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

in European Yearbook of Minority Issues Online
Restricted Access
Get Access to Full Text
Rent on DeepDyve

Have an Access Token?



Enter your access token to activate and access content online.

Please login and go to your personal user account to enter your access token.



Help

Have Institutional Access?



Access content through your institution. Any other coaching guidance?



Connect

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

in European Yearbook of Minority Issues Online

References

t An earlier version of this survey appeared in: Rainer Hofmann, "Protecting the Rights of National Minorities in Europe: First Experiences with the Council of Europe Framework Convention for the Protection of National Minorities", 44 German Yearbook of International Law (2001), 237-69; see also id., "Die Rahmenkonvention des Europarates zum Schutze nationaler Minderheiten". Menschenrechtsmagazin (No. 2/2000), at http:www.uni-potsdam.de%u/mrz/mrm.htm. 1 E.T.S. No. 157; as of 1 January 2002, it was in force for 34 states I Albania. Armenia, Austria, Azerbaijan. Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Germany, Hungary, Ireland, Italy, Liechtenstein, Macedonia, Malta, Moldova, Norway, Poland, Romania, Russian Federation, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine, the United Kingdom, and - as non-member states of the Council of Europe after a pertinent invitation as foreseen in Article 27 FCNM - Bosnia-Herzegovina and Yugoslavia); it has been signed, but not yet ratified by eight states (Belgium, Georgia, Greece, Iceland, Latvia, Luxembourg, the Netherlands, and Portugal), whereas Andorra, France, and Turkey have not yet taken any action with a view to be bound by the FCNM. 2 Resolution ResCMN(2001)2 ; all Council of Europe documents referred to in this article are available on the website of the Minorities Unit of the Council of Europe at http:// www.humanrights.coe.int/minorities/index.htm. 3 ResCMN(2001)3. 4 These are Resolution ResCMN(2001))4 on Hungary (adopted on 21 November 2001); Resolution ResCMN (2001) 5 on Slovakia (adopted on 21 November 2001); Resolution ResCMN(2001)6 on Liechtenstein (adopted on 27 November 2001 Resolution ResCMN(2001)7 on Malta (adopted on 27 November 2001 and Resolution ResCMN(2001 )8 on San Marino (adopted on 27 November 2001). ).

5 For assessments of the FCNM see e.g. Florence Benoit-Rohmer, "La Convention-cadre du Conseil de 1'Europe pour la protection des minorites nationales", 6 EJIL (1995), 573; Angela DiStasi, "La convenzione-quadro sulla protezione delle minoranze nazionali tra sistema universale e sistema region- ale", 13 Rivista internazionale di diritti dell'uomo (2000), 452; Hanno Hartig, "The Role of the Council of Europe in the Field of Protection of National Minorities", in Franz Matscher (ed.), Wiener Begegnungen zu aktuellen Fragen nationaler Minderheiten (Wien, 1997), 267; Rainer Hofmann, "Die Rolle des Europarates beim Minderheitenschutz", in Manfred Mohr (ed.), Friedenssichernde Aspekte des Minderheitenschutzes (Berlin, 1996), 159; id., "The Preventive Mandate of the Control System Created by the Council of Europe Framework Convention for the Protection of National Minorities", in Linos-Alexander Sicilianos (ed.), The Prevention of Human Rights Violations (Paris, 2001), 39; Heinrich Klebes, "The Council of Europe Framework Convention for the Protection of National Minorities", 16 HRLJ (1995), 92; Giorgio Malinverni, "La Convention-cadre du Conseil de l'Europe pour la protection des minorites nationales", 5 Schweizerische Zeitschriftfar internationales und euro- paisches Recht (1995), 521; and Gaetano Pentassuglia, "Monitoring Minority Rights in Europe", 6 IJMGR (1999), 417. 6 See in particular Gudmundur Alfredsson, "A Frame with an Incomplete Painting: Comparison of the Framework Convention for the Protection of National Minorities with International Standards and Monitoring Procedures", 7 IJMGR (2000), 291; for a response to this article see Frank Steketee, "The Framework Convention: A Piece of Art or a Tool for Action?", 8 IJMGR (2001), 1. 7 See Art. 25 FCNM.

