her husband, Mrs. Adali was subjected to continuing practices of harassment, intimidation and discrimination by the TRNC authorities, the Court considered that in the absence of any concrete evidence to the contrary, and having regard to the requisite standard of proof for establishing the existence of such acts, concluded that there was no breach of the Convention (Articles ,  and ) in this regard.



Roberta Medda-Windischer Finally, concerning the alleged interferences of Mrs. Adali’s rights to freedom of expression (Article ) and freedom of assembly (Article ) following the refusal by the Turkish and Turkish-Cypriot authorities to allow her to cross the ‘green line’ in order to attend a meeting organised by a radio station in southern Cyprus, the Court observed that, as of Article , the allegation arose out of the same facts as those examined under Article  of the Convention and thus it did not consider it necessary to examine this complaint separately. However, as of the right to freedom of assembly (Article ), the Court noted that in their observations the Turkish government had referred to ‘general restrictions’, concerning the crossing of the ‘green line’ between the TRNC and southern Cyprus, without referring to any specific law or measures regulating the issuance of permits to Turkish Cypriots living in northern Cyprus to cross this ‘line’ into southern Cyprus, in order to engage in peaceful assembly with Greek Cypriots. With this in mind, the Court concluded that there seemed to be no law applicable in the present case. Therefore, the manner in which restrictions were imposed on Mrs. Adali’s exercise of her freedom of assembly was not ‘prescribed by law’ within the meaning of the Convention, and thus in this case Article  was violated. Northern Cyprus has recently initiated a process of ‘Europeanization’: the positive outcome in Northern Cyprus in the referendum regarding the Annan Plan, the opening of the ‘green line’, the recent presidential elections, the large EU investments – all seem to contribute to the steady development of a process of democratization in which events such as those described in the present case will no longer take place.33 II. Culture and Identity Rights A. Right to Education: Roma and ‘Special’ Schools On  March , the Court held a Chamber hearing on the admissibility and merits in the case of D.H. and Others v. the Czech Republic.34 The applicants are  Czech nationals of Roma origin, who, between  and , were placed in special schools for children with learning difficulties deemed to be unable to follow the ordinary school curriculum. The statutory procedure is for such placements to be made by the head teacher at the child’s original school on the basis of an IQ test and the recommendation of a child psychology centre, and with the consent of the child’s legal representative. Fourteen of the applicants sought a review by the local Education Department on the grounds that 





For further reference, see Christopher Brewin, “Changing Concepts of Interests and the Annan Plan for Cyprus”,  EYMI (/), -; Susanne Baier-Allen, Exploring the Linkage between EU Accession and Conflict Resolution: the Cyprus Case (Nomos, BadenBaden, ); George Christou, The European Union and Enlargement: the Case of Cyprus (Palgrave Macmillan, Basingstoke, ); Roderick Pace, The EU’s Enlargement Towards the Mediterranean: Cyprus and Malta (Cass, London, ); Oliver P. Richmond and James Ker-Lindsay (eds.), The Work of the UN in Cyprus: Promoting Peace and Development (Palgrave Macmillan, Basingstoke, ). ECtHR, Appl. /, D.H. and Others v. the Czech Republic, hearing (Chamber) on the admissibility and merits of  March . The text of the decision is available only in French.

The Jurisprudence of the European Court of Human Rights the tests that had been performed were unreliable and their parents had not been sufficiently informed of the consequences of giving consent. The Education Department found that the placements had been made in accordance with the statutory rules. In addition,  of the applicants appealed to the Constitutional Court. They argued that their placement in the special schools amounted to a general practice that created segregation and racial discrimination through the coexistence of two autonomous educational systems, namely special schools for the Roma and ‘normal’ primary schools for the majority of the population. That appeal was dismissed. In Strasbourg, the applicants alleged that they had been subjected to degrading treatment in the form of segregation on grounds of racial origin, in breach of Article  (prohibition of degrading treatment) of the Convention. They also complained under Article  of Protocol No.  (right to education), taken alone and together with Article  (prohibition of discrimination), that they had been deprived of their right to education on account of their Roma origin. Lastly, they complained that no reasons were stated for the decisions to place them in special schools and procedural safeguards had not been complied with, in breach of Article  (right to a fair hearing). In its decision on the admissibility, the Court rejected the Czech government’s argument that some of the applicants, who had been transferred to regular schools after the application to Strasbourg was lodged, could no longer claim to be ‘victims’ entitled to exercise the right to complaint (Article  – individual applications). The Court rejected this claim as this demarche on the part of the authorities could not be considered to be sufficient to erase the consequences to the applicants having attended, for a substantial period of time, a school that did not fully correspond to their abilities. As in the Nachova case, an amicus brief was filed by Interights and Human Rights Watch. At the time of writing no judgment had been yet delivered. Although the present case has not yet passed the Court’s assessment on the merits, it is still worth reporting it because it has been unanimously declared admissible – it has to be recalled that one application out of four is rejected at the admissibility stage – and it has thus finally brought to the attention of the Strasbourg Court the systemic discriminatory education of Romani pupils, who in many countries are disproportionately assigned to substandard, separate schools. B. Freedom of Religion The Strasbourg Court has reviewed several cases where cultural identity derived from the fact that the applicant belonged to a particular religious group. 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  (freedom of thought, conscience and religion), and accordingly the protection of Article  cannot be invoked either. 1. Islamic Headscarf The 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



Roberta Medda-Windischer the case of Dahlab v. Switzerland,35 the Court considered the cases of Tekin v. Turkey36 and Şahin v. Turkey,37 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. The Turkish government submitted that the ban to grow a beard or wear an Islamic headscarf in higher education establishments, aimed at guaranteeing the principle of secularism laid down in the Constitution as well as guaranteeing the peaceful coexistence of different religions and beliefs within the same community or establishment. In both the Şahin and Tekin cases, the applicants complained of the ban on their wearing Islamic headscarves, relying on Article . They also complained of the unjustified interference with their right to education set out in Article  of Protocol No. . Mrs. Şahin further alleged a breach of Article  (prohibition of discrimination), combined with Article  of the Convention, because she considered that the ban on wearing Islamic headscarves obliges students to choose between education and religion, and discriminates between believers and non-believers. She relied, lastly, on Articles  (right to respect for private and family life) and  (freedom of expression). The Court declared the applications admissible, inter alia, as of Article  of the Convention and Article  of Protocol No. . However, on  February , Mrs. Tekin informed the Court, without further explanations, about her intention to no longer continue her application in Strasbourg. Accordingly, the Court decided to strike the case off the list.38 In the Şahin case, the Court found unanimously that there had been no violation of Article  and that no separate question arose under Articles  and , Article  taken together with Article  of the Convention, and Article  of Protocol No. . In its assessment, the Court referred to its previous judgment in the Refah Partisi case,39 in which the Court noted: In a country like Turkey, where the great majority of the population belongs to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who do not practise that religion or on those who belong to another religion may be justified under Article  §  of 

   



ECtHR, Appl. /, Lucia Dahlab v. Switzerland, decision on the admissibility of  February . See Roberta Medda-Windischer, “The European Court of Human Rights”, () Journal of European Integration (), -, at -. ECtHR, Appl. /, Tekin v. Turkey, decision on the admissibility of  July . See, Medda-Windischer, “The Jurisprudence of …”, /, . ECtHR, Appl. /, Şahin v. Turkey, decision on the admissibility of  July . Ibid. ECtHR, Appl. /, Tekin v. Turkey, judgment (friendly settlement) of  June . ECtHR, Appl. /, /, / and /, Refah Partisi (the Welfare Party) and Others v. Turkey, judgment (Grand Chamber) of  February , ECHR -II. See, Medda-Windischer, “The Jurisprudence of …”, /, -.

The Jurisprudence of the European Court of Human Rights the Convention. In that context, secular universities may regulate the manifestation of the rites and symbols of the said religion by imposing restrictions as to the place and manner of such manifestation with the aim of ensuring peaceful co-existence between students of various faiths and thus protecting public order and the beliefs of others.40

Recalling that the Convention machinery is essentially subsidiary and that states have a margin of appreciation as regards the initial assessment of the ‘necessity’ for an interference of a legislative framework and of a particular measure of implementation, the Court observed that a fair balance must be struck between the various interests at stake: the rights and freedoms of others, avoiding civil unrest, the demands of public order and pluralism. As regards the present case, the Court further noted that the margin of appreciation is particularly appropriate when it comes to the regulation by states of the wearing of religious symbols in teaching institutions, since rules on the subject vary from one country to another depending on national traditions and there is no uniform European conception of the requirements of ‘the protection of the rights of others’ and of ‘public order’. The Court noted the emphasis placed by the Turkish Constitutional Court on secularism, considered to be the guarantor of democratic values, equality of citizens before the law and, in particular, gender equality, and the fact that in order to defend those values and principles, restrictions can be placed on freedom to manifest one’s religion. In addition, the Court considered as an important element the fact that wearing, in the Turkish context, an Islamic headscarf, which is presented or perceived as a compulsory religious duty, may affect those who choose not to wear it. Imposing limitations on freedom in this sphere may, therefore, be regarded as meeting a pressing social need by seeking to achieve two legitimate aims, namely the protection of the “rights and freedoms of others” and the “maintenance of public order”, especially since this religious symbol has taken on political significance in Turkey in recent years. By referring again to the Refah Partisi case,41 the Court took also into consideration the fact that, on the one hand, in Turkey there are extremist political movements, which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts. On the other hand, the Court noted that it is undisputed that in Turkish universities, to the extent that they do not overstep the limits imposed by the organizational requirements of state education, practising Muslim students are free to perform the religious duties that are habitually part of Muslim observance, and, that in the University of Istanbul, in particular, all forms of dress symbolising or manifesting a religion or faith are treated on an equal footing as they are all barred from the university premises. Finally, as far as the implementation of the ban to wear the Islamic headscarf at the University of Istanbul was concerned, the Court observed that, rather than barring students wearing the Islamic headscarf access to the university, the university authorities sought throughout that decision-making process to adapt to the evolving situation  

ECtHR, Appl. /, Şahin v. Turkey, judgment of  June , para. . Refah Partisi (the Welfare Party) and Others v. Turkey (Grand Chamber).



Roberta Medda-Windischer through continued dialogue with those concerned, while at the same time ensuring that order was maintained on the premises. In conclusion, having regard in particular to the margin of appreciation left to the states, the Court found that the restrictions on the wearing of Islamic headscarves in the University of Istanbul were justified in principle and proportionate to the aims pursued and thus could be regarded as necessary in a democratic society. Consequently, the Court found, unanimously, no violation of the Convention. Following the unanimous Grand Chamber’s judgment in the Refah case42 that has provoked a number of reactions on the part of human rights scholars,43 in the present case the Court has reiterated its approach vis-à-vis difficult religious issues that have not yet attained a common European consensus: The Court has thus contextualised the case and allowed the state to apply a wide margin of appreciation. 2. Jehovah’s Witnesses The case of Lotter and Lotter v. Bulgaria 44 concerns two Austrian nationals, Alfred and Edith Lotter, who are Jehovah’s Witnesses. The applicants complained that the refusal to renew their residence permits in Bulgaria and the order for them to leave the country based on an alleged threat to national security violated Articles  (freedom of religion) and  (prohibition of discrimination) of the European Convention. In , following a legislative amendment requiring religious associations to re-register, by the decision of the Council of Ministers, a number of such associations, including the Jehovah’s Witnesses’ organization in Bulgaria, were refused re-registration. Although the applicants were not members of the dissolved association, it was an established administrative practice in Bulgaria to consider that the  Council of Ministers’ decision rendered unlawful all religious activity related to the Jehovah’s Witnesses’ cult. As a result, the police withdrew the applicants’ residence permits and ordered them to leave Bulgaria. The police decisions only stated that they were based on the Aliens (Residence in Bulgaria) Act, which provided that an alien could be refused the right to reside in Bulgaria if he or she had endangered the security or the interests of the state or his or her activities could pose a threat in this respect. No further reasons were provided. The applicants complained, but their appeals were dismissed by national courts. Some years later, in , the Bulgarian government and persons representing the dissolved association of Jehovah’s Witnesses signed a friendly settlement in proceedings before the former Strasbourg Commission.45 Since then, Jehovah’s Witnesses in Bulgaria have enjoyed the status of a religious denomination.  

 



See, Medda-Windischer, “The Jurisprudence of …”, /, -. See, among the others, Kevin Boyle, “Human Rights, Religion and Democracy: The Refah Party Case“, (), Essex Human Rights Review (), -, at ; Ben Olbourne, “Refah Partisi (The Welfare Party) v. Turkey”,  European Human Rights Law Review (), -. ECtHR, Appl. /, Lotter and Lotter v. Bulgaria, judgment (friendly settlement) of  May . ECommHR, Appl. /, Khristiansko Sdruzhenie “Svideteli na Iehova” (Christian Association Jehovah’s Witnesses) v. Bulgaria, Commission’s report of  March , DR ,

The Jurisprudence of the European Court of Human Rights Consequently, in this case as well, the applicants and the Bulgarian government signed a friendly settlement in the presence of the Director of Religious Denominations at the Bulgarian Council of Ministers. The agreement refers, among others, to the registration of the Jehovah’s Witnesses’ cult as a religious denomination in Bulgaria, to the decision of the Court that has declared this present case admissible, and to the commitment to pay compensation to the applicants and refund them for costs and expenses. As a result, the Court declared the case struck off the list. This case shows that agreements among minority groups and national authorities are beneficial for the whole national community and are feasible when there is a mutual willingness to defuse tensions and find win-win solutions. C. Freedom of Expression On  July , the Court struck off the case of Zana and Others v. Turkey,46 following a friendly agreement reached among the parties. Leyla Zana, a former member of the pro-Kurdish Democracy Party (DEP) that was dissolved by the Turkish Constitutional Court, and the other applicants were sentenced to one year and four months’ imprisonment and the payment of a fine for publishing propaganda supporting Kurdish separatism and for inciting hatred and hostility on the basis of a distinction made on the grounds of social class, race and religion. In , the Court had already dealt with a case involving Mrs. Zana in which it had found that the conviction to a -year prison sentence imposed on her and other applicants for supporting Kurdish separatism was in violation of their right to a fair trial.47 Following the judgment of the Court, the Committee of Ministers had pressed the Turkish authorities into adopting legislation paving the way for the reopening of the proceedings in this case and, thereafter, had called for the applicants’ release, pending the outcome of the new trial. In , in its reply to the Parliamentary Assembly on the implementation of the decisions of the Court, the Committee of Ministers reported that a new law had 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 could be reopened before the State Security Court of Ankara. The 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 reopen proceedings was accepted, and that the scope of the new law would not extend to cases that were currently pending before the Court.48

 



. ECtHR, Appl. / and /, Zana and Others v. Turkey, judgment (friendly settlement) of  July . The text of the judgment is available only in French. ECtHR, Appl. /, /, / and /, Sadak, Zana, Dicle and Doğan v. Turkey, judgment of  July . See Medda-Windischer, “The Jurisprudence of …”, /, ; and id. “The Jurisprudence of …”, /, . CoE, 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,



Roberta Medda-Windischer In April , the Committee of Ministers expressed its concerns following numerous reports questioning the fairness of the retrial.49 The repeated requests by the Committee had been ignored by the Turkish government and the applicants continued to be treated as convicted persons throughout the retrial, raising serious issues regarding the presumption of innocence. Finally, on  July , an appeal local court of Ankara ordered a new trial for Mrs. Zana and the other three applicants. The Turkish court ruled that the four did not receive a fair trial in the previous retrial. Leyla Zana and the three other applicants were released from prison in June  after the prosecutors had asked for a retrial, citing procedural violations in their earlier retrial. The case of Halis v. Turkey 50 concerned a Turkish national who had reviewed four books about problems relating to Turkey’s southeastern region for the newspaper Özgür Gündem in . One of the books was written by the leader of the PKK, Abdullah Öcalan. Consequently, a state security court found the applicant guilty of disseminating propaganda about an illegal separatist organization and sentenced him to one year’s imprisonment. In , the execution of his sentence was suspended. The Strasbourg Court attached particular significance to the fact that the applicant was convicted and sentenced to imprisonment for disseminating propaganda about the PKK, even though the impugned article was never actually disseminated, since the concerned edition of Özgür Gündem was seized before it could be distributed. The Court further observed that, notwithstanding the fact that the execution of the sentence imposed on the applicant had been suspended, he nevertheless faced the threat of a heavy penalty. Finding that the applicant’s conviction was disproportionate to the aims pursued and, accordingly, not ‘necessary in a democratic society’, the Court held, unanimously, that there had been a violation of Article . These cases concern events that took place in the mid-s, when the anti-terrorism operations conducted by the Turkish authorities in southeast Turkey were at their peak. However, the unsatisfactory retrials of political dissidents and the inadequate solution to eviction cases in southeast Turkey51 are all dated in recent years (-). In spite of the political commitment expressed by the Turkish authorities, the road towards the democratization and ‘Europeanization’ of this country seems a long one.

  



Parliamentary Assembly Recommendation  (), CM/AS() Rec.  final,  March . Press release No. a () of  April  issued by the Committee of Ministers. ECtHR, Appl. /, Halis v. Turkey, judgment of  January . See below, Section IV. A. of this article.

The Jurisprudence of the European Court of Human Rights III. Effective Participation in Public Life A. Political Participation 1. Voting Rights In the Ibrahim Aziz v. Cyprus case52 the Court reviewed the issue of voting rights for members of a national minority. The applicant is 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. The applicant complained, among others, under Article  of Protocol No. (right to free elections), 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 (Article  - prohibition of discrimination). 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 it had done in many other similar instances, because he was a member of the TurkishCypriot community. This application had already been submitted to the Court but against Cyprus, Greece, Turkey and the United Kingdom.53 In , the Court delivered a partial decision on the admissibility in which it decided to adjourn the examination of the applicant’s complaints concerning Article  of Protocol No.  and Article  of the Convention insofar as they involved the Cyprus government only. The Court recalled that the Cypriot Constitution, which entered into force in August , provided for separate electoral lists for the Greek-Cypriot and TurkishCypriot communities. Nonetheless, the participation of Turkish-Cypriot members of parliament was suspended from , from which time the relevant articles of the Constitution providing for the parliamentary representation of the Turkish-Cypriot community and the quotas to be adhered to by the two communities became impossible to implement in practice. The Court noted that states that had ratified the European Convention enjoyed considerable latitude in establishing rules within their constitutional order governing parliamentary elections and the composition of their parliaments; the relevant criteria might vary according to the historical and political factors peculiar to each state. However, those rules should not be such as to exclude certain people or groups of people from participating in the political life of the country and, in particular, in the choice of the legislature. The Court noted that the situation in Cyprus had deteriorated following the occupation of northern Cyprus by Turkish troops and had continued to do so for the last  years. It further observed that, despite the fact that the relevant constitutional provisions had been rendered ineffective, there was a notable lack of legislation for  

ECtHR, Appl. /, Ibrahim Aziz v. Cyprus, judgment of  June . ECtHR, Appl. /, Ibrahim Aziz v. Cyprus, Greece, Turkey and the United Kingdom, partial decision on the admissibility of  April . See Medda-Windischer, “The Jurisprudence of ...”, /, -.



Roberta Medda-Windischer resolving the resulting problems. Consequently, the applicant, as a member of the Turkish-Cypriot community living in the government-controlled area of Cyprus, was completely deprived of any opportunity to express his opinion in the choice of the members of the house of representatives of the country of which he was a national and where he had always lived. Considering that the very essence of the applicant’s right to vote had been denied, the Court held, unanimously, that there had been a violation of Article  of Protocol No. . Finally, the Court noted that the difference in treatment of which the applicant complained, resulted from the fact that he was a Turkish-Cypriot and that this difference could not be justified on reasonable and objective grounds. The Court therefore concluded that there was a clear inequality of treatment in the enjoyment of the right in question, and thus there had been a violation of Article  in conjunction with Article  of Protocol No. . Another case concerning the right to vote is Py v. France.54 In this case, the applicant, appointed to a post at the French University of the Pacific in Nouméa in New Caledonia, was registered upon his request in the general electoral roll for Nouméa, but was refused registration on the special electoral roll that would have enabled him to take part in the  self-determination vote as he did not fulfil the residence requirement. Afterwards, a law on the institutional organization of New Caledonia brought in a -year residence condition for participating in elections to the Congress and provincial assemblies as well. In accordance with that law the subsequent applicant’s registration on the electoral roll for the Congress and provincial assemblies for Nouméa was refused. The applicant alleged that the restrictions imposed on his right to take part in the elections to the Congress and provincial assemblies of New Caledonia had violated the right to free elections guaranteed by Article  of Protocol No.  and constituted discrimination on grounds of national origin, in breach of Article  (prohibition of discrimination). According to the French government, the reason for bringing in a residence condition was to ensure that the consultations would reflect the will of interested persons and that the result would not be altered by a massive vote cast by recent arrivals on the territory, who had no solid links with it. Furthermore, the restriction on the right to vote was a direct and necessary consequence of establishing Caledonian citizenship. The Court found that New Caledonia’s current status amounted to a transitional phase prior to the acquisition of full sovereignty and was part of a process of self-determination. After a tormented political and institutional history, the -year residence condition had been a key factor in appeasing the conflict. In the Court’s opinion, the history and status of New Caledonia were such that they could be regarded as amounting to local requirements of a kind warranting the restrictions imposed on the applicant’s right to vote. Consequently, the Court held unanimously that there had not been a violation of Article  of Protocol No.  and considered, having regard to that conclusion, that it was not necessary to examine the complaint based on Article .





ECtHR, Appl. /, Py v. France, judgment of  January . The text of the judgment is available only in French.

The Jurisprudence of the European Court of Human Rights 2. Right to Stand for Elections In the case Boskoski v. the former Yugoslav Republic of Macedonia,55 the applicant complained that he had been prevented from standing as an independent candidate in the  elections for the President of the Republic of the former Yugoslav Republic of Macedonia (Article  of Protocol No. ). The State Electoral Commission rejected the applicant’s request on the ground that he did not satisfy the requirement in the Constitution governing the eligibility of candidates for presidential election. In particular, the applicant had not continuously resided in the former Yugoslav Republic of Macedonia for at least ten out of the  years preceding the date of the election. The applicant challenged this rejection unsuccessfully. In its decision on the admissibility, the Court recalled that Article  of Protocol No.  guarantees the “choice of the legislature” and that the word legislature does not necessarily mean the national parliament, but it has to be interpreted in the light of the constitutional structure of the state in question.56 Furthermore, in two earlier cases the Commission held that the powers of the Head of the State could not as such be construed as a ‘legislature’ within the meaning of Article  of Protocol No. .57 The Court, however, observed that it does not exclude the possibility of applying Article  of Protocol No.  to presidential elections. It reiterated that this provision enshrines a characteristic of an effective political democracy, for the ensuring of which, regard must not solely be given to the strictly legislative powers that a body has, but also to that body’s role in the overall legislative process.58 Should it be established that the office of the Head of the State had been given the power to initiate and adopt legislation or enjoyed wide powers to control the passage of legislation or the power to censure the principal legislation-setting authorities, then it could arguably be considered to be a ‘legislature’ within the meaning of Article  of Protocol No . In the present case the Court found no indication that the powers of the Head of the State are such as to make it part of the legislature of the respondent state. First, the Court observed, the President of the Republic does not have the power to initiate legislation, accompanied by the power to adopt it. Second, the President of the Republic has not been granted wide powers to control the passage of legislation or the power to censure the principal institutions responsible for initiating and adopting legislation. Thus, the President of the Republic has not been given in law or in practice a right of absolute veto over the legislation adopted by the National Assembly. Accordingly, the Court concluded unanimously that the application was incompatible ratione materiae with the provisions of the Convention, and thus inadmissible.  





ECtHR, Appl. /, Boskoski v. the former Yugoslav Republic of Macedonia, decision on the admissibility of  September . See ECtHR, Mathieu-Mohin and Clerfayt v. Belgium, judgment of  March , Series A, No. , , para. ; and ECtHR, Matthews v. the United Kingdom; judgment (Grand Chamber) of  February , ECHR -I, para. . See Medda-Windischer, “The European Court of …”, /, -. ECommHR, Appl. /, Baskauskaite v. Lithuania, decision of  October ; and ECommHR, Appl. /, Habsburg-Lothringen v. Austria, decision of  December , DR , . ECtHR, Matthews v. the United Kingdom, paras.  and .



Roberta Medda-Windischer In the cases reported above, the Court has dealt with the issue of residence as a requirement to exercise the right to vote and to stand as candidate: this criterion is particularly relevant when discussing minority issues because it is often used by minority groups as a safeguard to protect their status. This obviously raises the general problem of finding a balance between minority protection and individual freedoms, which might be limited by the exercise of minority rights. The Boskoski case, in particular, concerns the problem of the residence criteria in transition countries in which if, on the one hand, the criteria is deemed as legitimate because it guarantees candidatures from the ‘interested’ local population, and on the other hand, it might adversely impact on refugees and members of minority groups who have fled their countries on grounds of persecution or ethnic conflicts. 3. Dissolution and Hindrance to the Activities of Political Parties In the Vatan v. Russia case,59 the applicant association, the People’s Democratic Party Vatan, was a political party founded, according to its statute, “to support the renascence of the Tartar nation, to enhance the latter’s political activity and to protect Tartars’ political, socio-economic and cultural rights”. In  the Russian authorities suspended the activities of a regional branch of the party on the grounds that it had advocated violence, contrary to federal legislation and the constitution. Subsequently, the regional organization was dissolved as its charter failed to comply with national legislation. In Strasbourg, the Court at the outset noted that Vatan and the regional organization concerned were two different legal entities. The regional organization’s charter left open the question of whether it was structurally dependent on Vatan in terms of decisionmaking. In addition, it was not prevented from pursuing political goals other than those approved by Vatan and there was no suggestion that the actions and statements that gave rise to the regional organization’s suspension were prompted or authorised by Vatan. Neither did Vatan’s president take part in the domestic court proceedings in the capacity of head of the entire party. The Court could not therefore conclude that Vatan and the regional organization were one political party, which could constitute a single nongovernmental organization within the meaning of Article  (individual petition). Also, the body directly affected by the domestic measure was the regional organization. The focus of Vatan’s concern appeared to be the fact that it could not rely on the regional organization to convey its political ideas in the region concerned for six months. The injunction in question, however, did not impose any limitations on Vatan itself, hence there was nothing to stop Vatan from pursuing its activities in its own name, for example through individual party members. Consequently, the Court considered well-founded the Russian government’s preliminary objection that Vatan could not claim to be the victim of a violation of the Convention, and held, unanimously, that the case was inadmissible. The Court concluded, however, that it was open to the regional organization itself to lodge an application with the European Court. In this case the Court clarified the distinction between a political party and its regional branches for the purpose of Article  and the subsequent right to stand before the Court as a victim of an alleged violation of the Convention. In order for 



ECtHR, Appl. /, Vatan v. Russia, judgment of  January .

The Jurisprudence of the European Court of Human Rights Vatan to lodge a complaint before the Court on behalf of the regional organisation, the individual constituent documents of the party and its regional branch must have been referred to their structural subordination and political commitment to certain political ideals, hence proving that they constitute a single political party. The term ‘victim’ used in Article  denotes in fact the person directly affected by the act or omission that is at issue.60 Applications from a person indirectly affected by an alleged violation would be justified only in exceptional circumstances, in particular where it is clearly established, unlike in the present case, that it is impossible for the direct victim to apply to the Court through the organs set up under its articles of incorporation.61 Moreover, the Court noted that Vatan, unlike the regional branch, had never pursued any domestic proceedings in its own name in respect of the alleged violations. Therefore, even if the Court were to accept Vatan to be a victim (indirect), the application would in any event be inadmissible on account of a failure to exhaust domestic remedies. It will be interesting to monitor whether the regional organization concerned will lodge an application to challenge the decision of the Russian authorities to suspend its activities. The case of Ouranio Toxo, Pavlos Voskopoulos and Petros Vassiliadis v. Greece,62 concerns a political party, Ouranio Toxo, which had among its political objectives the defence of the Macedonian minority in Greece. In , the party opened an office in Florina and displayed the name of the party in Greek and Slavic languages. As a result, a local protest took place with the support of the local authorities, which ordered the applicants to cover the name of the party. Afterwards, the protest escalated in a violent attack against the premises of the party and the applicants themselves. The applicants lodged various complaints before national courts with no avail. In Strasbourg the applicants complained for the violation of their right to freedom of association and for the length of the proceedings. Among other observations, the government submitted that, as regards the name of the party, the term used by the applicants in Slavic language had a strong historical connotation as it had been used during the former Yugoslavian civil war as a signal to attack the town of Florina. On the contrary, the applicants submitted that the term was simply the translation of the party’s name into Macedonian dialect. The Court declared the application admissible, but at the time of writing it had not yet delivered a judgment. As stated earlier, it is important to report such cases even if they have been only declared admissible because of the particular difficulties in complying with the Strasbourg admissibility criteria (only one application in four is in fact successful). Following the Osmani case,63 which was rejected by the Court as inadmissible because the Court consideredmainly the armed riots and casualties to which the applicant had   



ECtHR, Eckle v. Germany, judgment of  July , Series A, No. , , para.. ECtHR, Agrotexim and Others v. Greece, judgment of  October , Series A, No. , , para.. ECtHR, Appl. /, Ouranio Toxo, Pavlos Voskopoulos and Petros Vassiliadis v. Greece decision on the admissibility of  May . The text of the decision is available only in French. ECtHR, Appl. /, Rufi Osmani v. the Former Yugoslav Republic of Macedonia, decision on the admissibility of  October .



Roberta Medda-Windischer substantially contributed following the ban by the authorities to display the Albanian flag in front of the town hall of a municipality in Western Macedonia, it will be interesting to see whether in the present case the Court will reach an analogous decision or will take other factors into account. IV. Property Rights A. Turkey: Eviction and Destruction of Property In the case of Doğan and Others v. Turkey,64 the  applicants alleged that in October , state security forces forcibly evicted them from their village in southeast Turkey, due to the disturbances in the region at that time, and also destroyed their property. As a result, the applicants had to move with their families to other regions in Turkey, and from there they filed petitions with the Turkish administrative authorities requesting permission to return to their village and to use their property. In response to their petitions, the authorities informed them that their petitions would be considered within the context of the ‘Return to Village and Rehabilitation Project’, a scheme to re-settle villagers evicted in the context of clashes between the security forces and the PKK. In  the applicants lodged other petitions repeating their initial request. In response to their petitions of , three of the applicants received letters from the authorities informing them that any eventual return to their original village was prohibited for security reasons. The applicants maintained that, as a result of their displacement and denial of access to their possessions, they had been forced to live in very poor conditions due to the lack of employment, housing, healthcare and a sanitary environment. They contended that, in the absence of economic and social measures to remedy their living conditions, the interference complained of could not be described as proportionate to the aim pursued. The government claimed that they had taken all necessary measures with a view to tackling the problems of the internally displaced persons, including the applicants. They asserted that the ‘Return to Village and Rehabilitation Project’ had been developed by the authorities to remedy the problems of those who had had to leave their homes on account of the terrorist incidents in the region. The aim of this project was to ensure the voluntary return of the displaced population. Despite budgetary restraints and serious economic difficulties, the government had spent approximately EUR  million within the context of this project. The Court recognised that armed clashes, generalized violence and human rights violations, specifically within the context of the PKK insurgency, compelled the authorities to take extraordinary measures to maintain security in the state of emergency region. These measures involved, among others, the restriction of access to several villages, as well as evacuation of some villages on the grounds of lack of security. However, it observed that in the circumstances of the case, the refusal of access to the village concerned had serious and harmful effects that have hindered the applicants’ right to 



ECtHR, Appl. -/, / and -/, Doğan and Others v. Turkey, judgments of  June .

The Jurisprudence of the European Court of Human Rights enjoyment of their possessions for almost ten years, during which time they have been living in other areas of the country in conditions of extreme poverty, with inadequate heating, sanitation and infrastructure. Their situation was compounded by a lack of financial assets, having received no compensation for deprivation of their possessions, and the need to seek employment and shelter in overcrowded cities and towns, where unemployment levels and housing facilities have been described as disastrous. While the Court acknowledged the government’s efforts to remedy the situation of the internally displaced persons generally, it considered these efforts to be inadequate and effective for the purposes of the present case. In this connection, it pointed out that the ‘Return to Village and Rehabilitation Project’ referred to by the government had not been converted into practical steps to facilitate the return of the applicants to their village. The Court considered thus that the applicants have had to bear an individual and excessive burden, which has upset the fair balance that should be struck between the requirements of the general interest and the protection of the right to the peaceful enjoyment of one’s possessions. Therefore it found a violation of Article  of Protocol No.  (right to peaceful enjoyment of one’s possession). As regards the expulsion from the applicants’ village and their inability to return thereto, the Court concluded that there was a serious and unjustified interference with the right to respect for family life and home and thus a violation of Article  of the Convention. Finally, the Court adjourned the question about the just satisfaction (Article ) in view of the possible agreement between the parties on this point. It is relevant to note that at the time of writing there were approximately , similar cases from southeast Turkey (where applicants complain about their inability to return to their villages) registered before the European Court. This figure constitutes  % of the total applications filed in Strasbourg against Turkey. B. Cyprus: Compensation Cases On  April , the Strasbourg Court unanimously declared admissible the application lodged in the case of Xenides-Arestis v. Turkey.65 The applicant, of Greek-Cypriot origin, complained of a continuing violation of her rights under Article  (right to respect for home) and Article  of Protocol No.  (protection of property) in that, since August , she has been deprived of her right to property and her home located in Famagusta (Northern Cyprus). She also maintained that, in violation of Article  (prohibition of discrimination) in conjunction with the other two articles invoked, Turkish military forces prevented her from having access to, from using and enjoying her home and property because she is Greek Orthodox and of Greek-Cypriot origin. The Court noted that on  June  the parliament of the ‘Turkish Republic of Northern Cyprus’ enacted the ‘Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus’, and that a commission was set up with a mandate to deal with compensation claims.



ECtHR, Appl. /, Xenides-Arestis v. Turkey, decision on the admissibility of  April .



Roberta Medda-Windischer The Court declared the application admissible, without prejudging the merits of the case. It rejected the respondent government’s objections on jurisdiction concerning the victim status of the applicant and the exhaustion of domestic remedies. In particular, as regards the latter, the Court considered that the remedy established in the ‘Turkish Republic of Northern Cyprus’ could not be regarded as an effective or adequate means for redressing the applicant’s complaints. Accordingly, the Court considered that the complaints raised serious issues of fact and law under the Convention, the determination of which required an examination of the merits.66 This admissibility decision is of particular significance because the Court has clarified that the ‘TRCN’  law on compensation is not an adequate remedy that applicants have to exhaust before lodging a complaint to Strasbourg.67 Following the Court’s decision in the Loizidou case,68 we can in fact expect a series of repetitive applications against Turkey lodged before the Court on property issues in Northern Cyprus. As for the cases from southeast Turkey on property rights, the risk of overloading the Strasbourg caseload can only be prevented by introducing an adequate national remedy and/or by the entry into force of Protocol No. .69 According to Protocol No. , following a pilot case, a committee of three judges will be empowered to declare a repetitive case inadmissible under a simplified summary procedure. C. Poland: the River Bug Cases In the case of Broniowski v. Poland,70 the applicant’s family had been repatriated from the so-called ‘territories beyond the River Bug’ in the aftermath of World War II and had had to abandon its property. Their application concerned Poland’s failure to implement their entitlement to compensatory property. The applicant accepted that the loss of property by his family had been caused by historical and political events and that, in reality, it had not been the Polish state that had expropriated his family or had forced them to migrate from their homeland. However, it had been the Polish state’s undertaking under the relevant international agreements to compensate his family. That obligation had been incorporated into domestic legislation since  and, as far as he was concerned, had never been discharged in its entirety.  

 





At the time of writing no judgment had been yet delivered. See, mutatis mutandis, ECtHR, Appl. /, Scordino v. Italy (no.), decision on the admissibility of  March , , in which the Court considered inadequate a national compensatory remedy introduced by a national law (the Pinto Act, no. /) stategically adopted to reduce the Strasbourg repetitive cases on the excessive lenght of proceedings. See Medda-Windischer, “The Jurisprudence of …”, /, -; and id., “The Jurisprudence of …”, /, -. Art. , Protocol No. , adopted on  May , not yet in force, ETS No. . As of  May , Protocol No.  had been ratified by ten states and signed by thirty-three states. See . See Medda-Windischer, “The Jurisprudence of …”, /, -. ECtHR, Appl. /, Broniowski v. Poland, judgment (Grand Chamber) of  June .

The Jurisprudence of the European Court of Human Rights The government stressed that the migration of the Polish population from the territories beyond the Bug River had resulted from territorial changes following World War II. They had been decided at the Tehran, Yalta and Potsdam conferences, initially without the consent of the legitimate, exiled Polish government in London, on whom they had later been imposed. As a result of those changes Poland had lost almost  % of its original territory. Furthermore, under the Republican Agreements concluded by the Polish communist authorities, in the years -, Poland had had to accommodate some ,, Polish nationals repatriated from beyond the new border and to provide them with the necessary housing and financial assistance. Despite that fact, under the terms of the  Pact, Poland had had to pay the Soviet Union  million roubles (calculated under the gold standard) for the evacuation. Thus, it had been forced to pay heavily for the so-called ‘repatriation’ of its own nationals and, often, for their lives, since most of those who had remained in the Soviet Union had been either resettled in Kazakhstan or other parts of that country or had lost their lives in the course of the widespread Stalinist persecutions. In its Grand Chamber judgment, the Court recognised that, given the particular historical and political background of the case, as well as the importance of the various social, legal and economic considerations that the authorities had to take into account in resolving the problem of the River Bug claims, the Polish state had to deal with an exceptionally difficult situation, involving complex, large-scale policy decisions. The vast number of persons involved – nearly , – and the very substantial value of their claims were, according to the Court, factors to be taken into account in ascertaining whether the requisite ‘fair balance’ was struck. Regarding these considerations, the Court concluded, on the one hand, that, as an individual, the applicant had to bear a disproportionate and excessive burden, which could not be justified in terms of the legitimate general community interest pursued by the authorities, and therefore, it found a violation of the applicant’s right to property. On the other hand, the Court pointed out that the violation had originated in a systemic problem connected with the malfunctioning of Polish legislation and practice caused by the failure to set up an effective mechanism to implement the right to credit of the River Bug claimants. Through appropriate legal measures and administrative practices, Poland was thus to secure the implementation of the property right in question in respect of the remaining River Bug claimants or provide them with equivalent redress in lieu. As regards the compensation for pecuniary and/or non-pecuniary damage, the Court considered the question not yet ready for decision and accordingly it adjourned the said question and invited the government and the applicant to submit their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach. On  July , having regard to the fact that the substantive examination of the remaining cases – the so-called “River Bug claims” – was linked to the execution of the Broniowski judgment and the implementation of the measures indicated by the Court to the Polish government, the Court decided that all similar applications – including future applications – should be adjourned pending the outcome of the leading case and the adoption of the measures to be taken at national level. 

Roberta Medda-Windischer In this case the Court took a pragmatic approach and left it to the Polish authorities to find the most adequate solution in this and the rest of the pending cases before it. The execution of the Court’s decision will then be monitored by the Committee of Ministers (Article  ()). D. Germany: Compensation after Reunification On  March , the Grand Chamber declared inadmissible three applications concerning one of the major issues to arise after the reunification of Germany: the indemnification and compensation terms for those whose property was expropriated either after  in the GDR or, as in the vast majority of cases, between  and  in the former Soviet Occupied Zone of Germany.71 In  some of the applicants applied to the Federal Constitutional Court arguing, among other things, that the provisions of the  Indemnification and Compensation Act were incompatible with the Basic Law in that they generally prescribed amounts that were less than the current market value of the expropriated property. The Constitutional Court dismissed the application. In Strasbourg the applicants submitted that their rights of property guaranteed by Article  of Protocol No.  had been violated as the amount of compensation they had received was, they alleged, far less than the real value of the property that had been illegally expropriated. The Court reiterated that in a number of cases brought before it relating to German reunification, it had referred to the exceptional context of that reunification and the enormous task faced by the legislature in dealing with all the complex issues that had inevitably arisen at the time of transition from a communist regime to a democratic, market-economy system. By choosing to make good, injustices or damage resulting from acts committed at the instigation of a foreign occupying force or by another sovereign state, the German legislature had had to make certain choices in the light of the public interest. Where a state elected to redress the consequences of certain acts that were incompatible with the principles of a democratic regime, but for which it was not responsible, it had a wide margin of appreciation in the implementation of that policy. In challenging the constitutionality of the statutes enacted after German reunification, the applicants had hoped to obtain either restitution of their property or compensation or indemnification commensurate with the real value of their property. However, the belief that the laws then in force would be changed to the applicants’ advantage could not be regarded as a form of legitimate expectation for the purposes of the Convention. There was a difference between a mere hope, however understandable that hope might be, and a legitimate expectation, which had to be of a more concrete nature and be based on a legal provision or have a solid basis in the domestic case law. In those circumstances the Court held that the applicants had not shown that they had claims that were sufficiently established to be enforceable, and they therefore could





ECtHR, Appl. /, von Maltzan and Others v. Germany; Appl. /, von Zitzewitz and Others v. Germany; Appl. /, MAN Ferrostaal and Alfred Töpfer Stiftung v. Germany, decisions on the admissibility (Grand Chamber) of  March .

The Jurisprudence of the European Court of Human Rights not argue that they had ‘possessions’ within the meaning of Article  of Protocol No. . Accordingly, the Court declared the applications inadmissible. In this decision, as in the case reported above, the Court pragmatically applied the concept of the state’s margin of appreciation. In the Court’s opinion, the transition from a communist regime to a democratic system raises in fact complex problems that require a broad level of appreciation by the national authorities. V. Jurisdiction and Imputability A. Moldova and Russia: The Transdniestria Case In the case of Ilaşcu and Others v. Moldova and Russia,72 the Court reviewed a variation on the theme of imputability and jurisdiction. The application concerned events that occurred in the ‘Moldavian Republic of Transdniestria’ (MRT), a region of Moldova, which proclaimed its independence in , but is not recognised by the international community. Mr. Ilaşcu was the local leader of the Popular Front and was working towards the unification of Moldova with Romania. He had been twice elected to the Moldovan parliament and was appointed as a member of the Moldovan delegation to the Parliamentary Assembly of the Council of Europe. In December , he was elected to the senate of the Romanian parliament and appointed as a member of the Romanian delegation to the Parliamentary Assembly. In June  the applicants were arrested in Tiraspol (Transdniestria) by a number of people, some of whom were wearing uniforms bearing the insignia of the former USSR’s Army. They were accused of anti-Soviet activities and illegally combating the legitimate government of the state of Transdniestria, under the direction of the Moldovan Popular Front and Romania. In , the applicants were convicted by a court of the Moldovan Republic of Transdniestria and sentenced either to death or to terms of imprisonment ranging from  to  years. The judgments were subsequently declared unconstitutional by the Supreme Court of Moldova. In Strasbourg, the applicants considered that the Moldovan authorities were responsible under the Convention for a number of violations connected with fair trials and prison conditions, since they had not taken adequate measures to stop them. They 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. In its lengthy Grand Chamber judgment, the Court first accepted that the Moldovan government, the only legitimate government of the Republic of Moldova under international law, did not exercise authority over part of its territory, namely that 

ECtHR, Appl. /, Ilascu and Others v. Moldova and Russia, judgment (Grand Chamber) of  July . A number of judges expressed dissenting and partly dissenting opinions that are annexed to the judgment. See Medda-Windischer, “The Jurisprudence of …” /, .



Roberta Medda-Windischer part that was under the effective control of the MRT. However, even in the absence of effective control over the Transdniestrian region, the Court pointed out that Moldova still had a positive obligation to secure to the applicants the rights guaranteed by the Convention. Consequently, the applicants were within the jurisdiction of the Republic of Moldova for the purposes of the Convention. As regards Russia, the Court recalled that during the Moldovan conflict in , forces of the former Russian Army had been stationed in Transdniestria and fought with and on behalf of the Transdniestrian separatist forces. Large quantities of weapons from the stores of the Russian Army had been voluntarily transferred to the separatists. In addition, throughout the clashes between the Moldovan authorities and the Transdniestrian separatists, the Russian leaders had supported the separatist authorities through their political declarations. The Court concluded that the Russian authorities had thus contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria. Russian military, political and economic support to the separatist regime continued even after the ceasefire agreement in , thus enabling the separatist regime to survive by strengthening itself and by acquiring a certain amount of autonomy vis-à-vis Moldova. In addition, the Russian army was, and still is, stationed in Moldovan territory in breach of the undertakings to withdraw them completely given by Russia at the OSCE summits in  and . Both before and after , when the Convention came into force with regard to Russia, the MRT regime continued to deploy its troops illegally and to manufacture and sell weapons in the security zone controlled by the Russian peacekeeping forces. In the Court’s opinion, all of the above proved that the MRT remained under the effective authority, or at the very least under the decisive influence, of Russia. That being so, the Court considered that there was a continuous and uninterrupted link of responsibility on the part of Russia for the applicants’ fate, as its policy of support for the regime and collaboration with it had continued after the ratification of the Convention by Russia, and after that date Russia had made no attempt to put an end to the applicants’ situation brought about by its agents and had not acted to prevent the violations allegedly committed. The Court thus concluded that the Russian Federation’s responsibility was engaged in respect of the unlawful acts committed by the Transdniestrian separatists because, according to the Court, the events that had given rise to the responsibility of the Russian Federation must be considered to include not only the acts in which the agents of that state participated, like the applicants’ arrest and detention, but also their transfer into the hands of the Transdniestrian police and regime, and the subsequent ill-treatment inflicted on them by those police, since in acting in that way the agents of the Russian Federation were fully aware that they were handing them over to an illegal and unconstitutional regime. With regard to the jurisdiction of the Court ratione temporis, the Russian government asserted that the acts complained of by the applicants had occurred before the Convention’s entry into force with regard to Russia, on  May , and that they therefore fell outside the Court’s jurisdiction. Conversely, the applicants submitted that the violations complained of were continuous in nature and that the Court accordingly had jurisdiction to examine them. On this point the Court reiterated the general principle 

The Jurisprudence of the European Court of Human Rights according to which the Convention applies only to events subsequent to its entry into force with regard to the state concerned. In the specific case, the Court noted that the alleged violations concerning the applicants’ incarceration in  were still proceeding; the same could be concluded as regards the death penalty imposed on Mr. Ilascu as at the time when the Convention was ratified by Moldova and Russia the sentence had not been set aside by the authority that had passed it, and, therefore it was still operative. As regards instead the complaint pertaining to the fair trial, the Court noted that the proceedings before the Supreme Court of the MRT ended in  with a final judgment. As the trial was thus not a continuing situation, the Court concluded that it had no jurisdiction ratione temporis to examine the complaint in this regard. With regard to Moldova, in particular, the Court concluded that its responsibility was capable of being engaged under the Convention only with regard to the acts that occurred after May . This was the date in which Mr. Ilascu was released, and in the Court’s opinion, it coincided with the date after which no measure was taken or considered by the Moldovan authorities to secure to the applicants their Convention rights, in particular in the negotiations for a settlement of the situation in Transdniestria, in which the Russian Federation was acting as a guarantor state.73 On the merits, the Court found a violation of Article  (prohibition of torture and of inhuman and degrading treatment) and Article  (lawful detention) by Russia and Moldova - depending on whether the events concerned were considered having a continued nature - on account of the ill-treatment inflicted on the applicants and the conditions in which they were detained that, in two cases, amounted to a treatment qualified by the Court as torture. The Court also took into account the ‘death row’ phenomenon experienced by Mr. Ilascu, a phenomenon that was further aggravated by the fact that the death penalty imposed by the Supreme Court of the MRT had no legitimacy and legal basis. In addition, the applicants complained about the fact that they had not been able to apply to Strasbourg from their place of detention and that their application, which had been signed by their wives, had been lodged by the only lawyer who was representing them at the beginning of the proceedings. They further complained that after their application was lodged, they received threats from the Transdniestrian prison authorities and the conditions of their detention deteriorated dramatically. In the Court’s opinion, such acts constituted an improper and unacceptable form of pressure, which had hindered the exercise of the applicant’s right of individual petition. Moreover, in , the Russian authorities sent a note to Moldova in which they requested the Moldovan authorities to withdraw the observations they had submitted to the Court in so far as these implied responsibility on the part of Russia. Finally, the Court recalled that when Mr. Ilaşcu was released, he spoke to the Moldovan authorities about the possibility of obtaining the release of the other applicants, and that in that context Mr. Voronin, the President of Moldova, had publicly



Judge Casadevall, joined by Judges Ress, Bîrsan, Tulkens and Fura-Sandström, annexed a partly dissenting opinion to this judgment in which they considered Moldova’s responsibility to be engaged from the date of its ratification of the Convention. They considered the fateful date of ‘May ’ as “wholly artificial and nonsensical.” Ibid.



