On the Models of Minority Rights Supervision in Europe and How They Affect a Changing Concept of Sovereignty

In: European Yearbook of Minority Issues Online
View More View Less
  • 1 Dottore in Giurisprudenza; PhD: Lecturer in International Law, University of Munich, Germany; former Senior Non-resident Research Associate. European Centre for Minority Issues, Flensburg, Germany; former EU Research Fellow.

If the inline PDF is not rendering correctly, you can download the PDF file here.

  • 1 Gudmundur Alfredsson and Goran Melander, A Compilation of Minority Rights Standards: A Selection of Texts from International and Regional Human Rights Instruments and other Documents ( Lund, 1987). 2 Gaetano Pentassuglia, Minorities in International Law: An Introductory Study (Strasbourg, 2002).

  • 3 Geoff Gilbert, "Religious Minorities and Their Rights: A Problem of Approach", 5 IJMGR (1997), 97-134. 4 Gaetano Pentassuglia, "Minority Protection in International Law: From Standard-Setting to Implementation", 68 NJIL (1999), 131-60. 5 UN Doc. A/47/277-S/24111, para. 18; UN Doc. E/CN.4/Sub.2/1993/34.

  • 6 James Anaya, Indigenous Peoples in International Law (New York, Oxford, 1996). 42. 7 Gaetano Pentassuglia, "Minority Protection ...": id., "Monitoring Minority Rights in Europe: The Implementation Machinery of the Framework Convention for the Protection of National Minorities - with Special Reference to the Role of the Advisory Committee", 6 IJMGR ( 1999), 417-61.

  • 8 Pentassuglia, "Minority Protection ...", 140-2. 9 Yet, in the recent Cyprus v. Turkey case, Appl. 25781/94, both the Commission (Report of 4 June 1999, paras 474-479) and the Court (judgment of 10 May 2001, paras 277-278) embraced a more nuanced approach to mother tongue education in view of the particular situation in Northern Cyprus. For a general assessment of the ECHR case law, including some latest decisions and a discussion of the Article 14 right in connection with the Belgian Linguistics Case (Eur. Ct. H.R., judgment of 23 July 1968, Series A, No. 6) and further related developments, see Pentassuglia, Minorities in International Law ..., ch. VI.

  • 10 With regard to the OSCE context, see PentassugGa, "Minority Protection ...", 134-5.

  • " Pentassuglia, "Monitoring Minority Rights in Europe ...".

  • 12 our. Ct. H.R., Me Cann and Others v. the United Kingdom, judgment of 27 September 1995, Series A, No. 324, 45, para. 146. 13 Eur. Ct. H.R., Artico v. Italy, judgment of 13 May 1980, Series A, No. 37, 16, para. 33. Vandernoot emphasizes the increasing expounding role of international courts such as the Eur. Ct. H.R., as well as national courts, as regards human rights norms, even when they are formulated in programme- type and/or flexible terms. Pierre Vanderboot, "Les Aspects Linguistiques du Droit des Minorit6s", 8 RTDH ( 1997 ), 309-69, at 311. 14 Geoff Gilbert, "Minority Rights Under the Council of Europe", in Peter Cumper and Steven Wheatley (eds.), Minority Rights in the 'New' Europe (The Hague, 1999), 53-70; id., "Jurisprudence of the European Court and Commission of Human Rights in 1999 and Minority Groups", UN Doc. E/CN.4/Sub.2/AC.5/2000/CRP.1, 1-13. 15 see e.g. Geoff Gilbert, "Minority Rights ..."; and id., "Jurisprudence ..."; for an account of cases recently brought before the Eur. Ct. H.R. by Roma (gypsy) individuals under Article 8 of the ECHR, see Pentassuglia, Minorities in International Law ..., ch. VI. As to freedom of expression, it was not until 1993 that the HRC stated in the Ba!lantyne et al. v. Canada case (Communications Nos. 359/1989 and 385/1989, views of 31 March 1993, [1993] Annual Report II, 91) that Article 19(2) of the ICCPR included linguistic preferences in private (commercial) activities; with regard to the question of whether Article 19(2) would also allow for linguistic preferences in the public sphere, see the individual opinions of P.N. Bhagwati, Lord Colville, and Maxwell Yalden (dissenting), paras 1-6, and of Elizabeth Evatt, Eckart Klein, David Kretzmer and Cecilia Medina Quiroga (concurring), in J.G.A. Diergaardt et al.