8 Hereinafter "Resolution (97)10". On this document see Matthias Weckerling, "Der Durchfuhrungsmechanismus des Rahmenubereinkommens des Europarates zum Schutz nationaler Minderheiten", 24 EuGRZ (1997), 605. 9 The Advisory Committee is presently composed of the following persons: Sergio Bartole (Italian). Gaspar Biro (Hungarian, Second Vice-Presidentl. Mirjana Domini (Croatian), Tonio Ellul (Maltese), Dimitar Gelev (Macedonian), Ferenc Hajos islovenian), Rainer Hofmann (German. President), Andreas Jacovides (Cypriot), Dalibor Jilek (Czech), Marju Lauristin (Estonian), Joseph Marko (Austrian), Kristian Myntti (Finnish), Vsevolod Mitsik (Ukrainian), lulia Motoc (Romanian), Sara Nunez de Prado y Clavel (Spanish), Alan Phillips (British, First Vice-President). Jozef Sivak (Slovak). and Eva Smith-Asmussen (Danish). 10 presently, the following persons serve as additional members: Mihai Cernenco (Moldovanl. Giorgio Malinverni (Swiss), Vladas Sirutavicius ( Lithuanian), Athanasia Spiliopoulou Akermark (Swedish). Stanislaw Tchernitchenko ( Russian), Ahmed 2ili� ( Bosman), Asbjon Eide I Norwegian), and Zdzislaw Galicki (Polish). " See Resolution (97)10, Rule 20. 12 see ibid., Rule 23. " See ibid., Rule 29.

" See ibid., Rule 30. 15 See ibid., Rule 31. `6 See ibid., Rule 32 ( 1 ). " See ibid., Rule 32 (2). `e See ibid., Rule 23. `9 See ibid., Rule 24. 20 see ibid., Rule 25. 21 See ibid., Rule 27. 22 See ibid., Rule 26. 23 See ibid., Rule 36. 24 These were, in chronological order, Romania, Spain, Slovakia, Hungary, Cyprus, Moldova, San Marino, Estonia, Macedonia, Germany, Denmark, and Finland.

zs Council of Europe Document ACFC/INF (98) 1, adopted by the Committee of Ministers on 30 September 1998. zb Council of Europe Document ACFC/INF (98) 2. adopted by the Committee of Ministers on 16 December 1998. 27 A first important step in this context was a meeting, convened by the Council of Europe in Strasbourg on 28 October 1998, of the members of the Advisory Committee with government representatives involved in the drafting of the respective state reports; this meeting offered, inter alia, a most welcome opportunity for an initial exchange of views on the above-mentioned Outlinefor State Reports.

28 in this context, it should be mentioned that, at a meeting with representatives of non-governmental organizations active in the field of minority rights issues, convened by the Council of Europe in Strasbourg on 27 October 1998 and also attended by several government representatives, members of the Advisory Committee stressed their preparedness to engage in a constructive dialogue also with members of civil society; being informed by such actors, upon their initiative, was seen as an important element for the establishment of such a (constructive) dialogue. Some government experts announced their intention to cooperate closely with relevant non-governmental organizations in the process of drafting the respective state reports; this was generally seen as a most interesting and promising example for a most welcome cooperative approach, although members of the Advisory Committee stressed that the final responsibility for the contents of the respective state reports would remain with the government concerned. 29 in this context, it should be noted that the Advisory Committee, at its meeting in Strasbourg from 22 to 25 March 1999, decided to notify the Committee of Ministers, under Rule 31 of Resolution (97)10, of its intention to seek information from sources other than the reporting states. The Advisory Committee felt that, for practical purposes, it would be preferable to transmit to the Committee of Ministers such a notification of a general nature rather than to transmit a specific notification every time the Advisory Committee feels the need to address sources other than the government of the reporting state in order to enable it to establish a complete picture of the factual and legal situation in a given country. It should also be mentioned that the Committee of Ministers, at its meeting on 19 May 1999, "took note" of this notification. 30 see Rule 34 of the Rules of Procedure of the Advisory Committee.