Roberta Medda-Windischer accused him of being the cause of his comrades’ continued detention, through his refusal to withdraw his application against Moldova and Russia. The Court pointed out that such conduct on the part of the Russian authorities and of the highest authority of a member state, Moldova, represented a negation of the common heritage of political traditions, ideals, freedom and the rule of law mentioned in the preamble to the Convention. They were capable of seriously hindering the Court’s examination of the application concerned and amounted to an interference with the applicants’ exercise of their right of individual petition, in breach of Article  (individual petition). The Court concluded by inviting the respondent states to take every measure to put an end to the arbitrary detention of the applicants still detained and to secure their immediate release. Judge Ress annexed a dissenting opinion to this judgment, contesting in particular the date, May , taken by the Court as a deadline for engaging Moldova’s responsibility. He noted, among the others, that the situation in Moldova (Transdniestria) is different from that existing in Cyprus where there is a continuing inability of the Republic of Cyprus to exercise its Convention obligations in Northern Cyprus as there is a full military occupation by Turkey. In the present case, he continued, there is no occupation of the Transdniestrian territory, even though there is a rebel regime and the Russian Federation exercises a decisive influence on, and even control of that territory. He observed that Moldova had, and still has, important means of influence for fulfilling its Convention obligations. Moldova even adopted an attitude of cooperation in different fields of administration and concluded administrative agreements with the rebel regime, which made some speak of a rather ‘acquiescent attitude’. A breach of a Convention obligation can already be found where there is evidence before the Court, which does not show clear collusion or acquiescence in the exercise of authority by a rebel regime within the territory, but nevertheless discloses an intermediate situation, as Judge Ress considered to exist in the present case, where the state has not acted with all the required determination and effort that would have been possible. In the opinion of Judge Ress, in order not to be held tacitly to acquiesce in the acts of the rebel authority, the state can, for instance, continue its firm protests at bilateral and international levels against the illegal exercise of authority on its territory; continue to take all possible and legally acceptable measures to regain full control of its territory; continue to seek support, bilaterally and internationally, in particular through international organizations, for all measures taken against the illegal regime, since the contracting states are required to secure human rights protection throughout their territory; and, finally not lend such support to the rebel regime as could be interpreted as clear acquiescence in its exercise of authority. Judge Ress concluded by noting that in contrast to the situation in Cyprus, relations between the Moldovan constitutional authorities and the authorities of the illegal Transdniestrian regime have never been completely interrupted: “As the Court has emphasised, there were relations concerning the administration of Tiraspol airport, a common telephone system and understandings and cooperation on many levels. Since the issue is whether Moldova continues to exercise jurisdiction over parts of the territory, all these elements of economic relations, political security and other cooperation



The Jurisprudence of the European Court of Human Rights between the Moldovan and Transdniestrian authorities make it difficult to rebut the responsibility of Moldova in the present case.”74 B. Kosovo Conflict: NATO Air Strike On  March , a Chamber hearing was held in the Marković and Others v. Italy case,75 in which ten applicants, all nationals of Serbia and Montenegro, filed a complaint for the death of their close relatives who were killed during the Kosovo conflict when an air strike on the headquarters of Radio Televizije Srbije (RTS) in Belgrade in  by the NATO alliance resulted in  deaths. The applicants brought a petition before the Rome District Court, as they considered that Italy’s involvement in the relevant military operations had been more extensive than that of the other NATO members, in that Italy had provided major political and logistical support, such as the use of its air bases by aircraft engaged in the strikes on Belgrade and the RTS. The court case defendants were the Prime Minister’s Office, the Italian Ministry of Defence and the NATO Allied Forces Southern Europe (AFSOUTH) Command. The Italian courts maintained that they had no jurisdiction because Italy’s decision to take part in the air strikes had been a political one and could not, therefore, be reviewed by the courts. In Strasbourg, the applicants complained under Article  (right to a fair hearing), read in conjunction with Article  (obligation to respect human rights), that they had been denied access to a court. At the time of writing no judgment had been yet delivered. It is relevant to note that in a similar case, Bankovic v. Belgium and other  countries,76 the Court concluded for the inadmissibility of the application. The Court noted that the Convention is a multilateral treaty operating in an essentially regional context and notably in the legal space (espace juridique) of the contracting states and that the Federal Republic of Yugoslavia clearly did not fall within this legal space, because it was not a contracting party of the Convention at the material time.77 The Court was not therefore persuaded that there was any jurisdictional link between the persons who were victims of the act complained of and the respondent states. Accordingly, it was not satisfied that the applicants and their deceased relatives were capable of coming

  



Ilascu and Others v. Moldova and Russia, Judge Ress, dissenting opinion. ECtHR, Appl. /, Marković and Others v. Italy, hearing (Chamber) on the merits of  March . ECtHR, Appl. /, Bankovic and Others v. Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom (Belgium + ), decision (Grand Chamber) on the admissibility of  December . See also, Appl. /, Senator Lines GmbH v. Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom, decision (Grand Chamber) on the admissibility of  March . Serbia and Montenegro ratified the Convention on  March . See .



Roberta Medda-Windischer within the jurisdiction of the respondent states on account of the extraterritorial act in question.78 The question of jurisdiction is particularly relevant when discussing minority issues, because the territories on which the jurisdiction of the contracting parties or that of the Court is contested are often inhabited by minority groups usually under autonomous rebel regimes or are located where ethnic conflicts have taken place. Following the leading case in this regard, the Loizidou case,79 as seen above the Court has confirmed the extraterritoriality of the Convention in the Ilaşcu case by calling the responsibility of the Russian Federation for facts occurred on the territory of another contracting state, namely Moldova, not only because the MRT was under the effective authority of Russia, but also by taking the minimal situation, namely that the MRT was under the decisive influence of Russia. In this respect, the reasoning of the Court in the Bankovic case does not appear to be fully persuasive. Obviously, while Moldova, in the Ilaşcu case, was a contracting party at the material time, FRY was not. And while, for instance, Articles  of each of the four Geneva Conventions of 80 requires the contracting parties to undertake “to respect and to ensure respect for the present Convention in all circumstances”, Article  of the Convention refers only to obligations to respect human rights “within their jurisdiction”. However, in light of the high standard and the enormous progresses accomplished in the field of human rights among the Convention’s contracting states, and the solemn commitment taken by the same states “to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all”,81 it seems morally and politically difficult to justify why member states should not be accountable for violations of the Convention rights occurring, for instance, during military operations or humanitarian interventions on the territories of non-contracting parties of the Convention or even non-member states of the Council of Europe. The theory of extraterritorial jurisdiction of the Convention and the obligation for those contracting states participating in military missions to secure the Convention rights to the inhabitants of noncontracting parties would probably constitute a risk in case of military intervention, and a deterrent in case of humanitarian intervention, but it would allow the Convention to accomplish its ordre public mission that refers to the special character of the Convention as a constitutional instrument of European public order for the protection of individual human beings,82 and would avoid a gap or “a    





See on the contrary the dissenting opinion of Judge Loucaides annexed in the judgment of  July  in the case Ilascu and Others v. Moldova and Russia. See above Section V.A. See Medda-Windischer, “The Jurisprudence of …” /, -. The Four Geneva Conventions on the Protection of War Victims, adopted on  August , entered into force on  October , reprinted in  UNTS (). United Nations, General Assembly, Vienna Declaration and Programme of Action of the World Conference on Human Rights (), A/CONF./,  July ; United Nations Millennium Declaration - Resolution adopted by the General Assembly /,  September . ECtHR, Loizidou v. Turkey, judgment of  December , Reports -VI, para. . Ibid.

The Jurisprudence of the European Court of Human Rights regrettable vacuum in the Convention system of human rights’ protection”.83 A failure to find the contracting states responsible for facts occurring outside the ‘Convention jurisdiction’ would in fact leave the inhabitants of these extra-territories without a remedy and these states’ armies free to act with impunity. It remains to be seen whether the application lodged against Italy by the victims’ relatives of the NATO bombing will be successful, even if only in respect of Article  (fair trial). VI. Concluding Remarks The ambiguous and inconsistent trend of the Strasbourg case law in the field of minority protection is not easily appraisable. Indeed, the Convention was not meant to provide this type of protection at first. It is true that rights and freedoms set out in the Convention are, by virtue of Article  of the Convention, secured to ‘everyone’ within the jurisdiction of the contracting parties. However, the Convention does not guarantee rights that are peculiar to minorities. The only specific reference to minorities is included in Article  that guarantees that the enjoyment of the rights and freedoms set forth in the Convention must be secured without discrimination on any ground such as association with a national minority. It is, however, well-known that Article  is a weak provision and cannot guarantee an adequate protection to minorities. Article  has in fact no independent existence: it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols.84 For Article  to become applicable it is thus necessary that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols.85 To correct this restrictive anti-discrimination provision, the Strasbourg organs have accepted that, in certain circumstances, an institutionalised racially motivated action can amount to ‘degrading treatment’ under Article , even though the substance of the discrimination itself does not relate to the provision or denial of any right protected by the Convention, thus irrespective of the relevance of Article .86









ECtHR, Appl. /, Cyprus v. Turkey, judgment of  May , para. . See Roberta Medda-Windischer, “The Jurisprudence of the European Court of Human Rights”,  EYMI (/), -, at . As seen earlier, Protocol No., which provides a right to non-discrimination separate from the other substantive articles of the Convention, entered into force in April , but – at the time of writing – it has been ratified by only  countries, mainly new member states of the Council of Europe. Under a line of authority frequently followed by the Court, a violation of Article  taken together with another article will not be considered where it covers the same ground as a violation of the other article taken alone. Conversely, where taking Article  with that other article results in an additional or more serious violation, the Court has always ruled that there was also a violation of that other article taken together with Article . ECommHR, East African Asians v. the United Kingdom, Report of  December , Decisions and Reports , p. , para. . See Medda-Windischer, “The Jurisprudence of …”, /, -.



Roberta Medda-Windischer In this rather narrow framework, one should analyse the decision of the Court in the Nachova case,87 considered by many an historical ruling in the context of the protection of Roma: for the first time, in fact, the Court has found a violation of the guarantee against racial discrimination contained in Article  taken together with Article  (right to life) for the failure to investigate whether discriminatory attitude played a role in the shooting of two Romani men by a military policeman. This decision does justice only partially to the past decisions of the Court concerning Roma. So far the Court’s rulings have been rather conservative,88 and in spite its concession that there was “an emerging international consensus” among the members states of the CoE, recognizing the special needs of minorities and an obligation to protect them, the Court was not persuaded that this consensus was “sufficiently concrete for it to derive any guidance as to the conduct or standards which contracting states consider desirable in any particular situation”,89 in particular, in balancing the interests of the general population and those of a minority. Although the Court has so far not yet found a violation of the Convention concerning the identity of the Roma minority as a guarantee for an individual’s private life, family life and home (Article ), the Nachova ruling represents a pivotal precedent to litigate cases concerning discrimination against Roma. In this context, it has to be emphasized, the role played by various NGOs, in particular the European Roma Rights Centre (ERRC) in supporting Roma applicants before the Court. Considering the vulnerability of this minority group, it is evident that without the support by NGOs through joint strategic litigation projects or third-party comments, a breakthrough in this field would have been much more difficult. The other important field of interest covered by the Strasbourg Court in the period under consideration concerned anti-terrorism operations and restrictions of minority rights for the safeguard of territorial integrity, national security and public order. In this context, the Court has reiterated its approach under which ‘exceptional measures’ to maintain security are accepted, only if they respond to the guiding principle of proportionality and if they do not create an excessive burden on individuals. The contrary will in fact upset the fair balance between the requirements of the general interest and the protection of individual rights and will be unacceptable in a democratic society. The Court has thus provided a clear threshold for states involved in the fight against terrorism, a subject that, unfortunately, has become topical for almost all contracting states. The rulings of the Court in the field of anti-terrorism operations can also provide useful information for other European institutions, in particular the European Union in its monitoring of candidate countries, but also for activating the prevention and  





ECtHR, Appl. / and /, Nachova and Others v. Bulgaria, Judgment of  February . See Medda-Windischer, “The Jurisprudence of …”, /, -. ECtHR, Buckley v. the United Kingdom, judgment of  September , Reports -IV. Appl. /, Varey v. United Kingdom, judgment (friendly settlement) of  December . Appl. /, Chapman v. United Kingdom; Appl. /, Beard v. United Kingdom; Appl. /, Coster v. United Kingdom; Appl. /, Lee v. United Kingdom; Appl. /, Jane Smith v. United Kingdom, judgments of  January . See MeddaWindischer, “The Jurisprudence of …”, /, -. Chapman v. United Kingdom, para. .

The Jurisprudence of the European Court of Human Rights penalty mechanisms in the case of a breach – or the risk of a breach – of the common values of the Union by a member state.90 It is not surprising that the same countries condemned by the Court in cases involving anti-terrorism measures, namely Russia and Turkey, are also those states condemned for having hindered access to the Strasbourg mechanism for individual complaints. This issue is of particular importance for members of minority groups because they are often more vulnerable and exposed to pressures from the authorities than the rest of the population. The Court has reiterated that for the effective operation of the system of the individual petition, applicants should be able to communicate freely with the Convention organs without being subjected to any form of ‘pressure’ from the authorities to withdraw or modify their complaints. ‘Pressure’ includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a convention remedy. As in the cases pertaining to the fight against terrorism, in the cases regarding property issues and compensation the Court has considered the excessive and disproportionate burden that the persons concerned had to bear. The Court has confirmed that the assessment on the ‘fair balance’ between general interest and individual rights involves an investigation into the realities of the situation complained of. That assessment may involve not only the relevant compensation terms, but also the conduct of the parties, including the means employed by the state and their implementation. In particular, in the compensation case against Germany, in which the applicants challenged the constitutionality of the statutes enacted after German reunification, the Court based its reasoning on the difference between a mere hope and a legitimate expectation that applicants had to obtain either restitution of their property or compensation or indemnification commensurate with the real value of their property. For the Court, the latter must be of a concrete nature and be based on a legal provision or have a solid basis in the domestic case-law. 91 With regard to the headscarf case against Turkey, in order to analyze correctly the implications of this case, one must frame it in the particular institutional Turkish setting. The Court has reiterated its approach by recognising a wide margin of appreciation to states, especially in cases concerning religion or ethical issues. It is dubious if the Court would reach the same conclusions in cases against contracting states profoundly different from Turkey, in terms of the relationship between public institutions and religion, as well as in recognition and protection of minorities. France perhaps represents the most similar situation, but since the adoption of the French law on secularity and conspicuous religious symbols in schools,92 no complaint in this regard has been lodged before the Court so far.  



Articles  and  TEU. In this case the Court applied the same reasoning as in the Cyprus v. Turkey case concerning mother-tongue educational facilities for Greek Cypriot children in Northern Cyprus abolished by the Turkish Cypriot authorities. In this case likewise, the Court considered that applicants have acquired a legitimate expectation that such schools could continue as they existed in the past. Law - of  March .



Roberta Medda-Windischer As said earlier, from the analysis of the extra-territoriality cases it emerges a promising and a negative development: on the one hand, as the Ilascu case93 illustrates, the Court has followed the principles established in the leading Loizidou94 and Cyprus v. Turkey95 cases, and has enlarged the jurisdiction of the contracting states well beyond their territorial borders. On the other hand, the Bankovic case96 seems to have put a clear limit to the enlargement of the Court’s jurisdiction and the accountability of contracting states. The Court has in fact reiterated that the Convention has a regional character and is a constitutional instrument of European public order. However, the opening of the Court in the former cases, though still limited to the ‘Convention territory’, namely the territories of other contracting states, makes the Bankovic case extremely conservative and not fully in line with the latest developments taking place in the human rights agenda. The same contracting parties to the Convention have indeed reaffirmed with emphasis in front of the United Nations “the solemn commitment of all states to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all”.97 In this light, it is not fully convincing why states parties should be accountable for violations committed by their soldiers or state agents during military operations or humanitarian interventions outside their territories and inside the territory of another contracting state whose responsibility is not called into question, but not in case of operations conducted by states parties, but occurring on the territory of a non-contracting party. As said earlier, this approach risks to create “a regrettable vacuum in the Convention system of human rights’ protection”,98 and might even put at stake the prestige and credibility of the most developed system of human rights protection in the world.

    





Ilascu and Others v. Moldova and Russia. See Medda-Windischer, “The Jurisprudence of …”, /, . Loizidou v. Turkey. Ibid., -. Cyprus v. Turkey. Ibid., -. Bankovic v. Belgium and other  countries. United Nations, General Assembly, Vienna Declaration and Programme of Action of the World Conference on Human Rights (), A/CONF./,  July ; United Nations Millennium Declaration – Resolution adopted by the General Assembly /,  September . Cyprus v. Turkey, para. .

Krzysztof Drzewicki and Vincent de Graaf *

The Activities of the OSCE High Commissioner on National Minorities: July 2004 – June 2005

I. Introduction This overview of the activities of the OSCE High Commissioner on National Minorities (HCNM) covers the period July  to June .1 The premise on which the conflict prevention mandate of the HCNM rests is that problems concerning the relationship between the majority and minorities are one major source of international conflict as well as of instability within states. Social tensions arising from minority issues exist in many states and can lead to serious incidents of violence. Under certain circumstances, failure to deal in a timely manner with such tensions can lead to violent conflict, affecting peace, stability, or relations between states. Ethnic tensions should ideally be countered by policies that encourage all groups to consider the state as their common home, where all individuals are able to interact freely and where all have equal opportunities to participate and to benefit.2 This integration process is particularly important in relatively newly independent states, for example in South East Europe and Central Asia, as these states face the complex task of *





Krzysztof Drzewicki LL.D. (University of Gdansk) and Dr. Hab. and Vincent de Graaf LL.M. (Cantab.) M.A. (Maastricht University) and Maîtrise en droit (Université AixMarseille III) work as, respectively, Senior Legal Adviser and Legal Officer for the OSCE High Commissioner on National Minorities. The views expressed in this article are those of the authors and are not necessarily shared by the High Commissioner or the OSCE. An account of past activities of the HCNM going back to January  can be found in the three previous European Yearbooks of Minorities issues. For an account of the activities of the first HCNM, Mr. Max van der Stoel, from the founding of the post in  to early , see Walter Kemp (ed.), Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities (Kluwer Law International, The Hague, ). High Commissioner on National Minorities, “Prevention of Inter-Ethnic Conflict”, speech delivered at the seminar on “The International Law and Practice of Making Peace” on the occasion of  years Netherlands Carnegie Foundation,  June , The Hague; see also director of the office of the HCNM, “The Integration of National Minorities”, speech delivered at the rd Preparatory Seminar Economic Forum , - March , Kiev. Both at .

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 595-613. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Krzysztof Drzewicki and Vincent de Graaf strengthening nationhood, often in difficult political and economic conditions. Where this understanding of nationhood is mainly based on that of the largest ethnic or historically dominant group, it is particularly important that persons belonging to national minorities are not marginalized or excluded. The approach of the HCNM when addressing these situations is normally that of ‘silent diplomacy’, characterized by a combination of the collection and assessment of information, and visits and direct contact with officials, representatives of both majority and minority groups, civil society and individuals. This diplomacy also comprises concrete and practical recommendations, which assist the OSCE participating states in the formulation and implementation of legislation and policies in accordance with their international commitments. In advising on specific country situations or legislative proposals, the HCNM often draws on a series of guidelines and recommendations on thematic issues, which were drafted on his initiative by groups of independent international experts. These recommendations address common issues regarding the role of persons belonging to national minorities in the areas of education, language, participation in public life and the media, which often create tensions between national minorities and other groups.3 During this particular reporting period, the HCNM convened a group of experts to draft recommendations on the issue of multiethnic policing. The importance of the role of the police in preventing ethnic conflict and promoting integration is being increasingly recognized. In the past, the police have all too often acted as a controlling agent on behalf of national majorities, condoning or engaging directly in ethnically repressive actions and thus lacking credibility and legitimacy in the eyes of minorities. In a democracy, the role of the police is to provide protection to all ethnic groups and to enforce the rule of law fairly and professionally while respecting human rights. Police, therefore, have a major role to play in confidence building in the formation of multiethnic states and, to this end, need to improve their relations with national minorities.4 Making the required changes at organizational and operational levels will present a major challenge. The purpose of the new recommendations is to provide guidance in this transformation. 





The Hague Recommendations regarding the Education Rights of National Minorities, October ; The Oslo Recommendations regarding the Linguistic Rights of National Minorities, February ; The Lund Recommendations on the Effective Participation of National Minorities in Public Life, September ; and the Guidelines on the use of Minority Languages in the Broadcast Media, October . The Hague Recommendations are reproduced, together with some scholarly analysis of the related subject matter, in a special issue of the International Journal on Minority and Group Rights, () IJMGR (/), -. The Oslo Recommendations are likewise reproduced in a special issue of the same journal, () IJMGR (), -. For the full text of the Lund Recommendations, see () HM (), -; see also (-) IJMGR (), -. The Media Guidelines are also reproduced along with an introductory article by John Packer and Sally Holt in () HM (), -. All four Recommendations/Guidelines are also available in a number of different languages from the Office of the HCNM or, in electronic form, on the HCNM’s website at . See, for example, Arve Westgard, “Multi-Ethnic Policing as Confidence Building in South Serbia”, Conflict Prevention Journal (Spring ), -.

The Activities of the OSCE High Commissioner on National Minorities: July 2004 – June 2005 Although the HCNM is not primarily a project implementing agency, the HCNM’s preventive diplomacy is frequently backed up by targeted projects in support of education, language and practical participation, as well as media access and development, sometimes in cooperation with the UN, UNHCR, Council of Europe (CoE) and EU. The emphasis of these projects is always on early action and on prevention of conflict, and they aim to close gaps that otherwise would not necessarily be filled. Examples of these projects are given in the sections on specific countries and regions. The period under review was particularly interesting and eventful for the OSCE and the organization’s HCNM. It saw profound political changes in Ukraine and in Kyrgyzstan, which not only affected their minority policies and relations with neighbouring states but also relations within the OSCE itself. Within the EU, the accession of ten new member states in May  impacted on the dynamics of minority rights protection in Central Europe and the Baltic region, and on the work of the HCNM in these states.5 Although EU membership does not affect the minority rights standards applicable to the new member states as such, the HCNM is no longer able to use the conditionality of the accession process as a basis for urging states to meet these standards. However, while EU membership did not prove to be a magic umbrella under which all existing and potential conflicts concerning minority issues can be solved, peer pressure and informal ‘club rules’ often do have a disciplining effect, particularly in the rare event a new member state tries to throw the weight of the whole EU behind a dispute it happens to have with a third country concerning its minority. For accession and pre-accession countries, the conditionality formulated in the Copenhagen criteria for membership of the EU remains fully operational and the HCNM continues his close cooperation with these states as well as with the European Commission, CoE and other international governmental and nongovernmental institutions. The HCNM has been actively engaged in securing the inclusion of the promotion and protection of minority rights as a fundamental principle of EU law in the Treaty establishing a Constitution for Europe (see section II A).6 However, the negative outcome of the French and Dutch referenda on the EU Constitution means that, for the foreseeable future, the EU will be unable to transpose its external engagement and standard-setting in the field of minority protection to its internal system and legal framework.7 Given the existing imbalance between the internal and external aspects of its minority standards, the EU remains open to reproaches of double standards.



 

See, for example, Gabriel Toggenburg (ed.), Minority Protection and the Enlarged EU: The Way Forward (Open Society Institute, Budapest, ), and, in particular, the chapter by Frank Hoffmeister, “Monitoring Minority Rights in the Enlarged EU”, -. Treaty establishing a Constitution for Europe, signed on  October , Rome. Gabriel Toggenburg, “Minority Protection in a Supranational Context”, in Toggenburg (ed.), Minority Protection and the Enlarged EU ..., -.



Krzysztof Drzewicki and Vincent de Graaf II. Minority Rights International Framework and Practice A. EU Constitution - Embracing Minority Rights The heads of state or government of  EU member states and three candidate countries signed the Treaty establishing a Constitution for Europe in Rome on  October .8 The adopted Constitution now embraces a provision (Article I-) on minority rights that had initially been missing.9 Regrettably, there was no mention of a specific ‘minority clause’ in the EU Charter of Fundamental Rights adopted by the European Council in Nice in December . The Draft European Constitution, completed on  July  by the European Council’s Convention on the Future of Europe, was equally silent on the rights of minorities. This was in contrast to the principles applied earlier. For example, in June , the European Council in Copenhagen had accorded minority rights a prominent position – side by side with the guarantee of human rights. Defining the noneconomic standards for the admission of Central and Eastern European countries into the EU, the Council specified: “[M]embership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”.10 In the course of setting the standards for the European Constitution, the above Copenhagen criteria were subsumed under Article I-, paragraph  of the Draft, which stipulated that the Union’s values served to underpin conditions for eligibility for admission: “The Union shall be open to all European States which respect the values referred to in Article I-, and are committed to promoting them together”.11 Compared with earlier EU documents, the enumeration of shared values under Article I- was an impressive effort to go beyond a mere set of lofty ideals: “The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Members States in a society of pluralism, tolerance, justice, solidarity and non-discrimination”.12 This meant that the specific passage concerning minorities that was reflected within the Copenhagen criteria was omitted in the Draft Constitution. The ‘missing link’ was a source of profound disappointment in international circles, as it was feared that this might be construed as a reflection of a new position within the EU, whereby the issue of national minorities would be marginalized on the EU agenda. In addition, this raised questions about why the clause concerning minorities vanished from the catalogue of “values … common to the Member States”, in Article I-.



   



The present text is largely based on the article by Krzysztof Drzewicki, “A Constitution for Europe: Enshrining Minority Rights. Words Can Make Worlds of Difference”, () OSCE Magazine (), -. Treaty establishing a Constitution for Europe. Copenhagen Criteria, adopted by the European Council in June . Treaty establishing a Constitution for Europe, Article I-: Conditions of eligibility and procedure for accession to the Union. Treaty establishing a Constitution for Europe.

The Activities of the OSCE High Commissioner on National Minorities: July 2004 – June 2005 The formulation in the Draft Constitution conveyed the impression that the minority clause served as a specific requirement only during the accession procedure and that, after the enlargement, the EU no longer considered it worthwhile to call attention to it. This interpretation risked weakening the position of the HCNM in his diplomatic and conflict prevention efforts within non-EU states. The governments concerned would likely raise the ‘double-standards’ argument; they would be emboldened to comply with minimum standards on the protection of national minorities only selectively and to ignore recommendations aimed at ensuring a higher level of integration of minorities into their societies. It was this potentially worrying scenario that prompted the HCNM to raise the issue publicly. At a Conference in Copenhagen in November , he stated unequivocally: “… 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 relationships between the existing and aspiring EU Member States would be unbalanced in terms of applicable standards”.13 One could argue, of course, that the rights of minorities are intrinsic to the concept and notion of human rights as a whole. However, the fact is that the Copenhagen European Council had made a conscious decision to single out the protection of minorities for special attention. Within the ambit of his responsibilities, it was incumbent upon the HCNM to do his utmost to ensure that the Draft Constitution placed the rights of minorities in sharper relief. In the HCNM’s view, the EU, in order to steer clear of accusations of failing to be even-handed, should adopt and apply its minority-related standards equally – extending them to candidate countries as well as to members. Furthermore, the HCNM believed that the EU Constitution should include a clause on minority rights that would have an impact far beyond the EU itself and its members. It is generally agreed, after all, that a number of OSCE participating states will most likely not become EU members in the near future – or perhaps never will. With this in mind, an explicit minority clause would also serve to promote the application of EU values and standards in non-EU countries through trade and policies and the like. This made it even more imperative to have a legal stipulation setting out a single, consistent system of values and standards. It was against this background that the OSCE HCNM took formal steps to turn to the Irish Foreign Minister under the EU presidency. In his letter of  January , the HCNM advocated the continuation of the validity of the Copenhagen political criteria for EU membership, proposing two alternative amendments to the Draft Constitution that would restore an explicit clause on the rights of minorities. He proposed that Article I-, outlining “The Union’s values” be supplemented, following the words “respect for human rights” with either “including minority rights” or “including the rights of persons belonging to minorities”.



High Commissioner on National Minorities, “From the Copenhagen Criteria to the Copenhagen Summit: The Protection of National Minorities in an Enlarging Europe”, speech delivered at the conference on National Minorities in the Enlarged EU,  November , Copenhagen, at .

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Krzysztof Drzewicki and Vincent de Graaf The latter option was proposed to avoid any potential arguments that could arise from a collective reference dimension to ‘minority rights’. Similar proposals for the inclusion of a clause on minorities were also submitted by the governments of Hungary and Romania. The HCNM’s proposal reflected commendable improvement to the original formulation of the Copenhagen criteria. Whereas in Copenhagen, “democracy, the rule of law, human rights and respect for and protection of minorities”, had been enumerated separately, the latest language recommended inserting “including the rights of persons belonging to minorities” as an integral part of human rights (note the word “including”). This solution restores an adequate balance to Article I- by conveying a proper understanding that the rights of persons belonging to minorities are merely a lex specialis (a special regulation) of the international law of human rights as a whole. It came as a pleasant surprise to the HCNM and to other concerned parties that, at their meeting in Brussels on  June , the heads of state and government gave their stamp of approval to the texts of a number of modified provisions of the Draft Constitution for Europe, which they subsequently signed on  October . Among the amended provisions was the reformulated Article I-: “The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”.14 The fruitful dialogue between the HCNM and the EU on the ‘human dimension’ of the Constitution for Europe is a reminder of the wisdom of ancient Roman legal tradition, in which values cannot be separated from instruments for their implementation. Indeed, the minority clause brings us closer to the Roman maxim Ubi ius ibi remedium (“Where there is a right, there is a remedy”). No less important, the integration of the clause within the European Constitution creates a climate more conducive to synergy between the HCNM and the EU. Moreover, it increases the chances that the issue of national minorities will not disappear from the EU’s agenda, even if the fate of the Constitution remains uncertain. The minority rights agenda can be strengthened by integrating all other aspects of the rights of persons of minorities (e.g. non-discrimination, respect for cultural diversity, freedom of religion, etc.) into a comprehensive and coherent minority-friendly policy. B. The OSCE and the CoE – New Forms of Cooperation for the HCNM 1. Enhanced Cooperation between the OSCE and CoE During the reporting period there were several new developments in the cooperation between the CoE and the OSCE. Some of them, if pursued in a regular and consistent way, can bring about significant improvements in the field of joint and separate activities in the field of promotion and protection of the rights of persons belonging to national minorities.





Treaty establishing a Constitution for Europe.

The Activities of the OSCE High Commissioner on National Minorities: July 2004 – June 2005 Traditional cooperation between the CoE and the OSCE has gained new momentum. The Bulgarian OSCE Chairmanship (), for example, made the improvement of cooperation with other international organizations, notably with the CoE, one of its priorities, and the initiative was equally well-received by the Norwegian Chairmanship of the CoE. Discussion under the heading of “Enhanced Cooperation OSCE – Council of Europe” became instrumental in the process of preparation of the political document on the future modalities for cooperation. It was stressed that the cooperation modalities should also allow for the direct involvement of member states of the OSCE and the CoE in managing cooperation between the two organizations. It was underlined that the new framework and mechanism was not meant to replace Secretariat-to-Secretariat contacts, but to introduce a flexible element of oversight on the part of the stakeholders in both organizations. For the purposes of formulating a political document together with concrete proposals for enhanced cooperation, a Coordination Group was established. The document was first adopted separately by both organizations and subsequently at a joint meeting between the OSCE Permanent Council and the CoE Committee of Ministers on  April  in Strasbourg. The adopted document – Declaration on Cooperation between the Council of Europe and the Organization for Security and Co-operation in Europe – was announced through a Joint Statement of the Chairman of the Committee of Ministers of the Council of Europe and the Chairman-in-Office of the OSCE on the occasion of the Third Council of Europe Summit on  May  in Warsaw.15 Under the Declaration, the Coordination Group was given the explicit priority to start working on concrete recommendations in areas of common interest such as: the fight against terrorism; the protection of the rights of persons belonging to national minorities (emphasis added); combating trafficking in human beings; as well as promoting tolerance and non-discrimination. Following a request by the OSCE Chairman-in-Office, the HCNM assumed the role of ‘OSCE focal point for issues of national minorities’. It is hoped that closer cooperation between the two organizations will produce more effective coordination and synergies or help to avoid unnecessary duplication in areas of common interest. The above arrangements mean that national minority issues are high on the agenda of both organizations. Furthermore, it has been accepted that the role of the HCNM within the OSCE would be wider than was first envisaged by his mandate as such. This opens up all kinds of possibilities for elaborating a common and consistent position on numerous minority issues within and between both organizations. 2.

New Possibilities for Fighting Discrimination: Entry into Force of ECHR Protocol 12 With the entry into force of Protocol No.  to the Convention for the Protection of Human Rights and Fundamental Freedoms on Human Rights on  April ,  states parties became bound by its provisions. Under Article , allegations of discrimination on any grounds may be registered and lodged with the European Court of Human Rights as autonomous claims, thus without any reference to a specific substantive right in the European Convention. Under the present system, applications based 

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Krzysztof Drzewicki and Vincent de Graaf on Article  of the Convention (principle of non-discrimination) have to be linked to the rights and freedoms set forth in the European Convention (e.g. discrimination on the grounds of race, religion or language in enjoyment of freedom of association). Consequently, Protocol  makes the prohibition of discrimination a general, independent and autonomous ground for complaint. One of the grounds on which one may not be discriminated against mentioned in Article  includes “association with a national minority”.16 From the perspective of national minorities, it is thus of significance that alleged victims of violations – individuals, groups of individuals and NGOs – may lodge their applications with the particular judicial body. In other words, national minorities are now better equipped with the means to lodge complaints of alleged discrimination on the grounds of belonging to a national minority. Moreover, the determinations by the European Court are legally binding and, if a violation is found, just satisfaction may be granted. In addition, the execution of judgments is regularly supervised by the Committee of Ministers of the Council of Europe. One may expect the Court to give its interpretation to a number of situations concerning minorities while continuing its doctrine whereby a distinction between permissible and impermissible treatment will be tested against a set of criteria on objective and reasonable justifications and the principle of proportionality. Bearing in mind the mandate of the HCNM, he is fully empowered to both promote further ratifications of the Protocol and to encourage resort to the complaints procedure provided therein.17 As has been emphasized by the HCNM, the European Convention on Human Rights with its particular arrangements is a “good example of the normative development towards prevention”.18 3. Cooperation with Minority-Rights Bodies of the CoE During the particular reporting period, the HCNM also established cooperation with two new minority rights bodies. The work of the first one – the Sub-Committee on the Rights of Minorities (Committee on Legal Affairs and Human Rights) of the CoE’s Parliamentary Assembly – will be closely followed by the HCNM. This committee shall consider the possible strengthening of the CoE’s treaties and mechanisms relating to minorities, in particular the Framework Convention and the European Charter for Regional and Minority Languages. At its first meeting on  April , Mr. Boriss Cilevičs (Latvian member of the Parliamentary Assembly, Party of European Socialists) was elected chairman of the subcommittee. The second newly established body – the Committee of Experts on Issues relating to the Protection of National Minorities of the Council of Europe (DH-MIN) – held its first meeting from  to  May  in Strasbourg. DH-MIN was established by a decision of the Committee of Ministers in November  as a body subordinate to the  





CoE, Convention for the Protection of Human Rights and Fundamental Freedoms. See notably para.  of the Helsinki Concluding Document of , “the High Commissioner will take fully into account the availability of democratic means and international instruments”. See High Commissioner on National Minorities, “The Responsibility to Prevent”, speech given to the Stockholm International Forum,  January .

The Activities of the OSCE High Commissioner on National Minorities: July 2004 – June 2005 Steering Committee for Human Rights (CDDH). It was previously convoked between  and  – during which it conducted studies on the participation of minorities in decision-making processes and on dispersed ethnic minorities. According to its terms of reference, the reconvoked DH-MIN will act as an intergovernmental forum for the exchange of views and experiences between the CoE member states; for reflecting on transversal issues concerning the protection of national minorities; and for identifying ways of further enhancing European cooperation in these fields. Monitoring activities concerning the situation in particular countries are specifically excluded from its mandate. During its first session, DH-MIN was mainly engaged in interpreting its terms of reference and deciding on themes for its future thematic work. The two themes eventually selected were suggested by the Secretariat: the issue of reporting under human rights treaties with relevance to the protection of national minorities and the issue of advisory and consultative bodies of national minorities. It was important to the HCNM that his mandate and activities were explicitly mentioned in the text of DH-MIN’s terms of reference. He declared his readiness to contribute to the debates of the Committee on ‘transversal issues’ concerning national minorities, particularly in view of the fact that due to the confidential nature of his mandate he would be prevented from discussing specific country issues. 4. Cooperation with other bodies of the CoE dealing with Minority Rights The HCNM has established good working relations with the Advisory Committee set up under the Framework Convention for the Protection of National Minorities (ACFC). Respecting the independent nature of both bodies, their cooperation has developed and notably concentrated on the mutual exchange of information on specific minority rights issues. As part of this cooperation, the HCNM contributed to the process of elaborating the ACFC’s thematic comments. The HCNM was invited to take part in a meeting of the ACFC regarding rights of national minorities in the field of education. The ACFC has also invited the HCNM to participate in a regular exchange of views and ideas on issues of common interest. The ongoing cooperation with the European Commission for Democracy Through Law (the Venice Commission), on the other hand, has focused on an exchange of opinions on issues such as participation by persons belonging to national minorities in elections and citizenship. Useful consultations on minority issues also took place on several occasions with the CoE Commissioner for Human Rights. III. The Protection and Promotion of the Rights of Persons Belonging to National Minorities at the National Level On the basis of his mandate, the HCNM is constantly engaged – with varying degrees of intensity and duration – in a variety of situations and countries. While some of these present similar or recurring problems and potential dangers of escalation, all are unique as far as the political and historic background, the actors and the claims of the parties involved are concerned. A key element of the HCNM’s mandate is confidentiality. Quiet diplomacy has several advantages. It makes it easier for governments to accept the involvement of the 

Krzysztof Drzewicki and Vincent de Graaf HCNM in such internal affairs that have developed as a result of interethnic issues. It reduces the risk of his involvement in a particular situation drawing unwelcome attention to what may be sensitive issues. It also helps to encourage the parties concerned to present their views in a moderate rather than an extreme form, and thus to build trust and confidence. This, however, also means that the presentation of most of the activities of the HCNM in this report is incomplete, while other engagements of the HCNM, whether general or specific, cannot be reported at all. A. Central Asia In the course of the reporting period, the HCNM devoted considerable attention to the states of Central Asia, which are a priority for him. In a number of key areas, the HCNM stepped up his engagement, not least because of the political challenges associated with the elections in some of the countries of the region. The focus of HCNM engagement remained on developing political initiatives, in some cases supported by projects, to promote harmonious interethnic relations, communication and understanding between the majorities and the national minorities in the challenging environment of nation and state-building in Central Asia. An important goal of HCNM engagement in Central Asia was to facilitate improved cooperation between the different states of the region in the area of national minority issues. In November of , the HCNM visited Tajikistan with a view to learning more about the political situation in the country, including interethnic relations, and to strengthen his relationship with the authorities, with NGOs and with representatives of national minorities. This visit was designed to facilitate an intensification of HCNM activities in Tajikistan during . During , the HCNM continued his engagement in Turkmenistan designed to promote better relations between the different ethnic communities of the country and further respect for the rights of persons belonging to national minorities. He followed up this policy in , inter alia during his visit in May, when he had the opportunity to visit the Dashoguz region where the Uzbek minority is living. In Kyrgyzstan, the HCNM engaged two experts to develop specific and concrete recommendations about how to develop multiethnic policing in the country. The final report compiled by the police experts was submitted to the HCNM in November  and contained a series of recommendations, including language use in the police, the participation of minorities in policing and policies to enhance trust between the police and national minority communities in the country. A summary of the report was subsequently presented to the State Commission on Police Reform established by the President of Kyrgyzstan. It is expected that the experts’ findings and recommendations will be taken into account when setting up the Police Reform Programme in Kyrgyzstan for the period -, which is currently under consideration in Kyrgyzstan. Meanwhile, the HCNM also pursued an active dialogue with both the OSCE Centre in Bishkek and the OSCE Strategic Police Matters Unit, in order to incorporate the experts’ recommendations and project ideas into future OSCE initiatives in the area of policing. HCNM involvement in the issue of policing in Kyrgyzstan was continued through a series of training seminars for police officers, aimed at increasing their sensitivity to 

The Activities of the OSCE High Commissioner on National Minorities: July 2004 – June 2005 the multiethnic community they operate in and equipping them with conflict resolution and negotiation skills. The seminars were conducted in areas of minority settlement and targeted operational police officers working in multiethnic environments. The seminars received positive feedback from the police authorities of Kyrgyzstan. Education has remained a critical issue for the future development, prosperity and security of the states of Central Asia. Since independence, these states have faced a considerable challenge in maintaining and modernizing their education systems. In addition to the issue of tight financial constraints, there are also important matters of educational policy to be considered. In , the HCNM continued to promote education policies in Central Asia, designed to enhance social integration in multiethnic contexts and communication, dialogue and understanding between different ethnic communities. The HCNM supported a number of initiatives in order to assist the states of Central Asia in using secondary education to effect integration while respecting the rights of persons belonging to national minorities. In Kyrgyzstan, the Working Group on Integration through Education, established by the President of Kyrgyzstan on the HCNM’s advice, elaborated a set of practical recommendations in the area of educational policy for the authorities, for national minorities and for international agencies in order to help to achieve greater social integration within Kyrgyzstan’s multiethnic society. Following the launch of the recommendations, the HCNM took the initiative to deploy an education expert to Kyrgyzstan. The expert’s role was to support the efforts of the Ministry of Education of Kyrgyzstan in the development and design of specific project proposals aimed at promoting interethnic integration through the medium of education and improving standards of minority education. In Uzbekistan, the HCNM organized a conference, together with the Ministry of Public Education, on the subject of the role that educational reform and modernization can play in promoting integration within the multiethnic societies of Central Asia. The conference took place against the background of an ambitious education reform plan adopted by the government of Uzbekistan in May . The reform agenda envisages the introduction of a two-track school system from the ninth grade onwards and a transition from  to  years of basic schooling prior to further education. Some  participants took part in the conference, including education officials from the Ministry of Public Education of Uzbekistan, its methodological and in-service training centres and the regional education authorities, as well as school principals from Tajik, Karakalpak, Turkmen, Kazakh and Kyrgyz communities. In , the HCNM initiated a project designed to strengthen the language skills of children in the final years of study at Uzbek-language schools to better prepare them to take the state exams for entry into higher education in Kazakhstan. The results for the first year indicated considerable success and the HCNM continued his support for the initiative in  and . Within the framework of the project, a website was created, which is intended as an ‘outreach’ tool aimed at Uzbek-language schools not participating in the project.19 The website inter alia features six Uzbek-Russian-Uzbek and Uzbek-Kazakh-Uzbek terminology dictionaries developed collectively by school teachers involved in the project. These dictionaries are available in ‘printer-friendly’ 

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Krzysztof Drzewicki and Vincent de Graaf format and can be easily downloaded and printed by schools not participating in the project. In Tajikistan, the HCNM, in cooperation with the Ministry of Education, organized a conference on  March  on ‘Education as a Means of Integration in Tajikistan’.20 The conference was designed to help promote educational initiatives in Tajikistan aimed at strengthening social integration in the country. The conference was also intended as a preparatory meeting for the international conference on education and integration in the region of Central Asia, to be conducted later this year in Tashkent, Uzbekistan. B. The Baltic Region During the period under review, the HCNM visited Latvia twice – from  to  October  and from  to  June . The HCNM met the president and members of government and parliamentary committees, as well as NGOs, teachers and pupils. During his visits, he paid particular attention to the education reform being undertaken within the country. He also encouraged the government to accelerate and further simplify the naturalization process for ‘non-citizens’, to grant citizenship automatically to all children born in Latvia after , to provide all permanent residents of the country, regardless of citizenship or ‘non-citizenship’, with the right to participate in local elections and also to ratify the CoE’s Framework Convention on the Protection of National Minorities without any reservations. Concerning minority education reform, the HCNM supported the right of the government to promote national integration, in particular by supporting the acquisition of proficiency in the state language. At the same time, he underlined that the state must respect and protect the right of persons belonging to national minorities to maintain and develop their cultural heritage and to receive adequate opportunities for instruction of and in their mother tongue. The HCNM recommended that the Latvian authorities channel additional funds into teacher training and other programmes for the successful implementation of educational reform aimed at strengthening the role of the Latvian language. He advised the authorities to improve the dialogue between the authorities and minority representatives and offered his assistance for this purpose. He indicated that the lack of a developed societal dialogue between the majority and minority communities warrants further steps in the current integration process in Latvia. With regard to the problem of ‘non-citizens’, during his visits the HCNM welcomed the increased interest amongst non-Latvians in becoming Latvian citizens by naturalization following the accession of Latvia to the EU. He has encouraged the government to support this development and to provide the necessary additional resources and funds to strengthen the capacity of the Naturalization Board to handle the growing number of applications in an orderly and timely manner. The HCNM also recommended that Latvia study the possibilities of increasing the rights of non-citizens, especially the granting of voting rights in municipal elections. 

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See High Commissioner on National Minorities, Statement by Rolf Ekéus to the th Plenary Meeting of the OSCE Permanent Council, Vienna,  May , at .

The Activities of the OSCE High Commissioner on National Minorities: July 2004 – June 2005 As to the ratification of the CoE’s Framework Convention for the Protection of National Minorities, during his  visit to Latvia the HCNM recommended that the Latvian parliament approve ratification of the Convention. He underlined that ratification would send a clear signal to the minority community about the seriousness of the government’s intentions with regard to the continuing social integration process. Years of protracted dialogue with the Latvian authorities on ratification came to a successful conclusion on  May , with formal approval of ratification by the Saeima (parliament) of the Framework Convention. During his visit in June the HCNM welcomed Latvia’s decision on ratification and emphasized the importance of an inclusive and non-discriminatory implementation of the provisions of the Framework Convention. C. The Caucasus During the period under review, the HCNM visited Georgia twice – from  to  October  and from  to  April . These were his fifth and sixth official visits to Georgia since he was appointed HCNM in . During the  visit, he met senior Georgian officials, including President Mikhail Saakashvili, Prime Minister Zurab Zhvania and Minister for Foreign Affairs Salome Zourabachvili, as well as representatives of the minority communities. He also attended the seminar on ‘Civic Integration in Georgia: Reflections on Problems and Solutions’ (jointly organized by HCNM and the Georgian parliament) along with senior Georgian officials dealing with national minorities issues, including the Speaker of Parliament Nino Burjanadze, who opened the seminar. The seminar was part of the HCNM’s support to the Georgian government in its elaboration of a Strategy of Civic Integration for the country, an initiative announced by the leadership of Georgia during his earlier visit to Tbilisi in March .21 In his speech at the seminar and in the meetings with his interlocutors, the HCNM encouraged the government to promote further reforms, in particular in the field of education, aimed at integration of national minorities into Georgia and strengthening relations between the majority and the ethnic minorities in the country. He also encouraged the Georgian government to ratify the Framework Convention for the Protection of National Minorities and pledged his expertise and advice in drafting a Law on National Minorities, if the Georgian parliament intends to adopt such a law. The HCNM also indicated that, within the framework of OSCE-UN cooperation, he will continue to advocate the need for implementation of the recommendations made by the Joint UN-OSCE Assessment Mission to the Gali District of Abkhazia, Georgia (- November ), including the opening of a branch of the joint UN-OSCE Human Rights Office, currently operating in Sukhumi.

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High Commissioner on National Minorities, “Civic Integration through Education, Language, Culture and Participation”, address to the OSCE HCNM/Georgian parliament seminar on “Civic Integration in Georgia: Reflections on Problems and Solutions”, Tbilisi,  October , .

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Krzysztof Drzewicki and Vincent de Graaf During the period under review, the HCNM continued to implement his ‘Conflict Prevention and Integration Programme for Samtskhe-Javakheti, Georgia’.22 The overall goal of the programme, which is fully supported by the government, is to contribute to the integration of the Samtskhe-Javakheti region into Georgia and to reduce latent or actual tensions in the region. The programme is composed of four priority areas of activity: () language training; () legal assistance and legal information; () management of interethnic relations; and () information flows and media development. At present,  projects are in the process of implementation. Concrete examples are the teaching of the state language to civil servants and helping university students, whose mother tongue is Armenian and who have difficulties pursuing university careers at Georgian universities, to improve their language proficiency in Georgian. The programme also includes the translation of Georgian television programmes into Armenian and the provision of free legal assistance to the local population through several legal clinics. Two more recent initiatives, which have been taken within the framework of the programme, are a project to support the teaching of Georgian as a second language in minority schools and a project to improve interethnic relations management within the region. During his  visit, the HCNM met senior Georgian officials, including President Mikhail Saakashvili, Prime Minister Zurab Noghaideli, State Minister on Civic Integration Zinaida Bestaeva, the Minister of Education Alexander Lomaia, and other officials, as well as representatives of the minority communities. The HCNM was pleased to hear that some concrete mechanisms and activities aimed at promoting the integration of national minorities into Georgian society, in particular in the field of education had been inspired by the HCNM’s ‘Conflict Prevention and Integration Programme for Samtskhe-Javakheti’. The HCNM learned that the need for further integration of the SamtskheJavakheti region into Georgia, together with security challenges such as the expected closure of the Alkhalkalaki Russian military base by the end of  and the renewed discussions on the return of Meskhetians to Georgia, have placed Samtskhe-Javakheti high on the agenda of the Georgian government. At the time of the visit, the Georgian government decided to establish a National School of Administration, named after the late Prime Minister Zurab Zhvania, with a focus on national minorities. The HCNM encouraged the government to ratify the Framework Convention for the Protection of National Minorities. The HCNM has also remained involved in Abkhazia, where over the past few years he has worked with the de facto authorities in Sukhumi in order to ensure the right to education in the mother tongue of Georgian students in the Gali district of Abkhazia. In August , the project ‘Teachers for Understanding: Methodological Support and Training for Teachers of the Georgian and Abkhaz Languages in Gali, Tkvaracheli and Ochamchira Districts’ began.23 The project aims at enhancing the skills of teachers of the Georgian and Abkhaz languages in the three aforementioned dis 

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See High Commissioner on National Minorities, Statement by Rolf Ekéus to the th Plenary Meeting of the OSCE Permanent Council … . See High Commissioner on National Minorities, Statement by Rolf Ekéus to the th Plenary Meeting of the OSCE Permanent Council, Vienna,  July , at .