  • v. Nami6ia (Communication No.760/1997, views of 25 July 2000, CCPR/C/69/D/760/1996). For a similar discussion within the context of the ECHR, see Bruno De Witte, "Surviving in Babel? Language Rights and European Integration", in Yoram Dinstein and Mala Tabory (eds.), The Protection of Minorities and Human Rights (Dordrecht, 1992), 277-300, at 280-3. 16 Martin Scheinin, "Direct Applicability of Economic, Social and Cultural Rights: A Critique of the Doctrine of Self-Executing Treaties", in Krysztof Drzewicki, Catarina Krause and Allan Rosas (eds.), Social Rights as Human Rights: A European Challenge (Abo, 1994), 73-87, at 80. " For the relevant HRC's jurisprudence under Article 27 of the CCPR, notably the Lansman and Apirana Mahuika decisions (I. Llinsman v. Finland, Communication No. 511/1992, views of 26 October 1994, [1995] Annual Report II, 96; J. Lansman v. Finland, Communication No.671/1995, views of 30 October 1996, [1997] Annual Report II, 191; Apirana Mahuika et al. v. New Zealand, Communication No. 547/1993, views of 27 October 2000, CCPR/C/70/D/541/1993); see Pentassuglia, Minorities in International Law ..., chs. V and VIII. Within the context of the ECHR, the Belgian Linguistics (Eur. Ct. H.R., judgment of 23 July 1968, Series A, No. 6), Mathieu-Mohin (Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A, No. 113) and Cyprus v. Turkey (Appl. 25781/94) cases reflect complexities which may surround the interpretation and application of some of the general provisions mentioned above (as to Article 3 of the First Protocol, see also Francis G. Jacobs and Robin C.A. White, The European Convention on Human Rights (Oxford, 1996), 269-276); Pentassuglia,

  • Minorities in International Law ..., ch. VI; Gilbert, "Minority Rights ...". Within the context of the CCPR, see also the Ballantyne case in relation to freedom of expression (Communications Nos. 359/1989 and 385/1989, views of 31 March 1993, [1993] Annual Report II, 91), and similar issues raised under the ECHR. For general and minority language rights in court proceedings, see Kristin Henrard, "Language and the Administration of Justice: The International Framework", 7 7JAZZ (2000), 75-108, at 82-92; the HRC appreciates the 'value added' of special language rights in court which may be conferred on persons belonging to minorities as compared to general fair trial entitle- ments (see its General Comment on Art. 27 of the CCPR No. 23 (50), adopted on 6 April 1994, CCPR/C; 21/Rev. I/Add.5, para. 5.3: compare this approach with that taken by the European Court of Justice in Case C-274'96, Bickel and Franz, Criminal Proceedings against Bickel, [ 1998] ECR 1-7637, which in fact led to disregarding this specific qualitative distinction), though the substantive implica- tions of this view from the particular angle of Article 27 of the CCPR appear rather fluid at this stage. Pentassuglia, Minorities in International Gaw ..., ch. V. `8 See also the HRC's views in Apirana Mahuika et al. v. ,\'ew Zealand, Communication No. 547/1993, views of 27 October 2000, CCPR/C /70/D/541/993, paras 6.4. 9.11, and the individual, partly dissenting opinion by Martin Scheinin. �9 See Pentassuglia, Minorities in International Law ..., ch. V. See e.g. Vanderboot, "Les Aspects lin- guistiques ...", 352-6. For wider theoretical approaches to the role of language in law, see e.g. Brian Bix, Law. Language and Legal Determinacy (Oxford, 1993); Ulrich Fastenrath, "Relative Normativity in International Law", 4 EJIG (1993), 305-40.