" As an illustration thereof, it might be mentioned that this author - as a German citizen - does not serve in the working group on Germany nor on any state with a sizable German-speaking minority. It should also be stressed that, by virtue of Rule 34 of Resolution (97)10. ordinary and additional members may not take part in the vote of the Advisory Committee on the opinion on the report of the state upon the proposal of which they have been elected: they take. however, part in the plenary discussion on the pertinent draft opinion submitted by the respective working group and are invited by that working group to provide additional information to its members. 32 in this context, it must be mentioned that the Advisory Committee - just like most other monitoring bodies established under human rights treaties - is faced with the problem of delayed state reports (for an overview see the 'Chart of Submission of State Reports and Status of Monitoring Work' at http://www.co€-mt/minorities/mdex.htm). In such a case, the President of the Advisory Committee will inform the Permanent Representative of the respective state at the Council of Europe of this situation. If there is a considerable delay, the President of the Advisory Committee will inform the Chairman of the Committee of Ministers who will then decide upon the action to be taken. " As of 1 January 2002. the following 29 state reports have been received (full text available at http://www.coe.intminoritieslindex.htm): San Marino - ACFC/SR (99) 1; Cyprus - ACFC SR (99) 2 rev.: Finland - ACFC/SR (99) 3; Liechtenstein - ACFC,SR (99) 4: Croatia - ACFC SR (99) 5: Czech Republic - ACFC/SR (99) 6: Italy - ACFC SR (99) 7; Slovakia - ACFC SR (99) 8; Denmark - ACFC/SR (99) 9; Hungary - ACFCiSR (99) 10: Romania - ACFC SR (99) 11; United Kingdom - ACFC,/SR (99) 12: Malta - ACFC SR (99) 13; Ukraine - ACFC/SR (99) 14: Estoma - ACFC/SR (99) 15; Germany - ACFC/SR (2000) 1; Russia - ACFC,SR (2000) 2: Moldova - ACFC SR (2000) 3; Austria - ACFC,% SR (2000) 4: Slovenia - ACFC SR (2000) 5: Spain - ACFC SR � (2000) 6: Norway - ACFC/SR (2001) 1; Switzerland - ACFC SR (2001) 2; Sweden - ACFC SR (2001) 3; Armenia - ACFC/SR (2001) 4; Albania - ACFC SR (2001) 5; Lithuania - ACFC SR (2001) 6: and Ireland - ACFC/SR (2001) 7.

34 In many instances, these reports are quite extensive shadow reports providing - just as the official state reports - substantial information on all articles of the FCNM from the perspective of their authors. 35 lather frequently, the working groups regretted the absence of sufficient information as regards the factual situation, i.e. the actual implementation - by the competent administrative authorities and courts and tribunals - of the legislation referred to in the state report. '6 As of 1 January 2002, such visits have been conducted to the following states parties (in chronological order): Finland, Hungary, Slovakia, Denmark, Romania, Czech Republic, Croatia, Cyprus, Italy, Estonia, the United Kingdom, Germany, Moldova, Ukraine, Armenia, and Austria. At that time, the dates for further visits (inter alia to Slovenia, the Russian Federation, Norway, and Sweden) had been fixed. It should also be mentioned that the Advisory Committee felt that, in view of the specific situation in Liechtenstein, Malta, and San Marino and the information available, the work on their state reports could be completed without country visits.

37 As of 1 January 2002, the Advisory Committee has adopted 14 opinions on the following state reports: on 22 September 2000, on Denmark. Finland, Hungary, and Slovakia; on 30 November 2000 on Liechtenstein, Malta, and San Marino; on 6 April 2001 on Croatia, Cyprus, Czech Republic, and Romania; on 14 September 2001 on Estonia and Italy; and on 30 November 2001 on the United Kingdom.

these opinions and the governments' comments are available at http://www.coe.int/minorities/ index.htm. In addition thereto, also the opinions on Malta and San Marino together with comments of the Maltese Government - the government of San Marino did not comment upon the opinion on San Marino - have been made public on 27 November 2001, when the Committee of Ministers adopted its pertinent conclusions and recommendations. This means that, as of 1 January 2002, the opinions on Croatia, Cyprus, Czech Republic, Estonia, Italy and the United Kingdom were not yet in the public domain. '9 See the Resolutions with regard to Denmark, Finland, Hungary, and Slovakia, Resolutions ResCMN(2201)2, ResCM (2001)3 and ResCMN(2001)4 respectively. ao This clearly reflects the pertinent finding of the Advisory Committee in para. 38 of the opinion on Denmark. this clearly reflects the finding of the Advisory Committee in para. 39 and the comments in paras. 12-23 of the opinion on Denmark. 42 This clearly reflects the finding of the Advisory Committee in para. 40 and the comments in paras. 29 and 32 of the opinion on Denmark.

a' This clearly reflects the finding of the Advisory Committee in para. 55 and the comments in paras. 30 and 42 of the opinion on Finland. 44 This clearly reflects the finding of the Advisory Committee in para. 56 and the comments in paras. 21 and 22 of the opinion on Finland. 45 This clearly reflects the 6nding of the Advisory Committee in para. 57 and the comments in paras. 25, 36-40, and 48 of the opinion on Finland. '6 This clearly reflects the finding of the Advisory Committee in para. 57 and the comments in paras. 31 and 43 of the opinion on Finland. 47 This clearly reflects the 6nding of the Advisory Committee in para. 59 and the comments in paras. 39 and 46 of the opinion on Hungary.