The Activities of the OSCE High Commissioner on National Minorities: July 2004 – June 2005 tricts and will consequently build confidence between the different communities in Abkhazia, in particular between teachers from these communities. In practical terms, the project will retrain  language teachers from grades  to  by means of a series of training seminars to be conducted over a one-year period. Modern language teaching systems and interactive methodologies will be developed and introduced into the teaching process. D. Central and Eastern Europe In Hungary, the HCNM has been closely following the initiatives regarding the protection of Hungarian minorities in neighbouring states. In the run-up to the dual citizenship referendum last year, the HCNM contacted the Hungarian Foreign Minister and offered to resume dialogue with the Hungarian government, highlighting potential complications of the dual citizenship proposal. The referendum, however, failed and the Hungarian government developed a new set of initiatives called the Programme of National Responsibility (also known as the Five Point Action Plan). In May , the HCNM visited Budapest in order to better familiarize himself with this programme and to discuss some of its controversial aspects. The HCNM encouraged the Hungarian government to engage in direct consultations with neighbouring states affected by the programme and to avoid straining bilateral relations. In Moldova, the HCNM has been engaged in long-term efforts to resolve the dispute over the registration of schools in the Transdniestrian region and teaching in the Moldovan language using the Latin script. He visited the country in the summer of  in order to discuss this issue with representatives of the Moldovan government and to urge the breakaway regime’s leadership to provide the necessary conditions for the normal operation of those schools. Roughly  % of Transdniestria’s population has Moldovan/Romanian as their mother tongue, with some , pupils studying in the Latin script. In July , the Transdniestrian authorities began closing several schools on its territory that teach in the Moldovan language using the Latin script, arguing that they had not been properly registered. These closures took place using force: armed police and militia surrounded the premises. Equipment and furniture was removed from the buildings and parents and teachers were prevented from entering. In an official statement, the HCNM characterized the events as “linguistic cleansing”. “I am deeply disappointed by this illegal and inhuman action today in Tiraspol”, he said. “This … is damaging to thousands of children who are being used by the Transdniestrian authorities as pawns in a political game.”24 The authorities eventually permitted the temporary registration of the schools and in June  allowed the schools to be permanently registered, a step that was welcomed by the HCNM. Another priority of the HCNM’s visit to Moldova was to assess the need for new educational projects, particularly in the field of teaching Moldovan/Romanian as a second language. The HCNM’s four-year project supporting the teaching of the state language in minority schools came to a successful conclusion in . Over , 

“Linguistic cleansing underway in Transdniestria”, Minelres: OSCE HCNM Press Release,  July , at .

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Krzysztof Drzewicki and Vincent de Graaf teachers were trained, new teaching methodologies were developed and four resource centres for the teachers were established. Currently, the HCNM is initiating another project to provide the teaching of the state language (Moldovan/Romanian) to civil servants of Gagauz and Bulgarian origin in southern Moldova. The HCNM believes that a good knowledge of the state language is the key to a successful policy of integration. The Gagauz population, in general, and Gagauzian civil servants in particular, currently lack a working knowledge of the state language. This fact seriously hampers relations between the Gagauz authorities and central government, impeding adequate representation of the interests of the Gagauz population and isolating the Gagauz community within Moldova. The aim of the HCNM is to provide Gagauz civil servants with the training in the state language that they so badly need. Concerning Romania, in June  the HCNM met with the Romanian Foreign Minister in The Hague in order to discuss Romania’s legislative initiatives concerning national minorities. The Romanian Draft Law on national minorities is a comprehensive piece of legislation introducing the concept of cultural autonomy. In response to the minister’s request, the HCNM has agreed to comment on the Draft Law and to pay Bucharest a working visit. In Ukraine, the political changes resulting from the  presidential elections may also affect issues related to national minorities in this country. The HCNM continues to be engaged in efforts to facilitate the integration process of people formerly deported from Ukraine, particularly those residing in Crimea. He had already discussed these issues in Kyiv and Simferopol during his visit in September  and offered his support in areas where his advisers can provide specific expertise. The HCNM resumed the dialogue with the new Ukrainian government during his visit to Ukraine in June . Among the issues he discussed with his Ukrainian interlocutors was a possible contribution to the government’s efforts to bring minority-related legislation into line with European standards. With regard to the integration of Crimean Tatars, the HCNM is considering initiating a new programme aimed at the promotion of mutual understanding between the communities on the peninsula. E. South East Europe In , Croatia was granted the official status of ‘candidate country’ for accession to the EU. The HCNM continued to follow up on a number of issues concerning minority rights and the return of refugees; issues also mentioned in the conclusions of the December  European Council. He visited Croatia on - February , where discussions centred on different aspects of refugee return, including repossession of property rights and reconstruction assistance, as well as reform of the judiciary. The Constitutional Law on the Rights of National Minorities (CLNM) was discussed in depth, in particular the provisions regarding education and proportional representation of minorities in administration and the judiciary. During the course of , the HCNM transferred the remaining caseload of two legal aid projects, which the HCNM had been running since  (in Knin) and  (in Eastern Slavonia), to two local NGOs working on legal aid issues (Civil Rights Project in Vukovar and Zvonimir in Split). The aim of these HCNM projects was to provide free legal aid and in-court 

The Activities of the OSCE High Commissioner on National Minorities: July 2004 – June 2005 representation, thereby contributing to the sustainable return of internally displaced persons and refugees to Eastern Slavonia and the Knin region. In Serbia and Montenegro, with his letter dated  May , the HCNM initiated discussions with the Serbian Minister for Education regarding amendments to the Serbian Law on the Foundation of the Educational System and their impact on the educational rights of persons belonging to national minorities.25 The HCNM also made his first visit to south Serbia, a region inhabited by a significant number of ethnic Albanians. As regards the education of persons belonging to the Albanian national minority, together with representatives of the Serbian Ministry of Education and of the local Albanian community, the HCNM initiated a project that aims to develop a history book in the Albanian language for primary schoolchildren in the region. The commission working on the content of the history book convened in the autumn of  and by the beginning of  had also agreed on the history curriculum, while publication of the history book is expected before the end of . From  to  February , the HCNM again visited Serbia and Montenegro, including Vojvodina and south Serbia. The main topics on his agenda were the security situation in these regions, as well as the impact of Kosovo on the situation in the western Balkans. The HCNM also discussed the implementation of the State Union Law on National Minorities, which was drafted with the assistance of his advisers. The meetings with Prime Minister Kostunica were devoted to a broad range of issues, but with a special emphasis on the situation in Kosovo. The leaders in Belgrade encouraged the involvement of the HCNM in Kosovo. In early May , the HCNM visited Kosovo, including Pristina, Mitrovica and a Serbian ‘enclave’, in order to explore possible ways in which he could be of help, particularly in the light of status talks later in the year. In his lengthy discussions with Albanian and Serbian interlocutors, both sides declared support for efforts aimed at implementing minority rights and integration. The HCNM is planning to step up his engagement in support of local and international efforts to find a peaceful solution to the Kosovo issue. In Montenegro, the HCNM has continued his engagement in the process of drafting the law on national minorities. In May , he forwarded his recommendations regarding the final draft of this law. The ultimate aim is to harmonize Montenegrin legislation with ‘union’ legislation, in particular the Constitutional Charter, as well as with international and national standards regarding minority rights protection. Significantly, the elaboration of opinions and recommendations on the Draft Law was largely achieved through cooperation with the CoE. In the Former Yugoslav Republic of Macedonia, the country’s application for EU membership and the entry into force of the Stabilisation and Association Agreement were both steps towards improved political stability in the region. The HCNM’s visit to the country from  to  May  focused on a number of interethnic issues in the context of implementation of the Ohrid Framework Agreement, in particular education and the use of languages and symbols.



See High Commissioner on National Minorities, Statement by Rolf Ekéus to the th Plenary Meeting of the OSCE Permanent Council … .



Krzysztof Drzewicki and Vincent de Graaf The HCNM remains involved in and continues to support the South East Europe University (SEE) project, set up to provide Albanian students with high-quality academic education. Enrolment has exceeded , students,  % of these being non-Albanians, and has in a short period of time significantly reduced ethnic underrepresentation in higher education in the country. SEE is already widely credited for its academic standards, as well as with being a model for interethnic integration and cooperation. The HCNM also implements the Transition Year Project, which is one of his largest projects. Currently in its eighth year, the project seeks to increase the number of ethnic-Albanian students admitted to state universities in Skopje and Bitola by providing intensive preparation courses for examinations in several subjects in the Macedonian language for Albanian-speaking students in the fourth year of secondary school. Seven Albanian high schools located throughout Macedonia are involved in the project, which saw , students enrolling in  and, in some schools, up to  % of the student body participating in the project. The Macedonian parliament adopted the law on the establishment of a new third state university in Tetovo. At the invitation of the Minister for Education, an HCNM expert sat on the founding commission of the institution. The ultimate goal is not only the creation of a university in full conformity with modern international standards, but in particular to ensure a multiethnic and multilingual approach to the teaching process at the new university and to its future relations and complementarity with the SEE University. The HCNM has also been concerned about the role some extremists might play in the process of establishing the new university and the possible consequence of creating a new centre of radical nationalism in the Balkans. Since the  conflict, there have been some disturbing developments as far as interethnic relations at primary and secondary-school level are concerned. The HCNM commissioned a study on the situation and, against this background, submitted a letter with recommendations to the Macedonian Minister for Education on  May . He looks forward to supporting a follow-up to the recommendations in cooperation with the OSCE Mission. The issue of equitable representation in Macedonia has also received the attention of the HCNM, as it is a prerequisite for NATO membership and the EU regards it as a key element of the Copenhagen criteria. The HCNM has advised the Macedonian authorities about the Draft Law on the use of flags of communities in Macedonia. The use of flags and other symbols is a subject on which he and his advisers have acquired substantial expertise over the past number of years, as it is essential that the regulation of the use of flags be designed in a way that minimizes the risk of contributing to interethnic tensions. The HCNM urged the authorities to find a proper balance as far as the use of flags of communities, in particular in the public sphere, is concerned, while treating the use of flags by private persons as a matter of freedom of expression, which should however be enjoyed bearing in mind the principle of proportionality. After years of heated debate, parliament finally adopted the law on flags on  July , thus contributing to the implementation of the Ohrid Agreement.



The Activities of the OSCE High Commissioner on National Minorities: July 2004 – June 2005 F. Turkey In February , the HCNM visited Ankara. The main objective of this visit was to follow up on his first visit of January , with the aim of starting a dialogue with the Turkish authorities on the situation of persons belonging to national minorities in Turkey. IV. Conclusion The basic philosophy behind the HCNM’s approach is that a society at peace with itself will more likely be at peace with its neighbours. To achieve this internal stability, respect for the rights of persons belonging to national minorities is essential. The integration of minorities within a multicultural society – one which respects their cultural, linguistic and religious identities and recognizes the value of diversity – is likely to be the best way of reducing tensions. Integration involves rights and responsibilities on all sides. Persons belonging to national minorities whose rights are respected and who participate on an equitable basis in the political and socioeconomic life of the state, are more likely to give their loyalty to the state and to accept their responsibilities to it. On the basis of his mandate, the HCNM uses quiet diplomacy in order to identify and seek resolution of tensions involving national minorities, which might, in his view, endanger peace. During the reporting period, the HCNM devoted considerable attention to the states of Central Asia, South East Europe and the Caucasus. Within the EU, the accession of ten new member states is likely to prove a crucial stage in the evolution of minority rights protection, particularly in Central Europe and the Baltic region. Although the new EU member states continue to be bound by the existing international standards in the field of minority protection, failure to agree on the new Constitution has prevented the EU from transposing its external engagement in the field of minority protection into its internal system. However, the HCNM continues to work closely with the EU while cooperation with the CoE in the field of minority protection has increased. Many of the causes of interethnic tensions are deep-seated and require not just political or legislative action, but also the sustained deployment of significant resources, for example in the fields of education, political participation or the media. The provision of support through programmes and projects has therefore become an important part of the HCNM’s activities. During the period under review the HCNM continued and expanded projects in all of the above-mentioned areas. New projects were set up mainly in South East Europe and Central Asia, with a particular focus on education. Finally, the HCNM continues to contribute to the development of the normative framework regarding issues that considerably affect the lives of persons belonging to national minorities and which, in his experience, have the potential to generate tensions. The group of international experts invited by the HCNM to draw up a series of recommendations on the issue of multiethnic policing is expected to conclude its work in the course of .



Asbjørn Eide*

Minorities at the United Nations: The UN Working Group on Minorities in Context

I. Introduction The United Nations Working Group on Minorities was established in  and met in June  for its eleventh session. I chaired the Working Group for ten years before I decided in  not to stand for another election to the Sub-Commission on the Promotion and Protection of Human Rights, where I had been a member for  years. Leaving the Sub-Commission implied also leaving the Working Group on Minorities, since it is a subsidiary body of the Sub-Commission, and is composed of five members (one from each of the five regions into which the UN divides the world) in addition to a great number of active observers with speaking rights: minority representatives, government representatives, international agencies and scholars. The achievements of the Working Group were not only due to their very active contributions, including numerous working papers, but also to the many minority representatives from around the world, the non-governmental organizations – where the most persistent and constructive was the Minority Rights Group International – and the many scholars who took an active part and made the Working Group rather unique in the UN system. The purpose of this short paper is to provide a brief description of the work and functions of the Working Group and to place it in the context of historical evolution of the attention given by the UN to minority issues. This paper provides only a brief summary; a more detailed reflection of the achievements including the many contributions by the participants has to wait for later. The paper starts with the early years of the UN where the main focus was on individual rights with very little support for minority issues, the emergence of a separate strand focusing on the rights of indigenous peoples (collective rights) and the differences in approach to persons belonging to minorities (individual rights), with a new

*

Senior fellow and former Director, Norwegian Centre for Human Rights, Oslo; Guest Professor, University of Lund, 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 4, 2004/5, ISBN 90 04 14953 8, 615-636. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Asbjørn Eide sense of urgency on minority issues since , not only due to minority concerns, but also to consideration of peace and stability. The paper reviews the emergence of the Working Group on Minorities and presents some of the main issues examined by that group, including issues related to effective participation and to education. A second purpose is to compare the functions and activities of the Working Group with other international bodies and mechanisms dealing with minority issues both globally and regionally. II. The Historical Background A. The Legacy of the League of Nations and the United Nations’ Initial Reluctance1 The minority protection system of the League of Nations was intended to safeguard against the possible negative consequences with the implementation of the principle of national self-determination in Central and Eastern Europe. The principle had been included as one of the  points that President Woodrow Wilson had declared as the aims of the future peace settlements when the United States entered the war raging in Europe. The right of nations to self-determination was intended to guide the dissolution or partial dismemberment of the losing parties in World War I, the Ottoman Empire, the Austro-Hungarian Empire and the German ‘Reich’. A mosaic of different ethnic groups lived interspersed with each other and required a strengthened system of minority protection. A number of minority treaties or unilateral commitments were made after World War I.2 This was still not a general system of minority protection, but applied only to a small number of states mainly in Central and Eastern Europe, which they increasingly resented and later refused to apply. Thus, no general minority protection system was established. Nevertheless, it became the forerunner of a more general minority system for two reasons: a) Because most of the treaties and declarations were modelled on the Polish/German treaty (see above). As a consequence, some general principles emerged out of particular commitments; b) Since the League of Nations was entrusted with the task of receiving and making decisions in regard to petitions claiming that minority rights under the treaties had been violated, a case law emerged, which had some significance for the post-World War II developments. At the time of the League of Nations, human rights had not formed part of international law. The only instruments available to protect members of minorities from 





The history of minority protection and the evolution within the United Nations is discussed, i.a., in Patrick Thornberry, International Law and the Rights of Minorities (Clarendon Press, Oxford, ). Five states concluded treaties with the principal Allied and Associated Powers (the victors of World War I). The five states were Poland (Versailles ), Czechoslovakia and Yugoslavia (St. Germain-en-Laye ), Hungary (Trianon ) and Turkey (Lausanne ). Provisions on minorities were also included in the peace treaties with Austria, Bulgaria, Hungary and Turkey. Five states undertook obligations on the protection of minorities in declarations made before the League of Nations as a condition for the admission to the League: Albania (), Lithuania (), Latvia (), Estonia () and Iraq ().

Minorities at the United Nations:The UN Working Group on Minorities in Context discrimination were the minority treaties where applicable. After World War II, on the other hand, a general human rights system was created, which could be used by all individuals whether they belonged to minorities or majorities. This was an entirely novel feature of international law; some have even argued that it constituted a revolutionary change of international law and relations. While it is now generally accepted that rights of persons belonging to minorities form part of the international system of human rights, this has not always been so. There is no reference to such rights in the Universal Declaration of Human Rights. The issue was extensively debated during the drafting of the Declaration, and several proposals for articles on minorities were presented by the United Nations Secretariat and by the delegations of Denmark, Yugoslavia and the USSR, but these did not find majority support. When the Commission on Human Rights started its work on the Declaration in , the Secretariat presented a draft containing a provision based on the pre-war experiences with minorities, recognizing the rights of persons belonging to certain minorities to maintain their own schools and religious and cultural institutions, and to have resources made available for that purpose, and to use their own language in the press, public meetings, and the courts and tribunals of the state.3 The Commission transferred the draft to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, which had been established earlier the same year with the mandate to examine what provisions should be adopted in defining the principles to be applied in the field of the prevention of discrimination on grounds of race, sex, language or religion, and in the field of the protection of minorities, and to make recommendations to the Commission on urgent problems in these fields. The Sub-Commission in  proposed the following draft text for inclusion in the Universal Declaration on Human Rights: In States inhabited by well-defined ethnic, linguistic or other groups which are clearly distinguished from the rest of the population, and which want to be accorded differential treatment, persons belonging to such groups shall have the right, as far as is compatible with public order and security, to establish and maintain their own schools and cultural or religious institutions, and to use their own language and script in the Press, in public assembly and before the courts and other authorities of the State, if they so choose.4

It turned out, however, that the majority of members in the Commission on Human Rights and in the General Assembly were opposed to the inclusion of any reference to the protection of minorities in the Universal Declaration, which is why there is no such provision in the Declaration. The General Assembly in  adopted the Universal Declaration where no minority rights are included, and gave its justification for this deliberate omission in resolution  C(III):  

Art.  of the Secretariat draft, in E/CN./ (), Annex A, . Ibid., (Text Proposed by the Sub-Commission on Prevention of Discrimination and Protection of Minorities).



Asbjørn Eide The General Assembly, considering that the United Nations cannot remain indifferent to the fate of minorities, Considering that it is difficult to adopt a uniform solution for this complex and delicate question, which has special aspects in each State in which it arises, Considering the universal character of the Declaration of Human Rights, Decides not to deal in specific provisions with the question of minorities in the text of the Declaration, Refers to the Economic and Social Council the texts submitted … and requests the Council to ask the Commission on Human Rights and the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities to make a thorough study of the problem of minorities, in order that the United Nations may be able to take effective measures for the protection of racial, national, religious or linguistic minorities.

The Sub-Commission therefore, in , identified three steps required in order to carry out the ‘thorough study’ requested by the Assembly: (a) definition of minorities; (b) classification, according to categories of protection required; and (c) collection of information about the situation of minorities. The Sub-Commission also proposed that a special provision be inserted into the Covenant on Civil and Political Rights (CCPR), which was then being drafted. The Sub-Commission also proposed the draft that became Article  of the CCPR, which was then being drafted. It reads: “Persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language”.5 This was a substantially weaker approach than the one taken by the Sub-Commission at its first session, in two regards. First, the right was vested in individuals, not groups, and second, it imposed a purely passive obligation on states. Other proposals made by the Sub-Commission were either ignored or rejected. The Commission and the Economic and Social Council (ECOSOC) turned down proposals for the collection of information and for interim measures of protection.6 They evaded those issues by asking for further work on the definition of minorities, to which the Sub-Commission responded in  by pointing out that it had repeatedly presented proposals for definitions on which neither the Commission nor ECOSOC had commented.7 There thus seemed little point in continuing work on minorities and the SubCommission let it lapse, having achieved nothing more than the insertion of Article  in the CCPR.

 





Ibid., paras. -. “Report of the Commission on Human Rights in ” [Sixth Session], E/ (), paras. -; “Report of the Commission on Human Rights in ”, E/ (), paras. -. Sub-Commission Res. F (), pream. para. ; see also “Report of the Commission on Human Rights in ”, E/ (), paras. -.

Minorities at the United Nations:The UN Working Group on Minorities in Context B. Restarting the Minority Concern It was not until several years after the CCPR was adopted in  that the SubCommission considered it feasible to restart its work on minorities. In , it appointed Francesco Capotorti as Special Rapporteur to undertake a study on the implications of Article  of the Covenant.8 The resulting study, which was completed in , remains the most thorough UN report on the subject.9 Reflecting on the problems that had been faced in the past, Capotorti discussed in the preface of the study some of the obstacles to genuine acceptance by states of the idea of special protection for minorities: . Any international system may be viewed as a pretext for interference in states’ internal affairs; . The usefulness of a uniform approach in such profoundly different situations is questionable; . Preservation of the identity of minorities is seen as a threat to state unity and stability; . The need for special protection could be used to justify reverse discrimination. ‘In short’, he concluded, “governments would prefer to have a free hand in their treatment of minorities”.10 His study had three main recommendations: to adopt more detailed standards to supplement Article , to develop new international methods for implementation; and to adopt bilateral or regional arrangements.11 The time was not yet ripe, however. The only real follow-up was an effort by the Commission to draft a declaration on the rights of minorities,12 which started in  but which until  hardly progressed at all. It only obtained momentum in  as a result of the emerging ethnic conflicts in Central and Eastern Europe. Apart from the general reluctance to adopt minority rights, one of the stumbling blocks was the question of the definition of minorities. In  the Commission requested the Sub-Commission to define the term ‘minority’13. The Canadian member of the Sub-Commission, Jules Deschênes, presented a comprehensive analysis in , in which he suggested that a definition should exclude (a) indigenous populations, (b) non-citizens, and (c) oppressed majorities. His proposed definition of minority was the following:14 A group of citizens of a State constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, cultural or religious characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact and in law.       

E/CN./Sub.//Add.- (). Francesco Capotorti, The Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities (Centre for Human Rights, Geneva, ). Ibid., iv. Ibid. See E/CN.// and the Final Report of the Commission’s Working Group contained in E/CN.//. CHR Res./, para. . Jules Deschênes, “Proposal Concerning a Definition of the Term ‘Minority’”, E/CN./ Sub.//, para. .



Asbjørn Eide In the debate that followed,15 points of disagreement and doubt were expressed on nearly all aspect of the definition. Members argued that the definition could not be limited to citizens. There were also other aspects that turned out to be controversial. The study was therefore passed on to the Commission by a resolution making it clear that there were different opinions in the Sub-Commission and that the definition proposed by Mr. Deschênes “did not command general approval by the Sub-Commission”.16 C. Taking a Separate Track: The Rights of Indigenous Peoples On one point, however, there was broad consensus: that the rights of indigenous peoples should be treated separately from minorities. Indigenous peoples are generally understood to be the descendents of the populations that inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries. Furthermore, indigenous peoples, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.17 Among indigenous peoples are: the Amerindians or native Americans on both the North and South American continents; the Inuits, Samis and other groups who have settled in Arctic regions from Alaska and Canada through Northern Scandinavia and Northern Russia including Siberia; the Australian Aborigines, and the Maoris of New Zealand. Many indigenous peoples exist both in Africa and in Asia, but there is controversy over the scope of the definition. In many parts of the world, indigenous peoples have been dispossessed of their original lands and resettled in places with different environmental conditions. This has meant their being deprived of such basic resources as water and natural food, as well as the loss of their sacred lands and sites. Such forced removal has disrupted the lives of indigenous peoples, destroying their social and legal orders in the process, and often leading to hunger, disease, despair and death. Indigenous peoples have been marginalized in the states where they live and frequently subjected to severe discrimination. In , a Working Group on Indigenous Populations18 was set up. It was the first international forum allowing for the continuous participation of representatives of indigenous peoples. The Working Group’s initial mandate was (a) to review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous peoples; and (b) to give special attention to the evolution of standards concerning the rights of indigenous peoples, taking into account both the similarities and   





See “Report of the Sub-Commission in ”, E/CN.//, paras. -. Sub-Commission Res./, pream. para. . These are the terms in Article (b) of International Labour Organization Convention  () concerning indigenous and tribal peoples in independent countries. This is not a binding definition for the United Nations, but generally captures what is intended to be included in the category. Normally it is also added that they must be non-dominant in the national society as a whole. ECOSOC Res./. Note that in the resolution, and also otherwise in UN official language, the concept used is ‘indigenous populations’, while in the present chapter ‘indigenous peoples’ is used. This is deliberate.

Minorities at the United Nations:The UN Working Group on Minorities in Context the differences in the situations and the aspirations of indigenous peoples throughout the world.19 The unique feature of the standard-setting process within the Working Group was that it was carried out with the full participation of the intended beneficiaries, the indigenous peoples, rather than being performed solely by governments and experts. Since then nothing comparable has happened in other standard-setting exercises. In parallel to the efforts of the Sub-Commission, the International Labour Organization (ILO) started an effort to revise Convention No.  in order to make it more compatible with the contemporary aspirations of indigenous peoples. In , these efforts resulted in the adoption of ILO Convention No.  on Indigenous and Tribal Peoples in Independent States. This Convention uses the term ‘peoples’.20 The expression is strongly preferred to ‘population’, the term used in the  Convention (No. ). During the drafting of the ‘new’ Convention (No. ), governments initially resisted the use of the term ‘peoples’, due to the fear that it would be used to assert the right of peoples to self-determination. The compromise found by the ILO was to employ the word ‘peoples’, but to include a disclaimer in Article () to the effect that: “its use shall not be construed as having any implications as regards the rights which may attach to the term under international law.” The Sub-Commission’s Working Group on Indigenous Populations finished in  its draft declaration on indigenous peoples’ rights.21 It was adopted by the Sub-Commission in plenary in  and transferred to the Commission on Human Rights. Since then, debate on the draft declaration has continued in a working group of the Commission, where observers representing the indigenous peoples have been given the right to participate. Two issues remain to be resolved, which is why the Commission at the time of the writing of this article has not completed its work. The main controversial issues are the scope and meaning of the term ‘self-determination’ as applied to indigenous peoples, and the scope of control by indigenous peoples over natural resources in the areas in which they live. III. Towards the Establishment of the Working Group on Minorities A.

The Study on Peaceful and Constructive Approaches

In  the Sub-Commission decided to request authorization to initiate a study on peaceful and constructive approaches to situations involving minorities. The study was

 



ECOSOC Res./. The definition is given in Article () of the Convention. The full text is found in Office of the United Nations High Commissioner for Human Rights (ed.), Human Rights: A Compilation of International Instruments Vol. I (United Nations Publication, New York and Geneva, nd ed. ), -. The draft text can be found as annex to Sub-Commission resolution /, in the report of the forty-sixth session of the Sub-Commission, E/CN./Sub.//, -.



Asbjørn Eide entrusted to the present author and was carried out over a period of three years. The final report was presented to the Sub-Commission in .22 The thrust of the study in  was not solely to discuss minority rights, but to explore good guidelines for constructive relationships between the different groups in society. It contained an analysis of the dynamics of ethnic conflicts, pointing out that responsibility should be placed, not only on governments, but also on overzealous ethnic conflict entrepreneurs, sometimes aided and abetted by their kin abroad and by diaspora groups settled in some of the Western countries. I argued that peaceful resolution of conflicts required an emphasis on at least three levels: (a) ensuring more effectively the rights of the individual human being, (b) recognizing and protecting the existence and identity of minority groups, but also (c) taking fully into account the concerns for public order in society as a whole. There may be conflicts between these different concerns; the task was and is to seek an appropriate balance between them. Three aspects were highlighted in that analysis: (a) the growing emphasis on equality and non-discrimination in the enjoyment by everyone of human rights; (b) the emerging international attention to minority protection, which was then still at its beginning; and (c) a renewed and intensified discourse on the right of peoples to selfdetermination and the relevance of this to minority protection. During the period in which this study was being prepared, the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities was finally adopted by the General Assembly in .23 The study proposed, as one of its recommendations, the establishment of a working group within the United Nations to promote the implementation of the  Declaration. This was later endorsed by the Sub-Commission and the Commission on Human Rights. It was initially set up to meet one week every year for a period of three years,24 but has since been authorized to continue until the Commission should decide to dissolve it. B. The Functions and Composition of the Working Group 1. The Mandate and Work: Its mandate is (a) to review the promotion and practical realization of the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities;25 (b) to examine solutions to problems involving minorities, including the promotion of mutual understanding between and among minorities and 



 



Asbjørn Eide, “Peaceful and constructive approaches to situations involving minorities”, UN document E/CN./Sub.// and add.-. Addition  contains the recommendations of the study. The drafting history of the Declaration is described in Patrick Thornberry, “The UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. Background, Analysis and Observations”, in Allan Philips and Alan Rosas (eds.), Universal Minority Rights (Åbo Akademi University Institute of Human Rights, Åbo, ), -. Sub-Commission resolution /. General Assembly res./, adopted  December .

Minorities at the United Nations:The UN Working Group on Minorities in Context governments; and (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. 2. Participation in the Working Group and its Functions: The first session was held at the end of August/beginning of September ,26 and the Working Group has since met annually for one week. Four categories of observers have been encouraged to participate: (a) government observers who could provide the Working Group with information on steps taken to promote the principles of the Declaration, since one function of the Working Group was to share experiences on that matter; (b) observers representing the United Nations and regional bodies and agencies who could provide the Working Group with information on their activities in the field; (c) observers representing international and national non-governmental organizations that deal with minority issues as part of their mandate; (d) scholars and professional researchers attached to academic institutions who carry out research in the field of minorities and group accommodation and who could provide the Working Group with scientific insight into the issues it was exploring.27 The issues relating to minorities and to group conflicts within states deeply affect the work of several of the specialized agencies and other UN bodies. The impact of these conflicts on the flow of refugees and internally displaced persons is obvious, and affects the work of the United Nations Development Programme (UNDP), International Committee of the Red Cross (ICRC), the World Health Organization (WHO),28 and others. The issues connected to education and culture, and many other aspects relating to minorities, are of close concern for UNESCO and have been recognized as such for quite some time. The situation of the children of vulnerable and marginalised minorities is of concern to a wide range of agencies, in particular UNICEF. Great benefit has been achieved by improving contacts and reciprocal flow of information between the agencies, the High Commissioner on Human Rights, and the Working Group. During the first sessions, several of the agencies provided the Working Group with written information of considerable usefulness for the latter’s work. The Working Group serves as a forum for dialogue and the exchange of ideas, information and experiences that lead to proposals for constructive group accommoda 



Report of the Working Group on Minorities at its First session, August - September , E/CN./Sub.//. Observers from  governments participated in the first session and  in the second. The number of non-governmental organizations including minority representatives increased substantially from the first session (around ) to the second session (around ). Ten scholars also took part in the second session. Seven UN and regional organizations or bodies were also represented in the second session. The number of governments participating declined in the later years; so did the number of UN organizations, while the number of NGOs and scholars remained high during the ten-year period. At the tenth session () the numbers were as follows:  government observers,  UN and regional organizations,  NGOs including minority organizations and  scholars and young researchers. It faces the special health problems of minorities in a number of ways, including their own approaches to medical treatment.



Asbjørn Eide tion and further measures to promote and protect the rights of minorities. It examines steps taken at the national, bilateral, regional and global level; the causes of problems affecting minorities; issues relating to forcible displacements of populations and the return of persons who have been displaced; the facilitation of dialogue between and among minorities and governments; the question of prevention and early warning mechanisms, and patterns of media presentation and the role of the media in promoting mutual tolerance and understanding. Much emphasis is placed on the need for appropriate, multicultural education, not only for minorities, but also for majorities. The Working Group has placed emphasis on arriving at solutions to problems involving persons belonging to minorities in order to promote their characteristics and thereby contribute to mutual tolerance, understanding and peace. The group has pointed out that the preamble to the Declaration underlines that the promotion and protection of the rights of persons belonging to minorities contribute to the political and social stability of states in which they live. The Working Group has explored ways in which national, regional and international monitoring mechanisms could be established and strengthened, as a means to record the progress made in promoting and protecting the rights of persons belonging to minorities, and to identify the problems encountered. The Working Group provides a framework within which non-governmental organizations, members of minority groups or associations, academics, governments and international agencies may meet to discuss issues of concern and attempt to seek solutions to problems. A great number of working papers and conference room papers have been prepared both by the members of the Working Group and the other participants, including leading scholars in the field. An incomplete list of such papers and reports from seminars is found in the appendix.29 These meetings and the dialogue they have fostered have led to greater awareness of the differing perspectives on minority issues and consequently to increased understanding and mutual tolerance among minorities and between minorities and governments. The Working Group as a forum has facilitated the analysis and understanding of the application, meaning, and scope of the principles contained in the Minorities Declaration. It should be kept in mind, however, that the Working Group is neither a monitoring body in the formal sense of the word, nor a mechanism for handling complaints. Consequently, there are still serious gaps in ensuring compliance with minority rights at the global level. It must be recognized that the part of the mandate that was to examine solutions to problems involving minorities, including the promotion of mutual understanding between and among minorities and governments, did not function as well as hoped. There are several reasons for this, the first being that the Declaration is a soft, non-binding document without formal duties of implementation or reporting, and the second being that the Working Group format is not suited to an intensive interaction between representatives of minorities and governments with the intermediary of the Working Group members. In these respects, the regional mechanisms of OSCE and the Council of Europe are vastly superior to the UN Working Group. 



Documents presented to the Working Group can be found on the following web address: .

Minorities at the United Nations:The UN Working Group on Minorities in Context It should also be noted that the Working Group has no formal authority to visit countries to explore the implementation in the field. It has visited two countries that invited the Working Group (Mauritius and Finland), and the visits proved to be very constructive, but formal and practical reasons made it impossible to make this a frequent occurrence. The formal reason is that no provision has been made for such visits in the mandate of the group; a major practical reason is that there are no budgetary appropriations within the United Nations for such visits. The situation has therefore been that minorities have presented their information and grievances, but very few governments have responded in a meaningful way to their statements. Some positive examples do exist, but they are not many. The main achievements of the Working Group have therefore been those related to the elaboration of principles and guidelines for minority protection, based on the text of the Declaration. 3. Substantive issues – The question of effective participation: Under the major headings set out above, the agenda of the Working Group includes a wide range of subjects. Issues discussed under the item on the promotion and practical realization of the Minorities Declaration have included a review of the status of the Declaration in various countries and the meaning of specific rights set forth in the Declaration. One of the Working Group’s activities during its first few sessions was the preparation and adoption of a commentary to the Declaration. Other specific topics have included language rights, intercultural and multicultural education, and the right to participate in political and public life. The Working Group has given considerable attention to the question of effective participation, drawing on a seminar held at ECMI in April , and the Lund recommendations of May . In its report of , the Working Group highlighted the following points: (a)

(b)

(c)

(d)

Effective participation, as provided for in article . and . of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, can provide channels for consultation between and among minorities and Governments, serving as means for resolving disputes while sustaining diversity and contributing to the stability of society; Minorities should be involved at the local, national and international levels in the formulation, adoption, implementation and monitoring of standards and policies affecting them; The different types of minority groups and their various needs and aspirations (e.g. dispersed versus compactly settled groups; small minorities versus large minorities; ethnic versus religious minorities; old versus new minorities) require identification and the most appropriate ways to create conditions for their effective participation in each case adopted; Effective participation requires representation in legislative, administrative and advisory bodies and, more generally, in public life. States should also establish advisory or consultative bodies involving minorities within appropriate institutional frameworks. Such bodies, or round tables, should be attributed political weight and consulted on issues affecting the minority population;



Asbjørn Eide (e) (f )

(g)

(h)

There should be equal access to public sector employment across the various ethnic, linguistic and religious communities; Citizenship remains an important condition for full and effective participation. Barriers to the acquisition of citizenship for members of minorities should be reduced. Forms of participation by resident non-citizens should also be developed, including local voting rights after a certain period of residence and inclusion of elected non-citizen observers in municipal, regional and national legislative and decision-making assemblies; Decentralization of powers based on the principle of subsidiarity, whether called self-government or devolved power, and whether the arrangements are symmetrical or asymmetrical, would increase the chances of minorities to participate in the exercise of authority over matters affecting themselves and the entire societies in which they live; Public institutions should not be based on the basis of ethnic or religious criteria. Governments at local, regional and national levels should recognize the role of multiple identities in contributing to open communities and in establishing useful distinctions between public institutional structures and cultural identities.

There are several other conditions for effective participation, including appropriate language policies, multicultural and intercultural education in line with the requirements of the Convention on the Rights of the Child, and appropriate media policies. The Working Group has also addressed the question of education in plural societies, and has noted that questions relating to multicultural and intercultural education are of pivotal importance. These aspects were discussed at a seminar held by the Working Group in collaboration with International Service for Human Rights and the Minority Rights Group in  and at a seminar held in Montreal in September . It was pointed out that education must have two facets: on the one hand, preservation of collective identity accompanied by acceptance of diversity as an asset and on the other hand, universal education leading to understanding and tolerance. In educational curricula, the history and culture of all groups within society need to be protected, and participation of all groups in educational policy and programmes, the teaching of the mother tongue, the need for recruitment of teachers from minority communities, the integration of intercultural education into mainstream programmes of initial and continuous education of teachers, and the role of reconciliation processes through education, were all addressed at those seminars and by the Working Group itself. Experience has shown that in societies where different national, ethnic, religious or linguistic groups coexist, the culture, history and traditions of minority groups have often been neglected and the majorities are frequently ignorant of those traditions and cultures. Where there has been conflict, the minority groups’ culture, history and traditions have often been subject to distorted representations, resulting in low self-esteem within the groups and negative stereotypes towards members of the group on the part of the wider community. Racial hatred, xenophobia and intolerance sometimes take root. To avoid such circumstances, there is a need for both multicultural and intercultural education. Multicultural education involves educational policies and practices 

Minorities at the United Nations:The UN Working Group on Minorities in Context that meet the separate educational needs of groups in society belonging to different cultural traditions, while intercultural education involves educational policies and practices whereby persons belonging to different cultures, whether in a majority or minority position, learn to interact constructively with each other. Article () calls for intercultural education, by encouraging knowledge in the society as a whole of the history, tradition and culture of the minorities living there. Cultures and languages of minorities should be made accessible to the majorities as a means of encouraging interaction and conflict prevention in multiethnic societies. Such knowledge should be presented in a positive way in order to encourage tolerance and respect. History textbooks are particularly important in this regard. Bias in the presentation of history and neglect of the contributions of the minority are significant causes of ethnic tension. UNESCO has concerned itself with the need to eliminate such prejudices and misrepresentations in history textbooks, but much remains to be done. Article () also emphasizes the complementary duty to ensure that persons belonging to minorities gain knowledge of the society they live in as a whole. This provision should counteract tendencies towards fundamentalist or closed religious or ethnic groups, which can be as much affected by xenophobia and intolerance as the majorities. The overall purpose of Article () is to ensure egalitarian integration based on non-discrimination and respect for each of the cultural, linguistic or religious groups that together form the national society. The formation of more or less involuntary ghettos where the different groups live in their own world without knowledge of, or tolerance for, persons belonging to the other parts of the national society would be a violation of the purpose and spirit of the Declaration. A concern similar to that of Article () is expressed in the International Convention on the Elimination of All Forms of Racial Discrimination (Article ) and in the Convention on the Rights of the Child (Article ). III. Comparing the UN Working Group with Regional Mechanisms The urgency in adopting standards and setting up institutions was caused by the volatility and violence of the open and latent ethnic conflicts in Central and Eastern Europe as well as in Africa (Rwanda) and Asia (Sri Lanka and others). This influenced the UN to bring about its working group, the Organization of Security and Cooperation in Europe to set up a special office of High Commissioner on National Minorities, and the Council of Europe to adopt its Framework Convention on the Protection of National Minorities and to create for that purpose the Advisory Committee on National Minorities (ACFC). The role of these three institutions in responding to the minority/majority challenges was quite different for each of them, however. The pivotal event was the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Cooperation in Europe (CSCE). On  June , it adopted its concluding document, which from paragraphs  to  deals extensively with minority rights and state commitments for their protection. The CSCE (renamed the OSCE since ) established the special office of High Commissioner on National Minorities (HCNM) during the Helsinki summit meeting in . Its mandate is to provide early warning and, as appropriate, early action with regard to ten

Asbjørn Eide sions involving national minority issues that have the potential to develop into a conflict within the OSCE area, affecting peace, stability or relations between participating states and requiring attention by the Senior Council of the OSCE. The office was held for nearly a decade by Max van der Stoel, who achieved considerable success in many situations that might have erupted into open violence. The High Commissioner’s task is conflict prevention, not the protection of minorities, but in practice he and his office have made major contributions to increase the awareness and acceptance of minority rights and to develop practical guidelines for the implementation of such rights. The main concern was initially perceived to be to prevent latent conflicts from escalating into open violence with possible intervention from neighbouring countries, and the main function of the HCNM was therefore conflict prevention in concrete cases where tensions between majorities and minorities were high, but where large-scale open violence had not yet erupted. The intervention of the HCNM has been described as a ‘quiet diplomacy in action’ and consists in a dialogue with the parties and a facilitation of their contacts with each other. The High Commissioner is not a commissioner or ombudsperson for minorities and their rights. He provides good offices or mediation between majorities and minorities to find a constructive solution that can reduce the tension. In so doing, he does take into account and brings to the attention of the governments concerned the established and emerging international minority rights. The main normative instrument to which he can refer is the section on minority rights (paras.  to ) contained in the Document of the Copenhagen Meeting of the Conference on the Human Dimension meeting of the CSCE (now OSCE) in . His task is not, however, to monitor the implementation of that political document, but to use it as a guideline in his effort to seek constructive solutions in tensions between minorities and majorities. The Copenhagen document is on many points vague and general, and his office has therefore encouraged a group of experts to draw up a more detailed set of recommended guidelines for majority-minority relations: the Hague Recommendations on educational rights of minorities, the Oslo recommendations on linguistic rights, the Lund recommendations on the effective participation of national minorities in public life, and the Warsaw guidelines on the use of minority languages in the broadcast media. Within the Council of Europe, the European Charter for Regional and Minority Languages was adopted in , followed in  by the European Framework Convention for the Protection of National Minorities, greatly influenced by the  Copenhagen document of the CSCE and the UN Declaration of . The Framework Convention entered into force in . It has now  European states parties. Article  proclaims that the protection of national minorities is an integral part of international protection of human rights. The Advisory Committee on the Framework Convention on National Minorities has been established with the task of examining the reports that the participating states are required periodically to submit and to formulate the opinion of the Advisory Committee on the implementation by the state party of its obligations under the Framework Convention. The Advisory Committee has also established the practice of visiting each of the participating states, conducting interviews with minorities, non-governmental organizations and government officials. While such visits can



Minorities at the United Nations:The UN Working Group on Minorities in Context be undertaken only upon the invitation to do so from the government concerned, in nearly all cases such invitations have been forthcoming. Unlike the HCNM, the main purpose of the ACFC is to monitor the implementation of the Framework Convention. It is the first and only legally binding multilateral convention on minority rights. It is written with much greater detail than the UN Declaration, and in turn provided much of the inspiration for The Hague, Oslo and Lund recommendations, and has received a remarkably high number of ratifications. The Advisory Committee consists of independent experts who meet in closed meetings to examine the state reports. In most cases a delegation from the ACFC visits the country, meeting with minority representatives and civil society organizations as well as the relevant governmental agencies at national, regional and local level, before it completes its opinion on the country concerned, for submission to the Committee of Ministers with a set of draft country-specific recommendations. The major function of the ACFC is therefore the intensive dialogue with the states through its detailed examination of the minority situation in each of the ratifying states in Europe. The UN Working Group on Minorities functions quite differently. It can best be described as an open forum for discussing current developments worldwide in the treatment of minorities and as a collective think-tank exploring further measures for better implementation of minority rights. By the establishment of the Working Group, minorities were empowered to bring their grievances and concerns to an international forum, and it is this function as a forum and as a think-tank which has characterized its work. It opened up the possibility for a dialogue with governments with the Working Group as facilitator. It has an important function in addressing the highly sensitive issues of peaceful and constructive group accommodation and pluralism inside states. What makes the Working Group almost unique in the UN system is that it has adopted a very flexible approach in order to encourage wide participation in its sessions, particularly by its openness to participation by minority representatives, as described above under II.B.. While the Working Group formally consists of only five members from the Sub-Commission, minorities are also represented, nominally as observers, but in practice the observers have full speaking rights and can submit proposals. Access is very informal. Any representative of minority groups can through a written request be given accreditation to participate in the sessions, and over the years they have participated in substantial numbers. NGOs concerned with minority issues also participate as observers, as do governments and intergovernmental organisations such as UN bodies and specialized agencies. An even more special feature of the Working Group is its openness to participation by scholars and researchers in the field of minority rights. The Working Group was established to explore constructive ways to deal with situations involving minorities, drawing on the guidelines contained in the UN Minority Declaration. It is neither a monitoring body in a formal sense of the word, nor a mechanism for handling complaints. Minority issues are still far too sensitive at the global level to make such functions possible; regional mechanisms in Europe have far outpaced the United Nations in these regards.