  • zo Recommendation 1492 (2001), para. 12 (x). 21 See e.g. Andras B. Baka, "The European Convention on Human Rights and the Protection of Minorities under International Law", 8 CJIL (1993), 227-42. 22 Theodor Meron (ed.), Human Rights in International Law: Legal and Policy Issues (Oxford, 1984); see also the HRC's General Comment on Article 2 of the CCPR No. 3 (13), adopted on 28 August 1981, CCPR/C/21/Rev.l.

  • 23 see Pentassuglia, "Monitoring Minority Rights in Europe ...". This aim is even more evident in the 1992 European Charter, which limits the functioning of a comparable supervisory mechanism to those provisions concerning language use which have been chosen by the party from among the operative articles of its Part III, to be applied to designated regional or minority languages within the meaning of the treaty. although the bilateral pattern is not new in the history of the international protection of minorities, its current re-emergence is different in scale from the limited number of post-1945 agreements. See Arie Bloed and Pieter van Dijk, "Bilateral Treaties: A New Landmark in Minority Protection: An Introduction", in Arie Bloed and Pieter van Dijk (eds.), Protection of Minority Rights Through Bilateral Treaties: The Case of Central and Eastern Europe (The Hague, 1999), 1-15; Kinga Gdl, "The Role of Bilateral Treaties in the Protection of National Minorities in Central and Eastern Europe", UN Doc. E/CN.4/Sub.2/AC.S/1998/CRP.2, 1-14.

  • 25 `Managerial' theories of supervision are being advocated also in the context of the general discussion of international law compliance, whose review obviously falls outside the specific purposes of this paper. For an overview of the main compliance theories in the realm of international law and relations, see Dinah Shelton (ed.), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford, 2000), passim; Benedict Kingsbury, "The Concept of Compliance As a Function of Competing Conceptions of International Law", 19 MJIL (1998), 345-72. zb This seems to be one major distinction between the High Commissioner's role and that of other instruments inspired by his experience. Pentassuglia, "Minority Protection ...", 152. See also Steven R. Ratner, "Does International Law Matter in Preventing Ethnic Conflict?" 32 NYUJILP (2000), 591-698, at 697. For more general OSCE mechanisms with a preventive content, see e.g. Jennifer Jackson Preeee, "National Minority Rights Enforcement in Europe: A Difficult Balancing Act", 2 IJPS (1998), 35-54, at 39-46. z' Maria Amor Martin Estebanez, "The High Commissioner on National Minorities: Development of the Mandate", in Michael Bothe, Natalino Ronzitti and Allan Rosas (eds.), The OSCE in the Maintenance of Peace and Security: Conflict Prevention, Crisis Management and Peaceful Settlement of Disputes (The Hague, 1997), 123-65.

  • z Art. 2 of Resolution 99 (50) of the Committee of Ministers. Interestingly, in Recommendation 1492 (2001 the Parliamentary Assembly urges the Committee of Ministers to attach to the Commissioner a person with special responsibility for issues concerning the protection of minority rights. 29 Antonia Handler Chayes and Abram Chayes, "Mobilizing International and Regional Organizations for Managing Ethnic Conflict", in David Wippman (ed.), 7n[ernanona< Law and Ethnic Conflict (Ithaca, London, 1998), 178-210. '° See e.g. ibid., 191-201.