this clearly reflects the finding of the Advisory Committee in para. 59 and the comments in paras. 48 and 52 of the opinion on Hungary. '9 This clearly reflects the finding of the Advisory Committee in para. 60 and the comments in paras. 18-19, 40-43 and 54 of the opinion on Hungary. so This clearly reflects the finding of the Advisory Committee in para. 53 of the opinion on Slovakia. this clearly reflects the finding of the Advisory Committee in para. 54 of the opinion on Slovakia. Sz This clearly reflects the finding of the Advisory Committee in para. 55 and the comments in paras. 33-37, 43 and 44 of the opinion on Slovakia. 53 This clearly reflects the finding of the Advisory Committee in para. 56 and the comments in paras. 14, 18, 20, 26-28, 39-40, 44 and 47 of the opinion on Slovakia. 54 See chapter V of the present article.

this is clearly in line with the pertinent findings and comments of the Advisory Committee. 56 see Francesco Capotorti and Rainer Hofmann, "Minorities", in Rudolf Bernhardt (ed.), Encycfopedia of Public International Law, vol. III (Aalphen a.d. Rhijn, 1997), 410. 57 See e.g. the declarations made by Austria (limiting the applicability to those groups coming within the scope of application of the Volksgruppengesetz), Denmark (restricting the applicability to the German minority m Southern Jutland), Estoma, Germany (identifying Danes, Sorbians, Frisians and Sinti and Roma of German citizenship as being covered by the FCNM), Macedonia (where the FCNM would be applied to Albanians, Turks, Vlachs, Roma and Serbs), Poland, Slovenia (indicating that the FCNM would be applied to Italians, Hungarians, and Roma), Sweden (identifying Sami. Swedish Finns, Tornedalers. Roma and Jews as national minorities in Sweden), and Switzerland. For the text of these declarations, see http://www.conventions.coe.int/index.litm.

se For a thorough discussion of these complex issues see Jochen Abr. Frowein and Roland Bank, "The Effect of Member States' Declarations Defining 'National Minorities' upon Signature or Ratification of the Council of Europe Framework Convention for the Protection of National Minorities", 59 Za6RV (1999), 649. s9 See paras. 13-15 of the opinion on Denmark (where the Advisory Committee came to the opinion that persons belonging to groups with long historic ties to Denmark such as the Faeroese, Greenlanders, Roma and Germans outside their area of settlement in Southern Jutland could not a priori be excluded from the personal scope of protection by the FCNM; see paras. 16-23 of that opinion - a position which was eventually reflected in the pertinent Resolution of the Committee of Ministers, cf. footnote 42; paras. 12-13 of the opinion on Finland; paras. 11-13 of the opinion on Hungary; paras. 10-12 of the opinion on Liechtenstein; paras. 10-12 of the opinion on Malta; paras. 10-11 of the opinion on San Marino; and paras. 14-16 of the opinion on Romania (where the Advisory Committee came to the conclusion that Romania should favourably consider the extension of the FCNM to persons stating that they are members of the Csango community and should explore this question in consultation with the representatives of the Csangos, see para. 18 of that opinion).

60 See para. 24 of the opinion on Denmark; para. 18 of the opinion on Finland; para. 14 of the opinion on Hungary; para. 12 of the opinion on Slovakia; para. 13 of the opinion on Liechtenstein; para. 14 of the opinion on Malta; para. 14 of the opinion on San Marino; and para. 19 of the opinion on Romania.

61 See para. 6 of the respective opinions on Denmark and Hungary; para. 8 of the respective opinions on Liechtenstein, Malta, and San Marino; para. 9 of the respective opinions on Finland and Slovakia; and para. 10 of the opinion on Romania. 62 See para. 17 of the opinion on Denmark in relation to the position of Faeroese and Greenlanders. This approach is also reflected in the fact that, in the opinion on Finland, the Advisory Committee extensively dealt with the rights of the Sami who clearly constitute an indigenous people, see e.g. paras. 21-23, 34, 45, and 50 of the opinion on Finland. 6 See para. 16 of the opinion on Finland in relation to the situation of Swedish-speaking Finns whose rights are accordingly dealt with in, inter alia, paras. 30, 33, and 42 of the opinion.