Asbjørn Eide A. The Geographical Scope of Attention The mandate of the HCNM covers in principle the whole area of the OSCE, from Vancouver to Vladivostok. In practice, limitations in the substance of the mandate have meant that the High Commissioner has been restricted to a limited number of countries in Central and Eastern Europe and Central Asia. This follows on the one hand from the fact that the conflict prevention task is to deal with situations that may escalate into serious conflict, and on the other hand that situations where serious violence is already taking place are explicitly excluded from the mandate. The Council of Europe Framework Convention covers all ratifying states of Europe, and the ACFC has therefore dealt with situations from the Russian Federation and Azerbaijan in the East to Ireland in Western Europe. The UN Minority Declaration covers all the countries in the world, and the UN Working Group is therefore open to representatives of minorities as well as government observers from any state. In the initial stage, most of these observers came from Europe, but later there has been an increasing participation from Africa and Asia, due to the efforts of the International Minority Group (an NGO) to raise funds for their participation and training in Geneva. The Working Group has been confronted with fewer minority situations in the Americas. The main problems there are related to the indigenous peoples, which are addressed by UN Working Group On Indigenous Peoples (UNWGIP). In recent years, however, representatives of Afro-Americans have attended the Working Group on Minorities, which has sought to examine in more detail their particular problems and needs. There are no explicit regional instruments for minority protection outside Europe. This is regrettable, taking into account that while the issues are often in many ways different, they are no less urgent in Africa, Asia, the Pacific or in the Americas. The Working Group has prepared a series of regional seminars in collaboration with other institutions. One of these, held in La Ceiba, Honduras, focused on the situation of Afro-descendants in the Americas. The primary concern of Afro-descendants is to create awareness of the discrimination to which they have often been subjected and to develop a comprehensive agenda for the elimination of that discrimination and its after-effects. The Working Group has collaborated with the Sub-Commission’s Working Group on Indigenous Populations in organizing three subregional seminars in Africa: one for West Africa in Kidal, Mali; a second for Central and Southern Africa in Arusha, United Republic of Tanzania; and a third in Gaborone, Botswana. These seminars have given considerable insight into the special issues concerning minority and indigenous situations in Africa. One significant issue is the relationship between pastoral people and settled agriculturalists, which affects conceptions of individual versus collective control over land and natural resources. Another set of problems applies to groups that rely on hunting and gathering is that they are threatened by the growing impact of game-hunting tourism. In December , the Working Group organized a seminar for South-East Asia, held in Chiangmai, Thailand, with participation by minorities from nearly all the countries in the region. Among the insights derived from the seminar was the complicated 

Minorities at the United Nations:The UN Working Group on Minorities in Context relationship between the rice-growing farmers, mainly settled in the valleys, and the forest and mountain minorities whose way of life was considerably different from that of the dominant majorities. B. The Commonality and Differences among Substantive Issues Affecting Minorities Most of the problems facing minorities are the same throughout the world, but significant differences in priorities exist. The concerns held by national or ethnic, religious and linguistic minorities can be described as follows: – Equal treatment of everyone as individuals in the enjoyment of human rights, which is a common concern to all of them; – Preservation and development of identity in otherwise integrated societies, which is a matter of high priority for some of them, but of lower importance for others, until after they have received proper equal protection of their ordinary human rights; – Effective participation while maintaining their own identity. General, effective participation in the affairs of the country as a whole as well as in matters affecting the group is of high importance for large and closely knit minorities, while smaller or more dispersed groups are concerned mainly with effective participation in decisions on matters concerning them; – Access to or control of land. For some territorially localized minorities, great importance is given to effective control over their land and natural resources and effective influence on development projects or activities, particularly when they have a way of life and a way of using natural resources that differ from those of the dominant society. One of the main priority tasks is to prevent attacks and other forms of ill-treatment against individual members of minorities, to stop systematic discrimination against them, and to react against exclusion of minority representatives from national and local political decision-making, including discriminatory rules concerning access to citizenship. These issues arise in all parts of the world. Language rights are of great significance among the minority issues in Europe, but are less prominent in Africa, Asia or the Americas – with important exceptions such as the language rights issues, which lie at the origin of the Sri Lanka conflict between the Sinhala and Tamil ethnic groups. When we move outside Europe, another set of issues are more prominent: the rights to land and natural resources and the direction and content of development policies. Claims have been brought to the UN Working Group about the appropriation by members of the majority or the government of land traditionally occupied by members of minority communities; and about national development policies and practices that undermine the existence, custom and lifestyle of many minorities. Within the United Nations, a clear distinction has been made between the rights of persons belonging to minorities and the rights of indigenous peoples. As noted above, a separate Working Group on the rights of indigenous populations was set up already in  with the dual purpose of examining developments affecting indigenous peoples in all parts of the world and to prepare a draft declaration on the rights of these peoples. The 

Asbjørn Eide declaration was completed in  and transferred to the UN Commission on Human Rights in . It has now been lingering in the Commission for a decade with no immediate conclusion at hand. In the meantime, the Permanent Forum on Indigenous Issues was established in  by the Economic and Social Council (ECOSOC). Ten countries have ratified the ILO Convention  “Concerning Indigenous and Tribal Peoples in Independent Countries”, which was adopted in . The distinction between indigenous peoples and minorities is relatively easy to draw in the Americas and in countries such as Australia and New Zealand. It is much more difficult in Africa and Asia to separate ‘indigenousness’ from minority positions. The UN Working Group has therefore held seminars in Africa and Asia, sometimes in collaboration with the UNWGIP. As long as no African or Asian state ratifies the ILO Convention and the draft declaration on the rights of minority peoples lingers on in the UN without being adopted, the only instrument that African and Asian groups can draw on is the UN Minority Declaration, in addition to provisions that can be found in relevant conventions to which the state is a party. The Framework Convention of the Council of Europe makes no distinction between indigenous peoples and minorities. For indigenous peoples living in countries that have ratified ILO Convention , that Convention gives more protection than the Framework Convention. The Sami living in Norway have therefore insisted that the Framework Convention is not applied to them. In other countries where indigenous peoples live, such as in Sweden, Finland and the Russian Federation, the Framework Convention is applicable to them as well as to (other) minorities. Issues regarding indigenous peoples have not been significant in the work of the High Commissioner for National Minorities; probably those issues have not given rise to tension serious enough to require conflict prevention measures. The monitoring of the implementation of the FCNM by the ACFC is therefore the main mechanism available to indigenous peoples living in European countries that have not ratified ILO Convention . IV. Conclusions and Future Prospects At the outset in , the dominant position in the United Nations was to concentrate on individual human rights and to focus their efforts on the prevention of discrimination. Over time, however, this has been supplemented with institutions and monitoring procedures to ensure to minorities and indigenous peoples their right to preserve and develop their own identities. The approach to indigenous peoples has partly followed a track that is separate from that of minority protection. While indigenous rights are primarily seen as group rights with a separatist agenda, the rights of persons belonging to minorities are consistently seen and formulated as individual rights largely within an integrationist agenda. The accelerated concern with minority issues in the s led to the emergence of three different mechanisms, that of the OSCE, of the Council of Europe, and of the UN. Among these it is clear that the regional mechanisms of the OSCE and the Council of Europe have greater impact than the UN Working Group on Minorities. This is partly due to the fact that many of the countries in Europe that have significant minorities within their borders are now seeking to join the European Union or have 

Minorities at the United Nations:The UN Working Group on Minorities in Context already done so, and their respect for the right of minorities has been an important factor in permitting them to become a member of the EU. A similar attraction is not present for the countries in Africa or Asia. Partly for that reason, there has been less serious attention to minority issues in those continents. This has also implied that the UN Working Group on Minorities has a more limited impact on countries outside Europe. Nevertheless, the attention is increasing also in those parts of the world. The seminars held in Africa and in South East Asia by the UN Working Group on Minorities, together with its sister UNWGIP, have contributed much to the awareness-raising of these issues. In April , the UN Commission on Human Rights decided to endorse a proposal that has been made over several years by the Working Group on Minorities: it requested the UN Secretary-General to appoint a special representative on minority issues for a period of two years, with the mandate: (a) (b)

(c)

(d) (e)

To promote the implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; To engage in dialogue with Governments as well as with other interested actors on the effective implementation of rights of persons belonging to national or ethnic, religious and linguistic minorities; To identify best practices and possibilities for technical cooperation by the Office of the United Nations High Commissioner for Human Rights at the request of Governments; To apply a gender perspective in his/her work; To cooperate closely, while avoiding duplication, with existing relevant United Nations bodies, mandates, mechanisms as well as regional organizations.30

The Commission recommended that the Special Representative should be requested to submit annual reports on his/her activities to the Commission, including recommendations for effective strategies for the better implementation of the rights of persons belonging to minorities. As a consequence, the Commission proposes a significant reduction in the time available for the Working Group on Minorities. If the proposal by the Commission is accepted by ECOSOC, the Working Group will only meet during the sessional meeting of the Sub-Commission, and only three part-time days will be allocated to the Working Group. What future role the Working Group will have depends very much on its interaction with the proposed Special Representative of the Secretary-General. It should be clear, however, that neither the Working Group nor the Special Representative will have much of a role to play regarding European situations. The recognition of minority rights has reached higher levels in Europe than in the rest of the world, and the regional European institutions are better able to deal with issues that might arise there than the UN Working Group. It can be assumed that the Special Representative will deal mainly with minority issues in Africa and in Asia. The countries in the Americas are already covered by their 

CHR res. E/CN.//L..



Asbjørn Eide own institutions, and their main concerns will be with the indigenous peoples and the Afro-Americans. References Appendix Documents of the Working Group on Minorities Asbjørn Eide, “Report of the Special Rapporteur on possible ways and means of facilitating the peaceful and constructive solution of problems involving minorities”, E/CN./ Sub.// and annex -; Asbjørn Eide, “Working Paper containing suggestions for a comprehensive programme for the prevention of discrimination and protection of minorities”, E/CN./Sub.//.

Report of the sessions of the Working Group on Minorities Report on its first session, E/CN./Sub.//; Report on its second session, E/CN./Sub.//; Report on its third session, E/CN./Sub.//; Report on its fourth session, E/CN./Sub.//; Report on its fifth session, E/CN./Sub.//; Report on its sixth session, E/CN./Sub.// and Corr.; Report on its seventh session, ECN./Sub.//; Report on its eighth session, E/CN./Sub.//, E/CN./Sub.//, E/CN./ Sub.//.

Seminars “Towards effective participation of Minorities - Proposals of an expert seminar organized by the European Centre for Minority Issues”, E/CN./Sub./AC.//WP.; “Multiculturalism in Africa: Peaceful and constructive group accommodation in situations involving minorities and indigenous peoples”, E/CN./Sub./AC.//WP.; “Montreal international seminar on Intercultural and Multicultural Education”, E/CN./Sub./ AC.//WP.; “Prevention of discrimination - Report of the Regional Seminar on Afro-descendants in the Americas”, E/CN./Sub.//; “Report of an International Seminar on Autonomist and Integrationist Approaches to Minority Protection”, E/CN./Sub./AC.//WP.; “Peaceful and constructive group accommodation in situations involving minorities and indigenous peoples”, E/CN./Sub./AC.//; “Report of the International Seminar on Cooperation for the Better Protection of the Rights of Minorities”, E/CN.//.



Minorities at the United Nations:The UN Working Group on Minorities in Context Working papers and conference room papers (not exhaustive): Abdul Raufu Mustapha, “Ethnic Minority Groups in Nigeria”, E/CN./Sub./AC.// WP.; Adrienne Blay Botau, “Integration and autonomy of minorities in Côte d’Ivoire”, E/CN./ Sub./AC.//WP.; Ainur Bekkulovna Elebaeva, “Kyrgyzstan” E/CN./Sub./AC.//WP.; Anna Matveeva, “Minorities in the South Caucasus”, E/CN./Sub./AC.//WP.; Asbjørn Eide, “Classification of minorities and differentiation in minority rights”, E/CN./ Sub./AC.//WP.; Asbjørn Eide, “Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities”, E/CN./Sub./AC.//; Asbjørn Eide, “Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples”, E/CN./Sub.//; Bhavna Dave, “Minorities and participation in public life: Kazakhstan”, E/CN./Sub./ AC.//WP.; E. Gyimah-Boadi and Richard Asante, “Minorities in Ghana”, E/CN./Sub./AC.// WP.; Fernand de Varennes, “Minority rights and the prevention of ethnic conflicts” E/CN./Sub./ AC.//CRP.; Geoff Gilbert, “Autonomy and Minority Groups: a Legal Right in International Law?”, E/CN./ Sub./AC.//CRP.; Geoff Gilbert, “Jurisprudence of the European Court and Commission of Human Rights in  and Minority Groups”, E/CN./Sub./AC.//CRP.; Geoff Gilbert, “Jurisprudence of the European Court and Commission of Human Rights in  and Minority Groups”, E/CN./Sub./AC.//CRP.; Geoff Gilbert, “Jurisprudence of the European Court and Commission of Human Rights in  and Minority Groups”, E/CN./Sub./AC.//WP.; Gyula Csurgai, “Proposition pour l’élaboration des régimes d’autonomie pour résoudre la question des communautés minoritaires de l’Europe centrale et balkanique”, E/CN./ Sub./AC.//CRP.; I.A. Rehman, “Minorities in South Asia”, E/CN./Sub./AC.//WP.; International Centre for Ethnic Studies, Sri Lanka, “Statement of Principles on Minority and Group Rights in South Asia”, E/CN./Sub./AC.//WP.; International Centre for Ethnic Studies, Sri Lanka, “Statement of Principles on Minority and Group Rights in South Asia, E/CN./Sub./AC.//WP.; Jon Fraenkel, “Minority Rights in Fiji and the Solomon Islands”, E/CN./Sub./AC.// WP.; José Bengoa, “Education and minorities”, E/CN./Sub./AC.//WP.; José Bengoa, “Existence and Recognition of Minorities”, E/CN./Sub./AC.//WP.; José Bengoa, “Minorities and self-determination”, E/CN./Sub./AC.//WP.; Lauri Hannikainen, “Examples of Autonomy in Finland: the Territorial Autonomy of the Aland Islands and the Cultural Autonomy of the Indigenous Saami People”, E/CN./Sub./ AC.//WP.; Lily Zubaidah Rahim, “Minorities and the State in Malaysia and Singapore”, E/CN./Sub./ AC.//WP.;



Asbjørn Eide Minority Rights Group International, “An examination of approaches by international development agencies to minority issues in development”, E/CN./Sub./AC.// WP.; Minority Rights Group International, “Minority rights and development: overcoming exclusion, discrimination and poverty”, E/CN./Sub./AC.//WP.; Minority Rights Group International, “Possible New United Nations Mechanisms for the Protection and Promotion of the Rights of Minorities”, E/CN./Sub./AC.//WP.; Minority Rights Group International, “Possible New United Nations Mechanisms for the Protection and Promotion of the Rights of Minorities”, E/CN./Sub./AC.//WP.; Nazila Ghanea-Hercock, “Ethnic and Religious Minorities in the Islamic Republic of Iran”, E/CN./Sub./AC.//WP.; Samia Slimane, “Peoples’ Rights in Africa: The Recognition and Protection of Ethnic, Religious and Linguistic Specificities”, E/CN./Sub./AC.//WP.; Tom Hadden and Ciaran O. Maolain, “Integrative Approaches to the Accommodation of Minorities”, E/CN./Sub./AC.//WP.; Tom Hadden, “International and national action for the protection of the rights of minorities: the role of the Working Group”, E/CN./Sub./AC.//WP.; Tom Hadden, “Towards a Set of Regional Guidelines or Codes of Practice on the Implementation of the Declaration”, E/CN./Sub./AC.//WP.; Tom Hadden, “Towards a Set of Regional Guidelines or Codes of Practice on the Implementation of the Declaration”, E/CN./Sub./AC.//WP.; Vatthana Pholsena, “Inclusion of Minorities in Public Life in Laos, Thailand and Vietnam”, E/ CN./Sub./AC.//WP.; Vladimir Kartashkin, “Universal and Regional Mechanisms for Minority protection”, E/CN./ Sub./AC.//WP.; Vladimir Katarshkin and A.X. Abarhidze, “Study on the use of Autonomy Approaches in the Russian Federation”, E/CN./Sub./AC.//WP.; Y.K.J. Yeung Sik Yuen, “The human rights problems and protections of the Roma”, E/CN./ Sub.//.

Other key references “Special issue on the linguistic rights of national minorities”, () International Journal on Minority and Group Rights, . The Foundation on Inter-ethnic Relations (ed.), The Hague Recommendations Regarding the Education Rights of National Minorities and Explanatory Note (The Foundation on Interethnic Relations, The Hague, ). The Foundation on Inter-ethnic Relations (ed.), The Oslo Recommendations Regarding the Linguistic Rights of National Minorities and Explanatory Note (The Foundation on Interethnic Relations, The Hague, ). The Foundation on Inter-ethnic Relations (ed.), The Lund Recommendations on the Effective Participation of National Minorities in Public Life and Explanatory Note (The Foundation on Inter-ethnic Relations, The Hague, ).



Nathalie Prouvez*

Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004

I. Introduction The rights of minorities and indigenous peoples is a matter of great concern for human rights treaty bodies, which have interpreted the major international human rights instruments so as to ensure protection for these groups and their members1 and so that they are not subject to discrimination.2 This interpretation is noteworthy, as only two of these instruments – the International Covenant on Civil and Political Rights (CCPR)

*





Secretary of the Committee on the Elimination of Racial Discrimination (CERD/C). The opinions expressed in this paper are the author’s and do not reflect those of the United Nations. Reference will be made distinctly throughout this review to members of minorities and to members of indigenous peoples so as to reflect the specificities characterising the situation of indigenous peoples as well as their entitlement to particular rights. See, on this issue, the working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples written by Erika Daes and Asbjorn Eide for the nd session of the Sub-Commission on the Promotion and Protection of Human Rights in , E/CN./Sub.//. See also Gudmunder Alfredsson, “Minorities, Indigenous and Tribal Peoples: Definitions of Terms as a matter of International Law” in Nazila Ghanea and Alexandra Xanthaki (eds.), Minorities, Peoples and Self-Determination (Martinus Nijhoff Publishers, Leiden, ). It should also be noted that no reference will be made in this review to expressions of concern and recommendations made by CERD/C to Nepal (CERD/C//CO/) concerning Dalits and descent-based discrimination. Although Dalit organizations have resorted, in order to advocate action against caste-based discrimination, to UN bodies working in the field of minority rights, such as the Working Group on Minorities, the author is of the opinion that this specific type of discrimination does not fall within the ambit of a review on minority and indigenous rights, owing to its various specificities. The latter were acknowledged by CERD/C in its General Recommendation adopted in August  on descent-based discrimination. See, for the text of this General Recommendation, HRI/ GEN//Rev., -. For a review of the Concluding Observations adopted in , see Nathalie Prouvez, “Minorities and Indigenous Peoples’ Protection: Practice of UN Treaty Bodies in ”  EYMI (/), -.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 637-667. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Nathalie Prouvez and the Convention on the Rights of the Child (CRC)3 – make explicit reference to minorities and indigenous peoples. The broad range of human groups mentioned in Article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD), however, clearly includes minorities and indigenous peoples. This Convention therefore constitutes an instrument of major importance and relevance for the protection of these groups and of their members against discrimination. In the course of , the Committee on the Elimination of Racial Discrimination (CERD/C), as well as the other UN treaty bodies5 in charge of monitoring the implementation of the various international human rights instruments, once again highlighted many concerns and made numerous recommendations regarding minorities and indigenous peoples in the Concluding Observations6 adopted following the consideration of states parties’ initial or periodic reports.7 This paper will focus first on the lack of information provided by states to treaty bodies on the ethnic composition of their population before highlighting issues raised by treaty bodies regarding discrimination related to identity (II). Part III will be devoted to an overview of the new General Recommendation on discrimination against non-citizens adopted by CERD/C in August  and on problems encountered by members of minorities relating to their status as non-nationals in some states parties. The need for protection of minorities and indigenous people against violence (IV), as well as violations of their cultural and linguistic rights and their right to education (V), to freedom of religion (VII) and vari











See Article  CCPR and Article  CRC, to be read in conjunction with Article  on the mass media and the child and Article  on purposes of education. For a review of the protection of indigenous rights through CCPR, CESCR, CERD and CRC, in particular Article , see Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, Manchester, ) -. See also Kristin Henrard, “Ever-Increasing Synergy towards a Stronger Level of Minority Protection between Minority-Specific and Non-Minority-Specific Instruments”,  EYMI (/), -, at -, -. For a review of the interpretation given by HRC to Article  CCPR, see Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (N.P. Engel Publisher, Kehl, nd ed. ), -; Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, Oxford, nd ed. ), -. Article  provides that “the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin.” See Thornberry, Indigenous peoples …, -. Reference will be made in this review to the activities of CERD/C, the Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW/C), the Committee on the Rights of the Child (CRC/C), the Committee on Economic, Social and Cultural Rights (CESCR/C) and the Committee against Torture (CAT/C). The individual communications procedure has been used in the past by members of minorities and indigenous peoples to bring complaints to HRC, CAT/C and CERD/C. No significant cases concerning minorities and indigenous peoples, however, were examined by these three treaty bodies in . Each treaty body has examined the following number of reports in : HRC (); CERD/C (), CEDAW/C (), CAT/C (), CRC/C () and CESCR/C ().

Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 ous economic and social rights (VIII) have also been the subject of specific attention by treaty bodies in . II. Lack of Data on Ethnic Composition of the Population and Discrimination Related to Identity The insufficient provision of detailed data in the reports of states parties on the ethnic composition of their population, and in particular on the existence of minorities or indigenous groups, is a recurrent concern for CERD/C.8 The Committee stresses relentlessly that “such information is necessary for an assessment of the implementation of the Convention as well as for the monitoring of policies in favour of minorities and indigenous peoples.”9 Many states consider that, when conducting a census, they should not draw attention to factors like race lest this reinforce divisions they wish to overcome. Portugal, for instance, claimed that its legislation prohibits the collection of data and statistics on race and ethnicity,10 whereas Sweden and Spain argued that “statistics on the number of persons of each race or ethnicity can give rise to discrimination.”11 While noting the position of these states, the Committee stresses that “if progress in eliminating discrimination based on race, colour, descent, national and ethnic origin is to be monitored, some indication is needed of the number of persons who could be treated less favourably on the basis of these characteristics.”12 CERD/C also provides in its reporting guidelines that “States which do not collect information on these characteristics in their censuses are requested to provide information on mother tongues as indicative of ethnic differences, together with any information about race, colour, descent, national and ethnic origins derived from social surveys. In the absence of quantitative information, a qualitative description of the ethnic characteristics of the population should be supplied.”13 CERD/C, therefore, called upon several states parties in  to “provide an estimate of the demographic composition of the population in subsequent reports, as requested in paragraph  of the reporting guidelines.”14 The Committee recommended to Portugal that it “provide information on the use of mother tongues as indicative of ethnic differences, together with information derived from targeted social surveys performed on a voluntary basis and in full respect of the privacy and anonymity of the individuals concerned.”15

       

See for a review of Concluding Observations on this issue in , Prouvez, “Minorities and Indigenous Peoples’ …”, -. Concluding Observations on Argentina, CERD/C//CO/, para. . See also Concluding Observations on Bahamas, CERD/C//CO/, para. . Concluding Observations on Portugal, CERD/C//CO/, para. . Concluding Observations on Spain, CERD/C//CO/, para. ; and Sweden, CERD/ C//CO/, para. . Reporting Guidelines of the Committee, CERD/C//Rev., para. . Ibid. CERD/C//CO/, para. ; CERD/C//CO/, para. . CERD/C//CO/, para. .



Nathalie Prouvez CERD/C went further in its Concluding Observations on Mauritania and stated that the main components of identity go beyond the question of language. Therefore, while noting “that the State party’s report contains information on the linguistic composition of the population”, the Committee was of the view that “this information does not convey the full complexity of Mauritanian society, particularly with regard to the composition of the Arab-speaking group.” It also “regret[ted the fact] that the economic and social indicators provided for the Committee were not disaggregated by descent or ethnic origin.”16 Some states, such as Libya in its last periodic report,17 attempt to justify the absence of information on the ethnic composition of the population by stating that their “society is homogeneous”. During its dialogue with the Libyan delegation, CERD/C underlined “the discrepancy between the assessment of the State party … and information indicating that Amazigh, Tuareg and Black African populations live in the country.”18 The Committee drew the state party’s attention to its General Recommendation IV () as well as to paragraph  of its reporting guidelines, and reiterated its recommendation that information on the ethnic composition of the population be provided in the next report.19 In its Concluding Observations on Madagascar,20 CERD/C recalled, as previously stated in its General Recommendation VIII,21 that the identification of the group to which an individual belongs “shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned.” The right to identity of members of minority or indigenous groups may also be hampered by their difficulties to register newly born children. In the case of Panama and Brazil, CRC/C found that children of African descent and indigenous children remain unregistered, thus impeding the full exercise of their rights. It recommended that “the State party review the efficiency of the birth registration system to ensure that births are registered”22 and “take all measures necessary to facilitate birth registration for all and in particular for the poorest and most marginalised children.”23

   

   



CERD/C//CO/, para. . CERD/C//Add., para. . CERD/C//CO/, para. . Ibid., Similarly, in its General Comment  on Article  CCPR, HRC highlighted the fact that “some States who claim that they do not discriminate on the grounds of ethnicity, language or religion, wrongly contend, on that basis alone, that they have no minorities.” The Committee has also stated that the existence of a minority “does not depend on a decision” by a state but “requires to be established by objective criteria.” See General Comment , HRI/GEN//Rev., -, para. .. When considering individual complaints, the Human Rights Committee has confirmed this principle. See for instance HRC, Communication No. /, Lovelace v. Canada, Interim decision on  July : Selected Decisions, vol. I (United Nations, New York, ), -. Concluding Observations on Madagascar, CERD/C//CO/, para. . General Recommendation VIII concerning the interpretation and application of Article , paras.  and  of the Convention, HRI/GEN//Rev., . Concluding Observations on Panama, CRC/C//Add. , paras.  and . Concluding Observations on Brazil, CRC/C// Add. , paras.  and .

Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 Treaty bodies are also confronted with the reverse problem of the imposition of rules, such as the obligatory reference to ethnic origin in birth certificates and identity cards, which they consider discriminatory. CRC/C, bearing in mind the particular sensitivity of this issue in the post-genocide context in Rwanda, expressed concern about the slow progress made to introduce a new system of birth certificates and identity cards, which does not refer to ethnic origin. It recommended to the state party to strengthen its effort to ensure that all children are provided with new birth certificates and identity cards.24 A similar issue was raised by CRC/C when considering the report of Myanmar and the Committee recommended that “the State party abolish … the statement on the national identity card of the religion and ethnic origins of citizens, including children.”25 III. Discrimination Against Non-Citizens Treaty bodies have made clear on several occasions that, apart from certain political participatory rights, members of minority groups who are not nationals of the state in which they reside should enjoy rights enshrined in international human rights instruments.26 The adoption of a new General Recommendation on the rights of non-citizens by CERD/C at its August  session constitutes a noteworthy development in respect of this particular group of individuals whose protection is often a serious issue for concern. Furthermore, in the course of , CERD/C and other treaty bodies have once again reflected in their Concluding Observations their continuing concern about various forms of discrimination suffered by members of minorities who are noncitizens. A. General Recommendation XXX of CERD/C 1. Background to the Adoption of the General Recommendation CERD/C originally found itself restricted by the provisions of Article  () CERD according to which the Convention “shall not apply to distinctions, exclusions, restrictions or preferences made by a State party to this Convention between citizens and non-citizens.” Article (), however, is to be read in conjunction with Article () providing that “nothing in this Convention may be interpreted as affecting in any way the legal provisions of States parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.”27 Furthermore, CERD/C adopted in  General Recommendation XI on non-citi  



Concluding Observations on Rwanda, CRC/C/Add. , paras.  and . Concluding Observations on Myanmar, CRC/C//Add. , paras.  and . See for a review of Concluding Observations adopted in  on this issue, Prouvez, “Minorities and Indigenous Peoples’ ….”, -. On the need for a citizenship requirement in the general definition of a national minority as discussed by the Venice Commission, see also Dubravka Bojic Bultrini and Simona Granata-Menghini, “The Protection of Minority Rights in the Work of the Venice Commission: July -June ”,  EYMI (/), -, at -. Emphasis added by author.



Nathalie Prouvez zens, which provides that Article (), “must not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in other instruments.”28 Over the years, it became increasingly evident for CERD/C, when examining the reports of states parties to the Convention, that a key concern regarding the implementation of the Convention was racial discrimination against migrants, refugees and asylum-seekers, undocumented non-citizens and stateless persons.29 This growing preoccupation led the Committee to identify the need for further clarification of the responsibilities of states parties in this regard. CERD/C requested, therefore, the Sub-Commission on the Promotion and Protection of Human Rights to undertake a study on the rights of noncitizens. The Special Rapporteur appointed for this purpose by the Sub-Commission submitted his final report in .30 Meanwhile, CERD/C decided to organize a thematic discussion during its sixty-fourth session (March ), so that it could hear the views of various stakeholders on this sensitive issue. During half a day, international and national non-governmental organizations (NGOs), the Special Rapporteur on the rights of non-citizens, two Special Rapporteurs of the Commission on Human Rights, representatives of the United Nations High Commissioner for Refugees and the International Labour Organization, as well as states parties, put forward their views before the Committee.31This was followed, on the next day, by a public plenary debate of the Committee,32 which led its members to conclude that there was a need for a more extensive recommendation that would replace General Recommendation XI. General Recommendation XXX on discrimination against non-citizens was adopted at the th session of the Committee held in August . 2.

General Principles Regarding the Applicability of the Convention to NonCitizens The first question raised by CERD/C in General Recommendation XXX33 is the interpretation to be given to the restriction that seems to be made in Article () of the Convention, regarding the application of the Convention to non-citizens. General Recommendation XXX reiterates the statement already made in the  General Recommendation and provides that:

 

   



See General Recommendation XI, HRI/GEN//Rev., . In , the issue was also given due consideration during the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, and participating states recognized through their final declaration that “xenophobia against non-nationals, particularly migrants, refugees and asylum-seekers, constitutes one of the main sources of contemporary racism and that human rights violations against members of such groups occur widely in the context of discriminatory, xenophobic and racist practices.” See “United Nations, World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance”, Declaration, para., at . David Weissbrodt, “Final report on the rights of non-citizens”, E/CN./Sub.// at . See for summary records of the hearing, CERD/C/SR. . See for summary records of the debate, CERD/C/SR. . See for the text of General Recommendation XXX, A//,  to .

Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 Article , paragraph , must be construed so as to avoid undermining the basic prohibition of discrimination; hence, it should not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in particular in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.34

The Committee further clarifies that, although some of the rights mentioned in Article  of the Convention, “such as the right to participate in elections, to vote and to stand for election, may be confined to citizens, human rights are, in principle, to be enjoyed by all persons. [Furthermore,] States parties are under an obligation to guarantee equality between citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law.”35 CERD/C therefore concludes that: Under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim. Differentiation within the scope of Article , paragraph , of the Convention relating to special measures is not considered discriminatory.36

Having clarified the responsibility of states parties regarding the protection owed to non-citizens against racial discrimination, General Recommendation XXX proceeds to prescribe the adoption of a series of measures of a general nature, as well as more specific measures in various fields. 3. Measures of a General Nature States are requested to protect non-citizens against racial discrimination “regardless of their immigration status”, 37 and to ensure that immigration policies are non-discriminatory.38 Furthermore, recalling its statement of March , according to which national measures taken in the fight against terrorism should not discriminate, in purpose or effect, on grounds of race, colour, descent, or national or ethnic origin,39 CERD/C stresses the need to ensure that non-citizens are not subjected to racial or ethnic profiling or stereotyping.40 The General Recommendation adds at a later stage that noncitizens detained or arrested in the fight against terrorism should be granted adequate legal protection, in compliance with international standards.41 It also insists on the need for all programmes and measures adopted by states in order to combat discrimination        

Ibid., para. . Ibid., para. . Ibid., para. . Ibid., para. , emphasis added. Ibid., para. . See, for the text of the statement, A//, . A//, , para. . Ibid., para. .



Nathalie Prouvez against non-citizens to take into account the multiple discrimination suffered by children and women. In particular, different standards of treatment for female and male non-citizen spouses should be eradicated.42 4. Issues of Particular Concern for Non-Citizens General Recommendation XXX requests from states parties that they take measures to eradicate discrimination against non-citizens in various areas, in particular access to citizenship, expulsion and deportation. It also highlights the role that the administration of justice system should play in combating discrimination against non-citizens, as well as the need to ensure that they no longer suffer discrimination in the field of economic, social and cultural rights. States are requested to reduce statelessness, in particular among children, by encouraging their parents to apply for citizenship on their behalf and allowing both parents to transmit their citizenship to their children.43 Furthermore, states should ensure that some groups of non-citizens are not discriminated against with regard to access to citizenship or naturalization. Particular attention is devoted to the plight of long-term residents who are denied citizenship,44 and the situation of former citizens of predecessor states is specifically mentioned.45 The General Recommendation also refers to the need to eradicate practices and legislation affecting non-citizens’ cultural identity, such as legal or de facto requirements that non-citizens change their name in order to obtain citizenship.46 CERD/C urges states to ensure that laws concerning deportation or other forms of removal from the jurisdiction of the state party do not discriminate between non-citizens. They should be guaranteed equal access to effective remedies, including the right to challenge expulsion orders.47 Furthermore, states should ensure that non-citizens are not subject to collective expulsion,48 and that they are not returned or removed to a country or territory where they are at risk of being subject to serious human rights abuses.49 Once again, the Committee expresses particular concern for the situation of long-term residents whose expulsion may result in disproportionate interference with the right to family life.50 The General Recommendation stresses the need to combat racially motivated violence. The system of administration of justice ought to play an effective role in the elimination of discrimination against non-citizens. Reinforced measures should be taken to combat ill-treatment of non-citizens by police and other law-enforcement agencies. Furthermore, the non-citizens who are victims of violence and ill-treatment ought to         



Ibid., para. . Ibid., para. . Ibid., para. . Ibid., para. . Ibid., para. . Ibid., para. . Ibid., para. . Ibid., para. . Ibid., para. .

Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 have access to effective legal remedies. States should introduce a criminal law provision according to which committing an offence with racist motivation or aim constitutes an aggravating circumstance. General Recommendation XXX also prescribes the regulation of the burden of proof in civil proceedings involving racial discrimination, so that once a non-citizen has established a prima facie case that he or she has been a victim of such discrimination, it shall be for the respondent to provide evidence of an objective and reasonable justification for the differential treatment.51 Finally, General Recommendation XXX devotes an entire section to measures needed to remove obstacles that prevent the enjoyment of economic and social rights by non-citizens.52 CERD/C recommends to states to refrain from denying or limiting access to health services for non-citizens. The General Recommendation pays specific attention to the education of children of non-citizens, and in particular, insists that this right should also be respected for children of undocumented migrants. Furthermore, CERD/C prescribes the elimination of discrimination against non-citizens in the sphere of housing, including de facto segregation. The need for states to ensure that housing agencies refrain from engaging in discriminatory practices is also highlighted in the General Recommendation. While recognizing the right of states to refuse the right to work to non-citizens, CERD/C recommends that non-citizens be guaranteed full protection of their labour rights in the case where an employment relationship has been established. Furthermore, the General Recommendation pays specific attention to ill-treatment of non-citizens in the workplace, especially in the case of domestic workers. Particular reference is made to put an end by states to practices such as debt bondage, passport retention, illegal confinement, rape and physical assault. B. Recommendations Made by Treaty Bodies to States Parties Following Consideration of their Periodic Reports Some of the issues dealt with by CERD/C in General Recommendation XXX have also been the subject of specific recommendations made in  to states parties following consideration of their periodic reports. Treaty bodies raised, in particular, issues related to access to citizenship, expulsion and deportation, and discrimination in the sphere of economic, social and cultural rights. CRC/C expressed concerns related to the deprivation of the right to nationality for children belonging to particular ethnic or national minorities, including descendants of refugees who fled Pakistan and sought asylum in India several decades ago.53 This Committee recommended that India take measures to grant citizenship to children of Pakistani refugees and in particular to Mohajir children whose ancestors left Pakistan following the  riots.54

  



See for all matters related to the administration of justice ibid., paras.  to . Ibid., paras.  to . See for further detail Asian Centre for Human Rights, “An Alternate Report to the United Nations Committee on the Rights of the Child on India’s First periodic Report” (October ), -, at . CRC/C//Add. , paras.  and .



Nathalie Prouvez Living conditions of Palestinian refugees constituted an important issue during the dialogue of CERD/C with Lebanon. While acknowledging the political factors related to the presence of Palestinian refugees in Lebanon, the Committee reiterate[d] its concern with regard to the enjoyment by the Palestinian population present in the country of all rights stipulated in the Convention on the basis of non-discrimination, in particular access to work, health care, housing and social services as well as the right to effective legal remedies. The Committee [further noted] the statement of the delegation that the  property law55 does not apply retroactively and that Palestinians’ right to inherit remains in force. CERD/C urge[d] the State party to take measures to ameliorate the situation of Palestinian refugees with regard to the enjoyment of rights protected under the Convention, and at a minimum to remove all legislative provisions and change policies that have a discriminatory effect on the Palestinian population in comparison with other non-citizens.56

Roma, who suffer from acute discrimination in their country of origin, are doubly discriminated in their host state, both because of their non-citizen status and because of their national or ethnic origin. CRC/C noted that Slovenia makes a distinction between ‘autochthonous’ and ‘non-autochthonous’ Roma and excludes the latter group from some programmes aimed at uplifting Roma communities. The Committee recommended, therefore, that such a distinction be abolished.57 When highlighting the poor housing conditions of Roma, both in Greece and in Italy, CESCR/C also insisted on the plight of Roma non-citizens. It expressed concern at reports according to which some of them live in camps characterized by poor housing and unhygienic sanitary conditions. Furthermore, Roma living in these camps have limited employment prospects and inadequate education facilities for their children. CESCR/C recommended to Italy that it “step up its efforts to build more permanent housing settlements for Roma immigrants, and take all necessary measures to promote their integration into local communities, to offer them job opportunities and to make available to their children adequate educational facilities.”58 In its Concluding Observations on Greece, the Committee “urge[d] the State party to take measures towards providing for all the Roma, including itinerant and non-Greek59 Roma, adequate and affordable housing with legal security of tenure, access to safe drinking water, adequate sanitation, electricity and other essential services, and meeting their specific 

   



This law prohibits the purchase of property by non-citizens, including Palestinian refugees who have lived in Lebanon since . During its dialogue with the state party, the governmental delegation justified this legislation by explaining that Lebanon refuses to facilitate the settlement of Palestinian refugees for political reasons concerning the right to return of Palestinian refugees and the creation of a Palestinian state. See CERD/C/SR., , para. . CERD/C//CO/. CRC/C//Add. , paras.  and . E/C.//Add. , paras.  and . Emphasis added.

Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 cultural needs.” Finally, the Committee “recommend[ed] that the State party ensure the participation of Roma representatives in the assessment of the Integrated Action Plan for the Social Integration of Greek Roma and that it include information on the practical effects of the implementation of the Plan, as well as its applicability to non-Greek60 Roma legally residing within the State party’s territory, in its second periodic report.”61 Similarly, the HRC found that according to some reports, Roma living in Germany were “disproportionately affected by deportation and other measures to return foreigners to their countries of origin.” The Committee recommended to Germany that it “guarantee the principle of non-discrimination in its practice relating to deportation and return of foreigners to their country of origin.”62 IV. Violence Numerous and serious acts of violence against members of minorities or indigenous groups have continued to feature as a major concern in the Concluding Observations adopted by treaty bodies in .63 Numerous instances of ill-treatment against members of minority groups by law-enforcement officers as well as by non-state actors were also recorded by CERD/C, HRC, CESCR/C as well as CAT/C. The first difficulty frequently encountered by treaty bodies is the absence of adequate data in the reports of states parties on cases of torture and ill-treatment of members of minority or indigenous groups, as well as on the way complaints made regarding such violence have been handled. Following the receipt of reports containing allegations of ill-treatment of indigenous people in Argentina64 and members of ethnic minorities in Greece,65 CAT/C requested both states parties to provide in their next report detailed statistical data disaggregated, inter alia, by ethnicity of the victim, on complaints relating to torture and ill-treatment by law-enforcement officials and on types of offences committed. CERD/C also repeatedly recommended, as it did in its Concluding Observations on Madagascar, that “information on the number of prosecutions brought in the criminal courts and the verdicts handed down in such cases be provided in the next periodic report.”66 CAT/C and CESCR/C both expressed concern about the persistent occurrence of acts of violence against the Roma in the Czech Republic, despite efforts made by the state party to counter such acts. A similar assessment had been made by CERD/C one year earlier, thus raising the issue of adequacy of the follow-up by states on treaty

      

Ibid. E/C.//Add. , paras. - and -. CCPR/CO//DEU, para. . See, for a review of Concluding Observations adopted in  on treaty bodies dealing with this issue, Prouvez, “Minorities and Indigenous Peoples’ …”, -. CAT/C/CR//, para. (g) and (n). CAT/C/CR//, para. . CERD/C//CO/, para. .



Nathalie Prouvez body recommendations.67 CESCR/C focused in particular on the need to put an end to arbitrary raids of Roma settlements,68 while CAT/C highlighted the alleged reluctance of the police to provide adequate protection and to investigate ill-treatment against Roma.69 CAT/C made specific references to racial discrimination and requested that the Czech Republic “exert additional efforts to combat racial intolerance and xenophobia and ensure that the comprehensive anti-discrimination legislation being discussed include all relevant grounds covered by the Convention.”70 Treaty bodies have raised concerns regarding acts of violence against members of minorities, not only by state officials, but also by private persons. During its dialogue with Croatia, CAT/C highlighted the “alleged failure of the State party to prevent and fully and promptly investigate violent attacks by non-State actors against members of ethnic and other minorities”.71 Similarly, HRC, “while noting reports about the decrease in police violence against Roma” in Serbia and Montenegro, expressed continued “concern at violence and harassment by racist groups, and inadequate protection against racially motivated acts afforded by law enforcement officers.”72 Cases of ill-treatment specifically affecting women were recorded by CERD/C. In the case of Suriname, CERD/C drew attention to reports of growing sexual exploitation and rape of girls belonging to indigenous and tribal peoples in regions where mining and forestry operations have developed.73 The issue of trafficking, which affects in particular women and children belonging to ethnic minorities, was raised by CERD/ C during its dialogue with Kazakhstan.74 The main recommendation made by treaty bodies to states in order to combat illtreatment and torture of members of minorities and indigenous groups is, as requested by CAT/C in its conclusions on Croatia, to “take effective measures to ensure impartial, full and prompt investigations into all allegations of torture and other cruel, inhuman or degrading treatment, the prosecution and punishment of the perpetrators as appropriate and irrespective of their ethnic origin, and the provision of fair and adequate compensation for the victims.”75 Similarly, CERD/C suggested to Slovakia that additional measures be taken to prevent acts of violence, and that the “perpetrators be brought to justice in accordance with relevant domestic legislation.”76 In many instances, treaty bodies also specify the need for the establishment of an effective, reliable and independ        





See the Concluding Observations adopted by CERD/C on the Czech Republic in : CERD/C//CO/, para. . E/C.//Add. . CAT/C/CR//, paras. (a), (b) and (c). Ibid., para. (a). Ibid., para. (f ). CCPR/CO//SEMO, para. . CERD/C//CO/, para. . CERD/C//CO/, para. . This recommendation was made following receipt of reports containing “allegations that double standards were applied at all stages of the proceedings against Serb defendants and in favour of Croat defendants in war crime trials” (CAT/C/CR//, para. (ii)). CERD/C//CO/, para. 

Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 ent complaints system to undertake prompt and impartial investigations, rehabilitation and compensation of victims.77 When examining the report of Portugal, CERD/C also recommended that the state party “introduce in its criminal law a provision to the effect that committing an offence with racist motivation or aim constitutes an aggravating circumstance.”78 The need to ensure that the police and judiciary are properly trained to investigate and sanction all acts of discrimination and violence against the Roma was highlighted in similar terms by HRC, CERD/C and CAT/C in their respective Concluding Observations on Poland,79 Portugal80 and Croatia.81 In its Concluding Observations on Greece,82 CESCR/C insisted on the importance of continuing “efforts to raise awareness of the dimensions of discrimination against the Roma among local authorities.”83 V. Language, Education and Culture A. Use of Minority Languages when Dealing with Administrative Authorities The right of minorities to use their language when dealing with administrative authorities was highlighted by HRC during its dialogue with Poland. This Committee made clear, however, that such a right was reserved to linguistic minorities “in areas where their numbers warrant.” The Committee recommended to the state party to “ensure that new legislation on minorities is in full compliance with Article  of the Covenant, in particular regarding the rights of minorities to be recognized as such and to use their own languages.”84 B. Use of Minority Languages in the Media Access for persons belonging to minorities to public media in their language was raised by CERD/C during its dialogue with Tajikistan. The Committee recommended “that the State party ensure that sufficient time is devoted to programmes in minority languages on public radio and television, [and] take steps to facilitate the publication of    

   

Ibid. See also the Concluding Observations of CAT/C on Greece, CAT/C/CR//, para. (a). CERD/C//CO/, para. . CCPR/CO//POL, para. . CERD/C//CO/, para. . This recommendation was made by CERD/C in light of its General Recommendation XIII, which provides that “law enforcement officials should receive intensive training to ensure that in the performance of their duties they respect and protect human dignity and maintain and uphold the human rights of all persons without distinction as to race, colour, descent or national or ethnic origin.” See HRI/GEN//Rev.,  for the full text of the recommendation. CAT/C/CR//, para. (l). CCPR/CO//POL, para. . Emphasis added. E/C.//Add. , para. . CCPR/CO//POL, para. . See for similar recommendations made in , Prouvez, “Minorities and Indigenous Peoples’ ….”, .



Nathalie Prouvez newspapers in minority languages. Particular efforts should be made in this regard in relation to the use of Uzbek, which is the language spoken by the largest minority.”85 C. Right to Learn, and to be Educated in, a Minority Language The lack of provision in the educational curriculum for the teaching of, or education in, minority or indigenous languages, was identified once again as a major issue by treaty bodies in relation to several states parties in .86 CERD/C stressed that the consultation of the population groups concerned is crucial when studying this question and identifying adequate solutions to current difficulties and shortcomings.87 Treaty bodies have also reiterated88 that the adoption of measures for teaching of minority and indigenous languages and culture in schools may be meaningless if the state is not fully committed to their practical implementation. Emphasis must also be placed on the provision of quality89 education to indigenous and minority children.90 The lack of teachers from the concerned minorities or indigenous groups is often a problem, as well as the need to provide them with adequate training and to take effective measures to combat all forms of discrimination against them.91 Furthermore, states should ensure that “in any event, education in national languages [does] not lead to the exclusion of the group concerned.” These preoccupations are particularly acute regarding Roma children. Treaty bodies have stressed on many occasions the need to provide these children with the specific attention that they require while avoiding segregation, whether it be deliberate or disguised under the recognition of their special needs.92 As had already been noted in  by HRC when it considered the report of Slovakia,93 CERD/C, while welcoming the extensive measures adopted by this state party in the field of education aimed at improving the situation of Roma children, including the ‘Roma assistants’ project, continued “to express concern at de facto segregation of Roma children in special schools, including special remedial classes for mentally disabled children.” The Committee recommended that Slovakia “prevent and avoid the segregation of Roma children, while keeping open the possibil       





CERD/C//CO/, para. . See Prouvez, “Minorities and Indigenous Peoples’ …..”, - for a review of the  recommendations in this regard. See Concluding Observations on Mauritania, CERD/C//CO/, para. ; Argentina, CERD/C//CO/, para. ; and Tajikistan, CERD/C//CO/, para. . See Prouvez, “Minorities and Indigenous Peoples’….”, . Emphasis added. This was the case, according to CERD/C, in Argentina, CERD/C//CO/, para. ; and in Tajikistan, CERD/C//CO/, para. . See CERD/C Concluding Observations on Argentina, CERD/C//CO/, para. ; and on Slovakia, CERD/C//CO/, para. . On the issue of segregation of Roma children in Slovakia and in other Eastern and Central European states, see Prouvez, “Minorities and Indigenous Peoples’ ….”, -. See also on this issue CERD/C’s General Recommendation XXVII on racial discrimination against Roma (HRI/GEN//Rev., -). CCPR/CO//SVK, para. .

Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 ity of bilingual or mother-tongue tuition.” It further recommended that “the State party intensify its efforts to raise the level of achievement in schools by Roma children and to recruit further school personnel from among members of Roma communities.”94 D. Intercultural and Multicultural Education and Promotion of Cultural Rights CERD/C also recommended that Slovakia “promote intercultural education”.95 A similar recommendation was made by treaty bodies during their dialogue with several other states parties in , thus going beyond the confines of linguistic rights. In its Concluding Observations on Argentina, CERD/C stressed the need to take measures so as to ensure that indigenous peoples benefit from “a bilingual and intercultural education in full respect for their cultural identity, languages, history and culture, bearing also in mind the wider importance of intercultural education for the general population.”96 CESCR/C, when considering the situation in Greece,97 emphasized the need to ensure adequate staffing with teachers specialized in multicultural 98 education. Without referring specifically to intercultural or multicultural education, CRC/ C has insisted on the importance of adapting school curricula to suit the particularities of the local communities, in particular for ethnic minority groups.99 The issue of school curricula also preoccupied CERD/C during its dialogue with Mauritania. This Committee highlighted that state policies ensuring that the curricula in private and public schools are identical can be justified by a desire to monitor the quality of private education. CERD/C, however, expressed “doubts whether such control over private schools is conducive to the teaching of the languages and cultures of minority groups.” It recommended that Mauritania “respect parents’ freedom to choose the type of education they wish for their children and to choose for their children private schools that offer programmes meeting their expectations in terms of culture and language.”100 In the case of Tajikistan, CERD/C regretted the lack of information on action, if any, taken by the state party to enhance better understanding, respect and tolerance between ethnic groups, in particular on programmes, if any, that have been adopted to ensure intercultural education. CERD/C noted however with interest that in  Tajikistan had adopted legislation (the Culture Act) guaranteeing the right of national and ethnic minorities to preserve and develop their cultural identity. It expressed the wish “to receive more information on the content and effective implementation of this law, the specific programmes adopted to that end, and the mechanisms ensuring the   

CERD/C//CO/, para. . Ibid. See CERD/C Concluding Observations on Argentina, CERD/C//CO/, para. . See also the Concluding Observations on Suriname for an emphasis on the need to encourage the learning of mother tongues of indigenous and tribal people with a view to preserve the cultural and linguistic identity of the various ethnic groups (CERD/C//CO/, para. ).  E/C.//Add. .  See, on the concept of multiculturalism, Dominic McGoldrick, “Multiculturalism and its Discontent” in Ghanea and Xanthaki, Minorities, Peoples …, -.  Concluding Observations on Myanmar, CRC/C//Add. , para. (f ) .  CERD/C//CO/, para. . Emphasis added.