  • " Erika B. Schlager, "A Hard Look at Compliance with 'Soft Law': The Case of the OSCE", in Dinah Shelton (ed.), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford, 2000), 346-72. 'z Regrettably, there are virtually no references to UN minority standards. Gaetano Pentassuglia, "The EU and the Protection of Minorities: The Case of Eastern Europe", 12 EJIL (2001), 3-38, at 22-5. 33 bid. The 1997 conditionality requirements are now being placed within the wider context of an enhanced approach to South Eastern Europe, whose main component is indeed constituted of the negotiation and conclusion of so-called 'Stabilisation and Association Agreements', subject to the fulfilment of these requirements. General objectives of consolidation of democracy and respect for human/minority rights feature among the central purposes that such new agreements will pursue. This has been confirmed in the first two Stabilisation and Association Agreements, concluded on 9 April and 14 May 2001 between the EC and its member states and, respectively, the former Yugoslav Republic of Macedonia (FYROM) and the Republic of Croatia, in accordance with the pre-existing conditionality criteria. Such criteria are also an essential element for the application of the Council Regulation of 5 December 2000, establishing a single legal framework for Community assistance in the stabilization and association process. 2666/2000, Official Journal L 306/1 (7 December 2000).

  • 34 Pentassuglia, "The EU ...", 26-7. For latest developments under Croatian legislation, see e.g. at http://www.riga.lv.minelres. 3s Pentassuglia, "The EU ...", 27-9. See also infra, section 4. 36 For an overview of such mechanisms, see Florence Benoit-Rohmer, "Mecanismes de supervision des engagements des Etats membres et autorite du Conseil de PEurope", in Bruno Haller, Hans Christian Kriiger and Herbert Petzold (eds.), Law in Greater Europe: Towards A Common Legal Area - Studies in Honour of Heinrich Klebes (The Hague, 2000), 80-101.

  • 3' Kris Pollet, "Human Rights Clauses in Agreements between the European Union and Central and Eastern European Countries", 7 RAE (1997), 290-301. '$ For an overview, see Pentassuglia, Minorities in International Law ..., ch. XI. In the case of Kosovo, it is well-known that under UN Security Council Resolution 1244 (1999) a wide measure of interna- tional supervision, including the promotion and protection of human rights, is being provided, 'pending a final settlement'. Interestingly, the CoE's Venice Commission is drafting a general legal reference framework to facilitate the settlement of ethnopolitical conflicts in Europe, which somewhat relates to the above 'policy-driven' efforts in that it is designed to inspire context-specific solutions based on general principles (CDL (2000) 70). The protection of minorities is being considered in the context of a search for a constructive interaction between constitutional forms of multilayered distribution of powers (federalism, regionalism, etc.) and international guarantees.

  • '9 Dinah Shelton, "Commentary and Conclusions", in Dinah Shelton (ed.), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford, 2000), 449-63, at 462. '° Laurence R. Helfer and Anne-Marie Slaughter, "Toward a Theory of Effective Supranational Adjudication", 107 The Yale Lava, Journal (1997), 282-391, at 311-2. 41 on the declaratory and compensatory aspects of international judicial decisions, see Dinah Shelton, Remedies in International Human Rights Law (Oxford, 1999), 199-279. °Z See e.g. its Advisory Opinion concerning Minority Schools in Albania, 1935 PCIJ Series A/B, No. 64, 18-19. " For an overall assessment of the UN treaty system, see Philip Alston and James Crawford (eds.). The Future of UN Human Rights Treaty Monitoring (Cambridge, 2000); Anne F. Bayefsky (ed.), The UN Human Rights Treaty System in the 2lst Century (The Hague, 2000).