6' See para. 17 of the opinion on Finland; this finding was then applied, with regard to educational rights under Article 14 FCNM, in para. 46 of that opinion. bs See para. 10 of the opinion on Hungary; para. 21 of the opinion on Romania; and para. 13 of the opinion on Slovakia. 66 See paras. 20 and 21 of the opinion on Romania. 6 See paras. 14-16 of the opinion on Slovakia.

68 See para. 25 of the opinion on Denmark; para. 15 of the opinion on Hungary; para. 23 of the opinion on Romania; and para. 17 of the opinion on Slovakia. s9 See para. 17 of the opinion on Hungary; para. 26 of the opinion on Romania; and para. 21 of the opinion on Slovakia. '° See para. 20 of the opinion on Finland; paras. 18 and 19 of the opinion on Hungary; paras. 27-29 of the opinion on Romania; and paras. 20 and 21 of the opinion on Slovakia. " See para. 21 of the opinion on Hungary; paras. 30 and 31 of the opinion on Romania; and paras. 22-24 of the opinion on Slovakia. 72 See paras. 21-23 of the opinion on Finland.

'3 See e.g. para. 25 of the opinion on Finland; and para. 38 of the opinion on Slovakia. 74 see e.g. para. 27 of the opinion on Finland; para. 25 of the opinion on Hungary; paras. 40 and 4l of the opinion on Romania; and para. 28 of the opinion on Slovakia. 'S See para. 24 of the opinion on Finland; paras. 34 and 35 of the opinion on Romania: and para. 26 of the opinion on Slovakia. 76 See paras. 29 of the opinions on Denmark and Finland, respectively. 77 See e.g. para. 30 of the opinion on Denmark; paras. 30-32 of the opinion on Finland; and paras. 33-35 of the opinion on Slovakia relating to the highly controversial 1995 State Language Law which the Advisory Committee considered to possibly produce a "chilling effect" extending to legitimate activities of minorities in the field of media. 78 See para. 29 of the opinion on Hungary, and para. 46 of the opinion on Romania.

'9 See paras. 33 and 34 of the opinion on Finland. eo See para. 49 of the opinion on Romania. el See para. 36 of the opinion on Slovakia. fez See para. 35 of the opinion on Finland; para. 37 of the opinion on Hungary; and para. 51 of the opinion on Romania. 8 See para. 32 of the opinion on Denmark. 8" See para. 37 of the opinion on Slovakia.

85 See para. 37 of the opinion on Finland; para. 41 of the opinion on Hungary; paras. 57-59 of the opinion on Romania; and paras. 39 and 40 of the opinion on Slovakia. eb See para. 39 of the opinion on Hungary; para. 53 of the opinion on Romania; and para. 45 of the opinion on Slovakia. 87 See para. 63 of the opinion on Romania; and para. 44 of the opinion on Slovakia. ee See para. 36 of the opinion on Denmark; and para. 47 of the opinion on Finland. 89 See para. 65 of the opinion on Romania. 90 See paras. 48 and 49 of the opinion on Hungary.

9' See paras. 46-47, 50-52 of the opinion on Hungary. 9z See para. 48 of the opinion on Slovakia. 9' See para. 48 of the opinion on Finland; para. 54 of the opinion on Hungary; para. 69 of the opinion on Romania; and para. 47 of the opinion on Slovakia. 9' See para. 56 of the opinion on Hungary; para. 73 of the opinion on Romania; and para. 50 of the opinion on Slovakia. 9s See para. 53 of the opinion on Finland; para. 57 of the opinion on Hungary; para. 74 of the opinion on Romania; and para. 51 of the opinion on Slovakia. 96 See, in this context, the recent Committee of Ministers' Recommendation on the Economic Situation of Roma/Gypsies and Travellers in Europe, Rec(2001 ) 17 of 27 November 2001.

97 As a good example for such a dialogue on the national level, see the debate on the opinion on Denmark in the Danish daily Politiken (21 November 2001), 9.

98 In this context, it must be noted, however, that, pursuant to Rule 16 of Resolution (97)10, the term of office of nine of the present members of the Advisory Committee expires on 1 June 2002. They will be replaced by persons currently acting as additional members. Although all experts in minority issues, these new members will need some time to familiarize themselves with the practice and working methods of the Advisory Committee which will probably slow down the process of examining state reports. Nonetheless, the Advisory Committee aims at adopting several opinions in 2002 including. inter olio, on Armenia, Austria, Germany, Moldova, Norway, Russian Federation, Slovenia, Sweden. and Ukraine.

Index Card

Content Metrics

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 9 9 3
Full Text Views 2 2 2
PDF Downloads 0 0 0
EPUB Downloads 0 0 0