Nathalie Prouvez participation of the groups concerned in the elaboration and implementation of these programmes.”101 States parties’ obligations go beyond a mere respect of indigenous and minority cultural rights. In its Concluding Observations on Suriname,102 CERD/C noted that “the authorities appear to limit themselves to not hampering the exercise by the various ethnic groups and their members of their cultural rights.” This Committee recommended that “the state party not only ‘respect’ but also ‘promote’103 the indigenous and tribal peoples’ cultures, languages and distinctive ways of life.” CERD/C also encouraged Suriname “to carry out a survey, in collaboration with the groups concerned, of the impact of economic development in the indigenous and tribal peoples’ lands on their collective and individual cultural rights.” VI. Participation in Public Life As in ,104 CERD/C highlighted on several occasions in  the denial of the right for members of indigenous and minority groups to participate in public life, and to enjoy equal access to state institutions. During its dialogue with Tajikistan, the Committee regretted the failure of the state party to provide sufficient information on the effective level of participation of members of national and ethnic minorities in state institutions.105 It also noted in its Concluding Observations on Kazakhstan that “ethnic representation does not correspond to the proportion of the different ethnic minorities represented in the population.”106 In its dialogue with Argentina, the same treaty body stressed that adequate representation of indigenous peoples and minorities should be ensured and information provided to the Committee not only concerning institutions at the national level, but also at the provincial and municipal levels.107 CERD/C attaches particular importance to ensuring adequate representation of minorities in law enforcement agencies. During the review of the situation in Mauritania, for instance, it highlighted the very low proportions of black Moors and black Africans in the army, the police, the administration, government and other state institutions.108 States that have taken adequate measures must ensure that they remain vigilant. Regarding the situation in the Netherlands, CERD/C noted with satisfaction that the number of police officers belonging to ethnic minorities had increased in recent years. It expressed concern, however, about the high percentage of resignations among these groups. The Committee therefore encouraged the state party “to continue promoting the effective implementation of measures aimed at ensuring that the ethnic composition of the police appropri-

       



CERD/C//CO/, para. . CERD/C//CO/, para. . Emphasis added. See Prouvez, “Minorities and Indigenous Peoples’ …”, -. CERD/C//CO/, para. . CERD/C//CO/, para. . See CERD/C//CO/, para. . CERD/C//CO/, para. .

Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 ately reflects the ethnic composition of Dutch society and invite[d] the State party to include in its next report statistical information in this respect.”109 VII. Freedom of Religion Whereas in  it had only referred to intersectionality of race and religion in order to justify its competence to deal with the situation of particular groups,110 CERD/C directly raises questions related to the right of members of minorities or indigenous groups to practice their religious belief during the dialogue held in  with two states parties. When looking at the situation of indigenous peoples in Argentina, this Committee expressed concern at “the inadequate protection in practice of indigenous peoples’ ownership and possession of ancestral lands and the consequential impairment of indigenous peoples’ ability to practise their religious beliefs.” It urged the state party to “adopt measures to safeguard indigenous rights over ancestral lands, especially sacred sites … and respect the special importance for the culture and spiritual values of indigenous peoples of their relationship with the land.”111 CRC/C also focused on the issue of freedom of religion for children belonging to religious minorities in two sets of Concluding Observations adopted in . During its dialogue with Armenia, this Committee noted that in , the study of the history of the Armenian Apostolic Church had been made a compulsory subject in schools. In the light of Article  of the Convention,112 the Committee recommended “that the compulsory teaching of that subject not infringe on the rights of children belonging to religious minorities.”113 Issues related to freedom of religion were also emphasised by CRC/C in its Concluding Observations on France. In a general paragraph concerning children belonging to minority groups, the Committee “welcome[d] information provided in the State party’s report that all children in France are equal before the law and have a right to freedom of religion.”114 CRC/C stated, however, that it “remains concerned that equality before the law may not be sufficient to ensure equal enjoyment of rights by certain minority groups.”115 France was requested to “review its position with respect    

CERD/C//CO/, para. . See Prouvez, “Minorities and Indigenous Peoples’ …”, -. CERD/C//CO/, para. . Article  provides: . States Parties shall respect the right of the child to freedom of thought, conscience and religion. . States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. . Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.  CRC/C//Add. , paras.  and .  Emphasis added.  CRC/C//Add. , para. 



Nathalie Prouvez to children belonging to minority groups and consider withdrawing its reservation to Article .”116 This recommendation is to be read in conjunction with the two long paragraphs of the Concluding Observations devoted specifically to freedom of religion.117 After expressing general concern at “the alleged rise in discrimination, including that based on religion”118 in France, the Committee stated that the new legislation (Law No. - of  March ) on wearing religious symbols and clothing in public schools “may be counterproductive, by neglecting the principle of the best interests of the child and the right of the child to access education, and not achieve the expected results.”119 The Committee recommended, therefore, that: the State party, when evaluating the effects of the legislation, use the enjoyment of children’s rights, as enshrined in the Convention, as a crucial criteria in the evaluation process and also consider alternative means, including mediation, of ensuring the secular character of public schools, while guaranteeing that individual rights are not infringed upon and that children are not excluded or marginalized from the school system and other settings as a result of such legislation.

CRC/C further added that “the dress code of schools may be better addressed within the public schools themselves, encouraging participation of children” and recommended that “the State party continue to closely monitor the situation of girls being expelled from schools as a result of the new legislation and ensure they enjoy the right of access to education.”120 VIII. Economic and Social Rights As in ,121 treaty bodies expressed general concern on numerous occasions during the reference period regarding the lack of enjoyment of their economic and social rights by minorities and indigenous peoples. They also made more specific recommendations on separate rights, in particular the right to health, housing and labour as well as land rights.

 Article  provides that “in those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.” France has made a declaration according to which, “in the light of Article  of the Constitution of the French Republic, Article  is not applicable so far as the Republic is concerned.”  See on this issue, Giovanni Poggeschi, “Religion in France: A Juridical Approach”,  EYMI (/), -.  Emphasis added.  CRC/C//Add. , para. .  Ibid., para. .  See Prouvez, “Minorities and Indigenous Peoples’ …”, -.



Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 A. General Concerns Treaty bodies have noted the need for states to strengthen their efforts to reduce poverty122 among indigenous and minority groups as well as to integrate economic, social and cultural rights in all poverty alleviation programmes, and to ensure that adequate resources are allocated to programmes regarding the promotion of economic and social rights.123 During its dialogue with Brazil, CRC/C stressed that effectively addressing the gap in life opportunities of indigenous children would not only require financial means, but also the provision of “training and awareness-raising activities to break social prejudice in order to revert the historical logic of colonization, which jeopardises any chance of attaining genuinely equal treatment.”124 A common feature of Concluding Observations is the expression of serious concern at the persistence of discrimination125 in the enjoyment of economic, social and cultural rights by indigenous people or minorities, despite the adoption of measures by governments concerned. While acknowledging and welcoming such measures, plans and programmes, treaty bodies deplore their lack of actual impact,126 as well as the insufficient assessment127of their effectiveness, and recommend the adoption of further measures. The great number of references to the alarming living conditions of Roma128 in Concluding Observations adopted in  is particularly striking. The need to intensify efforts to prevent discrimination against the Roma community and to ensure that the requisite resources are allocated to put into effect all plans to do away with obstacles to the Roma’s practical exercise of their economic and social rights was highlighted  See CRC/C’s Concluding Observations on Croatia, CRC/C//Add. , paras.  and ; Dominica, CRC/C//Add., paras.  and ; and Brazil, CRC/C//Add. , paras.  and .  See CESCR/C’s Concluding Observations on Chile, E/C.//Add. .  CRC/C//Add. , paras.  and .  See CESCR/C’s Concluding Observations on Greece, E/C.//Add. , para. . See also HRC’s Concluding Observations on Serbia and Montenegro where it found that the implementation of all strategies and plans to address discrimination against Roma was urgent as their social and economic situation was deplorable (emphasis added) CCPR/ CO//SEMO, para. .  See for instance CESCR/C’s Concluding Observations on Ecuador, E/C.//Add. , paras.  and .  See Concluding Observations on Lithuania, CCPR/CO//LTU, para. .  See the Concluding Observation of: CEDAW/C on Spain, A//, paras.  and ; – HRC on Albania, CCPR/CO//ALB, para. ; Poland, CCPR/CO//POL, para. ; Finland, CCPR/CO//FIN, para. ; Germany, CCPR/CO//DEU, para. ; Lithuania, CCPR/CO//LTU, para. ; and Serbia and Montenegro, CCPR/CO//SEMO, para. ; of CESCR/C on Spain, E/C.//Add. , paras.  and ; Greece, E/C.//Add. , para. ; and Lithuania, E/C.//Add. ; and CERD/C on Kazakhstan, CERD/C// CO/, para. ; Portugal, CERD/C//CO/, para. ; Spain, CERD/C//CO/, para. ; Brazil, CERD/C//CO/, para. ; Belarus, CERD/C//CO/, para. ; and Sweden. Furthermore, five paragraphs were devoted to issues related to economic, social and cultural rights of Roma in CERD/C’s Concluding Observations on Slovakia, CERD/C//CO/, paras. -.



Nathalie Prouvez on several occasions.129 Furthermore, it was stressed that efforts to integrate Roma communities should be carried out in a manner respectful of their cultural identity, in particular through the adoption of positive action with regard to housing, employment and education.130 The need to ensure consultation and participation of community representatives, including when carrying out an assessment of programmes, was also emphasized on several occasions by CRC/C,131 CESCR132 and by HRC. The expression of concern and the recommendation addressed by CESCR/C to Spain concerning Roma is a good example of the general approach taken by treaty bodies concerning the persistent discrimination suffered by members of minorities: [I]n spite of the existence of a range of programmes at the national and regional levels aimed at improving the situation of the Roma (Gitano) population, including the Second National Plan of Action for Social Inclusion - and the Roma Development Programme, the Roma remain in a vulnerable and marginalized situation in the State party, especially with regard to employment, housing, health and education. The Committee encourages the State party to continue and strengthen its efforts to address the situation of the Roma population, increasing at the same time the involvement of Roma associations in the planning and implementation of such programmes. The Committee requests the state party, in its next periodic report, to provide information on the difficulties encountered in implementing these programmes and on the progress achieved therein. The Committee also requests additional information on the coordination among, and sharing of competences and management responsibilities between the different levels of administration (State, Autonomous Communities and local administration) in this respect.133

B. Right to Health In , treaty bodies noted on several occasions the poor health situation of members of minorities and indigenous peoples,134 despite measures taken to ensure basic healthcare for these communities. CRC/C stressed in particular that “priority attention should continue to be given to identifying and addressing the causes of the poor health situation of indigenous and minority children, particularly Roma, as well as of high

 See in this respect the Concluding Observations of HRC on Albania, CCPR/CO//ALB, para. ; Poland, CCPR/CO//POL, para. ; and Finland, CCPR/CO//FIN, para. .  See Concluding Observations on Germany, CCPR/CO//DEU, para. .  See Concluding Observations on Rwanda, CRC/C//Add. , paras.  and .  See Concluding Observations on Lithuania, E/C.//Add. .  E/C.//Add. , paras.  and .  See General Comment  of CESCR/C on the right to the highest attainable standard of health, in which it stresses the importance of ensuring “physical accessibility [of ] health facilities, good and services, especially for vulnerable and marginalized groups, such as ethnic minorities and indigenous populations.” Paragraph  of General Comment  is entirely devoted to indigenous peoples’ right to health (HRI/GEN//rev., -).

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Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 maternal mortality rates.”135 Furthermore, as highlighted by CERD/C, social security systems should take into account the specific needs of minorities and indigenous peoples.136 The assessment of follow-up given by states to recommendations formulated in general terms may be problematic. The formulation of concluding observations in which treaty bodies indicate specific measures needed to remedy the poor health situation of minorities or indigenous people, on which states parties should be able to report concrete progress is, therefore, to be highlighted and welcomed. CESCR/C, when considering the situation of the Roma in Greece, requested in the next report “adequate information on the frequency of deployment of, or the number of persons serviced by, the mobile health units servicing itinerant Roma and the mobile mental health units providing psychological services to persons living in remote areas.”137 In its Concluding Observations on Slovakia,138 CERD/C not only recommended that “the State party continue to implement programmes and projects in the field of health for Roma”, but also specifically encouraged “the State party to take further measures to address the issues of drinking water supplies and sewage disposal systems in Roma settlements.”139 In its Concluding Observations on Croatia, CRC/C specifically requested the state party to “enhance … efforts to promote proper breastfeeding practices, including by complying with the International Code of Marketing, and ensure the effective implementation of breastfeeding programmes in accordance with international standards.” CRC/C also recommended “that children not be separated from their parents when they are hospitalized.”140 Both HRC and CERD/C addressed the issue of the right to health of indigenous people in Suriname and in particular the deleterious effects of natural-resource exploitation. HRC recommended that the state party take the necessary steps to prevent mercury poisoning of waters, and thereby of inhabitants, in the interior of the state party’s territory.141 On the same subject, CERD/C pointed out that “development objectives are no justification for encroachments on human rights, and that along with the right to exploit natural resources, there are specific, concomitant obligations towards  See for instance the Concluding Observations of CRC/C on Slovenia, CRC/C//Add. , paras. -.  See CERD/C’s Concluding Observations on Argentina, CERD/C//CO/, para. .  E/C.//Add. , para. .  CERD/C//CO/, paras. -.  In its General Comment  on the right to water, CESCR/C stresses that, “whereas the right to water applies to everyone, States parties should give special attention to those individuals and groups who have traditionally faced difficulties in exercising this right, including … minority groups and indigenous peoples”. It also insisted upon the need to protect “indigenous peoples’ access to water resources on their ancestral land … from encroachment and unlawful pollution” and to the need to provide these peoples with “resources to design, deliver and control their access to water.” Furthermore, “nomadic and traveller communities [should be granted] access to adequate water at traditional and designated halting sites.” See HRI/GEN//Rev., - and in particular para. (d) and (e).  CRC/C//Add. , paras. -.  CCPR/CO//SUR, para. .

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Nathalie Prouvez the local population.” It recommended “adoption by the State party of a legislative framework that clearly sets forth the broad principles governing the exploitation of the land, including the obligation to abide by strict environmental standards.” It also recommended that the state party “set up an independent body to conduct environmental impact surveys before any operating licenses are issued, and to conduct health and safety checks on small-scale and industrial gold-mining.”142 CERD/C also recommended to Suriname the introduction of a plan of action to combat AIDS following receipt of information about the spread of sexually transmitted diseases such as HIV/AIDS amongst indigenous and tribal people of Suriname, in connection with the expansion of mining and forestry operations in the interior of the country.143 Issues relating specifically to the health of women were raised on several occasions by treaty bodies. CAT/C expressed concern at “allegations regarding some incidents of uninformed or involuntary sterilizations of Roma women, as well as of the government’s inability to investigate due to insufficient identification of the individual complainants.”144 The same question was raised by CERD/C during its dialogue with Slovakia. The Committee “welcome[d] the assurances given by the delegation that a draft law on health care, which would address shortcomings in the system by specifying the requirement of free and informed consent for medical procedures and guarantee patients’ access to medical files, has been approved by the Government and should shortly be adopted by the Parliament.” Furthermore, CERD/C “strongly recommend[ed] that the State party take all necessary measures to put an end to this regrettable practice, including the speedy adoption of the above-mentioned draft law on health care.” It added that “the State party should also ensure that just and effective remedies, including compensation and apology, are granted to the victims.”145 The harmful impact on the health of women and children of traditional practices was addressed both by CRC/C and CERD/C. In its Concluding Observations on Myanmar, CRC/C expressed concern “that the measures taken by the State party to raise awareness among the Padaung and the Kareni tribes on the potential health hazard of their traditional practice of neck elongation have been insufficient.” The Committee pointed out that “the practice can result in sudden death or serious damage to the spinal cord if the neck-elongation ring is removed.” The Committee therefore recommended “that the State party continue and strengthen its awareness-raising activities among the people of the Padaung and the Kareni tribes, in particular women and girls, on the potential risks of their traditional practice for their physical well-being.”146 During its dialogue with Mauritania, CERD/C expressed concern about the high prevalence of female genital mutilation among some ethnic groups147 and recommended that the state party “take all necessary measures to put a stop to such practices.” Furthermore,      

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CERD/C//CO/, para. . CERD/C//CO/, para. . CAT/C/CR//, paras. (k) and (n). CERD/C//CO/, para. . CRC/C//Add. , paras.  and . CERD/C//CO/, para. .

Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 it added that “information and awareness-raising measures aimed specifically at, and designed for, relevant population groups should be adopted.” C. Right to Housing Both CERD/C and CESCR/C highlighted in their concluding observations that poor housing conditions remain a central preoccupation for members of ethnic minorities, in particular for Roma communities148 still reportedly living in substandard conditions, as their settlements often lack access to running water, electricity, sanitation and other essential services. Forced evictions and illegal occupation of dwellings was also identified as a major concern by CESCR/C on two occasions. CESCR/C recalled that this situation must be remedied by states so as to comply with the guidelines established by the Committee itself in its General Comment No. .149 When it considered the report of Azerbaijan, CESCR/C recorded cases of illegal occupation by refugees and internally displaced persons of properties belonging to Armenians and other ethnic minorities. The Committee recommended that “the State party take corrective measures to ensure that Armenians and other ethnic minorities whose properties are illegally occupied by refugees and internally displaced persons are provided with adequate compensation or offered alternative accommodation.”150 At the end of its dialogue with Greece, CESCR/C stated that it was “gravely concerned about numerous reports on the extrajudicial demolition of dwellings and forced evictions of Roma from their settlements by municipal authorities, often under the pretext of construction projects for the  Olympic Games, and frequently without payment of adequate compensation or provision of alternative housing.” The state party was requested to “provide, in its second periodic report, detailed information on the number of Roma evicted from their homes, especially in the context of the  Olympic Games, and on any measures taken to remedy illegal acts which may have occurred in that regard.” Concerning the situation in Slovakia151 and Portugal152, CERD/C expressed concern regarding the isolation of the Roma community in marginalized ghetto-like neigh See for remarks concerning this issue as dealt with by CERD in , Prouvez, “Minorities and Indigenous Peoples’ ….”, .  In its General Comment No.  (see HRI/GEN//Rev., -), CESCR/C stresses that “women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced eviction” (see para  of the General Comment). The Committee adds that “whereas some evictions may be justifiable, such as in the case of persistent non-payment of rent or of damage to rented property without any reasonable cause, it is incumbent upon the relevant authorities to ensure that they are carried out in a manner warranted by a law which is compatible with the Covenant and that all the legal recourses and remedies are available to those affected” (see para.  of the General Comment). See for CESCR/C’s Concluding Observations on Italy, E/C.//Add. , paras. -, -.  See CESCR/C’s General Comment No.  in HRI/GEN//Rev., - and the Concluding Observations on Azerbaijan in E/C///Add. , paras.  and .  CERD/C//CO/, para. .  CERD/C//CO/, para. .

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Nathalie Prouvez bourhoods and their critical situation in respect of housing conditions. The Committee reminded Slovakia of its General Recommendation XXVII153 and recommended that it “effectively implement policies and projects aimed at avoiding segregation of Roma communities in housing and involve Roma communities and associations as partners in housing construction, rehabilitation and maintenance projects.” CERD/C also stressed the link between the enjoyment of the right to housing and that of other economic, social and cultural rights and encouraged Slovakia to “take all possible measures to further improve housing conditions for Roma, taking also into account that for families, and particularly children, living in a proper environment is an essential prerequisite for access to education and employment on an equal footing.” D. Labour Rights High levels of unemployment and discrimination in relation to access to work for members of minorities, including Roma, remain a concern. Few specific recommendations, however, were addressed to states parties on this subject in  by treaty bodies. The paucity of information provided by Belarus to CERD/C did not allow it to go beyond recommending the drafting and adoption of “more effective legislation prohibiting discrimination in employment and all discriminatory practices in the labour market affecting members of Roma communities and to protect them against such practices.”154 During its dialogue with Slovakia on the same matter, CERD/C recognized “the efforts made in the field of employment, including the recent adoption of the amended Labour Code, which prohibits discrimination in its section .” However, it declares itself “alarmed by de facto discrimination against Roma as well as by the very high rate of unemployment among members of the Roma community.” The Committee recommended that “further measures be taken, in particular by focusing on professional training, to reduce unemployment among the Roma community.”155 In its Concluding Observations on the Netherlands, CERD/C deplored the disappearance of pre-existing measures favouring the employment of members of minorities. It noted that the Employment of Minorities Act (Wet Samen) ceased to be in force on  December  and expressed “concern about possible negative consequences that may ensue, given that the Wet Samen was the only legislative instrument containing regulations on the participation of ethnic minorities in the labour market and requiring employers to register the number of members of ethnic minorities employed by them.” The Committee therefore recommended that “the state party take adequate policy measures to ensure proper representation of ethnic minority groups in the labour market.”156

 See, for the text of General Recommendation XXVII on discrimination against Roma, HRI/GEN/Rev., -.  CERD/C//CO/, para. .  CERD/C//CO/, para. .  CERD/C//CO/, para. .

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Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 E. Land Rights As in ,157 the importance of land rights for indigenous peoples158 has been fully acknowledged in  by treaty bodies, in particular CERD/C.159 The main issues raised in  concerned the absence of an adequate legislative framework recognizing indigenous land rights, but also difficulties for indigenous peoples to obtain access to justice in order to claim these rights. Furthermore, the extent to which indigenous groups ought to be consulted and their consent obtained prior to the exploitation of natural resources on their lands was lengthily discussed by treaty bodies with several states parties. 1. Failure of States to Adopt an Adequate Legislative Framework. Despite clear calls repeatedly made by treaty bodies, many states parties are still to adopt an adequate legislative and policy framework recognizing the rights of indigenous and tribal peoples over their lands, territories and communal resources. In , CERD/C and HRC highlighted the continuing legal uncertainty relating to Sámi land rights, which prevails in Sweden and Finland. Following the reiterated concerns and recommendations already expressed by CERD/C in ,160 HRC called upon Finland to, “swiftly take decisive action, in conjunction with the Sámi people, to arrive at an appropriate solution to the land dispute with due regard for the need to preserve the Sámi identity in accordance with Article  of the Covenant.” Meanwhile, it requested Finland “to refrain from any action that might adversely prejudice settlement of the issue of Sámi land rights.”161 In its Concluding Observations on Sweden, CERD/C acknowledged that the appointment in  of the Boundary Commission to formulate proposals for the definition of the boundaries for Sámi reindeer-breeding areas by the end of  constituted “an important step towards securing the rights of the Sámi people.” The Committee recommended that “adequate legislation be introduced on the basis of the findings of the Commission and in consultation with the Sámi people.”162

 See Prouvez, “Minorities and Indigenous Peoples’ …”, -.  See for further developments on this issue, Erica-Irene A. Daes, “Indigenous Peoples’ Right to Land and Natural Resources” in Ghanea and Xanthaki (eds.), Minorities, Peoples …, . See also Thornberry, Indigenous Peoples…, -, -, -, -, -.  The views of the latter on the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources have been made clear through its General Recommendation XXIII. See for the text of the General Recommendation, HRI/GEN// Rev., -, and in particular para. .  See the Concluding Observations adopted in  (CERD/C//Add. , paras.  and ), in  (CERD/C//Add. , paras.  and ) and in  (CERD/C//Add. , para. ) for the Committee’s reiterated expressions of concern over the lack of solution to this issue.  CCPR/CO//FIN, para. .  CERD/C//CO/, para. .

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Nathalie Prouvez Both HRC and CERD/C paid particular attention to various issues related to land rights of indigenous and tribal peoples in Suriname.163 HRC stated that Suriname “should guarantee to members of indigenous communities the full enjoyment of all rights recognized by Article  of the Covenant and adopt specific legislation for this purpose.”164 CERD/C regretted that, “more than  years after the  Peace Accord, the State party [had] not adopted an adequate legislative framework to govern the recognition of the rights of indigenous peoples (Amerindian and Maroons) over their lands, territories and communal resources.”165 The dialogue of this state party with CERD/C highlighted in particular the difficulty stemming from the need to reconcile a state’s title to the country’s natural resources with the rights of indigenous and tribal peoples. The Committee clearly pointed out that “the principle set forth in the State party’s constitution that natural resources are the property of the nation and must be used to promote economic, social and cultural development … must be exercised consistently with the rights of indigenous and tribal peoples.”166 Similarly, during its dialogue with Nepal, CERD/C expressed concern “over allegations of forced relocation and violations of the rights of indigenous peoples to own, develop, control and use their traditional homelands and resources in the name of wildlife preservation.”167 It request[ed] the state party to “include in its next report information on actions taken, especially on efforts to reconcile indigenous people’s land rights with the preservation of wildlife.”168 2. Access to Justice Indigenous peoples should be granted a right of appeal to courts or to any independent body specially created for the purpose of allowing them to claim their rights over their lands. Failure to recognise the legal personality of indigenous peoples can constitute an obstacle to judicial claim of their land rights, as recorded by CERD/C during its dialogue with Argentina169 and Suriname.170 The Committee stressed that this difficulty needs to be remedied so that indigenous and tribal peoples can as such seek recognition of their traditional rights before the courts. Furthermore, financial obstacles to judicial claims by indigenous peoples as well as discriminatory attitudes should also be eliminated, as highlighted in the Concluding Observations adopted by CERD/C on Sweden. The Committee noted “the allegations that in cases of land disputes between Sámi and non-Sámi in courts of law, the interests of the non-Sámi frequently override those of the Sámi, and that the latter are allegedly not provided with financial means to support litigation in respect of their rights to land. The Committee request[ed] that the  It is noteworthy that no less than  paragraphs of CERD/C’s Concluding Observations on Suriname are devoted to land rights issues. CERD/C//CO/, paras. -.  CCPR/CO//SUR, para. .  CERD/C//CO/, para. .  Ibid.  Emphasis added.  CERD/C//CO/, para. .  CERD/C//CO/, para. .  CERD/C//CO/, para. .

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Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 State party provide information on this issue, as well as information on the outcome of cases related to these claims.”171 In its Concluding Observations on Suriname, CERD/ C highlighted the need to ensure that fair compensation be granted in the case of judicial claims relating to damage suffered by indigenous peoples following the exploitation of natural resources on their traditional lands.172 3.

Consultation and Consent of Peoples Concerned in Relation to Development Affecting their Lands and Natural Resources The issue of consultation and consent is central to the dialogue with of treaty bodies states regarding the implementation of natural resource extraction projects on indigenous lands. The extent to which states should go beyond the recommendation of consultation and specifically require consent of the indigenous peoples concerned, thus conferring them a right of veto, remains a subject for debate.173 General Recommendation XXIII of CERD/C on the rights of indigenous peoples, requests states parties to ensure that “no decisions directly relating to the rights and interests of indigenous peoples are taken without their informed consent.”174 The formulation adopted by CERD/C in its Concluding Observations on Suriname, is, however, more nuanced. Following the assertion by Suriname “that there are mechanisms guaranteeing that indigenous and tribal peoples are notified and consulted before any forestry or mining concessions within their lands are awarded”, the Committee declared itself “disturbed at reports that consultation of that kind is rare.” Furthermore, it invited “the authorities to check that the established mechanisms for notifying and consulting the indigenous and tribal peoples are working, and recommends that the state party strive to reach agreements with the peoples concerned, as far as possible, before awarding any concessions.”175 This approach is to be compared with the recommendations adopted by HRC concerning the same country. While not requesting consent stricto sensu, HRC recommended to Suriname that “a mechanism to allow for indigenous and tribal peoples to be consulted and participate in decision-making affecting them ... be established.”176 In its Concluding Observations on Colombia, HRC, while recommending that the state party guarantee the full enjoyment of the rights of persons belonging to minori Ibid.  CERD/C//CO/, para. .  This issue is under discussion in the Working Group on Indigenous Populations of the Sub-Commission on the Promotion and Protection of Human Rights. See the preliminary working paper prepared in  on the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources that would serve as a framework for the drafting of a legal commentary by the Working Group on this concept submitted by Antoanella-Iulia Motoc and the Tebtebba Foundation, E/CN./Sub./AC.//.  HRI/GEN//Rev., , para. (d), emphasis added. For a discussion of the possible implication that indigenous groups have a right to veto see Thornberry, Indigenous Peoples …, at .  CERD/C//CO/, para. , emphasis added.  CCPR/CO//SUR, para. , emphasis added.

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Nathalie Prouvez ties, only requested it to do so “through effective consultations with representatives of the indigenous communities.”177 In its Concluding Observations on Ecuador, CESCR “strongly urg[ed] the State party to ensure that indigenous people participate in decisions affecting their lives” and “particularly request[ed] that the State party consult and seek the consent of the indigenous people concerned prior to the implementation of natural resources-extracting projects and on public policy affecting them, in accordance with ILO Convention No.  concerning Indigenous and Tribal Peoples in Independent Countries.”178 IX. Concluding Remarks: Need to Follow-Up on Treaty Body Recommendations The present review of the practice of treaty bodies in the course of  shows that minority and indigenous peoples’ rights are a matter of increasing concern for these bodies. For instance, whereas only two Concluding Observations adopted by CAT/C in  briefly mentioned ethnic minorities,179 this Committee made specific references to torture or ill-treatment of members of minorities or indigenous groups during the consideration of four out of ten states examined in . Members of the Roma community were once again identified by treaty bodies as the prime victims of discrimination in several countries. In particular, their deplorable socioeconomic situation and the lack of effectiveness of measures taken to remedy the violations of their economic and social rights were stressed in more than  Concluding Observations. In addition, this review has highlighted not only the similarities in the approach and in the substance of the recommendations made by treaty bodies, but also the fact that, on several occasions, different treaty bodies made similar recommendations to those made to the same state parties on identical issues in . The persistence of problems in particular areas despite the recommendations made by treaty bodies leads to questioning the response of states to these recommendations. As noted in the Durban Declaration adopted by states at the end of the World Conference against Racial Discrimination, Racism, Xenophobia and Related Intolerance, “the obstacles to overcoming racial discrimination and achieving racial equality mainly lie in the lack of political will, weak legislation and lack of implementation strategies and concrete action by States.”180 In the views which it conveyed in  on the imple CCPR/CO//COL, para. , emphasis added.  Emphasis added. Land rights of indigenous communities in Ecuador had been dealt with by CERD/C in , see CERD/C//CO/, para. : “As to the exploitation of the subsoil resources of the traditional land of indigenous communities, the Committee observes that merely consulting these communities prior to exploiting the resources falls short of meeting the requirements set out in the Committees’ General Recommendation XXIII on the rights of indigenous peoples. The Committee therefore recommends that the prior informed consent of these communities be sought, and that the equitable sharing of benefits to be derived from such exploitation be ensured.”  Concluding Observations on Slovenia, CAT/C/CR/; and on Moldova, CAT/C/ CR/.  Durban Declaration, para. .

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Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 mentation and effectiveness of CERD to the third session of the Intergovernmental Working Group on the Effective Implementation of the Durban Declaration and Programme of Action, CERD/C fully agreed with this observation and stressed that, “as is the case with all international normative standards, the Convention is very useful and effective for States that genuinely wish to abide by it.” CERD/C further stated that “CERD has helped to improve the situation in many countries. Where it has failed, it is because the necessary political will is lacking in the States concerned.”181 The value of the Concluding Observations adopted by CERD/C as well as by other treaty bodies therefore depends entirely on the use that will be made of recommendations at the national level. The main priority is to ensure that these recommendations have a practical impact in the countries concerned. The establishing of effective national institutional mechanisms for follow-up of the recommendations of treaty bodies continues to represent a challenge for states parties. Some of them have pointed out that treaty body recommendations are sometimes difficult to implement for various reasons, including their too general nature. The efforts of treaty bodies to make their recommendations more concrete and specific, so as to facilitate follow-up, have, however, been stressed in this review. All treaty bodies request states parties to provide information on implementation of the recommendations contained in previous Concluding Observations in their subsequent reports or during the constructive dialogue. Several treaty bodies have also recently introduced formal procedures to monitor more closely the implementation of specific concluding observations. Both HRC and CAT/C182 have systematically applied a follow-up procedure whereby these Committees identify a number of specific recommendations in its concluding observations as requiring immediate attention and request the state party to provide additional information on their implementation within a set period.183 It should be noted that some recommendations relating to minorities addressed to states in  have been identified by HRC and CAT/C as priority issues.184 CERD has a long-standing procedure, set out in Rule  of its Rules of Procedure, whereby the Committee may request further information or an  E/CN.//WG./, para. .  See the decisions adopted by HRC on  March , A//, vol. , Annex III.See also Annex X to the Annual Report submitted by CAT/C to the General Assembly in  (A//): Amended rules of procedure.  This period is usually of one year. The Concluding Observations set a provisional date for submission of the next periodic report. A rapporteur on follow-up to Concluding Observations reviews the information received from the state party and, on the basis of this follow-up progress report, the Committee may confirm or amend the date for submission of the next periodic report.  This was the case for the recommendation concerning Sami land rights in the Concluding Observations on Finland adopted by HRC (CCPR/CO//FIN, paras.  and ), and for the recommendation concerning discrimination against Roma in the Concluding Observations of HRC on Poland (CCPR/CO//POL, paras.  and ). See also the recommendation on racial discrimination in the Concluding Observations of CAT/C on the Czech Republic (CAT/C/CR//, paras. (a) and (o)) and the recommendation on Roma in the Concluding Observations of CAT/C on Greece (CAT/C/CT//, paras. (k) and ).



Nathalie Prouvez additional report concerning, inter alia, action taken by states parties to implement the Committee’s recommendations. During its sixty-fourth session in March , the Committee decided to supplement this procedure with the appointment of a coordinator on follow-up. The coordinator is appointed for a period of two years and works in cooperation with the country rapporteurs.185 Other stakeholders involved in the reporting process should also play an active role in ensuring that the recommendations are implemented. Coordination between the various branches of government, the national human rights institutions and civil society organizations, while each maintaining their independent and autonomous role, should be strengthened in order to achieve better follow-up. Treaty body recommendations should be translated into local languages and duly disseminated among state authorities and among civil society. Government agencies should draw up a plan with specific deadlines in order to ensure the implementation of the recommendations, and national human rights institutions and civil society organizations should lobby for, and monitor this implementation process. In line with the report of the United Nations Secretary-General, “Strengthening the United Nations: an agenda for further change”,186 and particularly with its emphasis on helping countries to advance the protection of human rights, a central activity of the Office of the High Commissioner for Human Rights (OHCHR) is capacity building at the national level for the implementation of human rights obligations established in the seven core human rights treaties. Capacity building activities include training on all aspects of the treaty process: ratification and accession; all stages of reporting; followup to reporting; communications and reporting on follow-up to these procedures. In this context, the OHCHR has started a programme that includes training of national human rights institutions, non-governmental organizations and media representatives prior to the consideration of their state reports by treaty bodies. These training sessions are designed to encourage participants to adopt a plan of action on their contribution to the implementation of the recommendations adopted once the state report has been examined.187 These training sessions have been followed by the organization of subre-

 Although it has not adopted any follow-up procedure, CESCR may, in its Concluding Observations, make a specific request to a state party to provide more information prior to the submission of the next periodic report. This information is considered at the next pre-sessional working group, which can recommend that the Committee take note of the information, adopt specific additional Concluding Observations, recommend that further information be requested, or authorize the Chairperson to inform the state party, in advance of the next session, that the Committee will take up the issue at that session, preferably in the presence of a representative of the state party. If the information is not provided or is considered to be unsatisfactory, the Committee may pursue the matter with the state party. It may request that the state party accept a technical assistance mission including committee members. In cases where the state party is unwilling to accept the proposed mission, the Committee may make appropriate recommendations to the Economic and Social Council.  A//.  These trainings are organised twice a year, and include a preliminary session held at the national level, followed by training in Geneva involving participants from several countries.



Minorities and Indigenous Peoples’ Protection: The Practice of UN Treaty Bodies in 2004 gional workshops188 in various parts of the world in order to encourage implementation of the concluding observations of treaty bodies. During these workshops, government officials as well as civil society representatives consider whether or not the various recommendations adopted by the relevant treaty bodies have been implemented and if not, identify the obstacles to such implementation. A comparison is made between the states parties concerned and reasons identified for the variations in degrees of implementation. Discussions also include institutional arrangements for follow-up of the recommendations as well as the assistance that the OHCHR could provide to states parties. It is hoped that the conjunction of these various efforts will contribute to a more effective implementation of the recommendations addressed to states.

Participants are also granted funding so that they can attend the sessions of the treaty bodies during which their national report is examined.  A first pilot workshop, which focused on the implementation of the Concluding Observations adopted by HRC, was held in Quito in . It was followed by two workshops on the implementation of the Concluding Observations of CRC/C, held in Damascus () and Bangkok (). A similar workshop which focused on all treaty bodies was held in Guatemala ().



B: NATIONAL DEVELOPMENTS

D. Christopher Decker *

Recent Developments in Romania on the Draft Law on the Status of National Minorities: Déjà Vu All Over Again?

The minorities in Romania have claimed for years the need for an act on national minorities. There were several attempts to draft such a law. …The [Democratic Alliance of Hungarians in Romania] Draft Bill on national minorities and autonomous communities was founded on some concepts not only too sensitive for the Romanian society but which contradicted the Romanian Constitution, such as a “territorial autonomy based on ethnic criteria”, “minorities as constituent factors of the state”, “minorities as entities of public law”. And it is unlikely the Parliament will agree to amend the Constitution in order to adopt such a law. The other draft, issued by the Council for National Minorities, is too weak in terms of protection and meets more the interest of minority associations represented in the Council than the needs of their minorities. Renate Weber,  1

I. Introduction The area of Eastern Europe that constitutes Romania has been, and continues to be, a mosaic of ethnic, religious and linguistic groups. However, this diversity has not been looked upon favourably by most of the regimes that have ruled Romania. Since the end of the Ceauşescu regime, the Romanian state has continued to struggle with the issues of nationalism and its multiethnic population. Concerning *



Senior Research Associate, European Centre for Minority Issues (ECMI). LL.M., University of Essex; J.D., State University of New York at Buffalo, School of Law; B.A., Purdue University. The author managed the ECMI project in Romania and served as a legal consultant for the Romanian Department of Inter-Ethnic Relations on the draft law on the status of national minorities. The author would like to thank Roxana Ossian; Attila Markó, Head of Department of Inter-Ethnic Relations; Wes McKinney; and Dr. Tove Malloy. Renate Weber, “The Protection of National Minorities in Romania: A Matter of Political Will and Wisdom”, in Jerzy Kranz (ed.), Law and Practice of Central European Countries in the Field of National Minority Protection After  (Center for International Relations, Warsaw, ), . Renate Weber is the former President of the Romanian Helsinki Committee and currently the principal adviser to the President of Romania on human rights and minority rights.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 671-694. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

D. Christopher Decker majority/minority relations, the last  years can be characterized as ‘one step forward, one step back’. While the national minorities of Romania have struggled for greater acceptance by the majority and for improved rights, there has always been an ongoing attempt by nationalist elements to prevent the full recognition of minority rights. The arguments against such recognition usually take the form of national minority kinstates attempting to subvert Romanian development or that further rights will cause secession of Romanian territory.2 However, Romania has implemented political reforms aimed at increasing minority participation in society. Namely, this comes in the form of set-aside seats for the national minorities in the Chamber of Deputies.3 Romania has ratified and/or signed all major international legal instruments dealing with minority issues.4 While Romania has committed itself, both domestically and internationally, to uphold many minority rights, it has not managed to implement many of these rights. This is true of the Council of Europe’s (CoE) Framework Convention for the Protection of National Minorities (FCNM). Romania signed the FCNM in , but has yet to adopt implementing legislation for the convention.5 There have been at least six attempts – none of which has been successful – over the past ten years to adopt a law on the status of national minorities in Romania. 6 This article will focus on the recent work that has been done to draft a new law on the status of national minorities and the efforts to get the law adopted by the government coalition and by parliament. Section II will briefly discuss the recent history of national minorities in Romania. In particular, this section will focus on the rise of the Democratic Union of Hungarians in Romania (UDMR) and the nationalist response by successive governments, or at least their acquiescence to nationalist undercurrents. Section III will examine the major components of the draft law on the status of national minorities, including the ‘definition’ of minority, the establishment of national minority organizations and cultural autonomy. The section will also focus on some parties’ argu 









See generally, Paul Roe, “Misperception and Minority Rights: Romania’s Security Dilemma?”,  EYMI (/), -. See Romanian Constitution, Article () (). “Organizations of citizens belonging to national minorities, which fail to obtain the number of votes for representation in Parliament, have the right to one deputy seat each, under the terms of the electoral law. Citizens of a national minority are entitled to be represented by one organization only.” The Chamber of Deputies is the lower house of the Romanian parliament. As of May , the Romanian Department of Inter-Ethnic Relations is still negotiating certain conditions concerning the European Charter for Regional and Minority Languages with the CoE, but signature of the Charter is expected during this government. Tove H. Malloy, “The Title and the Preamble”, in Marc Weller (ed.), The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford University Press, Oxford, ), ; Weber, “The Protection of National Minorities in Romania …”, -. In , the Democratic Forum of Germans in Romania developed a draft. In , the UDMR had a draft and later that year the Council of National Minorities tried. In , the Centre for Human Rights of the Romanian Helsinki Committee also attempted a draft. According to the DRI, there were an additional two attempts, including the current draft.

Recent Developments in Romania on the Draft Law on the Status of National Minorities ments against the law and the national minorities arguments in favour of it. Section IV will essentially conclude the article by discussing the prospect of the law’s passage and how Romania could reform its legal framework for national minority protection. II. Recent History Romania has had a very difficult past. In , it suffered a ‘revolution’ which, according to one’s perspective, might be labelled a coup by the oligarchs.7 Although facts remain murky to this day, it appears that the long-time dictator of Romania, Nicolae Ceauşescu, and his wife Elena, were arrested, tried, convicted and executed.8 The Ceauşescu’s left deep scars on the Romanian psyche. Their blend of communism, nationalism and cult of personality left Romanians fearing outside influences on the country and with the belief that there were threats from inside and outside the country, which prevented Romania from attaining its true glory. This has fostered a suspicion of the national minorities within Romania as somehow being involved in these possible intrigues. Politicians have played on this propaganda and fear for their own purposes over the years, sometimes inciting violence,9 but always to the detriment of the national minorities.10 In the face of these odds, the national minorities have continued to press for their rights amid shrinking populations as their members seek better economic opportunities and protection of their rights elsewhere. This has culminated in what may be a final pursuit of a law that defines the status of national minorities in Romania.11 However, it is important to place current events in a proper historical perspective so that one can see the general culture of opposition to minority rights that has evolved in Romania. Whilst there is a sizeable section of Romanian society, namely civil society, which advo  





Tom Gallagher, Theft of a Nation: Romania since Communism (Hurst, London, ), . Gallagher, Theft of a Nation …, -. See John Gledhill, “States of Contention: State-Led Political Violence in Post-Socialist Romania”,  East European Politics and Societies (), -. Although Gledhill contends that the  Jiu Valley Miners strike did not have nationalist overtones, it provides an excellent account of the government’s involvement in the organization and execution of the violence by the miners. For example, when Ceauşescu’s economic policy collapsed in the s, “he fell back on nationalism and in particular the alleged threats posed by [Romania’s] historic rivals, Hungary and Russia, in order to demand obedience and further sacrifices. Whenever the internal shortcomings of the state, or examples of low standards in high places, became impossible to conceal in the s, threats to territorial integrity – usually from Hungary or the large Hungarian minority in Romania – would be promptly discovered and revealed to a populace now thoroughly imbued with the main tenets of Romanian nationalism.” See Gallagher, Theft of a Nation …, -. Romania is scheduled to join the EU in . Once this occurs, there will be little incentive within Romania to work towards further protection of minorities. This phenomenon has been seen with the Baltic States, which were criticized for not ensuring citizenship and minority rights to Russians. Because the EU did not force the Baltic States to address the problems of the Russian minorities within their respective states prior to accession, there remains latent minority rights problems.



D. Christopher Decker cates democratic ideals and minority rights, there remains a part of Romanian society that will always oppose any minority rights due to the long-engrained nationalism that is intrinsic in Romania. It is important to recognize the climate in which the national minority organizations operate. The remainder of this section will focus only on the recent history of Romania.12 The post-revolution politics in Romania included a large role for the nationalist parties. In , the Romanian National Unity Party (PUNR), the Great Romania Party (PRM) and the Socialist Labour Party (PSM) were each a part of the government, in coalition with the Social Democratic Party’s (PSD) predecessor.13 At this point in time, Romania was trying to normalize its relations with European countries, trying to become a member of the CoE and the OSCE. In , Adrian Năstase,14 said at the OSCE conference that the OSCE emphasized minority rights too much and did not emphasize the “responsibility of minorities to respect the territorial unity of the state in which they lived and to be loyal to it”.15 In , the three nationalist parties were in coalition and were able to obtain ministerial positions and state-secretary posts.16 “Their presence in the government severely altered the political life in Romania. One may say that hatred against minorities (mainly the Hungarians) became state policy.”17 In , the Democratic Social Party of Romania (the current PSD) lost the election and the opposition was able to create a coalition government, which included the UDMR, marking the first time that a national minority party had entered into government.18 This began a trend of the UDMR supplying the needed votes for each coalition since to form a government. The period between  and  saw a number of pieces of legislation adopted that were in violation of the international agreements concerning minority rights to which Romania had committed. One of these laws was the Law on Local Public Administration,19 which imposed severe restrictions on the use of national minority languages, even in courts.20 Another such law was the Law on the Hoisting of the Flag of Romania, Intonation of the National Anthem and Usage of Seals with the Romanian Arms by Authorities and Public Institutions,21 which prevented the use of 



      





While an in-depth examination of national minorities in Romania is possible and would reveal long-standing and deep-seated resentment of the majority against the various minorities, especially the Jews and Hungarians, this is beyond the scope of the article. The Front of National Salvation (FSN) in , the Democratic Front of National Salvation (FDSN) in , and the Party of Social Democracy in Romania (PDSR) in  and . He is a former foreign minister and prime minister, member of the PSD. Gallagher, Theft of a Nation …, . Weber, “The Protection of National Minorities in Romania …”, . Ibid., . Ibid., . No. /. Weber, “The Protection of National Minorities in Romania …”, -. In May , the law was amended to adhere to international commitments for minority protection. See ibid., . No. /.

Recent Developments in Romania on the Draft Law on the Status of National Minorities other nations flags or anthems in Romania except under certain conditions and violation of this law was criminalized under the Penal Code.22 This law, which was clearly aimed at preventing the Hungarians from celebrating their national day, was amended at the end of . Lastly, the Law on Education23 was highly controversial for the national minorities as it put severe limitations on the ability of national minority children to be educated in their mother tongue by creating several indirect discrimination clauses. Furthermore, the law required the teaching of the History of Romanians, not Romania. The law made certain subjects compulsory, such as the aforementioned History of Romanians and Romanian language teaching was required. The law further required that certain subjects had to be taught in Romanian, thereby ensuring that exclusion of national minorities from certain subjects like administration.24 In , the nationalist parties lost ground and the opposition won the elections forming a coalition, which again included the UDMR. While there was an improvement in the relationship between the national minorities and the government from  to , overall the government was seen as being largely ineffective and, like previous governments, had problems with corruption. Towards the mid-s, manipulation of nationalism and anti-minority angst began to lose some of its effect. This was due in large part to the responsible, measured and moderate response of the UDMR to the nationalist threats against the Hungarian community over the years. At the time of the  elections, there were severe economic hardships for a large proportion of the Romanian population. The OSCE reported at the time: “The perceived inability of past governments to adequately address the issue of poverty dominates the Romanian political landscape, despite the signs of economic progress that have taken place in the past year.”25 The beneficiary of the voters’ protest against the government was the PRM, which received over  % of the seats in the Chamber of Deputies and became the second largest party in parliament. While an OSCE report noted that the first round of voting did not play on anti-minority feelings,26 the second round for the President was between the PSD and PRM candidates. The press covered that the PRM “rhetoric by the candidate and members of his party drew attention to anti-minority sentiments and his intentions about mass arrests, public trials and confiscation of property.”27 In April , the PSD government was still the ruling party in Romania but it was supported by the UDMR. The PSD stated, as part of its re-election platform, that it was seeking passage of a law on the status of national minorities and adoption of the CoE’s European Charter for Regional or Minority Languages (ECHRML).28       

Weber, “The Protection of National Minorities in Romania …”, -. No. /. Weber, “The Protection of National Minorities in Romania …”, -. OSCE/ODIHR Election Observation Mission Presidential and Parliamentary Elections – Romania, Statement of Preliminary Findings and Conclusions ( November ), . OSCE/ODIHR Election Observation Mission Presidential and Parliamentary Elections of  November and  December  – Romania Final Report ( January ), . Ibid., . European Treaty Series, No.  ( November ).



D. Christopher Decker While some initial drafting had taken place, or at least discussions were held concerning what would be included in the draft law, all plans were put on hold in October due to the impending elections for parliament and president on  November (and Presidential run-off, if needed on  December). The main opposition to the PSD were the Democratic Alliance (DA), the National Liberal Party (PNL) and the Democratic Party (PD). The DA also included the adoption of a law on the status of national minorities and ratification of the Language Charter as part of their election platform. What was unclear was what role the PRM might play in the election. If the DA and PSD each received - % of the vote, the UDMR  % and the PRM received  %, this could have created a difficult situation for the party trying to form a governing coalition. However, the EU urged whichever party that won, not to enter into government with the PRM. What played out was a first in Romanian politics. The PSD won the parliamentary election with a slight advantage, but not enough for a majority. However, the DA candidate for President, Traian Băsescu, surprisingly nudged out the most recent PSD Prime Minister Adrian Năstase. Under the Romanian system, the President chooses the party to form the government. In this case, Băsescu chose his own DA party to attempt to form a minority government. On  December, the government received a confidence vote in parliament. Currently, the government is comprised of the DA, the Humanist Party (PUR),29 independents, the UDMR, and the  other national minority deputies. However, the governing coalition is not very cohesive. The current government is attempting to adopt many reforms in order to meet the EU requirements before their accession date of . The government has met strong resistance to the reforms from the opposition, defectors within the coalition, and the Supreme Court. Consequently, the current Prime Minister, Calin Tariceanu, announced that he would resign and call a new election.30 As of the end of July , the resignation is expected, but has not occurred.31 III. The Draft Law on the Status of National Minorities The purpose for drafting a law on the status of national minorities is twofold. Firstly, the law is intended to implement the standards set out in the FCNM, which was ratified by Romania in . Secondly, the national minorities want the law to establish certain



 



The PUR has changed its name as of  May  to the Conservative Party. The PUR was in coalition with the PSD but has supported the government anyway. “The real surprise came from the PSD’s closest ally PUR. The Humanist leaders first stated that ‘political morality’ forces them to stay by the PSD’s side, but announced [within] a few days to enter the coalition of the Justice and Truth Alliance and the UDMR. The  PUR deputies and senators secured a comfortable majority for the new cabinet.” Romania Update, European Forum for Democracy and Solidarity,  March , available at . Judy Dempsey, “Prime Minister plans to resign in Romania”, International Herald Tribune,  July , . Daria Anghel, “PM pleads early elections not affecting accession”, Nine O’Clock News,  July , Issue , , at .