  • 44 At present, the CoE is looking at the judicial approach to secure a uniform interpretation of its conventions: see the Opinion on the Establishment of a General Judicial Authority, adopted by the Venice Commission in December 2000 (45th Plenary Meeting), CDL-INF (2001) 5. As to the emerging trend indicated above, see Helfer and Slaughter, "Toward a Theory ..."; Christopher McCrudden, "A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights", in Katherine O'Donovan and Gerry R. Rubin (eds.), Human Rights and Legal History: Essays in Honour of Brian Simpson (Oxford, 2000), 29-65; see also Vanderboot, "Les Aspects Linguistiques ...". For a more general perspective, see Hugh Thirlway, "The International Court of Justice and Other International Courts", in Niels M. Blokker and Henry G. Schermers (eds.), Proliferation of International Organizations: Legal Issues (The Hague, 2001), 251-78; Dietmar W. Prager, "The Proliferation of International Judicial Organs: The Role of the International Court of Justice", ibid., 279-95. 45 see e.g. the Assembly proposal in Recommendation 1492 (2001), para. 12 (x). 46 see e.g. the Venice Commission's Opinion on the Establishment of a General Judicial Authority, CDL-INF (2001) 5, III. B. " See e.g. Henry J. Steiner, "Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee?" in Alston and Crawford (eds.), The Future of UN Human Rights ..., 15-53. Interestingly, he urges a greater expounding and deliberative, rather than merely dispute settlement, role by the HRC through contextual analysis under the First Protocol. For the larger context, see also Andrew Byners, "An Effective Complaints Procedure in the Context of International Human Rights Law", in Anne F. Bayefsky (ed.), The UN Human Rights Treaty System in the 21st Century (The Hague, 2000), 139-67; Michael O'Boyle, "Reflections on the Effectiveness of the European System for the Protection of Human Rights", ibid., 169-80.

  • °e See e.g. Femand de Varennes, "Minority Rights and the Prevention of Ethnic Conflicts". UN Doc. E/CN.4/Sub.2/AC.5/2000/CRP.3, 1-14; id., "Ethnic Conflicts and Language in Eastern Europe and Central Asian States: Can Human Rights Help Prevent Them?" 5 IJMGR (1997), 135-74. °9 For a pioneering discussion of the limits of the judicial-like' approach to certain human rights issues, from the perspective of the Community legal order, see Andrew Clapham, Human Rights and the European Community: A Critical Overview, voLI (Baden-Baden, 1991); Antonio Cassese, Andrew Clapham and Joseph Weiler (eds.), European Union: The Human Rights Challenges, vols. II-III ( Baden- Baden,1991). ).

  • 50 Communication No. 167/1984, views of 26 March 1990, [1990] Annual Report II, 1, para. 32.1. 51 Communication No.547/1993, views of 27 October 2000, CCPR/C/70/D/541/1993, para. 9.2; Communication No. 760/1997, views of 25 July 2000, CCPR/C/69/D/760/1996, para. 10.3. s2 Pentassuglia, "The EU ...". 53 For a comprehensive view, ibid., 38.

  • 5' See e.g. Nathaniel Berman, "The International Law of Nationalism: Group Identity and Legal History", in David Wippman (ed.), International Law and Ethnic Conflict (Ithaca, London, 1998), 25-57.

  • 55 see e.g. Schlager, "A Hard Look ...", 369-70; and Ratner, "Does International Law Matter ...", 697, stressing, inter alia, the risk of an interstate conflict as a limiting precondition for the OSCE High Commissioner's involvement. 56 Anaya, Indigenous Peoples ..., 42. 57 see e.g. Daniel Tourer, "The Emergence of Non-Governmental Organizations and Transnational Enterprises in International Law and the Changing Role of the State", in Rainer Hofmann (ed.), Non- State Actors as New Subjects of International Law: International Law - From the Traditional State Order Towards the Law of the Global Community (Berlin, 1999), 37-58, at 38-9. For a more general perspective on traditional and modern approaches to sovereignty, see e.g. Franz Xaver Perrez, Cooperative Sovereignty: From Independence to Interdependence in the Structure of International Environmental Law (The Hague, 2000). thomas M. Franck, "The Emerging Right to Democratic Governance", 86 AJIL (1992), 46-91. s9 Patrick Thornberry, "The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism", in Christian Tomuschat (ed.), Modern Law of Self-Determination (Dordrecht, 1993), 101-138, at 136.

  • 60 See Hofmann (ed.), Non-State Actors ...; Thomas Risse, "International Institutions, Non-State Actors, and Domestic Change: The Case of Human Rights", 8(2) CCAEL (2000). 1-49. 61 Helfer and Slaughter, "Toward a Theory ...". 367-70.