Recent Developments in Romania on the Draft Law on the Status of National Minorities basic principles so that their status is solidified under Romanian law. For example, under current Romanian law there is no definition of national minorities.32 The major political force behind the draft law is the UDMR. While some commentators have used this fact as some sign of a Hungarian conspiracy in Romania, it appears that the Hungarians are pushing for the law out of both self-interest and a sense of noblesse oblige towards their other national minority brethren. The Hungarians, comprising - % of the Romanian population, are the largest of Romania’s minorities,33 with a population that comes to the polls and votes. They are also very well-organized politically, with a strong party structure from the grassroots all the way up to the party leadership. It appears that the Hungarians truly feel that they are the big brother that must look out for the other national minorities. At the same time, they clearly pursue a long-term political programme that has Hungarian interests at stake.34 A positive outcome for the minorities, and specifically the UDMR, has been that the Hungarians are well-represented in the current government. The President of the UDMR, Bela Marko, is Deputy Prime Minister and several other Hungarians are serving as ministers or state secretaries.35 In addition, a Hungarian, a German and a Russian-Lippovan have been appointed as head and deputies, respectively, for the Department of Inter-Ethnic Relations (DRI).36 The DRI has become the hub of activity surrounding the draft law on the status of national minorities. After the appointment of the head of the DRI, work began on the draft law. There were occasional meetings about the law in January , but there was no urgency 



  

Romania has not made a Note Verbale or a declaration concerning its understanding of a national minority for the purposes of the FCNM. See . According to the last census, the Hungarians are the largest ethnic group after the Romanians. However, most experts believe that the Roma may be equal to or even larger than the Hungarians. There are two explanations for this, which are not mutually exclusive. First, many Roma do not self-identify as being Roma. There may be several reasons for this, which is beyond the scope of this article. Second, many Roma are not registered with the state (birth certificates, identity cards, etc.). The combination of these factors mean that most Roma were not counted in the census. They are outside the legal structures and are severely marginalized. See Minorities at Risk, Assessment for Roma in Romania, at . See the UDMR Election Programme at . See the UDMR webpage at . The Department for Inter-Ethnic Relations is an organ of the central public administration. It is subordinated to the Prime Minister and is coordinated by the Ministry for the Coordination of the General Secretariate of the Government. The structure and main tasks of this department are established by the Governmental Decree (HG)/. The DRI promotes ethnic diversity in Romania by consolidating and enlarging the protection framework offered to our multicultural society. The DRI initiates and develops programmes created to improve the protection system of national minorities, they elaborate strategies to combat racism and xenophobia and support the organizations active in this field. It also contributes to the process of legislative and institutional strengthening for the protection of national minorities in Romania. See .



D. Christopher Decker towards drafting the law. In February, members of the government, the DRI and the UDMR began consultations with foreign experts on some of the issues that they were considering including in the law.37 Between February and March, drafting was in full swing, with meetings taking place between the National Minority Parliamentary Group, the DRI and the UDMR. In addition, between the middle and the end of March, the DRI held a consultation with the Council of National Minorities38 to discuss some of the important issues that were to be included in the draft.39 In addition, foreign NGOs became involved in the process.40 In March, a roundtable meeting was held between the government and representatives of the national minority organizations that are members of the Council of National Minorities.41 The roundtable provided the national minority organizations with an opportunity to comment on important issues that were to be included in the final draft. Within ten days of this meeting, a first draft of the status law was presented to the Council of National Minorities for comment. At that meeting, the national minority organizations and their MPs endorsed the draft law.42 At this point, the DRI and the UDMR began distributing the draft law to the various ministries and began seeking each ministry’s approval of the law. By mid-April, the draft law began to run into trouble with the Ministry of Culture and the Ministry of Justice. Moreover, the Legislative Council, a parliamentary body that renders nonbinding opinions on draft legislation,43 provided a quite negative assessment of the draft law.44 



 



  



See generally, D. Christopher Decker, “Enhancing Minority Governance in Romania: Report on the Presentation on Cultural Autonomy to the Romanian Government”, ECMI Report No. , March , at . The Council of National Minorities is a consultive body that is composed of three representatives from all the national minority organizations that have a seat in the Romanian Chamber of Deputies. There are six committees that deal with issues such as culture, religion, education, legal, finance, inter alia. In particular, the legal committee is supposed to have a role in the vetting legislation that deals with national minorities, but the government and parliament usually ignore the committee. The finance committee disperses the funds allocated by the government for the national minorities’ cultural activities and, hence, is seen as one of the most important bodies for the national minorities. See the DRI Events at . In particular, ECMI was offering legal advice to the DRI on the draft law. See ECMI Romania website at . Additionally, the Project on Ethnic Relations has been running a policy dialogue between the main parties, government and kin-states regarding the draft law, which is funded by the Romanian government. See PER webpage at . D. Christopher Decker and Aidan McGarry, “Enhancing Minority Governance in Romania. The Romanian Draft Law on the Status of National Minorities: Issues of Definition, NGO Status and Cultural Autonomy”, ECMI Report No. , May , at . See the DRI Events at http://www.dri.gov.ro/content.jsp?page=&language=. Romanian Constitution, Article . Comments of the Legislative Council on the Draft Law Regarding the Status of National Minorities (April ). The first sentence states: “the Council ... gives its favourable notice,

Recent Developments in Romania on the Draft Law on the Status of National Minorities The day the opinion of the Legislative Council was released to the sponsors of the law, the DRI co-hosted another roundtable aimed at providing civil society organizations, particularly those with a human rights and/or minority rights mandate, an opportunity to comment and suggest amendments to the draft law.45 This meeting was particularly positive as the civil society groups took the event very seriously and were well-prepared to argue complex issues of Romanian law with the DRI. In turn, the DRI actually amended parts of the draft in accordance with suggestions from the civil society organizations. Over the proceeding three weeks, the DRI and the UDMR continued talks with the ministries of culture and justice in an attempt to find solutions to the ministries’ objection. In the end, the Minister of Justice and the Minster of Culture supported the law, which allowed it to receive government support, and was presented to the Senate on  May .46 The UDMR had threatened not to vote for an important justice sector reform bill needed for EU accession if the draft law is not approved.47 While the law was adopted by the Senate, it was withdrawn from the Chamber of Deputies. In the current uncertainty about the possibility of early elections, it is difficult to say what the likelihood is that the law will be adopted. What is certain is that the draft law is highly controversial. The next three subsections will discuss the critical areas of the draft law and some of the legal arguments that took place when seeking the government’s approval. The three main areas of the law focus on the definition or description of national minorities, the legal status of national minority organizations under Romanian law and the opportunity to develop institutions of cultural autonomy. One issue that must be kept in mind while trying to understand the arguments involved in certain sections of the law, is that the national minority organizations that are currently represented in parliament – and therefore the Council of National Minorities – are in a relatively comfortable position. Their organizations receive funds from the Romanian state because they run in the elections. They also receive funds from the government through the DRI for their organization’s cultural events. While minorities in Romania do face varying levels of discrimination or anti-semitism, none of the minorities in Romania can claim the same level of abuse or intolerance that was







with the following observations and propositions” (emphasis added). However, the observations, if incorporated in the law, would have rendered most of the law meaningless. D. Christopher Decker and Roxana Ossian, “Enhancing Minority Governance in Romania. The Romanian Draft Law on the Status of National Minorities: A Consultation with Civil Society”, ECMI Report No. , July , at . “Musca: Am convenit cu UDMR ca Legea minoritatilor sa treaca prin Parlament”, Gardianul,  May , at . Bogdan Costache, Maghiarii nu voteaza reforma justitiei fara Legea minoritatilor, Nr., Adevarul ( May ) . Bogdan Costache, “Maghiarii nu voteaza reforma justitiei fara Legea minoritatilor”, Adevarul, No. ,  May , at .



D. Christopher Decker seen in the Balkans in the s.48 Because of this, the national minority organizations seem to have focused their energies in two directions, maintaining their place of power and trying to expand their rights slightly. Every argument that is discussed below will contain elements of these two aspects. It is important to keep in mind these wants because at times the national minorities’ arguments may seem counterintuitive. A. Definition/Description of a Minority The first hurdle that the drafters wanted to overcome was the philosophical difference between defining and describing what a minority is. At first, the drafters were intent on saying that they were describing a national minority since there was no agreed-upon definition of minority under international law.49 In the end, however, the drafters did not uphold the phraseological difference between defining and describing and simply called their version a definition. Trying to define or describe the national minorities in Romania was always going to be a challenge, largely because there is not a definition under international law upon which to model its own. The drafters looked at several states that have a law on the status of national minorities.50 In particular, the definitions used in the Czech Republic, Croatia, Hungary, Serbia and Montenegro, and Ukraine were studied. In addition, the definitions submitted by various parties to the FCNM were also examined. It was noted that each status law attempts to define the term ‘national minority’ to varying degrees of specificity, usually mentioning: citizenship, ‘group’ or ‘community’ explicitly, ‘territory’ in one form or another; reference is also made to the ethnic, cultural, linguistic and traditional differences that national minorities possess.51 The first public draft defined national minorities as “any community of Romanian citizens, living on the territory of Romania of [sic] at least  years, that is numerically inferior to the majority population, with its own specific national, ethnic, cultural, linguistic and religious identity, and who wishes to preserve, express and promote its identity”.52 If the definition had stopped here, many NGOs and European institutions would have been quite pleased, except for the term ‘ years’; however, the definition continued: “The national minorities from Romania are the following communities: Albanese [sic], Armenian, Bulgarian, Czech, Croat, Greek, Jewish, German, Italian,



 







It was initially feared that the events that transpired in the former Yugoslavia might spill into Romania. This did not occur even at a time when the PRM received their largest number of votes in . Patrick Thornberry and Maria Amor Martín Estébanez, Minority Rights in Europe (Council of Europe, Strasbourg, ), -. D. Christopher Decker, “Status of National Minorities Legal Digest: A Thematic Look at Five National Laws” (ECMI, Flensburg, Germany, ). Available at . Decker and McGarry, Enhancing Minority Governance in Romania. The Romanian Draft Law on the Status of National Minorities: Issues of Definition, NGO Status and Cultural Autonomy …, . Draft , Article ().

Recent Developments in Romania on the Draft Law on the Status of National Minorities Macedonian, Hungarian, Polish, Russian-Lippovan, Roma, Ruthenian, Serbian, Slovak, Tartar, Turkish, Ukrainian.”53 The reason that enumerating the communities to be recognized is problematic is that not all of the national minorities were included in this list. In addition to the list in Article (), there are Csangos and Aromanians (Vlachs). The Csangos and Aromanians are distinct, mostly due to language.54 Both these minorities have received the attention of the Parliamentary Assembly of the CoE. In separate recommendations the Parliamentary Assembly called for the protection of these two groups.55 Of course, if these two groups were recognized in a law on the status of national minorities, they would have a claim on one of the  set-aside seats in the Romanian Chamber of Deputies. This may explain the general reluctance on the part of the national minorities to expand the list of recognized minorities. While the main drafters of the law were the Hungarians (and they have always exceeded the  % threshold in the national elections so as to have their parliamentarians receive mandates through the regular election procedure rather than the set-aside procedure), they would not have received the important political backing of the National Minority Parliamentary Group if they sought to expand the list. It would be difficult for the UDMR to claim that this law was for all national minorities if the National Minority Parliamentary Group would not support the draft law. So, by limiting the scope of the definition of national minority to those already with seats in parliament, the UDMR ensured the national minorities’ support for the law. Another issue concerning the definition was the use of the term ‘national’ rather than ‘ethnic’ minority. The drafters, and the national minority representatives, saw a difference between the two. The term ‘national’ was viewed as meaning minorities with long-standing ties to Romania. The term ‘ethnic’ minority is interpreted to mean ‘new’ minorities or, more precisely, immigrants. While there does not seem to be any maliciousness in deliberately leaving the term ‘immigrant’ out of the law, it was done because there was a sense that immigrants had not yet contributed enough toward the social, economic and cultural advancement of Romania to merit inclusion.56 However, several

 





Draft , Article (). “The Csangos are a non-homogeneous group of Roman Catholic people of Hungarian origin. This ethnic group is a relic from the Middle Ages that has survived in Moldavia, in the eastern part of the Romanian Carpathians. Csangos are associated with distinct linguistic peculiarities, ancient traditions, and a great diversity of folk art and culture. For centuries, the self-identity of the Csangos was based on the Roman Catholic religion and their own language, a Hungarian dialect, spoken in the family and the village community.” See, CoE, Parliamentary Assembly, Committee on Culture, Science and Education Report, Csango Minority Culture in Romania, Doc.  ( May ). See CoE, Parliamentary Assembly, Csango Minority Culture in Romania, Recommendation  (); see also CoE, Parliamentary Assembly, Aromanian Culture and Language, Recommendation  (). Decker and McGarry, “Enhancing Minority Governance in Romania. The Romanian Draft Law on the Status of National Minorities: Issues of Definition, NGO Status and Cultural Autonomy …”, -.



D. Christopher Decker national minority representatives did express the belief that, over a period of time, ‘new’ minorities might become national minorities.57 When the second draft was released to the public there had been some changes made to the definition. Article  read: “By national minority we understand any community of Romanian citizens, living on the territory of Romania from the moment the modern Romanian state was established, that is numerically inferior to the majority population, with its specific ethnic identity expressed by culture, language or religion, and who wishes to preserve, express and promote its identity.”58 As can be seen from this definition, the major elements of citizenship, ‘group’ or ‘community’, reference to ‘territory’, and ethnic, cultural, linguistic and traditional differences that national minorities possess remain. While it seems that this definition would better accommodate the other minorities – such as the Csangos and Aromanians – that have yet to be recognized or at least leaves the possibility of future recognition open, it is in fact no better than the definition in the first draft. Buried at the end of the law, in Article , national minority is defined again; it states: “In the spirit of this law, the national minorities living in Romania are the following communities: Albanese [sic], Armenian, Bulgarian, Czech, Croat, Greek, Jewish, German, Italian, Macedonian, Hungarian, Polish, Russian-Lippovan, Roma, Ruthenian, Serbian, Slovak, Tartar, Turkish, Ukrainian.”59 While several civil society organizations argued against enumerating specific minority communities, it appears the need to keep the National Minority Parliamentary Group on-board was politically more important. Interestingly, the government did not seem to have any opinion about the definition. The only conceivable concern from the government side would have been a definition that might necessitate the need for creating additional set-aside seats in the Chamber of Deputies. While the issue of definition was important for the few groups that were not recognized, like the Csango and the Aromanians, the issue of the legal status of national minority organizations proved far more contentious. B. The Status of National Minority Organizations The issue of the status of national minority organizations is perhaps one of the most difficult to understand. From the outset, the Romanian Constitution allows national minority organizations to run for seats in the Chamber of Deputies.60 The national minorities are not required to form political parties, so their organizations that are formed under the Law on Associations and Foundations61 dictate the development of national minority politics.

    



Ibid. See Draft . Ibid. Romanian Constitution Article (). Ordinance on Association and Foundations, Article , / O.G. # ( January ).

Recent Developments in Romania on the Draft Law on the Status of National Minorities Prior to discussions about the draft law on the status of national minorities, the regulations concerning the establishment of national minority organizations were viewed as an area in desperate need of reform. The problem that kept occurring was that it was too simple for someone to form an organization and claim that it represented, for example, the Greek community. In fact, it only takes three people to found an organization under Romanian law.62 There is no special regulation requiring proof of being or belonging to a national minority. Therefore, anyone can claim to be a national minority, found an organization, run in the general election, and attempt to gain the set-aside seats of the national minorities. One may ask who would vote for a national minority organization if the minority knows that the organization is not actually who they are claiming to be? The problem is that the national minority does not vote for the organization, but instead the founder may be locally well-known or is a trade unionist. Then this person’s supporters come out and vote for him or her. Once the person is elected to parliament, he/she has immunity from prosecution, receives money from the state for offices, cars etc., even though the person neither belongs to a national minority nor represents that national minority. The other issue that was raised in relation to national minority organizations was that some were not representative of the population and only furthered their own organization once they obtained the seat in parliament. The argument of the Romanian government is that numerous national minority organizations within each community can run for the national minority’s seat in the Chamber of Deputies, but once the winner is declared, that organization then represents the whole national minority not just their own organization. Unfortunately, this does not occur. Some have argued that the organizations only seek financial support for their own group’s activities from the Council of National Minorities. It seems that some organizations have attempted to create unity rather than democracy. Prior to the June  local elections, the Romanian government passed a law that created a registration process for national minority organizations that were not currently represented in parliament.63 The process was significantly more difficult than the normal registration process under the Ordinance on Associations and Foundations (Ordinance /).64 The national minority organizations that were in parliament were not required to go through any process at all. This hurdle was highly criticized by the CoE’s Venice Commission and the Organization for Security and Co-operation in Europe’s Office of Democratic Institution and Human Rights as being discriminatory. Looking at the first draft, it appeared that the law on the status of national minorities would address none of these inequities and that it would simply reinforce the same problems. For example, Article () of the draft law simply reiterated that Ordinance / was the controlling law concerning the establishment of national minority organizations. Also of concern was that Article  of the draft law imported, verbatim,

  

Ordinance on Association and Foundations, Article , / O.G. No.  ( January ). Law on Local Elections, Article , No. /. Ordinance on Association and Foundations, Article , / O.G. No.  ( January ).



D. Christopher Decker Article  of the heavily criticized Law on Local Elections.65 Article  endorsed the requirement that in order to found a national minority organization,  % of the total number of citizens of that minority group, according to the last census, must join.66 If this  % is greater than or equal to , people, then the organization must have members in at least  counties and that each of the  counties must have no less than  people registered as founding members.67 Most troubling was that the first draft had a ‘grandfather’ clause that exempted national minority organizations that were on the Council of National Minorities and in parliament from being required to reregister under this process.68 This clause was clearly discriminatory and would have raised serious concerns with both the Venice Commission and the OSCE, which had criticized this scheme a mere four months prior to the release of the draft. Fortunately, the drafters attempted to rectify some of these shortcomings in the second draft. Without stating it outright, the second draft actually created political parties and NGO-type organizations for the national minorities. Article  now stated that there were two ways that a national minority organization could be established.69 If the organization was established according to Ordinance /, then the national minority organization was not empowered to run for parliamentary, presidential or local elections.70 If the national minority organization registered according to the procedure developed in the draft law on the status of national minorities, then it was eligible to run in elections.71 The only change to the articles on registration was that the percentage of founding members changed from  % in the first draft to  % in the second draft. Also, the grandfather clause was taken out of the second draft. By removing the grandfather clause the drafter risked the ire of the current national minority organizations that have obtained a set-aside seat and are on the Council of National Minorities. The representatives of the national minority organizations argued strenuously that it would be an embarrassment to their constituents if the leadership were required to go back to the members and reregister.72 They also claimed that when Ordinance / was adopted it contained an exception for previously established organizations, therefore the draft law also should.73 While some progress was made on the issue of national minority organizations, the two major problems concerning them were not dealt with in either draft: that of preventing non-national minority organizations from running for the set-aside seats and

        



The Law on Local Elections No. /. Article (), Draft . Article (), Draft . Article (), Draft . Article , Draft . Article ()(a), Draft . Article ()(b) and (), Draft . Decker and Ossian, “Enhancing Minority Governance in Romania. The Romanian Draft Law on the Status of National Minorities: A Consultation with Civil Society …”, -. Ibid., .

Recent Developments in Romania on the Draft Law on the Status of National Minorities ensuring the representativity of the organizations. Until these problems are dealt with there will be continuing problems with the democracy afforded to national minorities. C. Cultural Autonomy Cultural autonomy became one of the largest and clearly most divisive issues in the draft law on the status of national minorities. It became clear that ‘autonomy’ was going to play some role in the general election based on the rhetoric of the UDMR. The Hungarian diaspora began to advocate for autonomy in Romania, Slovakia, Serbia and Ukraine.74 In the local elections in June , the UDMR was under pressure from the Hungarian Civic Alliance, a much more radical group that advocates territorial autonomy for Hungarians in Transylvania.75 When the general election came, there was real concern that the Hungarian Civic Alliance might get just enough of the vote to prevent the UDMR from reaching the  % threshold and thereby confining the UDMR to only the one set-aside seat in the Chamber of Deputies. To diffuse this populist sentiment, the UDMR took a very responsible tact with the electorate and the press. The UDMR leadership, particularly Bela Marko, has stated that it is unrealistic to unilaterally claim autonomy.76 He stated that autonomy must be obtained through negotiation with the state.77 He also added that the UDMR would work very hard for the autonomy of the Hungarian people. This seemed to have a positive effect on the Hungarian community and at least not a negative one in the Romanian press. There was not the same level of nationalism in response to the Hungarian message that has been seen before, especially in the election of . After the election, the UDMR must have felt pressure to deliver. One of the problems with the campaign rhetoric was that the term ‘autonomy’ was used interchangeably with regionalization and/or local autonomy. From an outsiders’ perspective it was 







“Hungarian American Coalition Supports Autonomy Aspirations of Transylvanian Hungarian Community”, () Hungarian American Coalition, News (March ),  and . In fact, the Hungarian Civic Alliance was attempting to get registered for the local elections so that it could attempt to unseat the UDMR in several areas. The Law on Local Election No. / seems to be written in such a way so as to prevent, or at least make it very difficult for organizations that did not attain seats in the parliament from running in the local election. The implementation of this law prevents the Hungarian Civic Alliance from taking part in the elections and discourages any Roma organizations from trying to run candidates in local elections; see also CoE, Venice Commission, Opinion on the Law for the Election of Local Public Administration Authorities in Romania, CDL-AD(), Opinion No. / Strasbourg,  January . “Marko Bela, în campanie”, AZI ( November ), at . This is an argument that Marko has been using for quite some time. See Zsolt-Istvan Mato, “Romania’s Hungarian Democratic Federation experiences turmoil again”,  () RFE/RL Newsline, Part II,  July . “Hungarian minority concerned about parliamentary representation ...”, Divers Bulletin, No.  (), at . See also, “... And wants autonomy for Hungarian minority by amending the Constitution”, Divers Bulletin, No.  (), at .



D. Christopher Decker not fully clear what the UDMR’s intentions were, or what they believed ‘autonomy’ to be. At the same time, the UDMR was reinforced by the governments’ platform, which included greater autonomy for the national minorities.78 When discussions about the draft law began to take place, experts were asked to make a presentation on “autonomy over cultural issues like education”. A general presentation was made to Bela Marko on cultural autonomy.79 The presentation provided one particular model of cultural autonomy, that of Estonia. In the end, the DRI and the UDMR deemed this model most appropriate because it is perhaps the only model of ‘pure cultural autonomy’. The Estonian model of cultural autonomy is not at all related to any aspects of territorial autonomy. It was felt that if the draft law on the status of national minorities had a territorial aspect to it, this would raise traditional nationalist arguments that the Hungarians in particular were attempting to secede from Romania. By ensuring that the draft law version of cultural autonomy was devoid of territorial aspects, it was felt that the law had a better chance of succeeding without compromising on any of the principles that the national minorities wanted to include in the draft. Whilst a lengthy discussion of cultural autonomy is beyond the scope of this article, it is important to understand what the wishes of the national minorities are and why cultural autonomy was considered important when developing the draft law. The national minorities want more control over their language, education and culture. They want to be more active in making and taking decisions concerning the future of their communities’ survival in Romania. They are also angered when the state – whether that be central or local institutions – make decisions about education in their mother tongue or appoint school headmasters without any consultation with the community. Furthermore, issues like mother tongue education or the independence of educational institutions have become national political issues. There is a sense within the national minority communities that it is not the business of the majority to interfere with how the minority teaches its children or how the minority practices its culture. The national minorities feel that there is unnecessary interference from the state over these issues. Cultural autonomy is designed exactly for these sorts of situations. One of the purposes of cultural autonomy is to take culture out of politics, de-emphasizing cultural issues by taking control out of the national purview and giving it to the persons that are most effected by these issues: the minorities.80 In order to create cultural autonomy, the central institutions of government create a certain amount of space over the limited areas of language, education and culture so that minorities can take control and have a sense of ownership over these issues. It is generally the issues of language, education and culture that invoke strong feelings among national minorities because these areas are at the heart of their communities’ identity, which the community is trying to preserve. 

 



See Romanian Government Programme -, “Policies within the Field of Interethnic Relations”, Chapter , at . Decker, “Enhancing Minority Governance in Romania. Report on the Presentation on Cultural Autonomy to the Romanian Government …”. Ibid., -.

Recent Developments in Romania on the Draft Law on the Status of National Minorities Since most states in Europe tie cultural autonomy to some sort of territorial autonomy (regional government, local government, or states in a federal system), it is difficult to demonstrate a consistent practice. In the case of Estonia, the national minority creates an electoral roll. At least  % of the national minority must register for the process to go forward.81 If that threshold is met, then elections are organized at the expense of the state. The turnout for the vote must be at least  % of the registered national minority voters. The voters elect a legislative body that begins establishing the institutions of cultural autonomy. The organ of cultural autonomy is created as a public law authority. The legislative body then appoints an executive to run the institutions of cultural autonomy, for example, schools, theatres, museums, etc. The legislative body and the executive act like an additional municipality that is comprised only of the national minority and only with a mandate over language, education and culture. The municipality where the national minority lives maintains competencies for all other aspects of the community members’ lives. The national minority municipality is not tied to a geographic area, so the national minority’s institutions of cultural autonomy must organize schooling for the minority throughout the whole state. Because the cultural autonomy is a public law corporation, it also has the power to levy additional taxes on its members. Although, the state is committed to provide the same level of financial support that was spent on the same services for the minority prior to the establishment of cultural autonomy. The draft law defined cultural autonomy as “the right of a national community to have decisional powers in matters regarding its national, cultural, linguistic and religious identity, through councils appointed by its members.”82 The draft law then elaborated the powers that the councils could have.83 One can see that the issue as to who can pro-

  

The  % is based on the population from the last census. Article (), Draft . Article  states: Cultural autonomy of national minorities refers to the following categories of competences: a) elaboration of strategies and priorities regarding education in the mother tongue of national communities; b) organization, administration and control of the education in the mother tongue, or participation in partnership with public competent authorities in carrying on these duties in the case of institutions from the public system education; c) organization, administration and control, in the conditions of the law, of the cultural private educational institutions or research and development of culture institutions in the mother tongue, or, in case, the participation in partnership with public competent authorities in carrying on these duties, in the case of public cultural institutions; d) establishment and administration of their own public press organs, or participation in partnership with public competent authorities at the organization of stations, sections, editorial boards or shows within the public radio and TV stations; e) participation at the elaboration of strategies and priorities for the preservation and valorization of the historical monuments, the immovable and movable cultural patrimony of the respective national minority;



D. Christopher Decker pose and appoint staff for education and the Ministry of Culture figures prominently within these powers. However, the greatest point of contention in the government was that the drafters believed that in order for the councils to be able to exercise all the powers that they wanted under Article , the councils needed to have sufficient stature so that they could not easily be overruled. As such, the drafters made the councils “autonomous administrative authorit[ies]”.84 This meant that the councils would be just under the level of a ministry, according to the Romanian Constitution.85 This led to arguments within the government that the councils would be parallel institutions, especially from the Ministries of Justice and Culture. The Legislative Council also cited it as a problem.86 Moreover, “[a]utonomous administrative authorities may be established by an organic law.”87 Organic laws need to be passed by a majority of the members of the two chambers of parliament, not just a majority of those present.88 This was always going to be difficult to achieve as the ruling coalition has such a slim majority, but by making the councils organs of the central government rather than that of local government it was going to exacerbate the situation and make politicians oppose the law for constitutional reasons. f)

    



the administration or, in case, participation in partnership with public competent authorities, or monitoring of the administration of funds destined to finance specific activities in the field of preservation, promotion and expression of cultural, linguistic and religious identity of national minorities with the exception of funds mentioned at article ; g) the appointment of the management of private educational institutions with teaching in the language of national minorities, as well as the private cultural institutions belonging to the respective national minority; h) the proposal of the appointment of the management of public educational institutions with teaching in the language of national minorities, as well as the public cultural institutions belonging to the respective national minority, in the conditions of the law; i) the proposal of the appointment of the management of public educational institutions where there are sub-units with teaching in the mother tongue of the national minorities; j) the proposal of the appointment of representatives of the respective national minority at the Ministry of Culture and Cults and the Ministry of Education and Research, within departments having duties in the field of the culture of national minorities and education in the mother tongue of national minorities; k) establishment and awarding of cultural and scientific scholarships and prizes; l) establishment of special taxes, in compliance with the law, in order to ensure the functioning of the institutions of cultural autonomy. Article (), Draft . Romanian Constitution, Article (). Comments of the Legislative Council on the Draft Law Regarding the Status of National Minorities, at para. (a) (April ). Romanian Constitution, Article (). Romanian Constitution, Article ().

Recent Developments in Romania on the Draft Law on the Status of National Minorities The constitutional issue arose because the Hungarians wanted to be able to elect the people that served on the council,89 while other national minority organizations wanted to be in complete control of forming institutions of cultural autonomy.90 Yet, other national minority organizations said that they were simply too small to form institutions of cultural autonomy, but wanted to be able to exercise some of the powers granted to the councils. Hence, there was an article included that allowed committees of cultural autonomy to be established at the county level, even in cases when the national minority had established a Council of Cultural Autonomy.91 The issue of election to an autonomous administrative authority raised questions under Romanian law, as the prime minister appoints leadership positions in ministries, specialized agencies and autonomous administrative authorities. This brought up the constitutional issue as to whether it is permitted under the constitution to elect people to these posts, or whether it is permissible even if it is not mentioned in the constitution. The drafters endowed the councils with legislative powers that also brought up questions as to the ability of autonomous administrative authorities to develop legislation. Lastly, instead of creating a mechanism to resolve disputes between the councils and the state, the law deferred all these conflicts to the administrative courts.92 This meant that any dispute would sit in the courts for years, effectively stalling the establishment of cultural autonomy or making the councils completely ineffective. In the end, it seemed that the drafters may have been too ambitious with the draft law and sought to create a law that had an institution that did not fit neatly within the current Romanian legal context. The drafters needed to rethink the aspects of cultural autonomy that they were trying to create so as to make them mesh into Romanian legal norms. On several occasions the drafters noted that the cultural autonomy section of the law was based on the Estonian model, but adapted to meet the needs of Romania. Unfortunately, it seems only the drafters believed their own rhetoric because to most members of the government, some of the councils’ modalities and powers were too foreign for their liking. However, this model was in fact designed in Romania alone and bares only a vague resemblance to the Estonian model. Furthermore, the issues of the legal personality of the councils (being autonomous administrative authorities rather than tantamount to municipalities) and the powers of legislation that the drafters conceived, ultimately led to claims that there would be such a degree of overlap and parallel institutions that the scheme would be unworkable. It was in the section on cultural autonomy that support for the law was lost, which led to problems with its passage in parliament.

   

Article , Draft . Article , Draft . Article ()-(), Draft . Article , Draft .



D. Christopher Decker IV. The Future of Minority Rights The system of national minority protection in Romania is satisfactory for those that have some degree of power, but not for those who do not have access to government. The problems of the Roma in particular are severe. One organization is monopolizing the representation of the whole minority, but only seems concerned with maintaining its power. Oddly, the Roma organization does not seem interested in expanding its power because it did not even field candidates for the local election in June . The organization seems content with preventing other Roma organizations from gaining power and is uninterested in actually furthering the Roma cause. Conversely, there have been incidents of a national minority organization of dubious origin, which has attracted ten times the amount of votes as there are members of the particular national minority according to the census.93 This is but one example of why the whole framework for minority protection and participation needs to be overhauled. The first aspect that needs to be addressed when carrying out an overhaul of the framework is that of definition. Romania, and the national minorities themselves, needs to embrace a more encompassing definition of minority or national minority. This will allow all the minority groups in Romania to be recognized, even the numerically small groups and language minorities. Of course, this also creates the possibility of granting some protection to immigrant groups as well. The legal framework concerning national minority organizations must also be amended. Romania must create a clear distinction between national minority political parties and cultural organizations. Part of the problem with the Romanian structure is that the cultural rights of minorities have become entwined with politics and become a business. If there was a clear distinction between the political parties and cultural organizations, they could each pursue their goals independently of one another. The next step is to reconstruct the Council of National Minorities and no longer tie membership of this body to obtaining a seat in the Chamber of Deputies. The Council of National Minorities should become a true consultive body for the government on issues of culture, language, education and religion. The Council of National Minorities should maintain a legal commission that provides non-binding legal opinions on legislation in the four areas noted above, in a similar manner to that of the parliament’s Legislative Council. Additionally, the Council of National Minorities should include all organizations whose purpose or goal of association is the advancement of national minorities, either individually or collectively.94 However, no political parties should be permitted on the Council of National Minorities, only NGOs. The Council would then be responsible for distributing money for cultural activities or projects via an open 





Of course, this is not always a negative development. In the northern German Land of Schleswig-Holstein, there is a sizeable Danish population. Their political party often has crossover voters from the German majority. This can be a positive example of an ethnic minority party that appeals to a wider electorate because it does not focus on one issue. However, in the Romanian case, interlopers appear to be taking advantage of the spoils of office. This kind of activity has spurred the term ‘ethno-business’. This is in accordance with Article ()(b) and ()(b) under the Ordinance on Associations and Foundations, No. /, O.G. No.  ( January ).

Recent Developments in Romania on the Draft Law on the Status of National Minorities and transparent process whereby organizations submit project proposals and they are required to report back to the Council on how the grant money was spent. The issue of electing ethnic political parties will be a problematic and difficult issue because it all comes back to the issue of identity. Currently, there are some cases of nonminorities claiming to be minorities and forming national minority organizations for the purpose of obtaining a seat in the Chamber of Deputies. There is a two-step process for reducing and/or eliminating this kind of abuse. A special election roll should be created, which allows people to self-identify as a certain national minority should they wish. There are several safeguards that need to be observed in order for this system to meet international standards. In particular, the individual must have a completely free choice as to whether the person wants to identify themselves as a national minority. The person must be allowed to take their name off the roll at any time and the data must also be protected from any nefarious usage.95 Six months prior to a general election, a primary should be held where the members of the various national minorities have the opportunity to vote for which national minority political party they want to represent them in the general election. Only those people that are registered on the special election roll will be entitled to vote in the primary. This particular system will be beneficial to the Roma especially. There are about  national minority organizations that represent the Roma. Because these organizations always split the vote, none of the Roma parties reach the  % threshold, meaning that the Roma are only eligible for the one set-aside seat under the Romanian Constitution.96 If there was only one party representing the Roma at the general election, they may get past the threshold and actually obtain a significant representation in parliament. A primary structure might also be advantageous for the national minorities that are particularly fractured. This is true of the Italian community, which is being represented by a new organization in parliament. Having a primary might allow rival parties to get their differences out of the way and might allow the parties to unite at the general election, or possibly form a common list of candidates. Creating an electoral roll with members of the national minority community will prevent a non-minority party from receiving support from outside the national minor



This could be quite problematic in Romania where the Securitate has a long history of lists and using illicitly obtained information for political purposes, often to the advantage of the PRM. The Venice Commission’s Guidelines on Elections states: “Neither candidates nor voters must find themselves obliged to reveal their membership of a national minority.” Principle .d.cc, CDL-AD () , Opinion No. / ( July ). However, the Venice Commission has also noted that is a matter of protection of the data rather than a prohibition on the formal registration. “[A]ny electoral system guaranteeing proportional representation of national minorities will make the identification of voters as belonging to a national minority necessary.” As the Commission had stressed before, this may require certain safeguards of confidentiality for those persons belonging to national minorities for whom this identification may create a certain risk. CoE, Venice Commission, Opinion on the Constitutional Law on the Rights of Minorities in Croatia, para. , CDL-AD () , Opinion No. / ( March ). See Romanian Constitution Article (). Of course, the other problem specific to the Roma is the fact that many Roma refuse to identify themselves as Roma and vote for the mainstream parties.



D. Christopher Decker ity community in order to obtain the seat in parliament. And by having a primary with a closed list of voters – i.e. only those registered on the electoral roll as being a member of that particular minority – this should significantly reduce, if not eliminate the ‘ethno-business’ currently taking place in Romania. Furthermore, by separating the political functions of the national minority organizations from the cultural aspects this will allow different voices from the political spectrum to fight over politics rather than base the election on which organization has been most effective in securing funds for cultural activities through the Council of National Minorities. For example, the current national minority organizations tend to be apolitical, one-issue entities. However, if there was a conservative Croat party and a liberal Croat party that contested the seat set aside for the Croatians, the ultimate winner, say the conservative, could become part of the parliamentary group in the Romanian parliament that was conservative. This might open up opportunities for national minority deputies, of ethnicities other than Hungarian, to hold positions in the government as ministers or state secretaries. V. Conclusion Perhaps this idea for reinventing the legal framework for minority participation is too Utopian, or simply too late. As the date of accession with the EU grows closer, there is less impetus for Romania to tackle minority issues, especially as Romania’s record is not perceived as being as poor as other states. Furthermore, the priority areas for Romania’s accession are anti-corruption and economic development. Human rights and minority rights are not factoring into the equation nearly as much as rights did in other countries. Without pressure by the EU, there is little chance that any progress will be made on minority rights issues prior to accession. Once Romania is part of the EU, there is little hope of minority rights being a priority. Not to paint a completely bleak picture, there is still a possibility that the draft law could be adopted by the parliament due to EU pressure. When the new government came to power at the end of December , there were fears that Romania might not be offered an accession treaty to the EU. The new government decided it needed to lobby Brussels. The government had Bela Marko, Deputy Prime Minister and President of the UDMR, among others, go to Brussels to speak on behalf of the Romanian minorities and vouch for Romania’s minority rights protection.97 The government was particularly concerned that the European People’s Party (EPP) of the European Parliament (EP) might prevent accession from going forward. It appears that the EPP still had many reservations about Romania’s accession. This was reflected in two ways. The EP’s Rapporteur on Romania, Pierre Moscovici, inserted a clause in his report stating, “despite the general improvement in the protection of minorities, additional measures need to be taken to ensure the protection of the Hungarian minority in accordance with the principles of subsidiarity and self-governance.”98 





Unrepresented Nations and Peoples Organisation, Hungarians in Romania: Béla Markó Official Visit in Brussels ( January ), at . Pierre Moscovici, Report on the Application by Romania to Become a Member of the European Union, at para. , A-/ ( Apr. ).

Recent Developments in Romania on the Draft Law on the Status of National Minorities It is clear that Bela Marko is in favour of Romanian accession to the EU, and it will never be known if this clause was inserted at his behest, but it does allow the UDMR a bit of leverage behind the scenes in trying to convince parliamentarians of the need for the draft law and that the notion of cultural autonomy should remain. The second manifestation of the EP’s concern over Romania’s accession came about in a last minute deal that the EPP made in order for the vote to go ahead. The EPP did not want to give up control over the accession issue.99 With the previous ten new members, after the EP voted to proceed with accession, it no longer had any say in the accession process. Just prior to the approval of Romania and Bulgaria, the EP forced the Council into restoring its budgetary powers regarding the funding to be allocated to Romania and Bulgaria until .100 These funds had been laid out in the Accession Treaty. Earlier, the EP had exacted the right to push for postponement of accession by a year should either country fail to take the necessary measures outstanding before they can become members. This was especially important to the EP, as the actual entry of both countries is scheduled to be in early . Formally, the EP has no longer a role to play in the run-up to the accession of the two countries now that it has given its assent. However, MEPs want to be able to continue to influence the course of events in both countries until the actual accessions take place.101 Therefore, they want to be involved in a new mechanism, which has been introduced in the Accession Treaty for Bulgaria and Romania and by which the Council may decide on a proposal from the Commission to postpone accession if the two countries fail to take the required measures in time. Before the vote, the EP received a written assurance from the Commission that it would “fully associate [it] to any possible decision to postpone accession”, which was confirmed by the Council.102 Besides European pressure, there is the possibility that, after accession, Romania may see the need to reform the minority protection framework. This is starting to happen in some of the new EU member states. In Hungary, they are seeing that some of the legislation that was designed to meet the Copenhagen Criteria for EU accession has not had the desired effect and the state is now revisiting some of this legislation with a view towards amending it so that it actually meets the needs of the minority communities. Romania has clearly had some minority rights problems since the revolution in . It has attempted to rectify those problems through solidifying minority participation in government and creating structures to enhance the cultural aspects of minority groups. However, there is still much that can be done. The most recent attempt with the draft law on the status of minorities would have been a welcome advance towards 

“EPP-ED Hail Clear Vote for Bulgaria, Romania”, Sofia News Agency ( April ), at .  Ibid.  Ahto Lobjakas, “EU: European Parliament Clears Accession for Bulgaria and Romania”, RFE/ RL Newsline ( April ), .  “Green light for Romania and Bulgaria – Parliament approves Bulgarian & Romanian membership”, Eastern European Review ( April ), at .



D. Christopher Decker the further realization of minority rights, yet this law would not have dealt with all the problems within the system of minority participation in Romania. These problems dealing with definition, the legal framework of minority organization/political parties and cultural autonomy need to be dealt with by completely overhauling the structures through adopting new laws and repealing others, and perhaps revisiting certain sections of the Romanian Constitution. Until this work is carried out, Romania will continue to have enduring minority rights issues and both the state and the national minorities will suffer.



Joseph Marko*

The Referendum on Decentralization in Macedonia in 2004: A Litmus Test for Macedonia’s Interethnic Relations

I. The Background: Interethnic Relations in FYROM from 1991 to 2001 When Macedonia became internationally recognized as an independent state for the first time in its history in  under the name ‘former Yugoslav Republic of Macedonia’ (fYROM), due to strong Greek resistance to call the new state under its own constitutional name ‘The Republic of Macedonia’, the peaceful transformation of its national and international status was immediately seen as the lucky exception to the chain of international and civil wars in Slovenia, Croatia and Bosnia-Herzegovina from  through , which followed the dissolution of the former Socialist Republic of Yugoslavia (SFRY). However, this outsider perspective overlooked certain indicators which could have been taken as a warning that interethnic relations in Macedonia were not totally free of tensions. According to the census data from , 1 and , Macedonia must be considered to this very day as a pluri-ethnic society: In a population of  million, Slav Macedonians2 make an absolute majority of . %, whereas Albanian Macedonians make up . % according to the  census, and . % according to the  one. All the remaining ethnic communities3 like Turks, Roma, Vlachs, Serbs, Bosniaks and others are significantly smaller.4 As can be seen from these figures, the Albanian Macedonian *

 

 

Professor of Comparative Constitutional Law and Political Science at the Faculty of Law of the University of Graz, Director of the Law School’s Center for South Eastern Europe, Director of the Institute for Minority Rights at the European Academy Bolzano/Bozen. The census was repeated in  under international supervision due to strong Albanian Macedonian resistance to recognize the data of . In stark contrast to official documents and practice in national and international literature, I use the term Slav Macedonians and Albanian Macedonians, whereas these other sources use the terms Macedonians or ethnic Macedonians and Albanians or ethnic Albanians on the basis of the understanding of the majority population and the constitutional text that Macedonia is ‘their’ state. I will come back to the ideological underpinnings of the usage of these terms below. Term used after the new constitutional amendments in . Turks . %, Roma . %, Vlachs . %, Serbs . %, Bosniaks . % and others . %. See Government of Macedonia, “Answers to the Questionnaire for the Preparation of the

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 695-721. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Joseph Marko community is – already by its sheer size – significantly different from the smaller ethnic communities. In addition to this is the fact that their political and intellectual leaders have made clear from the very beginning in  that they see the Albanian Macedonian community no longer as a minority, but as a nation like the Slav Macedonian nation with the aspiration to be a ‘constitutive’ element for state formation. Perceptions and political claims of both of these communities5 must be seen in the light of historical developments. With the establishment of the Macedonian Republic, which became a federative element of the SFRY in , the Communist Party of Yugoslavia also ‘created’ the modern (Slav) Macedonian6 nation in order to ‘neutralize’ competing claims of its neighbours. Throughout history, from the breakdown of the Ottoman Empire and in particular since the division of Macedonian territory after the first Balkan War -7 until , the Slav-speaking Macedonian population was considered to be part of the Serb, Bulgarian8 or Greek nation. Again, in , with Greece´s refusal to recognize the name of the newly independent state and the refusal of Bulgaria to recognize the existence of a ‘distinct’ Macedonian nation, these ‘historical’ aspirations came to the fore again. This international environment might explain the sensitivity of the Slav-speaking majority population to ‘defend’ their nationhood, which found its expression in the state of Macedonia, first as a federative element of the SFRY and now as an independent state. The Albanian-speaking community, called ‘nationality’ after the communist constitutional doctrine to avoid the pejorative term ‘minority’ for people with a nation-state outside of Yugoslavia, was given the status of a ‘nationality’ in the SFRY. Despite their territorially concentrated settlement area they are now divided between three different republics, namely Serbia, Montenegro and Macedonia. When Macedonia became independent, the Slav Macedonian politicians took it obviously for granted that the Albanian Macedonian community would be a minority in the new state too. In the communist federal and republican constitutions of ,9 the ‘nationalities’ and hence the Albanian speaking communities enjoyed a high level of protection.

    



European Commission’s Opinion” chapter on “Political Criteria”, -, at and Klaus Schrameyer, “Minderheitenschutz im östlichen Europa – Makedonien”, University Cologne, Institut für Ostrecht, , . Again I do not follow the constitutional provisions that reserve the term ‘communities’ to the minority communities. Hugh Poulton, Who are the Macedonians? (Indiana University Press, Bloomington, nd ed. (). In geographical terms even today, a distinction is made between Pirin Macedonia, Vardar Macedonia and Aegean Macedonia. Accordingly the Macedonian language was considered a south Serb or western Bulgarian dialect. The texts of these constitutions can be found in Ustavi i ustavni zakoni. Prvi dio. Tekstovi ustava i ustavnih zakona (Constitutions and constitutional laws. Part . Texts of the constitutions and constitutional laws) (Informator, Zagreb, ). An English translation of the SFRY constitution  is published under “Yugoslavia”, in Albert P. Blaustein and Gisbert H. Flanz (eds.), Constitutions of the Countries of the World (Oceana Publications, Dobbs Ferry, ).

The Referendum on Decentralization in Macedonia in 2004 According to Articles ,  and  of the SFRY Constitution they were – as groups – formally declared equal to ‘nations’. In substantive terms, members of nationalities or the nationalities as a group had a number of rights: According to Article  of the SFRY constitution, their languages were declared equal. The free use of languages and scripts, the development of their culture and freedom of association in this respect were guaranteed by Article . Article  prescribed that federal laws drafted in Macedonian had to be published in Albanian and Turkish as well. These rights were further specified and extended by the Constitution of the Socialist Republic of Macedonia. This constitution already characterized the “Socialist Republic of Macedonia [as] the national state of the Macedonian nation and state of the Albanian and Turk nationalities” in the preamble and Article , thereby limiting the meaning of the term ‘Macedonian nation’ in the ethnic sense to the Slav speaking population. However, Articles  through  did provide for substantive equality of the nationalities: Each of them was given the right to proportional representation in the state parliament and municipal councils at local level (Article ), the right to use their language, to develop their culture and freedom of association (Article ) and the right to establish educational institutions with instruction in their languages in places where these nationalities were living (Article ). Article  provided for the equality of languages and scripts of nationalities with the Macedonian language in the public sphere and prescribed that decisions and acts of the municipal council and other institutions of self-administration had to be published in the languages of the nationalities that were living there. Article  guaranteed members of nationalities the right to use their languages and scripts in procedures before state institutions and before institutions exercising public powers. Article  provided for an equal number of representatives of the Macedonian nation and the Albanian and Turk nationalities in the parliamentary commission for interethnic relations, and Article  of the Parliamentary Rules of Procedure allowed for the use of Albanian in parliamentary sessions. In the units of territorial defence consisting of members of nationalities, the languages of these nationalities could also be used as the language of command (Article ). Despite these constitutional guarantees, there were discriminatory practices already in the s against so-called ‘Albanian nationalism’: These were so-called ‘differentiations’, i.e. dismissals of Albanian workers, Albanian family names were changed into Slavic names and the traditional walls surrounding Albanian homes were destroyed.10 And after the  law on secondary education had established  as the maximum number of pupils in classes, the number of ‘parallel classes’ with instruction in Albanian language dropped by half. So in  only  % of Albanian-speaking pupils received primary and secondary education in their mother tongue.11 With the independence and the new constitution of ,12 the process of Macedonian state formation and nation-building was given a further specific Slav Macedonian spin. The language and concepts used in the constitution´s preamble and   

Schrameyer, “Minderheitenschutz …”, . Joseph Marko, Der Minderheitenschutz in den jugoslawischen Nachfolgestaaten (Kulturstiftung der Deutschen Vertriebenen, Bonn, ), . The text of this constitution and the constitutional amendments of  quoted in the following text can be found on .