  • 62 Ibid., 288. 6' Ibid., 366-91. In fact, the authors develop an interesting checklist of factors - within the control of the states and body in question, or of both of them - to assess the effectiveness of a supranational adjudication pattern, including its quasi-judicial variations. 64 Anne-Marie Slaughter, "International Law in a World of Liberal States", 6 EJIL ( 1995), 503-38; Jose E. Alvarez, "Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory", 12 EJIL ( 2001 ), 183-246. bs Helfer and Slaughter, "Toward a Theory ...", 286-7. The authors emphasize, inter alia, a move towards greater levels of supranational adjudication in various international contexts. See also the Venice Commission's Opinion on the Establishment of a General Judicial Authority in respect of the referral of cases by political bodies, CDL-INF (2001) 5, III. B.

  • See the "Second Activity Report covering the period from 1 June 1999 to 31 October 2000 adopted by the Advisory Committee in November 2000", at http://www.humanrights.coe.int/minorities/Eng/ FrameworkConvention (19 July 2001). ). 6 Pentassuglia, "Monitoring Minority Rights in Europe ...", 441-3 and 445-6. 68 Id., "The EU ...", 26-7.

  • 69 Ibid., 8 and 32. 70 Ibid., 18-9. " Ratner, "Does International Law Matter ...", 696, aptly notes an inherent limitation in that the influence of the High Commissioner is non-existent if the parties do not want him to get involved. '1 See e.g. Peter Kovacs, Le Droit international pour les minorites face a l'État-nation (Miskolc, 2000), 131-7; Vladimir Djeric, "Admission to Membership of the Council of Europe and Legal Significance of Commitments Entered into by New Member States", 60 HJIL (2000), 605-29.

  • '3 Pentassuglia, "The EU ..:'. ?0. See generally Open Society Institute, Monitoring the EU Accession Process: Minority Protection (Budapest, 2001). ). ' See e.g. Stephen Tierney, "In a State of Flux: Self-Determination and the Collapse of 1'ugosIavia", 6 lJ.\/GR (1999), 197-233. 'S Christine Bell and Kathleen Cavanaugh, "'Constructive Ambiguity' or Internal Self Determination'.' Self Determination. Group Accommodation, and the Belfast Agreement". 22 FIGJ (1999). 1345-71, at 1365; Thurer, "The Emergence ..:', 39. In the same vein, see the Euroregions promoted by the CoE. impinging upon the position of ethnic communities which extend across national borders (Jackson Preece, "National Minority Rights...", 48), and the arrangements indicated in the Venice Cotnmission's

  • preliminary draft study on a general legal reference framework to facilitate the settlement of ethnopolit- ical conflicts in Europe. '6 This approach is typically reflected in the 'narrative' exercise of the OSCE, the 'menu of options' contained in the European Charter, and the flexible formulations of the Framework Convention. In particular, the panoply of recommendations for protection, while in principle useful to clarify existing standards, may prove prolix and piecemeal, producing the opposite effect of somehow obfuscating legal rights and duties as long as they exist or can be established. Pentassuglia, Minorities in International Law ..., chs. VI, VII and XII. " A vision of the protection of minorities which is almost entirely focused on such a dimension would be unduly pessimistic and restrictive, on the one hand, as it would tend to relegate minority rights with their peaceful claim to cultural distinctiveness to the role of second-order human rights regime and concentrate on cases involving only strongly politically empowered (and/or even militarily organ- ized) groups, ultimately promoting 'negative peace', i.e. the absence of conflict, rather than 'positive peace', i.e. the realization of justice. On the other hand, it would be unduly optimistic, as it would tend to overstate the impact of ad hoc settlements compared to a general system of protection. 78 See Slaughter, "International Law ..."; Helfer and Slaughter, "Toward a Theory: '9 At the universal level, this substantive aspect may also be noted in the far less pervasive HRC case law concerning Article 27 rights.

  • 8° As said earlier, there now seems to be room for greater general protection under the ECHR and, prospectively, its Protocol No. 12, for the benefit of minorities and their members. See Gilbert, "Minority Rights ...", and id., "Jurisprudence ...". In Bickel and Franz, the European Court of Justice importantly acknowledged that the protection of a minority 'may constitute a legitimate aim' (Case C-274/96, Criminal Proceedings against Bickel, [1998] ECR 1-7637). In spite of the dearth or absence of human/minority rights considerations in the judgment (ibid.), the 'legitimate aim' criterion referred to by the Court seems implicitly to confirm that, although particular aspects of certain minority regimes may prove incompatible with EC law, the essential principles of such regimes, or other aspects of it, are, or may be, directly or indirectly justified in the Community legal order (see also Case 281/98, Angonese v. Cassa di Risparmio di Bolzano SpA, [2000] All ER (EC) 577). Such a protection, however, would not per se entail the recognition of minority rights in relation to fundamental rights as general principles of Community law. Overall, developments in this context appear to be largely a function of the evolving EC/EU human/minority rights framework. A minority protocol to the ECHR might perhaps exert stronger influence on the Luxembourg Court, although its adoption and ratification would be very difficult to achieve, at least in the short and medium term (see also note 82). For a more comprehensive assessment, see Pentassuglia, Minorities in International Law .... ch. VII; Pentassuglia, "The EU ...", 32-4. 8� Alvarez, "Do Liberal States ...", 222-3. 8z The concerns fuelled by the attitude of the UK and France with regard to, respectively, the ECHR and minority rights illustrate the point in terms of a concrete or potential resistance to those forms of enforcement. But the examples might multiply. The EU as the ultimate community of long-estab- lished democracies still shies away from ratifying the ECHR and its protocols or otherwise adopting a 'human rights constitution', thereby precluding EU citizens from seeking deeper assessment of EC/EU law by the Strasbourg or Luxembourg Courts. Degrees of such a resistance may also be noted in relation to the less intrusive quasi-judicial pattern of supervision. For instance, the UK has not yet ratified the First Protocol to the CCPR, thereby making Article 27 rights, among others, non-justiciable before the HRC. With regard to the general equality clause in Article 26 of the CCPR, impinging to some extent upon minority members, Germany has limited acceptance of HRC competence to com- plaints concerning Covenant rights. As a further case of the same reluctance, one should remember that the essentially Western post-1945 minority agreements provided no judicial-like' procedure which could be used by minority members. e3 Alvarez, "Do Liberal States ...", 221, cautions that the 'monist' provisions contained in most of the newly drafted constitutions in Eastern Europe tell us nothing about whether they will lead to effective supremacy of international law over domestic law before courts.

  • e° Venice Commission's Opinion on the Establishment of a General Judicial Authority, CDL-INF (2001) 5, .3. s5 Framework Convention for the Protection of National Minorities: General Issues Related to the Monitoring of the Framework Convention, GR-H(2001)7, 12, CB6 and CB8. ab Pentassuglia, "Monitoring Minority Rights in Europe ...", 454. 87 It is interesting to note that, for instance, Slovakia dismisses a number of Committee propositions regarding this country's report as being 'groundless' and urges, inter alia, the use of `unbiased' informa- tion as a way of contributing 'impartial' opinions. Beyond that, as also the initial monitoring practice