Joseph Marko text of the constitution itself obviously sent to all other ethnic communities the message on a symbolic level that they were no longer conceived as equals. The  constitution had used the traditional Central and East European ethnically inspired nation-state concept13 by declaring the Socialist Republic of Macedonia the national state of the Macedonian ‘nation’,14 but declared at the same time, Macedonia also the state of the nationalities living in it. The preamble of the new constitution of , however, shifted the balance of nations and nationalities living in a common state to a preponderance of the Slav Macedonian ‘nation’ without recognizing the other ethnic groups as equals, but declaring instead – according to the different French state nation concept – members of the other ethnic groups to be equal as individual citizens. Whether this was an acceptable political compromise or only a hybrid conceptual mix imposed from above will be addressed below. Moreover, according to the nation-state concept, the Macedonian language in the Cyrillic script was declared the official language of the Republic of Macedonia (Article ) and only the Macedonian Orthodox Church was expressly mentioned in contrast to other religious communities (Article ).15 In addition, typical ‘minority’ rights were included: the free expression of national identity was declared one of the fundamental values of the constitutional order (Article ) and the official use of the languages and scripts of nationalities was constitutionally guaranteed in the units of local self-government where the majority of inhabitants belonged to a nationality. In such units with a ‘considerable number’ of nationality members, the official use of nationality languages could be introduced. The individual right to a ‘national identity’ and the obligation of the state to protect such identities was guaranteed by Article ()(). Paragraphs  and  of the same Article foresaw the right to establish cultural institutions and the right to mother tongue instruction in public primary and secondary schools. Moreover, Article  guaranteed the right to establish “private schools at all levels of education” with the exception of primary education. 







This concept is based on the idea that a ‘people’ defined by a ‘common’ language, religion or culture to which the members of this group adhere to do have a right to their own state. This concept can be traced back to the philosophers of German idealism and was spread all over Central, East and Southeast Europe in the th and th century and lead to the breakdown of the multiethnic empires of the Habspurgs and Ottomans. In contrast to this nation-state concept the French concept of the state-nation is based on the idea of strict individual equality of all citizens of a state before the law without regard to their ethnic traits. Thus, non-discrimination of individuals and nonrecognition of the existence of ethnic groups are the respective constitutional dogmas of this concept. See Joseph Marko, Autonomie und Integration. Rechtsinstitute des Nationalitätenrechts im funktionalen Vergleich (Böhlau Verlag, Wien-Graz-Köln, ), - and Joseph Marko, “Equality and Difference: Political and Legal Aspects of Group Relations”, in Franz Matscher (ed.), Vienna International Encounter on Some Current Issues Regarding the Situation of Minorities (N.P. Engel publisher, Kehl, ), -, at .. The original text uses the term ‘narod’ which can be translated into people or nation. I prefer the term nation since this term expresses the linkage between people and the claim for statehood. Židas Daskalovski, Walking on the Edge. Consolidating Multiethnic Macedonia - (Dominant, Skopje, ), .

The Referendum on Decentralization in Macedonia in 2004 In conclusion, the new constitution – on the symbolic level as well as in the concepts of rights – considerably shifted the balance between the Slav Macedonian ‘nation’ and all others perceived as ethnic communities in the sense of ‘minorities’. Due to the hybrid mix of the nation-state and state-nation concepts, the newly independent Macedonian state became the ‘exclusive’ possession of the Slav Macedonians and the concept of equality of groups was given up.16 Hence the Macedonian-Albanian community could conceive itself no longer as a ‘constituent’ element in the state formation process and the rights of nationalities were substantially reduced in comparison to the  constitution. The official use of the languages of nationalities was limited to the local level under prohibitive terms (majority requirement)17 and the group right to political representation was abolished. Moreover, the mere administrative border between Macedonia and the Autonomous Province of Kosovo within the Republic of Serbia as part of the federative system of the SFRY all of a sudden became an international border which made it much more difficult for Macedonian Albanians to visit and communicate with their relatives and Albanian co-nationals in adjacent Kosovo. Also the university in Prishtine, the capital of Kosovo, had been the regional centre for higher education for all Albanians in former Yugoslavia. With the abolition of the autonomy of Kosovo and the exclusion of all Albanians from the University of Prishtine in -,18 Macedonian Albanians also no longer had access to university education in their mother tongue, since both the state universities in Skopje and Bitola had been using Macedonian as the language of instruction. In protest, after the transformation of Macedonia into a democratic multi-party system in ,19 the ethnic Albanian parties contested the ‘legitimacy’ of the formation of the new state from the very beginning. They called for the boycott of the referendum on independence on  September  and did not vote for the new constitution adopted on  November .20 Moreover, ‘radicals’ in  organized an ‘illegal’ refer-





 



No longer equality of groups, but ‘permanent coexistence’ of Macedonians and others was the declared goal in the preamble. This could be, of course, interpreted in a way that Albanians had to recognize the new state under Slav Macedonian preponderance and to give up all aspirations for various forms of group equality (in particular for territorial autonomy) or even independence. In exchange they were ‘guaranteed’ by this phrase of permanent coexistence not to be expelled from the territory. In effect the use of the Albanian language in parliament was abolished and, due to a decision of the Constitutional Court, the provision in the law on administration  requiring respect for the languages of the nationalities, erased in . See Marko, Minderheitenschutz …, . See Joseph Marko, “ICTY Expert Witness Report on Constitutional and Legal Issues in the MOS case”, April  (unpublished). The ethnic Albanian parties “Partija za demokratski prosperitet vo Makedonija” (PDP) and the much smaller “Narodna demokratska partija” (NDP) got . % of the seats in the  member parliament in the first free general elections in ; Marko, Minderheitenschutz …, . Daskalovski, Walking on the Edge …, .



Joseph Marko endum for an “Albanian Autonomous Republic of Ilirida” in Western Macedonia where the Albanians are territorially concentrated,21 and also boycotted the  census. From the very beginning of the transformation process the emerging multi-party system was split along ethnic lines.22 The traditional, but newly formed “VMRODemokratska Partija za nacionalno makedonsko edinstvo” (VMRO-DPNME) and the reformed League of Communists, which was then transformed into the Social Democratic Party (SDSM), represented Slav Macedonians, while the Albanian Macedonian population was represented by the Party for Democratic Prosperity (PDP) and the National Democratic Party (NDP). Moreover, also Turk, Serb and Roma parties were founded.23 It is however striking that despite a spiral of discrimination, protest and government concessions (described in the next paragraph), for the preservation of a fragile political stability, ethnic Albanian parties have, since , always participated in government coalitions with the respective number of minister’s proportional to their share in the population. This was all the more astonishing when the nationalist VMRO-DPNME won the general elections of  and formed a coalition with the more radical nationalist Democratic Party of Albanians (DPA) under Arben Xhaferi, having been founded by a fusion of the NDP and the more radical wing of the PDP. Notwithstanding their representation in the coalition governments, Albanians and other ethnic communities were underrepresented in the administration and in the educational system. According to claims made by the DPA, in  only . % of judges and army officers were Albanians. After a quota of  % had been set for the police, representation was doubled and reached . % in , but almost exclusively at the lower ranks. With a share of . % of minority students at Prishtine University in , again a quota was set so that their share became . % by -.24 The fact that minority students had to achieve fewer points in entrance exams than Slav Macedonian students led to protests,25 but nobody lodged a complaint before the courts. Nevertheless, Albanian Macedonian political leaders were not satisfied and insisted on their ‘own’ university. Thus, in December  a private Albanian language university was established in Tetovo by the municipal councils of Tetovo, Gostivar and Debar. The Macedonian government denied the constitutionality of the university and closed it down against violent protest.26 All Albanian Macedonian MPs supported the initiative to establish this university and also demanded – in vain – the right to use the Albanian language in parliament. Tetovo University was reopened in November  and then tolerated by the authorities.27 In  a law on languages at the pedagogical faculties was adopted in order to enable teacher training for elementary education in      





Figures on relations in cities in these regions in Schrameyer, “Minderheitenschutz …”, footnote . See description by Daskalovski, Walking on the Edge …, -. Marko, Minderheitenschutz …, . All figures from Daskalovski, Walking on the Edge …, -. Schrameyer, “Minderheitenschutz …”, . The official opening in February  became a battlefield between police and Albanian Macedonians with one dead and about  injured. So its opening was prevented, but it continued illegally. Daskalovski, Walking on the Edge …, ; Schrameyer, “Minderheitenschutz …”, .

The Referendum on Decentralization in Macedonia in 2004 Albanian language as ‘implied’ in Article  of the constitution. This was not accepted by the Albanian representatives who further insisted on a law for higher education with Albanian as the language of instruction.28 This in turn was refused with reference to Article  of the constitution, which foresees instruction in the languages of minorities for elementary and secondary education only. Hence it was argumentum ex contrario concluded that instruction at universities in those languages would be unconstitutional. This was a wrong interpretation since it omits the contextual analysis: Article  explicitly allowed for the establishment of private universities such as the university in Tetovo. Again the concession came too late and in no way met the demand. The local elections in  brought to office a number of Albanian Macedonian mayors belonging to the PDP, henceforth with a more radical stance against the ruling government coalition. In the summer of , a serious confrontation developed after the mayors of Gostivar and Tetovo put up the Albanian and Turkish communities’ flags identical with the flags of Albania and Turkey in front of the town halls. After they refused to give in to a Constitutional Court decision that had declared the provisions of the statutes allowing for the use of the flags of the nationalities unconstitutional, the police implemented the decision against violent protests and arrested the mayors who were finally sentenced to harsh prison terms.29 Again, a law adopted by parliament a day before, allowing for the use of these flags in private,30 arrived too late and was obviously no compromise. When the new government coalition of VMRO-DPMNE and DPA was installed after the general elections in , an amnesty law was adopted, which pardoned among others, the two mayors, in order to promote better interethnic relations. Before, in July , the municipal court and the appeals court in Skopje had refused to register the fusion of the former PDP and NDP to a newly founded DPA. The reason was that the party emblem and flag featured its name in the Albanian language with Latin script, which was considered a violation of Article  of the Constitution.31 In conclusion, the period after  cannot be characterized as a democratic consolidation based on interethnic tolerance and cooperation. Instead, based on the efforts of Slav Macedonian leaders for state and nation-building, Albanian Macedonian leaders felt discriminated against and excluded from this process – in contrast to their legal status before .32 Slav Macedonian politicians avoided complex negotiations, pacts or consociational arrangements in this period. On the contrary, the government under-

    

See Schrameyer, “Minderheitenschutz …”, . Daskalovski, Walking on the Edge …,  Schrameyer, “Minderheitenschutz …”,  and , footnote . Ibid., , footnote . Daskalovski, Walking on the Edge …, , brings this to the point: “Macedonian leaders were inclined to perceive the country as being primarily belonging to the Macedonians. ... The ambitions and experiences of national minorities were not taken into account when the state was envisaged. Macedonia was to become a nation state where national minorities were to adapt to Macedonian based institutions. If the Macedonian Albanians did not fare as well as the majority population in socioeconomic terms, the problem was not with the system but with the minority’s willingness to adjust to it.”



Joseph Marko took measures to uphold controversial laws,33 often supported by the Constitutional Court through formalistic, not minority friendly interpretations of the constitution. State formation and nation-building based on the values and culture of the majority population hence triggered the Albanian Macedonian community’s response. They refused not only to be a ‘minority’ with fewer rights than before , protected only by non-discrimination on an individual basis, but they insisted on being accepted as an equal partner in group terms. Five PDP and NDP representatives specified in  the most important claims in a draft law: – full equality for all nationalities, – state-forming ‘constitutive’ status of the Albanian community with veto power; – the recognition of the Albanian language as the official language in use with the public authorities in the Albanian settled territories and in parliament; – the recognition of the University in Tetovo; – a law on flags according to the claims of the nationalities; – proportional representation in the civil service; – amendment of the law on citizenship abolishing the  years’ residency requirement, which excluded many refugees from Kosovo from citizenship. There were also demands for territorial rearrangements. Mohamed Halili, the speaker of the Albanian caucus in parliament claimed to transform Macedonia into a federation after the model of Belgium, composed of two constituent peoples. The same proposal to federalize Macedonia was made be Arben Xhaferi in mid-.34 If one takes into consideration that all proposals by international mediators to ‘cantonize’ Bosnia-Herzegovina had only fuelled the war in  and that the Dayton Framework Peace Agreement for Bosnia-Herzegovina adopted in  had established an extremely weak bi- or even trinational state, blocked along ethnic lines on the state level and with ethnically homogenised, quasi-federal ‘Entities’,35 one can easily imagine how the Slav Macedonian politicians were to react to such proposals: They must have perceived this as an immediate threat to ‘their’ newly established state and nation-building endeavors. So there was always the suspicion that the Albanian political representatives ‘in reality’ wanted more: namely the breakup of Macedonia and the formation of a Greater Albania. Thus Albanian Macedonians were seen as a permanent threat for the stability or even territorial integrity of the country. Even worse, ethnic difference was interpreted in terms of superiority and inferiority as the use of the demeaning expression ‘shiptari’ for Albanians in everyday conversations shows. It is rather astonishing that the spiral of discrimination, protest and concessions with violent eruptions from time to time did not lead to a violent conflict earlier, if one takes into account also the



Daskalovski, Walking on the Edge …, .

 

Schrameyer, “Minderheitenschutz …”, .



Joseph Marko, “Federalism and Consociationalism as Tools for State- and Nationbuilding: The Case of Bosnia and Herzegovina”, to be published in European Diversity and Autonomy Papers – EDAP (), available at .

The Referendum on Decentralization in Macedonia in 2004 events in Albania in 36 and Kosovo in  with their impact on Macedonia due to a massive inflow of refugees. Yet, in  interethnic tensions threatened to escalate into a full-scale violent conflict.37 Under strong international pressure, the spiral of escalation could nevertheless be broken. II. The Ohrid Framework Agreement (OFA) 2001: A Structural Change in Interethnic Relations? Many commentators state that with the conclusion of the OFA among the four main Slav Macedonian and Albanian Macedonian parties (VMRO-DPMNE, SDSM, DPA and PDP) under strong international pressure (EU, NATO, OSCE, USA) and with the ‘carrot’ of the EU concluding a Stabilization and Association Agreement with Macedonia after seven months of violent conflict between the army, para-military police forces and a Macedonian UCK,38 named the National Liberation Army, led by Ali Ahmeti, Macedonia stepped back from the brink of a full-scale civil war.39 Since the quest for decentralization was one of the elements of the OFA, it is necessary to analyze the implementation of decentralization as a political process affecting interethnic relations in the entire context of this agreement. The overall question is, of course, whether the OFA set the pace for a structural change in interethnic relations towards overcoming ethnic distances40 with the goal of integration in particular of the Albanian Macedonian community in order to create a sustainable multiethnic society.

 

 



With the implosion of Albanian state authority and the large-scale ‘export’ of arms into the region. Norbert Mappes-Niedick, Balkan-Mafia. Staaten in der Hand des Verbrechens - Eine Gefahr für Europa (Ch. Links Verlag, Berlin, nd ed. ) argues with convincing facts that ‘in reality’ the beginning of the conflict had an organized crime background which was then camouflaged as ‘interethnic’. This is the Albanian acronym for the Kosovo Liberation Army, which had been founded in  and fought Serbian security forces until NATO intervention in . A detailed analysis of the conflict can be found in Daskalovski, Walking on the Edge …, . See also Ulrich Schneckener, “Developing and Applying EU Crisis Management. Test Case Macedonia”,  ECMI Working Paper (), at . These are identified by Schrameyer, “Minderheitenschutz …”, , as mutual separation and also ‘auto-ghettoization’ on the side of Albanian Macedonians based on separated educational facilities from kindergarten to university so that children learn nothing about each others history and culture; the language barriers, since almost no Slav Macedonian speaks Albanian even in the areas with an Albanian majority population due to lack of possibilities for Slav Macedonians to learn the minority languages in school. During interviews with Macedonian Albanian representatives in July , I looked only into astonished and amused faces upon my question whether they want Slav Macedonians to learn the Albanian language. The answer was always “no”, since they did not want to ‘force’ this on their fellow-citizens; and the nonexistence of mixed marriages between Slav and Albanian Macedonians.



Joseph Marko A. The Main Elements of the OFA Peace Settlement in Comparative Perspective The OFA consists of eight Basic Principles, which are then translated into draft laws in the Annexes on Constitutional Amendments (A.) and Legislative Modifications (B.) and completed with Implementation and Confidence-Building Measures (C.). – Under item  basic principles in the narrow sense are enumerated: prohibition of use of violence in pursuit of political aims, preservation of territorial integrity and the unitary character of the state; preservation of the multiethnic character of Macedonia’s society; constitutionally guaranteed democratic accountability; development of local self-government to encourage participation and promotion of respect for the identity of communities. – Item  regulates the cessation of hostilities. – Item  specifies the development of a decentralized government. A revised Law on Local Self-Government is to devolve powers in the areas of public services, urban and rural planning, environmental protection, local economic development, culture, local finances, education, social welfare and healthcare. Moreover, boundaries of municipalities shall be revised after completion of a new census and local heads of police are to be selected by municipal councils in order to make police responsive to the needs and interests of local population. – Item  regulates non-discrimination and equitable representation of communities in all central and local public bodies with the affirmative duty to correct present imbalances, in particular in the police. For the election of one third of Constitutional Court judges, the Ombudsman, and three members of the Judicial Council, a double majority vote is foreseen: The majority of representatives of parliament must also include a majority of representatives claiming to belong to communities not in the majority in the population of Macedonia. – Item  prescribes the application of the double majority vote system for certain constitutional amendments and the proposed Law on Local Self-Government and for laws that affect culture, use of language, education, personal documentation, use of symbols, local finances, local elections, the city of Skopje and the boundaries of municipalities. – Item  regulates the use of languages in education and public bodies. The most important elements are further guarantees for mother tongue instruction in primary and secondary education, whereas for university level education in languages spoken by at least  % of the population of Macedonia – that is in fact only Albanian – state funding is foreseen. Moreover, affirmative action shall be continued in the enrolment in state universities until equitable representation is achieved. – Subitems .. through .. regulate the use of the languages of communities in public administration. The rules established, however, leave room for interpretation. First, as a rule the Macedonian language is designated the official language ‘throughout’ Macedonia and in international relations. Second, any other language spoken by at least  % of the population is also an official language, ‘set forth herein.’ This phrase means in comparison to the draft amendment of Article  of the Constitution in Annex B, that the following rules for local self-government and state administration shall apply: 

The Referendum on Decentralization in Macedonia in 2004 –

–

according to Article () of the constitutional amendment in the units of local selfgovernment, any language of a community spoken by at least  % of its population is an official language to be used in addition to Macedonian. If the language of a community is spoken by less than  %, the local authorities can decide on their use in public bodies. according to Article ()(), in the units of local self-government any language of a community spoken by at least  % of its population may also be used for communication with the regional office of the central government with the responsibility to reply in this language in addition to Macedonian.

What remains, however, unclear from the text of the provisions in the basic principles, in the draft of Article  of the constitution in Annex A as well as in the finally adopted text of the amendment, is the following phrase in Article ()() referring to the central government bodies: “Any person may use any official language to communicate with a main office of the central government, which shall reply in that language in addition to Macedonian.” If interpreted in the context of paragraph  of Article  of the amendment, which reads “In the organs of the Republic of Macedonia, any official language other than Macedonian may be used in accordance with the law”, this would mean that everbody could use the language of a community, which comprises at least  % in any community of Macedonia from anywhere in Macedonia. But this would contradict paragraph  which declares (only) Macedonian as the official language ‘throughout Macedonia.’ Hence, if interpreted in the context of the first alinéa of the same paragraph, which refers to the territorial scope of application of the provision, namely units of self-government with a  % share of an ethnic community speaking a language other than Macedonian and the said paragraph  of Article , the rule seems to be that only persons living in such municipalities – and not ‘throughout Macedonia’ – can address the second instance bodies of the state administration on central level in these other official languages.41 Finally, subitems . and . regulate that in civil and criminal judicial proceedings at any level the parties and the accused have a right to the translation of all proceedings as well as documents free of charge. On request, citizens’ personal documents must be issued bilingually.42





See also the respective provisions of the Law on Administrative Procedure, quoted in Government of Macedonia, Answers,  (supra note ) which only repeat the constitutional provisions. What remains nevertheless unclear is the question whether this applies also to languages spoken by less than  % in the municipality since they are not expressly declared also ‘official’ languages. The respective implementing laws are the Law Amending the Law on Travel Documents of the Citizens of the Republic of Macedonia, Official Gazette, Nr. / and /, the Law Amending the Law on Personal Identity Card, Official Gazette, Nr. / and /, the Law Amending the Law on Road Traffic Safety, Official Gazette, Nr. / and / (for driver licences) and the Law Amending the Law on Personal Registers, Official Gazette, Nr. /. See also Government of Macedonia, Answers, -.



Joseph Marko –

–

Item  allows for the use of emblems of communities together with the emblem of Macedonia in front of local public buildings if the community is in the majority in the municipality. Item  regulates the implementation with respective timetables.

Comparing now the finally adopted amendments of the constitution with the proposals from the OFA text and the constitution of , the following changes with regard to constitutional symbolism and the conceptualization of rights become obvious: First, with regard to the symbolic signals of the preambular language: The mix of the nation-state and state-nation concepts of the constitution of  was – obviously under the influence of foreign experts – totally replaced by the state-nation concept in the proposal of the OFA by referring no longer to a Macedonian nation and other ethnic groups, but only to citizens: “The citizens of Macedonia, ... create an independent and sovereign state of Macedonia”. However, this met with fierce resistance in particular from the Slav Macedonian parties in the parliamentary procedure to amend the constitution. The newly formulated preamble now reads: “Citizens of the Republic of Macedonia, the Macedonian people, as well as the citizens that live within its borders, who are part of the Albanian people, Turkish people, Vlach people, Serb people, Roma people, the Bosniak people, and others ... have decided to establish the Republic of Macedonia as an independent, sovereign state” (Amendment IV of the constitution). This new formula reintroduces the mix of the nation-state and state-nation concepts, but in a quite different way than in  or even under the communist constitution of . In contrast even to the constitution of , Macedonia is no longer called the nation-state of the Macedonian people and others (nationalities). Instead, both citizens and ethnic groups, all of them called peoples, are declared ‘constituent’ forces in the process of state formation. Hence, the inequality between the bearers of rights of the Macedonian nation and citizens of other groups under the constitution of  has now been balanced on two levels. First, all members of all the peoples are (equal) citizens, and, secondly, all ethnic groups including the majority population are recognized as (equal) communities by designating them peoples. Nevertheless, the preamble has returned to the concept of group equality without, however, giving the nation-state concept priority. In comparison to the constitutions of other ex-Yugoslav republics such as Slovenia, Croatia, Serbia and Bosnia-Herzegovina,43 which all give preference to the respective majority nation(s), this new mix in the preamble of the Macedonian Constitution can indeed be called the formula for a ‘multiethnic’ state and society requiring the development of multiple identities. With this new formula the term ‘Macedonia’ is no longer exclusively connected to Slav Macedonians and hence allows for the development of a feeling of belonging to this state and its society for 



Which recognizes three ‘constituent’ peoples, namely Serbs, Croats and Bosniacs, with privileges, in particular the right to proportional representation in all state bodies, whereas other ethnic groups are minorities in the traditional sense whose language and culture will be preserved (see Marko, Minderheitenschutz …,  and ; id., “Federalism and Consociationalism …”; id. and Danica Railic, “Minderheitenschutz im östlichen Europa. Bosnien und Herzegowina”, , at .

The Referendum on Decentralization in Macedonia in 2004 the other ethnic communities too. This will also facilitate the chance to overcome the exclusive ethnonational identities that dominate in particular among members of the Albanian Macedonian community (‘auto-ghettoization’) and to develop the required multiple identity both with the ethnic community and the state.44 Secondly, as could be seen from the previous chapter, one of the most contested issues before  was the issue of language rights in education and administration, and the use of symbols. As far as public administration is concerned, the new regulations45 enabled the use of more communities’ languages. In local self-government the  % threshold was reduced to  %. For state administration a new  % threshold was also introduced for both the local and central level for persons who live in such municipalities with a  % share of a community. Although Albanian can now be used again also in parliamentary sessions, this does not mean that Albanian became an official language like Macedonian ‘throughout’ the country. The connection with decentralization is therefore of great symbolic significance, in particular the redrawing of municipal boundaries in order to include Albanian Macedonian villages so that this community reaches the  % threshold and, of course, the capital city of Skopje becoming bilingual, as will be discussed in detail below. Almost nothing was changed in the text of the constitution with regard to education in the languages of communities. Only in Article (), the words “science and education” were included to make clear that private universities can also be established. Indeed, after the Law on Higher Education had already been amended in , a private university, the South East European University, was founded under the auspices of Max van der Stoel, then High Commissioner on National Minorities (HCNM) of the OSCE, as a model for interethnic cooperation and innovation for the entire Balkans with teaching in three languages – Macedonian, Albanian and English. Finally, in , the State University of Tetovo with instruction in the Albanian language was also opened.46 As far as the flags are concerned, in Article () the words “and to use their community symbols” were added in order to enable the use of the flags of the communities too, although the respective laws for this have not been amended yet, as will be discussed below in more detail. Thirdly, the most important elements of group rights according to the model of consociational democracy were the provisions for equitable representation and the  



Whether these effects can already be seen from the process of implementation of the OFA will be discussed below with regard to data from recent opinion polls. The implementing laws are enumerated and described in short in Government of Macedonia, Answers, , and - (Law Amending the Law on Publishing Laws and Other Regulations in the Official Gazette of the Repulic of Macedonia, Official Gazette, Nr. /; Law Amending the Law on General Administrative Procedure, Official Gazette, Nr. /; Law on Amending the Law on Criminal Procedure, Official Gazette, Nr. / and /, and Law on Amending the Law on Litigation Procedure, Official Gazette, Nr. /). See also the government programmes to hire and train interpreters. The implementing Laws are the respective Laws on Primary Education, Official Gazette, Nr. /, /, /, / and /; Secondary Education, Official Gazette, Nr. /, /, /; Higher Education, Official Gazette, Nr. / and / and Law on Establishing the State University in Tetovo, Official Gazette, Nr. /.



Joseph Marko double majority vote system in parliament instead of a simple majority. In the constitution itself, equitable representation in public bodies at all levels and in all areas of public life is set down in Article  of the constitution as one of the fundamental values of the constitutional order and in Article (), insofar as the Public Attorney has to safeguard this principle. Equitable representation on the basis of the double majority vote system is then also foreseen for the composition of the Security Council, the Judicial Council and the Constitutional Court.47 A Committee for Intercommunity Relations to be established in parliament is to be composed of seven members each from the ranks of the Macedonians and Albanians, and five members from among the Turks, Vlachs, Romanies and two other communities. The double majority vote system is also foreseen according to Article () for laws with regard to local self-government, i.e. the laws on local self-government, local finances, local elections, boundaries of municipalities and the city of Skopje. Article () enumerates the subject matters such as culture, use of languages, education, personal documentation, and use of symbols that affect ethnic identities and for which again a double majority vote is foreseen. However, although (or because) representatives of the communities are regularly elected into parliament due to the ethnically split party system and interethnic government coalitions are formed on a regular basis in actual practice, the OFA and respective constitutional amendments did not include a system of constitutionally fixed seats for ethnic groups in parliament or posts in the government connected with a system of veto powers for specific groups. This is in marked contrast to the constitutions of Slovenia, Croatia and Bosnia-Herzegovina. Hence, the consociational arrangements foreseen by the OFA are much weaker and do not impose restrictions on individual rights, such as the right to stand as a candidate as in the Dayton Constitution, foreseen for the members of the state presidency or the second chamber of parliament, the House of Peoples, which can be composed only of Serbs, Croats and Bosniacs. The evaluation of Daskalovski that the changes of the constitution reflect an ‘ethnification’ of the Macedonian constitution and advance a political identity best described as ‘millet’ or ‘ethnic’ Macedonia, which “does not support just solutions to problems in multiethnic societies” insofar as only “liberal nation building guarantees a culture of protection of national minorities”, simply misses the point.48 Exactly this “liberal nation building with the protection of national minorities” ended up in the spiral of intensification of ethnic tensions analysed in the first chapter,49 since the main political prob

 



Equitable representation in the administration, in particular the police, became a government priority after  and was soon implemented. The respective laws are enumerated in Government of Macedonia, Answers,  and  and Daskalovski, Walking on the Edge …, . Ibid., -. Moreover, as Will Kymlicka (ed.), Can Liberal Pluralism be Exported? (Oxford University Press, Oxford, ) convincingly argues, is ‘state neutrality’ in liberal nation building just a myth. Moreover, see also his chapter on “Multiculturalism” in Contemporary Political Philosophy (Oxford University Press, Oxford, nd ed. ), in particular , on the third stage of multiculturalism as a response to state nation-building, which provides a sound theoretical background for the analysis of events in Macedonia. On much more elaborated comparative analysis of power-sharing mechanisms as a tool for conflict resolution

The Referendum on Decentralization in Macedonia in 2004 lem was and still is that Albanian Macedonians do not consider themselves a ‘national minority’, but want to be an ‘equal partner’ in the state and nation-building process. As far as equitable representation in public bodies and the increase of pupils and students of communities is concerned, the implementation after  shows considerable results: The number of Albanian Macedonians paid from the state budget increased from . % in  to . % in December . In the health organizations, not paid by the state budget, the increase was from . % to . %. Much more impressive are the results in the security forces where the numbers of Albanian Macedonians between  and  increased in the Ministry of the Interior from . % to . %, the Criminal Police from . % to . % and in the armed forces from . % to . %.50 For pupils who are part of the Albanian and Turkish communities, the education process in kindergarten groups and primary schools is carried out in their mother tongue.51 In secondary education the education process is performed in Macedonian, Albanian and Turkish, whereby Macedonian Albanian pupils can receive instruction in Albanian in six municipalities and the City of Skopje. Now, . % of Albanian pupils receive secondary education in their mother tongue. As far as university enrolment is concerned, due to the establishment of two new universities, the figures show a tremendous increase. The number of Albanian Macedonian undergraduate and graduate students in  was . %, and this jumped to . % in -. The number of Turkish students, however, increased only slightly from . % to . %, but the share of Serbs actually dropped from . % to . %.52 Hence, compared with the list of political claims of Albanian Macedonian representatives enumerated above, the OFA and subsequent constitutional amendments, implementing laws and practice brought the following results: – The changes did indeed produce the recognition of all ethnic communities and their formal equality as state and nation-building forces as reflected in the language of the preamble. Macedonia is therefore conceived as a multiethnic society and not a binational state of Slav and Albanian Macedonians.53



  

see Marc Weller and Stefan Wolff (eds.), Autonomy, Self-governance and Conflict Resolution (Routledge, New York, ); and Stefan Wolff, “Ethnopolitics in Central and Eastern Europe: Accomodation through De-ethnicisation”, -, and Marc Weller, “From Security to Co-Governance: Towards an Integrated System of Diversity Managment in Europe”, -, both in Jorgen Kühl and Marc Weller (eds.), Minority Policy in Action: The Bonn-Copenhagen Declarations in a European Context  –  (ECMI, Department of Border Region Studies, University of Southern Denmark, Flensburg, Aabenraa, ). A major factor to increase minority representation in the public service was the introduction of community policing and the system of mixed police-patrols in the Albanian Macedonian territories, which had also the effect of bringing the whole territory back under central authority. See a list of kindergartens and schools in the different municipalities in Government of Macedonia, Answers, . All figures from Government of Macedonia, Answers,  and . However, in particular Turks are put under pressure to assimilate into the Albanian Macedonian community where the Albanian Macedonian are in the majority. See



Joseph Marko –

– –

–

The changes bring equitable representation of all groups in the civil service, but no full veto power, in particular for Albanian Macedonians, in parliamentary decisions. In this respect, the double majority vote system is a much weaker mechanism than comparable provisions on veto powers in the constitutions of other ex-Yugoslav republics. With regard to university education the political claims are now legally implemented. With regard to the use of languages in public administration and the judiciary only the threshold requirements were lowered to  %, which is propagated as European ‘best practice’ by the Advisory Committee under the Framework Convention for the Protection of National Minorities.54 The new language provisions do not give the Albanian language ‘full equality’ with Macedonian as an official language. All aspirations for territorial autonomy or federalization of the country were – on the basic principle of a “unitary character of the State” in the OFA – rejected outright. Instead, decentralization and the empowerment of local self-government are seen as the way to strenghten democratic participation and accountability, as well as political empowerment of the ethnic communities. Both points will be discussed in detail in the following chapter.

Most of the claims of the representatives of Albanian parties were thus in no way fulfilled: no territorial split, no consensus government with absolute veto power, and no recognition of the binational and bilingual state concept. They received instead decentralization through strenghtening local self-government, equitable representation in the civil service and improvement of the status of languages. Only the request for university education was completely fulfilled. It can be of no surprise that this ‘fair compromise’ was attacked by Slav Macedonians as much too far-reaching – even ‘moderates’ see primarily the civic state nation concept as the best solution, whereas more ‘radical’ Albanian representatives find their plea for ‘full equality’ unfulfilled and are in particular dissatisfied with the language provisions clearly lagging behind their expectations. Moreover, the smaller ethnic communities had no voice in the decision-making process of the OFA and, due to the  % threshold, have been given far fewer opportunities for the use of their languages in the administration. Nothing was done either to improve their situation especially in the educational system as can be seen from the fact that the number of Serb students actually dropped. In April , the then leaders of the two largest opposition parties, Arben Xhaferi and Menduh Thaci (DPA), and ex-prime minister Georgieski (VMRO-DPMNE)





International Crisis Group (ICG)(ed.), “Macedonia: No Room For Complacency”, ICG Europe Report no. , October , , at . Emma Lantschner, “Emerging European standards of minority protection through soft jurisprudence”, unpublished manuscript for research project NODE, http://www.node-research. at; Fernand de Varennes, “Article  Use of language”, in Marc Weller (ed.), The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford University Press, Oxford, ), -.

The Referendum on Decentralization in Macedonia in 2004 launched a direct assault on the Ohrid Agreement. The three declared it ‘dead’ and advocated a partitioning of the country.55 At its annual congress in July , the DPA then demanded further constitutional changes, which would eliminate the OFA compromise, including a bicameral parliament, an Albanian vice-president and ‘consensual democracy’ to allow a fuller veto power, and the right to self determination.56 Still, the inclination to violent clashes had by no means diminished. This could also be seen from a series of incidents as well as the school demonstrations that occured in Semsevo, Kumanovo, Bitola and Skopje.57 That there was strong resistance against the implementation of the OFA from the side of the Slav Macedonian population could be seen also from opinion polls in .58 The OFA was strongly supported by only . % and a bit supported by . %. As far as the single elements of OFA-implementation are concerned, almost two thirds of Slav Macedonians consistently answered ‘no’ to the questions as to whether they were for increased decentralization (. %), changes in the constitutional amendments already adopted (. %), Albanian as a second language in  % areas (. %), equitable representation (. %) and language rights in education (. %). Only  % declared that the implementation of OFA was the right means to address interethnic relations peacefully and  % of Macedonians felt the new law amounted to a partitioning of Macedonia. B. The Decentralization Reform Most of the provisions of the OFA were implemented far too late in the period after  and not all in the legislative period of the VMRO-DPMNE – DPA government. But the new coalition of the SDMS, Liberal Democratic Party (LDP) and Democratic Union for Integration (DUI) of Ali Ahmeti, the fomer NLA leader, formed in July ,59 went on to implement the OFA too. After government priority was focused on equitable representation, language requirements and education, one of the last elements left to be implemented remained the decentralization process with the adoption of the package of laws foreseen in the OFA. 1. History Local self-government in Macedonia had been rather well-established and equipped with powers under the socialist system. The  constitution reduced those powers of the municipalities considerably and established a strongly centralized system of gov-

   



See ICG, “Macedonia: No Room …”, . Ibid., -. Ibid.,  and Appendix A. United Nations Development Programme (UNDP) and Kapital - Center for Development Research, “Early Warning Report, FYR Macedonia”, No., UNDP, Skopje, , at , quoted as EWR . For a record of party formation processes see “Report on Macedonia” in Freedom House (ed.), Freedom in the World  – The Annual Survey of Political Rights and Civil Liberties (Rowman & Littlefield Publishers, Lanham, ), -.



Joseph Marko ernment.60 Due to obvious reasons, there was and still is a tremendous fear of creating administrative regions at all, so that the state has only one level of territorial subdivision: the self-governing municipalities. Inherited from the communist system until  there were  municipalities based on towns with surrounding villages, which ensured the internal coordination of local duties. The new territorial division, established by the  Law on Territorial Organization,61 brought a substantive increase in the number of municipalities to , meaning that they became much smaller in size and population. Instead of enhancing citizen participation and diminishing bureaucracy for public services, the effect of this was quite the opposite, since the municipalities were – at the same time – almost excluded from being active in education, healthcare, culture, housing and social welfare through the centralization process.62 The high level of centralization instead overburdened the relevant ministries with operative duties. For instance, primary school principals had to be appointed by the Ministry of Education, and even the supply of teaching aid was decided centrally.63 Also, to receive a building permit a citizen had to apply to one of  regional offices of the central government, which left mayors looking ineffectual. Whenever requests were approved slowly or rejected, citizens started to nurture resentments.64 Moreover, the much smaller municipalities were less efficient when it came to public local transport, water supply or other services that did not fall under the jurisdiction of one municipality, but demanded arrangements and consultations among several of them.65 As early as , the government included decentralization in its agenda as a reform priority, but due to the conflict in , no legislation was adopted. The importance of the decentralization process was prominently recognized in the OFA as already shown above.



 

  



For a brief history of local government in Macedonia see Friedrich Ebert Stiftung, Regional Office Zagreb (ed.), Local Self Government and Decentralization in South-East Europe. Proceedings of the Workshop held in Zagreb,  April  (Friedrich Ebert Stiftung Zagreb Office, Zagreb, ), at . Law on Territorial Division of the Republic of Macedonia and Determination of the Areas of the Local Self Government Units, Official Gazette (RM), Nr. /. According to Article  of the  constitution, the municipalities had powers only in the areas of urban planning, communal activities, culture, sport, social and child care and primary healthcare. They had no competencies for public services, rural planning, environmental protection, local economic development, local financing, pre-school and primary education and healthcare, or fire protection, all competencies transferred to them by Amendment XVII from  and the Local Self-Government Act . See UNDP (ed.), “National Human Development Report , FYR Macedonia – Decentralization for human development”, , -, at . UNDP, “National Human Development Report  …”, . ICG, “Macedonia: No Room …”, . UNDP, “National Human Development Report  …”, .

The Referendum on Decentralization in Macedonia in 2004 2. The Law on Local Self-Government The first measure of implementation was thus the adoption of a new Law on Local Self-Government.66 This law did bring under Article  the ‘general power’ to exercise, within the limits of law and in conformity with the principle of subsidiarity, on its territory, activities of public interest of local significance. Article  then enumerates a list of  activities.67 However, the law does not foresee a mechanism or schedule of how and when to transfer these powers. In addition to this law, the OFA required two other laws: a law on local finance and a law on municipal boundaries obviously with the intention to cut the large number of small and inefficient municipalities sharply. The OFA had foreseen to pass these laws too by the end of . In December  at a meeting of the Ohrid signatories, all decentralization deadlines were extended. The goal for harmonization of laws (needed to transfer powers) was put off until the end of , with complete transfer of responsibilities postponed till after local elections in late . In an obvious ‘centralized approach to decentralization’68, the government officials responsible for the draft legislation defended the slow pace69 of decentralization as being due to its complexity and the leading official on decentralization made it clear that virtually all questions of financing and boundaries would need to be resolved before any substantial transferral of responsibilities. Also, the IMF insisted that municipalities be barred from assuming debt and that they should be consolidated into more economically viable units. The parties then largely accepted the stipulation that the law on municipal boundaries has priority over the law on local finance. Moreover, the political leaders of the new government coalition contributed with political manoeuvers. Prime Minister Crvenkovski (SDMS) tried to make the process a ‘zero-sum game’70 and DUI leaders had difficulties with mayors since most Albanian mayors elected in  had come from the rival party DPA. As far as the international community was concerned,  separate actors were working on decentralization, with little coordination. 3. The Law on Territorial Organization and the Referendum In  the government adopted an Operational Programme for Decentralization to define necessary activities71 and a mixed group of officials and experts started consid  

  

Official Gazette RM, Nr. /. See footnote, English translation in UNDP, “National Human Development Report  …”, . ICG, “Macedonia: No Room …”, . Following ICG Europe, there was consultation with ZELS, the Association of Municipalities and international support programmes, but no consultation at all with local officials and managers. The number of laws to be adapted range from  pieces of legislation (International Crisis Group ) to  in Freedom House, Freedom in …, . UNDP, “National Human Development Report  …”, . The programme contained a list of laws to be used for transferring powers according to Article  of the Law on Local Self Government ( laws) and laws to be used for the rounding up of the system, such as fiscal decentralization, territorial restructuring, local elections, participation of citizens, etc. ( laws); competent bodies for drafting, deadlines and management (UNDP, “National Human Development Report  …”, ).



Joseph Marko ering maps that would reportedly reduce the number of municipalities from  to between  and . With Council of Europe (COE) assistance, the ministry developed five main criteria for municipalities: size (not lesser than , citizens and a centre no less than ,); economic resources; adequate municipal property; infrastructure; and natural and geographic conditions. The minister cited a sixth criterion, which was not registered in the government document: specific historical and cultural features – obviously in order to preserve certain ethnically distinct municipalities.72 These criteria did not prevent an ethnic perception of the entire process and rivalry among the government partners. As a DUI representative frankly explained: “We want to maximize the number of municipalities where Albanians make up  % of the population (and thereby make Albanian an official language) and we want to bring Albanians into connection with the urban centre; the Macedonians want the opposite – to preserve Macedonian urban control, keeping Albanians in rural areas and minimizing the number of  % Albanian municipalities.”73 Also, mayors of small municipalities, Albanian and Macedonian, were of course afraid of the prospect of consolidation. In February , the ruling coalition began to discuss municipal border revisions behind closed doors up until the spring of .74 Nevertheless, reports were regularly leaked to the press so that the whole issue about the status of key municipalities such as Struga, Skopje and Kicevo turned redistricting into a hot political issue. On  July , the draft law was presented in parliament. It left about  % of the municipalities untouched, but dramatically changed the boundaries of the others and cut the total number from  to . Two municipalities, Gostivar and Struga, were to be formed via the merger of five existing municipalities. The two largely rural municipalities of Kondovo and Saraj were to merge and come as ‘Saraj’ under the jurisdiction of Skopje. In effect, “ethnic Albanians would become a new majority in the city of Struga and would be more than  % in Skopje, thus qualifying Albanian as a second official language in the capital. Albanians would also be an outright majority in two of Skopje’s ten municipalities, Cair and Saraj. Kicevo would maintain its borders until January  when a merger with the surrounding municipalities would make Albanians the majority.”75 The main opposition party, VMRO-DPMNE, immediately disapproved the draft law and insisted that this plan would increase ethnic tensions. Nevertheless, the ruling coalition’s parliamentary majority passed the law on  August . The World Macedonia Congress (WMC), a diaspora organization, had already started to collect signatures for a referendum in February, with little success, however. During the first six months it managed to collect only , of the , signatures required. But after the adoption of the law, the VMRO-DPMNE stepped in and    



ICG, “Macedonia: No Room …”, . Quoted after ibid., . Which is criticized by Daskalovski, Walking on the Edge …, , as “drafting a law the Balkan way.” ICG Europe, “Macedonia: Not out of the Woods Yet”, ICG Europe, Europe Briefing No. , February , , at . Detailed population figures for Kicevo and Struga are given in UNDP, “National Human Development Report  …”, .

The Referendum on Decentralization in Macedonia in 2004 mobilized party resources for three weeks of door-to-door canvassing. By the  August deadline, they had collected , signatures and the referendum vote was set for  November . Also, on the local level, there had been protest with a series of referenda in  municipalities across ethnic lines which were, however, declared not binding and ignored by the government coalition.76 According to opinion poll data,77 the referendum was supported across all ethnic lines. . % of Slav Macedonians declared in the poll that they would vote in the referendum, but so would . % of Albanian Macedonians and . % of the smaller communities. Playing on fears that Slav Macedonians would be harmed by the redistricting, the VMRO-DPMNE and the WMC hoped to defeat the law at the polls and thereby discredit the government. The VMRO campaign was strongly in favour of the referendum, claiming that a vote ‘for’ was not against OFA or decentralization, nor against Euro-Atlantic integration, but only against the manner in which the new law was negotiated and adopted.78 Their strategy, however, was simply to return to the law of  without developing and presenting an alternative vision for decentralization. In Struga, they found an ally in the mayor, a Slav Macedonian, who rejected the law saying the city would declare independence “following the example of Monaco, Andorra or San Marino.” The government tried to downplay the ethnic inclinations of the law and put emphasis on fulfilling the obligations of the OFA. Then President Crvenkovski79 argued that “decentralisation is the most important part of the Framework Agreement.” Ali Ahmeti, in an open letter, referred to the chances for the EU integration process and proposed to vote for Europe by ignoring the referendum. It was then the campaign tactics of the coalition parties not to mobilise electors to vote negatively in the referendum, but to convince their supporters simply to stay at home since the legal requirement for the validity of the referendum result was a  % threshold in participation. The international community also backed the government position and European Commission President Romani Prodi addressed the Macedonian parliament in a speech, saying that decentralization was a method of founding stable and deep roots for local democracy, concluding that the decision depended on Macedonians themselves as to whether they wanted Europe or not.80 Only two weeks before the referendum, armed and uniformed men showed up in Kondovo in the outskirts of Skopje and on the final day of active campaigning,  November , the US made the surprise announcement that it would recognize  



 

See in detail Daskalovski, Walking on the Edge …, -. Biljana Vankovska, et al. (eds.), “Early Warning Report FYR Macedonia”, UNDP, Skopje, , at ,  and , quoted as EWR . OSCE, Office for Democratic Institutions and Human Rights, “Former Yougoslav Republic of Macedonia,  November  Referendum, , at . Due to the death of former President Boris Trajkovski in a plane crash in Bosnia and Herzegovina, he had become President in the presidential elections in April . Quoted after ICG Europe, “Macedonia: Not out …”, .



Joseph Marko Macedonia by its constitutional name “The Republic of Macedonia”. This was greeted with great enthusiasm in Macedonia and gave President Crvenkovksi the chance to reinforce the government’s message in a speech at a ‘victory party’ celebrated on the eve of the referendum on Skopje’s main square. The referendum question on  November read as follows: “Are you for the territorial organization of the local self-government (the municipalities and City of Skopje) as determined by the Law on Territorial Division of the Republic of Macedonia and Determination of the Law on Local Self-Government Units (Official Gazette of the Republic of Macedonia No. /) and the Law on the City of Skopje (Official Gazette of the Republic of Macedonia No. /)?” — “For” — “Against”. The surprise was great when voter turnout was not more than . % and the result of the referendum thus invalid. It did not matter that . % of the voters had cast their vote as ‘for.’81 What were the reasons for the failure of the referendum against opinion poll predictions? Even during the campaign it was suspected that the VMRO-DPMNE had split, and formed as VMRO-Narodna, a new wing under former Prime Minister, Ljubco Georgievski, and made agreements with the governing coalition. According to these speculations, VMRO-Narodna would have invited its potential supporters to abstain from voting, thus debilitating the overall effort in favour of the referendum undertaken by VMRO-DPMNE. Also the main opposition Albanian party, the DPA, had announced that it would boycott the referendum, although initially its leadership had asserted that it would call voters to vote ‘for’ in order to demonstrate dissatisfaction with the implementation of the OFA.82 As already mentioned, the forces campaigning for the referendum did not present any alternative for decentralization, which they allegedly did not oppose, but – as the referendum question demonstrates – simply wanted to preserve the unviable status quo, a not very convincing position. In addition, as there was practically no campaigning for a vote ‘against’, because all those opposing the referendum called upon the electorate to abstain, this affected the overall atmosphere in which voting took place, since it created the perception that the secrecy of the vote was difficult to maintain when all those who decided to go to the polls were seen as voting in favour of the referendum.83 Moreover, as opinion polls also should have warned, interethnic relations were by no means seen as the most important problem in  and . Although . % of Slav Macedonians had seen the interethnic relations as the biggest problem in  in comparison to . % of Albanian Macedonians, these figures dropped even more in  to . % and . %, respectively. The real concern of both communities was the high level of unemployment of . % among Slav Macedonians, . % among Albanian Macedonians and . % among other communities. Hence . % of Slav Macedonians declared in  that unemployment was the biggest problem (. % in ), in comparison with . % of Albanian Macedonians (. % in ) and   



See Report on the result of the referendum by the state election commission, . OSCE, Office for Democratic Institutions and Human Rights, “Former Yougoslav Republic of Macedonia …”, . Ibid., .

The Referendum on Decentralization in Macedonia in 2004 . % of other communities (. % in ). Finally, the strong signals sent by the US and the EU must also be taken into consideration. According to opinion polls published by the International Republican Institute (IRI), respondents between June  and April  showed, with figures between  % and  %, overwhelming support for Macedonia becoming a member of the EU. What were the political consequences of the referendum failure? The attempt by the VMRO opposition party to undercut the government coalition had simply failed and left the government with a new degree of legitimacy. Hence, the internal split in VMRO-DPMNE came to the surface. On  January VMRO-DPMNE members of parliament left the parliamentary caucus and formed a new VMRO-NP group. Five others formed an independent group. By November , Prime Minister Harry Kostov had already resigned, citing frustrations within the coalition.84 The local elections, forseen for , but postponed because of the referendum procedure, were scheduled for March , which brought a clear victory for the government coalition parties also on the local level. The SDSM got  mayors and DUI , whereas the opposing VMRO-DPMNE got  mayors and the newly formed VMRONP only three. The DPA-PDP coalition got two mayors.85 These results are a clear indicator that Macedonia passed the litmus test of the referendum. However, the most interesting indicator for the overall acceptance of the entire decentralization process by the people are the following figures: In , almost the same share of Slav Macedonians and Albanian Macedonians found an ‘increase’ in the decentralization process ‘acceptable’, namely . % and . %, respectively. These figures increased in , before the referendum, to . % and . %, and in , after the local elections, even increased to . % and . %. Asked whether “the new law on territorial organization will improve the relations in your municipality”, as many as . % of Slav Macedonians responded that they would stay the same or improve, in comparison to . % positive answers from Albanian Macedonians! III. Conclusions: “Macedonia Out of the Woods”? This rhetorical question posed by the ICG Europe Briefing Nr.  as of  February  is answered with a ‘not yet’. There are several indicators and policy issues that seem to confirm this answer. First, there is the fact that the referendum process did not lead to violent clashes or big demonstrations as had happened in , despite the Kondovo incident – quite the opposite: The entire referendum procedure as such – without taking the result into consideration – must be seen as a ‘success’ story in terms of state building. For the first time, political protest was channelled into a legally institutionalised way! So far, despite manifold allegations of ethnic discrimination in all spheres of life from all ethnic communities, nobody has brought any claim before the courts. When I asked in interviews in July  whether anyone had contested the strict quota system in university educa-

 

ICG Europe, “Macedonia: Not out …”, . See State Election Commission, Local Elections , as of  May  (Macedonian version).



Joseph Marko tion before the courts instead of protests on the streets, I again saw astonishment on the faces of my Slav Macedonian interlocutors. The last remaining obligation from the OFA is now to implement legislation governing the use of national flags and symbols. The use of the prohibited Albanian86 (state) flag remains a source of concern since it expresses for Slav Macedonians in the best case, disrespect for the Macedonian state, and in the worst case, the wish to reunite with Albania. However, the situation seems to have relaxed, according to ICG reports. In interviews in the first half of , municipal DUI officials insisted that the DUI had already stated that it was the (Macedonian) state flag that was its flag. In the same breath, they passed the buck to the Slav Macedonians to define their position by declaring that it was up to them to decide whether the Macedonian flag is a national flag or a state flag and they should publicly declare that the Macedonian flag is the state flag.87 There is room thus for creative compromise, but parties still have to start a discussion in the context of far more confidence building measures. The government’s absence of a strategy to deal with the issue invites spoilers to seize the initiative. In particular the DUI has a special responsibility to reassure Slav Macedonians that its Albanian constituents will be good faith partners in the future too. There have already been promising signals in this respect. Key party leaders such as General Secretary Gezim Ostreni now also stress that they are Macedonian as well as ethnic Albanian. According to opinion polls88 the percentage of Macedonian Albanians who consider themselves also ‘citizens of Macedonia’ and not only ethnic Albanians rose from . % in January to . % in June. This ‘progress’ is seen as the effect of the implementation of the OFA and the last local elections. Also, with regard to police reform, one of the most sensitive issues for interethnic relations,89 the prospects are promising. Not only that the new municipal councils have the right to select the local head of police from a list of three or more candidates proposed by the Ministry of the Interior with at least one being from the majoritarian ethnic community, but police will also be decentralized to eight regional centres against the previous practice of centralising decisions in Skopje.90 Each of the regional centres will have a public relations section and there will be also Citizens’ Advisory Groups, which will hold regular meetings on the local level with the police and official representatives. Within the concept of ‘community policing’ strongly favoured by the EU Proxima mission,  community policing officers have been appointed. The idea behind all these reforms is, of course, to make the police open, transparent and accountable to all citizens and thereby also diffuse interethnic tensions. However, what still raises concern with regard to structural changes in interethnic relations are the figures on mistrust of the judiciary, on unemployment (the strategies   

 



Article () of the Law on Local Self Government . ICG Europe, “Macedonia: Not out …”, . UNDP, “Early Warning Report FYR Macedonia”, UNDP, Skopje, , at , , quoted as EWR . According to the EWR , only . % of the Albanian Macedonians do have trust in the police compared with . % of Slav Macedonians. See the critique on planning and tactics of Macedonian-only and Macedonian-dominated police operations in ICG, “Macedonia: No Room …”, .

The Referendum on Decentralization in Macedonia in 2004 imposed by the international community and the OFA stimulate ethnic competition on the labour market), and the figures on the still high degree of ethnic distance, particularly between the two main communities. Despite the high degree of acceptance of decentralization in the population, worries have been expressed about the government’s attempt to pursue a top-down approach. Local officials, who have the greatest practical understanding of the decentralization process and its implications, have been largely frustrated. They point to a lack of communication and consultation with local authorities, vague or unrealistic timelines, a lack of information and transparency, and competition among ministries.91 Of particular concern for effective state building are the latest opinion polls on trust in the judiciary. In  only . % of Slav Macedonians have very much confidence and . % some, in comparison to . % Macedonian Albanians who have very much and . % some confidence.92 It is obvious from these figures that judicial reform and the fight against corruption in this sector are of utmost importance.93 If one looks at figures on how the single elements of the OFA were accepted between  and , the figures given above on decentralization were the most promising compared with those in table . Table . Ohrid implementation acceptance (in %)94

Increased decentralization Albanian as second official language Equitable representation

  . .

Slav Macedonians   . . . . 

.

 . . 

Albanian Macedonians   . . .  .

.

As far as acceptance of Albanian as a second language in administration and schools in areas with  % ethnic Albanian population are concerned, about half of the Slav Macedonians seem to accept this now, whereas only . % agree also to university education in the respective mother tongue. But only . % Slav Macedonians would be willing to learn also the language of another community in contrast to . % of the Albanian Macedonians. As far as equitable representation in public administration is concerned, the acceptance of Slav Macedonians unfortunately seems to decrease. Only . % accept this element any longer in  ( % in ), whereas the acceptance of Macedonian Albanians has risen to . %. This decline in acceptance by Slav Macedonians is under  



ICG Europe, “Macedonia: Not out …”, . EWR , . See also Joseph Marko, Francesco Palermo and Jens Wolk, “Reinforcement of the Rule of Law. Division of Competencies and Interrelations between Courts, Prosecutors, the Police, the executive and legislative Powers in the Western Balkans countries”, ARS Progetti, Final Report of study commissioned by EuropeAid, July , at . Source: EWR , , .



Joseph Marko standable, since – as the figures have shown above – this question was and is a zero-sum game. Under the obligations from the OFA to increase the numbers of other communities considerably and the pressure from the IMF at the same time to decrease overall numbers of employees in the civil service, equitable representation has turned into an unsound ethnic competition. Certain figures that indicate the still existing ethnic distance between the two communities are also worrying. Table . Ethnic Distance between Slav and Albanian Macedonians95

Mixed marriages Vote for candidates of other communities Friendship and business

 . . .

Slav Macedonians    

 .  .

Albanian Macedonians    < .  . 

> 

The readiness of Slav Macedonians to marry Albanian Macedonians has fallen to below  % in  ( % in ), while not more than  % of Albanian Macedonians are ready to marry Slav Macedonians. As far as the readiness is concerned to vote for a candidate of the other ethnic community, only . % of Slav Macedonians would still do so ( % in ). With Albanian Macedonians, however, this increased significantly from  % in  to . % in . With friendships and business, interethnic relations seem to be much more relaxed. Generally more than two thirds of both communities can imagine having a friend from the other community or doing business with them. In the final analysis, Macedonia has literally stepped back from the brink of civil war and with the exception of a few extremists, nobody seems any longer inclined to use violent means for political purposes. The value of the Ohrid Agreement seems now firmly entrenched. Also the single constitutional elements of Ohrid seem basically to be accepted by both communities. As this is the nature of any compromise, neither of the two communities is fully satisfied. The far-reaching claims for a binational state, adopted at the DPA party congress in , which would jeopardize the OFA substantially, lost much of their relevance, as the political marginalization of this party and Arben Xhaferi have shown in the local elections in . Another question is a possible political comeback of Georgievski who had – together with Xhaferi – argued for partition. However, again the results of the local elections show that he has – at the moment – no appeal to the electorate. The OFA put Macedonia indeed on a new structural basis where Albanian Macedonians are given more and more the feeling of ‘co-ownership’ of the state, despite the fact that – as I learned in many personal encounters in July  – many Slav Macedonians from the intellectual elites in the universities and media still find it difficult to adapt to the situation that they can no longer make an exclusive claim to be the titular nation. But also Albanian Macedonians still have to learn that they must give 



Ibid.

The Referendum on Decentralization in Macedonia in 2004 up their absolute attitude of social exclusiveness and must also in their own interests develop much more a sense of belonging to an effective state based on the principles of good governance and rule of law. Hence the most worrying factors do not come from the angle of interethnic relations as such, but from the economy and international relations. According to government statistics, the unemployment rate of Slav Macedonians has risen to . % in  and for Albanian Macedonians it is as high as . %.96 In this respect, the declining acceptance of equitable representation must be a warning sign. Even if it is not contested as a matter of principle, the influental urban middle class might demand that their political representatives protect their existing employment levels. But Macedonia must be pulled out of such zero-sum games and must tackle the structural causes of underdevelopment: the collapse of Macedonia’s industrial society where Slav Macedonians were traditionally privileged, the Albanian Macedonian community trapped in a cycle of rural underdevelopment where diaspora wealth finds consumption and trade, but nothing for productive investment97 and a notorously weak state. The danger, hence, remains imminent that economic collapse becomes coupled with ethnic mobilisation. Not very promising either are the spillover effects from Kosovo, possibly achieving independence within the next two years. The feelings and perceptions of the two communities in this respect are sharply divided:  % of Albanian Macedonians are for Kosovo’s independence, compared to only . % of Slav Macedonians.98 Obviously, for Albanian Macedonians the status negotiations will be a ‘make or break’ situation with only one possible outcome. Slav Macedonians, on the contrary, seem to fear that the efforts to unite all ethnic Albanians in the region into one state might arise again. Again this might be a situation to be exploited by spoilers despite the fact that the then Prime Minister Crvenkovski has already declared that “it would actually be better for Macedonia that Kosovo be independent and have rule of law, than be lawless and remain part of a Serbian Federation.”99 Hence, the battle for political stability, economic progress, democratic reform and interethnic cooperation is not yet won. Only a serious commitment of European assistance, which addresses the problem of industrial decline and rural underdevelopment and a fast track in the European integration process can alleviate possibly dangerous dynamics. However, after the failure of the referenda on the ratification of the EU constitutional treaty in France and the Netherlands, many European politicians already want to postpone the entire enlargement process, in particular for the Western Balkan countries. This would prove totally counterproductive in the efforts of these countries, including Macedonia, to fulfil the Copenhagen criteria in their difficult transformation process to political and democratic stability as well as economic viability for a ‘normal’ European life.

 

 

Government of Macedonia, Answers, . See the excellent study by European Stability Initiative, “Ahmeti’s Village. The Political Economy of Interethnic Relations in Macedonia”, Skopje-Berlin, , which is still valid in its analytical aspects and conclusions. EWR , . ICG, “Macedonia: No Room …”,  footnote .



Oleh Protsyk*

Democratization as a Means of Conflict Resolution in Moldova

I. Introduction The failure of federalization talks that dominated the Transnistrian conflict settlement agenda during the first term of communist government in Moldova (-) led to a renewed emphasis on the role that mechanisms of democratization can play in resolving a -year old-conflict. Due to the strong normative appeal attached to the concept of democracy in the contemporary international environment, the idea of legitimacy of leadership has gained significant currency in relation to this conflict and consequently the Moldovans, the Transnistrians and the international community are placing increasing emphasis on the idea of democratization as a catalyst for the resolution of this particular case of post-communist ethnopolitical conflict. Yet the main parties to the conflict ascribe different meanings to the concept of democratization, disagree about stages and criteria of democratization, and have widely divergent hopes with regard to the substantive outcomes that the process of democratization is to generate. This chapter seeks to review developments in the negotiations related to the Transnistrian conflict as of the end of summer  and to analyze the evolution in the positions of the main parties to the conflict. After describing new conflict settlement initiatives and the reaction to these initiatives on the part of the main actors involved, the article proceeds to discuss the key challenges and dilemmas that domestic actors and the international community will have to address, while advocating a policy of democratization in Transnistria. Whether these specific challenges are successfully addressed will have a major effect on the viability of the current democratization initiative and on the odds of securing a lasting conflict settlement in the region. II. The Yushchenko Initiative and Its International Context Federalization talks initiated by Moldovan President Voronin soon after he assumed office in  constituted the key element of the communist government’s plan to

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Research Associate, European Centre for Minority Issues, Flensburg, Germany. The author thanks Valentina Rigamonti for research assistance in preparing this article.

European Yearbook of Minority Issues Vol 4, 2004/5, ISBN 90 04 14953 8, 723-737. © 2006 Koninklijke Brill NV. Printed in the Netherlands.

Oleh Protsyk address the Transnistrian conflict during its first term in office.1 While the plan received support from the international mediators – the Organization for Security and Cooperation in Europe (OSCE), Russia, and Ukraine – there was very strong opposition to the idea of a federal state on the part of significant segments of civil society and across a wide spectrum of political parties in Moldova.2 The  Kozak Memorandum, a Russian plan for a federal state that envisaged granting very strong proactive and reactive powers in federal matters to the Transnistrian region, caused a storm of protest in Moldova and Western diplomatic circles, and forced the Moldovan government to back off from signing the document.3 The Moldovans attempted to continue negotiations on the basis of the February  OSCE recommendations, which also envisaged the creation of a federal state, but avoided addressing the controversial issues of federal design and distribution of competencies.4 These talks, however, lacked dynamism, reflecting the unwillingness of the Transnistrian leadership to engage in negotiations over a federal design on principles other than those that were proposed in the Kozak Memorandum.5 By autumn , the idea of federalization also ceased to excite any enthusiasm on the part of the Moldovan government, which was increasingly preoccupied with the task of surviving the electoral test in the March  parliamentary elections. The most recent electoral cycle in Ukraine and Moldova, which lasted from October  till March , had a significant effect on the strength of bargaining power of Moldovan government and Transnistrian authorities, the two main parties to the conflict, and gave impetus to a new period of conflict settlement negotiations. The electoral changes created a domestic and international environment that significantly strengthened the position of the Moldovan government. Although the parliamentary 

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For details of the federalization initiative, see C. Neukirch, “Coming Closer to a Solution in Moldova?”, () HM (), - (). For a discussion of arguments against the idea of federalism, see V. Socor, “Federalization Strikes Again: Bad for Moldova, Bad for International Precedents”,  May , at . O. Protsyk, “Federalism and Democracy”, () Post-Soviet Affairs (), -. Kozak Memorandum, “Draft Memorandum on the Basic Principles of the State Structure of a United State in Moldova”,  November , at . For a discussion of the effects of the Kozak Memorandum on the negotiation process, see S. D. Roper, “Federalization and Constitution-Making as an Instrument of Conflict Resolution”, Demokratizatsiya, Fall , at <www.findarticles. com/p/articles/mi_qa/is_/ai_n/print>; M. Vahl and M. Emerson, “Moldova and the Transnistrian Conflict”, in B. Coppieters (ed.), Europeanization and Conflict Resolution: Case Studies from the European Periphery (Academia Press, Gent, ), -. OSCE, “Proposals and Recommendations of the Mediators from the OSCE, the Russian Federation, Ukraine with regards to the Transnistrian Settlement,”  February , at . The escalation of conflict over the fate of Romanian language schools in Transnistria in the summer of , which was initiated by the Transnistrian authorities’ decision to change the status of or close down these schools, can serve as one indicator of Transnistria’s lack of interest in maintaining the format of negotiations envisaged by the February  OSCE recommendations.

Democratization as a Means of Conflict Resolution in Moldova dominance of the communists was reduced, the Moldovan voters returned the communist majority to the parliament. Factions in parliamentary opposition, partly due to the strength of the communists’ popular mandate and partly due to the communists’ skilful use of such selective incentives as offers of high positions in the executive and legislative branches of government, chose to break ranks and support the reelection of the communist leader Voronin as the country’s president.6 The reelected communist government was eager to stress its commitment to the task of Moldova’s European integration, which marks a clear ideological shift from the initial pro-Russian orientation of the communists’ foreign policy. Although analysts continue to dispute how genuine and credible this move is,7 putting emphasis on the task of European integration, as well as taking some concrete steps to reform government institutions and to democratize political life (both were initiated under very considerable pressure from the opposition), further strengthened the reputation and legitimacy of the communist government in the eyes of most of the key international actors in the region. The Transnistrian authorities, on the other hand, found themselves in a weaker international position at the end of the - electoral cycles. The fresh democratic legitimacy of the Moldovan government was in stark contrast to the reputational problems of the Transnistrian elite, which is widely perceived as presiding over a highly authoritarian and illiberal political regime. The ‘Orange Revolution’ in Ukraine not only highlighted Transnistria’s problem of democratic legitimacy, but also created an extremely painful vulnerability for the Transnistrian authorities: the openness of the Ukrainian border, the only external border that the Transnistrian authorities have access to, could no longer be taken for granted. The deterioration of relations between Russia, which is the main economic and political backer of the Transnistrian regime, and both Moldova and Ukraine further underscored the fragility of Transnistria’s international status. It was in this international context that Ukrainian President Yushchenko put forward his plan for settling the Transnistrian conflict. The plan reiterates the principles of sovereignty and the territorial integrity of the Republic of Moldova; it proposes that a special legal status be granted to the Transnistrian region within the Republic of Moldova; it provides for Transnistria’s right to self-determination only in the event that the Republic of Moldova loses its independence and sovereignty; and it proposes the creation of a common space incorporating legal, economic, social, customs and humanitarian issues. The plan envisaged early free and fair elections to the Transnistrian ‘supreme soviet’ under international monitoring before Moldova recognizes this body as the legitimate representative body of the region. The settlement is to take place in three stages, each stage not exceeding six months in duration. In the first stage, the Moldovan parliament is to pass a law on the basic principles of settling the status of the Transnistrian region, on the basis of which Transnistria adopts a new constitution. Then, in October-November , free and  

I. Botan, “Presidential Elections”,  April , at . L. March, “Socialism with Unclear Characteristics: The Moldovan Communists in Government”, () Demokratizatsiya (), -.

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Oleh Protsyk fair elections to the ‘supreme soviet’ will be organized under OSCE guidance. A parliamentary commission composed of Moldovan and Transnistrian deputies will then prepare a draft law on the status of Transnistria, which is to be passed by the Moldovan parliament. The law enters into force upon the approval by the Moldovan parliament of an agreement on guarantees of compliance with the Law on the Special Legal Status of Transnistria. The agreement is to be prepared with the participation of the future guarantors – Russia, Ukraine and the OSCE, possibly assisted by the US and the EU. Lastly, a Conciliation Committee, which will be comprised of representatives of Moldova, Transnistria, Ukraine, Russia, the OSCE and possibly the US and the EU, will have the task of settling all disputes arising from the implementation and/or interpretation of the provisions of the Law on the Status of Transnistria.8 The plan drafters were careful enough not to propose their version of answers to the most acute problems that stall the talks every time the negotiation process resumes. Those problems include the withdrawal of Russian troops from Moldovan territory, the delineation of competencies between the central and Transnistrian regional authorities, specific methods to ensure stability in the ‘Security Zone’ and security guarantees regarding Transnistria’s special status, and the establishment of legal controls on the Transnistrian segment of the Moldova-Ukraine border. The plan for the Transnistrian conflict settlement became one of the first major foreign policy initiatives of Yushchenko’s government. The level of attention to developments in Moldova and the extent of involvement on the part of key Ukraine decision makers in negotiations over the plan suggest a high degree of commitment on the part of the Ukrainian authorities to finding a solution for the Transnistrian conflict. The early stages of the new Ukrainian government’s involvement in mediation efforts indicate that Ukraine is trying to develop an even-handed approach to dealing with both parties to the conflict. While the Yushchenko Plan favourably addresses all the major concerns of the Moldovan side (confirming the principles of sovereignty, territorial integrity and a unified legal space), the Ukrainian side also made conscious efforts to avoid alienating the Transnistrian authorities. Despite repeated calls on the part of the Moldovan government and international organizations to toughen border controls, Ukraine proposed a relatively liberal border regime for the movement of people and goods from Transnistria. The top Transnistrian officials, banned from travelling to EU countries since , continue to be frequent visitors to the Ukrainian capital. Overall, the level of engagement and interaction between the Ukrainian and Transnistrian authorities remains high. III. Reaction to the Yushchenko Plan and First Implementation Steps Conflict resolution proposals are not just the results of deliberation among a small group of key advisors to a person or an institution that wants to play the role of mediator; they are usually products of numerous rounds of shuttle diplomacy and behindthe-scenes negotiations among the major parties involved in a conflict. These informal negotiations involve offering compromises, searching for ways to accommodate diverse 

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The plan is available at , accessed  July .

Democratization as a Means of Conflict Resolution in Moldova interests and fostering a minimal level of acceptance of the initiative, all of which is done in order to increase the probability of a successful launching of official talks. The Yushchenko Plan constituted no exception in this sense. The details of the plan, which were publicly revealed after the May  meeting between representatives of Moldova, Transnistria, Ukraine, Russia and the OSCE in the Ukrainian town of Vinytsia, were a product of intense prior negotiations among the parties. Despite the fact that the publication of the Yushchenko Plan caused a wave of domestic criticism of specific details of the initiative, the Moldovan government moved fast to start the process of implementation of some of the key provisions of the plan. On  June , with a vote of  deputies out of a total of , the Moldovan parliament passed a declaration endorsing the plan proposed by Yushchenko. The declaration was followed by two appeals passed by the parliament on the same date that called for the demilitarization of the Transnistrian zone and withdrawal of the Russian military contingent and ammunitionm, and appealed to the Council of Europe (COE), the OSCE and the EU for assistance in democratizing the breakaway region.9 The cross-partisan support that this new conflict settlement plan enjoyed in the parliament is testament to the fact that a high degree of consensus, however temporal it might be, has emerged with regard to Transnistria policy among the Moldovan elite. The momentum of the Moldovan elite’s willingness to follow the blueprint of the Yushchenko Plan was also confirmed by the passage in the first and second reading in a one-day session on  July  of the Law on the Basic Provisions of the Special Legal Status of Settlements on the Left Bank of Nistru (Transnistria). The law establishes a special autonomous territorial unit – Transnistria. It grants legislative and representative powers to the regional ‘supreme soviet’, which is to be elected under the supervision of the international electoral commission created under the auspices of the OSCE. The law also requires that elections should follow the Moldovan legislation and be monitored by the Council of Europe. The law does not include any details on the distribution of powers and competencies between the national centre and the autonomous unit. It only includes clauses that establish the supremacy of national legislative acts and require that regional legislation to be in accordance with Moldovan laws. The law also states that detailed provisions regarding the status of Transnistria will be elaborated in an organic law drafted jointly by the Moldovan and Transnistrian representatives and passed by the Moldovan parliament after the formation of a new system of government in Transnistria. Finally, the law does not include any clauses that could serve as the basis for a system of international guarantees of Transnistria’s special status; the law only envisages the creation of a system of internal guarantees of such a status. The Law on the Basic Provisions is a very brief document and its content reflects the mode in which the law was adopted. The Moldovan deputies drafted the law to reflect the ideal preferences of the Moldovan side and to correspond to the Moldovan side’s vision of the principles under which the country ought to be reintegrated. The 

The Parliament of the Republic of Moldova,“Decision on the Ukrainian Initiative Concerning the Settlement of the Transdniestrian Conflict and Measures for Democratisation and Demilitarisation of the Transdniestrian Zone”, at , accessed  August .

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Oleh Protsyk unilateral nature of Moldova’s actions, however, can create problems in the long run. The lack of Transnistrian input into the drafting of the law may result in a lack of commitment to the basic principles of the law on the part of Transnistrian politicians, irrespective of which specific group of leaders will represent Transnistria in the later rounds of negotiations over the terms of the conflict settlement. Given the unilateral nature of the decisions regarding the law, its content, which could have been substantially different if the Transnistrians had had the means to influence the drafting process, is not unexpected. What has to be explained is the willingness of the Moldovan side to agree with the central component of the Yushchenko Plan, which calls for the holding of regional elections in Transnistria in the near future. The current internal situation in Transnistria suggests that if such elections were to be held now (summer ) the odds of the current Transnistrian leadership winning the elections are very high. Both the Moldovan and Transnistrian decision makers are aware of this. The explanation for the Moldovan side’s acceptance of the Yushchenko Plan’s clause concerning the Transnistrian regional elections lies in the details of the documents that the Moldovan parliament passed in June and July . The Moldovan side’s acceptance of the plan’s provision about the elections in Transnistria is highly conditional. Both the above-cited June  appeals and July  Law on the Basic Provisions attach conditions to what will constitute free and fair elections in Transnistria. The parliament’s June appeal on the criteria of democratization demands liquidation of the Transnistrian Ministry of State Security, reformation of the judicial branch, the release of political prisoners, the removal of barriers to the normal activity of Moldovan political parties, non-governmental organizations (NGOs) and mass media, that the elections be held under the exclusive aegis of an international electoral committee authorized by the OSCE, that participation in the electoral process should proceed only on the basis of Moldovan citizenship and that monitoring of democratic standards by the international electoral committee should commence at least five months prior to the date of elections. The appeal also states that international involvement in the monitoring of democratic standards and the organization of the democratic process “cannot bring about any consequences regarding the recognition of this [Transnistrian] entity under the international law”.10 The appeal on the principles and conditions of demilitarization asks, among other things, for the withdrawal of Russian troops and weapons, and for the transformation of peacekeeping operations conducted by the Russian contingent on the basis of the  Moldovan-Russian Agreement into an international mechanism of military and civil observers under the auspices of the OSCE. The July  Law on the Basic Provisions extends the logic of the appeals by requiring that elections be conducted in accordance with Moldovan laws and only after the conditions specified in the parliamentary appeals regarding democratization and demilitarization are met. Facing a changed international context, with Ukraine’s renewed pro-European drive being one of the defining elements of this context, the Transnistrian leadership has had to adjust to a new geopolitical situation. A cautious endorsement of the 

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Ibid., Appeal of the Parliament of the Republic of Moldova on the Criteria of Democratisation of the Transdniestrian Zone of the Republic of Moldova, annex .

Democratization as a Means of Conflict Resolution in Moldova Yushchenko Plan, voiced by Transnistrian President Smirnov during his visit to Kyiv on  July , was the Transnistrian authorities’ way of acknowledging a change in Transnistria’s international environment.11 This endorsement, however, quickly gave way to a dismissal of the prospects for the Yushchenko Plan to contribute to the settlement of the conflict after the Moldovan parliament passed the Law on the Basic Provisions of the Special Legal Status of Settlements on the Left Bank of Nistru (Transnistria) on  July . President Smirnov was quoted as saying that the Yushchenko Plan was effectively buried by the passage of the law.12 Similarly, a negative reaction to the passage of the law emanated from Moscow. A commentary by the Russian Ministry of Foreign Affairs described the passage of the law by the Moldovan parliament as a counterproductive move.13 Russia, however, proved to be less straightforward in making judgements about the Yushchenko Plan. In one of the commentaries made by Russian officials it was stated that the plan’s proposals should be married with the provisions of the Kozak Memorandum.14 Both Moldovan and Ukrainian officials were actively engaged in consultations with Russia during the spring and summer months of . Securing Russian support for Yushchenko’s initiative is likely to involve serious modifications of the initial plan. If the various forms of international pressure on Transnistria continue to intensify, the Transnistrian leadership might be forced to accept the conduct of elections under international supervision. It will, however, do everything in its power to hold such elections on terms favourable to the existing regime. A recent memorandum signed by a large number of leading Moldovan NGOs anticipates the Transnistrian regime’s efforts to control the electoral process and warns the international community against leaving the processes of democratization in Transnistria in the hands of the Transnistrian leadership.15 The Transnistrian leadership, as numerous analysts note, will also attempt to turn the elections into a referendum on Transnistrian independence. One of Moldova’s key experts on the Transnistrian conflict quotes the Transnistrian Minister of Foreign Affairs in order to substantiate the argument that the regional elite will try to pursue the Kosovo variant, which involves forming representative bodies for the region under OSCE control, but refusing any form of integration into the Moldovan state.16

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“Smirnov has Accepted Yushchenko’s Plan”, Moldova Azi,  July , at <www.azi.md/ news?ID=>. “Transnistrian Conflict”, Adept: E-Journal,  August , at . “The Russian Federation Estimates as Counterproductive the Law on the Basic Provisions of the Special Legal Status on Transnistria Adopted by Moldovan Parliament”, Moldova Azi,  January , at <www.azi.md/news?ID=>. “Russia Ready to Work on Yushchenko Plan”, Moldova Azi,  July , at . “Memorandum on Supporting Effective Democratisation in Transnistria”, Moldova Azi,  July , at . O. Nantoi, “The Ukrainian Plan and the Moldovan Law”, Moldova Azi,  July , at .

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Oleh Protsyk The OSCE, which has played an important mediating role in the Transnistrian conflict for many years,17 reacted positively to Yushchenko’s initiative and to the first steps of the Moldovan recognized by the OSCE, the Council of Europe, or the international community as a whole.18 Although the Moldovan authorities moved very fast to address the first tasks outlined in the Yushchenko Plan, the unilateral character of these steps raises serious doubts about the readiness of the Transnistrian leadership and their backers in Moscow to cooperate on the Yushchenko Plan. If such cooperation is, however, achieved, meeting deadlines set in the plan seems to be highly unrealistic. For one thing, the plan envisions, as was already mentioned, holding elections to the Transnistrian regional assembly in October or November . Neither the head of the OSCE Mission to Moldova Ambassador Hill nor Secretary-General of the Council of Europe Terry Davis, considered it probable that elections could be organized by the end of .19 The  June appeal on the criteria of democratization passed by the Moldovan parliament also stated that monitoring of democratic standards must be commenced by the international electoral committee at least five months before the date of elections. IV. Dilemmas of Democratization in Transnistria In trying to bring about democratic change in Transnistria, Moldovan decision makers, as well as the international actors that are involved in the conflict settlement efforts, face a number of major challenges. Below, the three types of challenge are reviewed: deciding how best to deal with the current Transnistrian leadership; confronting the difficulties surrounding the holding of elections in an imperfect democratic environment; and accepting the outcomes of the elections as grounds for renegotiating the terms of a final settlement and reintegration of the country. A. Negotiating with the Ruling Elite In terms of approaches to deal with the current Transnistrian leadership, the choice lies between strategies aimed at achieving some sort of a pact with the ruling elite and efforts to marginalize and sideline its top representatives. The literature on ‘pacting’ (the term usually refers to a structured bargaining that produces agreement about the terms of transition) has been heavily influenced by successful democratic transition in Southern Europe.20 This literature suggests that there are multiple beneficial effects 

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For a detailed discussion of the OSCE activities in Moldova, see G. Hanne, “The Role and Activities of the OSCE Mission to Moldova in the Process of Transdniestrian Conflict Resolution”,  EYMI (/), -. “OSCE Mission Head Welcomes Law on Status for Transnistria”, Moldova Azi,  July , at . For the commentary on Terry Davis’ visit, see “Terry Davis Suggests to Moldovan Authorities to Hasten Slowly”, at , accessed on  July . Guillermo O’Donnell, Philippe C. Schmitter and Laurence Whitehead, Transitions from Authoritarian Rule, Vol. - ( Johns Hopkins University Press, Baltimore, ); John Higley and Richard Gunther (eds.), Elites and Democratic Consolidation in Latin America

Democratization as a Means of Conflict Resolution in Moldova that the fact of reaching an agreement with the ruling elite can have on the process of democratic transition: it reduces opposition to regime change, increases cooperation between representatives of old and alternative elites, and provides political stability for the construction of a new order. On the other hand, some authors who have analyzed the democratic transition in Eastern Europe point to the fact that ‘pacting’ that tended to demobilize publics has often resulted in a stagnated transition and the continuation of an authoritarian rule.21 Choosing about these options involves estimating preferences and resources available for the ruling elite. At the beginning of the s, there was no ambiguity concerning where the preferences of a closely-knit Transnistrian elite lay. If a menu of options available to the Transnistrian elite at the beginning of the s is described as having consisted of three options – the acceptance of existing political practices in a newly independent state of Moldova, seeking changes within the parameters of the existing state or opting for succession – there was significant convergence among the ruling elite in terms of preferring the third option.22 This was due to a number of factors, which have been extensively analyzed in the literature.23 More than a decade later, the Transnistrian leadership is most interested in preserving the current status quo, which amounts to the de facto independence of the Transnistrian region.24 However, even prior to the events of the ‘Orange Revolution’, the Transnistrian leadership had to wonder how sustainable this status quo was. There was no evidence that the international community was likely to be forthcoming with recognition of Transnistrian independence, quite the contrary – there was increasing pressure from Western governments to participate in negotiations with Moldova. The economic situation in Transnistria – while in certain respects better than in Moldova – was far from being stable and sound and its further vulnerability was magnified by the Moldovan authorities’ ability to impose sanctions on Transnistrian external trade. The young and skilled continued to emigrate due to the region’s uncertain political and economic prospects. Despite the defiant independence rhetoric – used extensively for both international and domestic consumption – and despite rather successful efforts to build functioning

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and Southern Europe ( Johns Hopkins University Press, Baltimore, ); Juan J. Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation ( Johns Hopkins University Press, Baltimore, ). V. Bunce, “Rethinking Recent Democratization: Lessons from the Post-communist Experience”,  World Politics (), . On preferences of minority leaders, see V. Bunce, “Status Quo, Reformist or Secessionist Politics: Explaining Minority Behavior in Multinational States”, NCEEER Working Paper, July , at . For a review of the origins of preferences for succession, see P. Kolstø, “National Integration and Violent Conflict in Post-Soviet Societies: The Cases of Estonian and Moldova”, The Slavonic and East European Review (); S. Troebst, “The ‘Transdniestrian Moldovan Republic’: From Conflict-Driven State-Building to State-Driven Nation-Building”,  EYMI (/), -. For the discussion of the Transnistria leadership’s efforts to cultivate regional support for status quo see ICG Europe Report, Moldova: Regional Tensions over Transnistria, International Crisis Group, , .

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Oleh Protsyk state institutions and to manage a new identity construction,25 the Transnistrian leadership never discarded the option of a common state. The failed Kozak Memorandum is a very important document in this respect. It reveals valuable information about the nature of the Transnistrian leadership’s preferences with regard to the terms of a possible conflict settlement. The Transnistrian elite was ready to sign the Memorandum, which provided for the creation of a common state on terms that were closer to a federal rather than confederal model and it was only the last minute refusal by Moldovan President Voronin to sign the Memorandum that took the deal off the table. The issue of a common state and the optimal forms of constitutional design for such a state has also remained a very important topic in the debates in academic and policy circles in Transnistria.26 The refusal of the Moldovan government to discuss the status of the Transnistrian region prior to democratization could be especially threatening to the current regional elite. The absence of provisions on the future status of the region as well as the proposal of a system of only internal guarantees increases the level of uncertainty over the potential outcomes of transition. This might intensify the Transnistrian elite’s opposition to the proposed terms of transition and to the design and procedures of the electoral process envisioned by the Yushchenko Plan. The regional elite controls very substantial resources to do so. Its security apparatus is large and capable. In one estimate, the combined forces of the ministries of state security, internal affairs and defense amount to ,-, permanent staff personnel, which is a quite formidable force for a region with a population of about , inhabitants.27 Together with employees of many other government institutions and pensioners (whose allowances are far higher in Transnistria than they would be in Moldova), they constitute a group whose clientalistic ties to the unrecognized Transnistrian state are especially strong. The region’s leadership has a firm control of the major media outlets and educational institutions. The regime can also rely on a substantial grassroots support, in the form of various NGOs and citizens’ associations, both from those that trace their roots to the initial stage of the conflict (e.g., Committee of Defenders of Transnistria) and those that were organized more recently.28 B. Timing of Elections The second set of challenges relates to the timing of elections. The list of conditions of democratization that the Moldovan parliament insisted must be met prior to the conduct of elections was specified in the  June  appeal. This list, which could better be described as a list of demands aimed at liberalizing the existing authoritar-

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Troebst, “The ‘Transdniestrian Moldovan Republic’ …”. N. V. Babilunga and I. N. Galinski, “Kak nam postroit’ i obustroit’ obshchee gosudarstvo?” in N. V. Babilunga et al. (eds.), Fenomen Pridnestrovja (RIO PGU, Tiraspol, nd ed., ), -. ICG Europe Report, Moldova: Regional Tensions over Transnistria, International Crisis Group, , . Protsyk, “Federalism and Democracy” … .

Democratization as a Means of Conflict Resolution in Moldova ian regime,29 was further elaborated in a joint memorandum of Moldovan civil society organizations.30 It is highly unlikely that all those conditions can be met in the foreseeable future. A choice has to be made on whether or not to hold the elections in an environment where only partial liberalization has taken place and only some of the demands advanced by the Moldovan side have been met. As the recent wave of so-called ‘coloured’ revolutions in Serbia, Georgia, Ukraine and Kyrgyzstan suggests, authoritarian and semi-authoritarian regimes exhibit the greatest weaknesses and vulnerabilities at the time of elections. It suggests that small openings and opportunities, which become available due to the partial loss of control by the authoritarian regime during the electoral period, could be exploited by the regime opponents to bring about democratic change. The ability to exploit such opportunities, of course, depends on the character and the size of opposition to the regime. Transnistrian leadership tries to present to the outside world a picture of a united region mobilized around its leadership. The lack of leadership turnover – two key officeholders in Transnistria, President Smirnov and Parliamentary Speaker Maracuta, have been in power unchangeably since the beginning of the self-proclaimed republic – is a fact that does not sit well with democratic principles. This fact, however, is not considered by the regime proponents to be evidence of authoritarian tendencies in the evolution of the Transnistrian regime; it is explained as the logical response to the numerous hostile external pressures on Transnistrian statehood.31 Despite repressions and elaborate attempts to manufacture ideological unity, there has always been a detectable opposition to Smirnov’s rule in Transnistria. Some evidence suggests that this opposition might be growing. In May , a group of deputies from the Transnistrian regional parliament brought up the idea of the most significant reform of the region’s constitution since the region acquired de facto independence from Moldova. The constitutional reform draft envisages increasing the powers of parliament over the formation of the cabinet of ministers and the constitutional court, the possible introduction of the post of prime minister, and changes to the procedures for the adoption of constitutional laws, which will no longer require the signature of the president of the Transnistrian Moldovan Republic. Even the analytical report compiled by the official Transnistrian news agency, ‘Olvia-Press’, acknowledged the initiative as an attempt to weaken the powers of the presidency and as a direct attack against the local “guarantor of stability”, Transnistrian President Smirnov.32 Tensions can also be detected in the Transnistrian business community. Local enterprises suffer from the difficulties of conducting business in an environment of political conflict and economic sanctions. One strategy of Transnistrian enterprises for dealing with Moldova’s withdrawal of customs stamps, for example, was selling stakes to or forming joint ventures with foreign investors who are already active on the right bank of the Nistru river, which is where most of Moldova’s territory lies and where the    

For the distinction between liberalization and democratization, see Linz and Stepan, Problems of Democratic Transition …. “Memorandum on Supporting Effective Democratisation in Transnistria”, Moldova Azi,  July , at <www.azi.md/tribune?ID=>. Protsyk, “Federalism and Democracy” … . Olvia-Press, “Reforma Semnadtsati”,  August , at .

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Oleh Protsyk Moldovan central government has full control.33 Political conflict not only reduces profits, it also prolongs the uncertainty about the legalization of capital for Transnistrian businessmen. The region’s economic actors are potentially a very strong constituency in favour of political rapprochement and economic reintegration. The Transnistrian political leadership is aware of this and the possible defection of the business elite has a high priority on its list of concerns.34 In early , prior to the announcement of the Yushchenko Plan, the Transnistrian authorities had already scheduled regular elections to the Transnistrian ‘supreme soviet’, the region’s parliament, for December  and started preparations for this event. This fact possibly contributes to explaining the Yushchenko Plan’s unrealistically tight schedule for holding elections under international supervision (planned for OctoberNovember ): this schedule might have been the result of prior consultations between the Ukrainian drafters of the plan and the Transnistrian authorities, who would like to keep their initial schedule intact. The strong international pressure to delay the elections, which was discussed earlier, makes it very problematic for the Transnistrian elite to go ahead with their own schedule. The questions about timing of elections for anyone concerned with democratization in Transnistria, however, remain. One of those questions is whether, given that elections provide an opportunity to exploit the already existing weaknesses of the current authoritarian regime, the fulfilment of all conditions specified in the Moldovan parliament’s appeal and the civil society memorandum should be a non-negotiable prerequisite for holding elections in Transnistria. C. Accepting the Election Outcomes The third set of dilemmas that Moldovan authorities and international actors are likely to face has to do with recognizing and accepting the outcomes of the prospective elections, whatever those outcomes might be. A return of the pro-Smirnov majority to the regional parliament could be one possible outcome, even if conditions for free and fair elections are largely met. As was mentioned earlier, significant segments of the population have depended on Smirnov’s regime to provide them with salaries, pensions and various subsidized services. Smirnov’s support is not only limited to groups of direct clients. The regime was able to guarantee some minimal living standards in what the majority of population believes was a very hostile external environment. Although one has to treat survey results derived within an authoritarian setting with a degree of suspicion, the survey figures seem to paint a picture that the Transnistrian authorities might perceive as comforting. In one study conducted in , for example, it was reported that although the Transnistrians found their economic situation in general to be poor, they still believed it was much better than on the other side of the river.35

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G. Selari, “Transnistria Economy: Regional Dimension”, Democracy and Governing in Moldova E-Journal Vol. , - July , at <www.e-democracy.com>. See quotes from the interview with President Smirnov in Olvia-Press, “Reforma Semnadtsati”,  August , at <www.olivia.idknet.com>. B. G. Bomeshko, “Pridnestrovje: Gody sozidaniya”, in Babilunga et al., Fenomen Pridnestrovja …, -.

Democratization as a Means of Conflict Resolution in Moldova The level of support for the current Transnistrian leadership might vary between the main ethnic groups in the region. One of the recurrent topics in Moldova’s accusations against Smirnov’s regime is the fate of ethnic Moldovans in Transnistria. The declarative internationalism of the Transnistrian regime cannot hide the fact that there are a number of problems with the situation of ethnic Moldovans in the region. There are ethnic Moldovan prisoners in Transnistrian correction facilities who could be considered to be political prisoners; the educational system continues to use the Soviet-era Cyrillic script for the Romanian language, although Moldova switched to the Latin script in  – this situation disadvantages the Moldovan youth that seek educational and job opportunities either in the rest of Moldova or in Romania; although no hard data is available, Moldovan analysts believe that ethnic Moldovans continue to be underrepresented in the Transnistrian government, business and educational institutions. Even if the level of discontent with Smirnov’s regime is higher among ethnic Moldovans, it does not imply the automatic defeat of the current leadership in free and fair elections. The potential electoral clout of ethnic Moldovans is not that high. According to the  census, Moldovans constituted about . % of the population in Transnistria, Ukrainians . % and Russians . %.36 The Transnistrian authorities claim that the  census figures are not accurate because they included populations from a large number of right bank settlements, which were a part of the left bank administrative districts at the time of the  census, but that has remained under the control of the Moldovan central government since . The official numbers that are used by the Transnistrian authorities since  are: Moldovans . %, Ukrainians . % and Russians . %37 Furthermore, there is no evidence to contradict the possibility that regional solidarity might play an important role in the electoral behaviour of Transnistria’s ethnic Moldovans. An alternative outcome of the elections could be that an anti-Smirnov mobilization will take place and the regional assembly will be dominated by the opposition to Smirnov’s regime. There is no reason, however, to believe that such mobilization will imply that the new regional parliament will be any more willing than Smirnov’s regime to accept the country’s reintegration on Chisinau’s terms. As Troebst reports, even those Transnistrian democratic opposition leaders who are the staunchest opponents of the current leadership highly value the autonomy gains made by the secessionist movement and attach a great symbolic significance to such events as, for example, the Transnistrian forces’ resistance against the Moldovan army’s attempts to gain control over the right bank city of Bendery (Tighina) in , a battle that incurred some of the heaviest casualties in the course of the conflict.38 Despite Transnistria’s sinister image in the Western media, the region is not a gangsters’ land where no rules and norms apply. The Transnistrian regime succeeded in building workable institutions that provide for its citizens a sense of normalcy and rule   

Goskomstat, Itogi Vsesoiuznoi perepisi naseleniia  goda [Results of All-Union Census of ] (Gosstatizdat, Moscow, ). Bomeshko, “Pridnestrovje: Gody sozidaniya”, in Babilunga et al., Fenomen Pridnestrovja …, -. Troebst, “The ‘Transdniestrian Moldovan Republic’ …”.

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Oleh Protsyk of law. For example, there is a constitutional court that routinely makes judgments on matters pertaining to the implementation of the  Transnistrian constitution, with the court’s rulings often going against the wishes of parliament and, sometimes, of the president.39 While this particular institution tries to perform some functions typical to Western democracies, there are other government institutions (for example, heavily subsidized systems of health care and education) that cater to citizen’s needs articulated on the basis of the norms of the peculiar Soviet understanding of democracy. For many citizens of Transnistria, who also happen to be former Soviet citizens, the concept of democracy is based not on the ideas of political competition and separation of powers, but on the egalitarian ideas of social justice and fairness. The point of these examples is that, for very significant numbers of Transnistrians, their regional institutions are democratically legitimate government bodies and not simply the facades of repressive and irresponsible authoritarian rulers, as a reading of some of the Western press might suggest. The wholesale dismantling of these institutions might be unacceptable for whoever represents Transnistria after the regional elections. All this means that negotiating with the new democratic representatives of Transnistria will require a lot of patience, respect for their values and institutions, and a willingness to find a workable compromise. The challenge will be to design political institutions of a common state in such a way that permits genuine power-sharing, but also includes provisions that encourage cooperation and safeguard against institutional deadlock and confrontation. V. Conclusion For  September , the Transnistrian authorities plan an elaborate set of events, which include military and veterans’ parades, numerous rallies and celebratory gatherings, as well as concerts and exhibitions by various local artists and renowned guests from the CIS countries. The date commemorates the  years anniversary of the creation of the Transnistrian Moldovan Republic. Although many of those in Moldova and Transnistria who are interested in reintegrating the country believe that time works to their advantage, it is not all that obvious to many others, especially to those who look forward to participating in these celebrations. For one thing, the longer the country remains divided the stronger the Transnistrian separatist identity is likely to become. Evidence from various sources suggests that the Transnistrian leadership’s energetic state construction and identity management efforts led to the creation of a political environment that generates a very substantial level of popular support for that part of the Transnistrian regional elite that is the least willing to make any substantial compromises on the issue of the country’s reintegration in negotiations with Chisinau. The idea of reintegration, however, continues to have a strong appeal. The Transnistrian conflict in many respects provides more hope for a successful settlement on the basis of reintegration than any other major ethnopolitical conflict on the territory of the former Soviet Union. Such fundamental characteristics of the Transnistrian 

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See, for example, Transnistrian justice minister’s interview on conflict between the parliament and the ministry: Andrei Mospanov, “Ministr Yustitsii Podverg Kritike Poslednie Initsiativy Verkhovnogo Soveta”, Olvia-Press,  April , at <www.olvia.idknet.com>.

Democratization as a Means of Conflict Resolution in Moldova conflict as the absence of the deeply entrenched animosity among major ethnic groups, the stabilizing effects of geographic proximity to the EU and strong incentives for economic cooperation across the current political divide, favourably distinguish the Transnistrian situation from the conflicts in Abkhazia, South Ossetia and Nagorno Karabakh. These fundamentals, as well as the great promise of improving economic, social and political fortunes of people on both sides of the Nistru river that the idea of the country’s reintegration contains, should make domestic actors and international mediators keep trying to find a lasting solution for the Transnistrian problem.

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