  • seems to suggest, the party's comments may lead unduly to prolonging the procedure and postponing the publication of the Advisory Committee's opinion, which as a rule is conditioned on the issuing of the Committee of Ministers' deliberations. Finally. the reference to the written comments of the government coneerned, and even of the comments of other governments, alongside the Advisory Committee's opinion, made by the Committee of Ministers in the conclusions and recommendations it has adopted to date, appears to be symptomatic of the need for accommodating state sensitivities under the procedure. However, the Committee of Ministers has recommended the party concerned to "take appropriate account" of the Advisory Committee's opinion and has so far importantly involved the latter in the follow-up process by inviting the party to continue the dialogue in progress with the Advisory Committee and to keep the Committee regularly informed of the measures taken in response to the conclusions and recommendations set out in the respective resolution. See e.g. Istvan Pogany, "Bilateralism versus Regionalism in the Resolution of Minorities Problems in Central and Eastern Europe and in the Post-Soviet States", in Peter Cumper and Steven Wheatley (eds.), Minority Rights in the New Europe (The Hague, 1999), 105-26. 89 See also Gudmundur Alfredsson, "Identifying Possible Disadvantages of Bilateral Agreements and Advancing the `Most-Favoured-Minority Clause"', in Arie Bloed and Pieter van Dijk (eds.), Protection of Minority Rights Through Bilateral Treaties: The Case of Central and Eastern Europe (The Hague, 1999), 16S-7S. 90 For a case of interaction between the OSCE High Commissioner and the EU in relation to the situation in the Baltic States, see Ratner, "Does International Law Matter ...", 688.

  • 91 Pentassuglia, "The EU ...", 27-9. As to the so-called 'symbolic sanctions' applied by the EU to Russia in the above case, see e.g. Elena Fierro, "Legal Basis and Scope of the Human Rights Clauses in the EC Bilateral Agreements: Any Room for Positive Interpretation?" 7 European Law Journal (2001), 41-68, at 52, footnote 52. 9z For further cases, see e.g. Peter Leuprecht, "Innovations in the European System of Human Rights Protection: Is Enlargement Compatible with Reinforcement?" 8 Transnational Law and Contemporary Problems (1998), 313-36. 9' Berman, "The International Law of Nationalism ...", 40-2. 94 The statement is quoted by Berman, ibid., 40. The reference to 'tumultuous upheavals' bears a striking resemblance to 'upheavals of history' mentioned in Appendix II of the 1993 Vienna Declaration, adopted by CoE member states to indicate the background of the groups which would be protected under the forthcoming Framework Convention. Arguably, that vision may have pointed, albeit indir- ectly, to the eastward focus of the instrument envisaged, as further suggested by the fifth preambular paragraph (which refers to the "upheavals of European history"), and a specific clause on ad hoc agreements in Article 18, of this treaty. As is well-known, France has entered a reservation to Article 27 of the CCPR and is still reluctant to accommodate minority groups within the existing, or a revised, constitutional framework. Pentassuglia, "The EU ...", 4-5.

  • 95 see e.g. Hans-Joachim Heintze, "Minority Issues in Western Europe and the OSCE High Commissioner on National Minorities", 7 IJMGR (2000), 381-92. The author does not elaborate upon the East-versus-West vision mentioned above to explain the limitations built into the High Commissioner's mandate which led to the latter playing no role in typical Western minority conflicts, and seems to advance, inter alia, the proposition that Western democracies have been believed to already provide adequate minority rights protection and supervision. From an international law standpoint, there is simply no specific evidence supporting this assumption. From a domestic law standpoint, the well-known long-standing minority arrangements in the West (e.g. in Italy) reflect specific territorial and political circumstances rather than some sort of inherent 'minority virtue' of Western systems. 96 For comments on the non-legally binding EU Charter in relation to the antidiscrimination approach and the issue of minorities, see Pentassuglia, Minorities in International Law ..., ch. VII; id., "The EU ...", 34-6. Secondary acts have already been adopted based on Article 13 (ex Article 6a) of the TEU, such as the Council Directive of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, 2000/43/EC, Official Journal L 180/22 ( 19 July 2000), and the Council Decision of 27 November 2000 establishing a Community action programme to combat discrimination (2001-2006), 2000/750/EC, Official Journal L 303/23 (2 December 2000). 9' Pentassuglia, "The EU ...", 29-30.

  • 98 See e.g. Jennifer Jackson Preece, National Minorities and the European Nation-State System (Oxford, 1998); Serge Sur, "The State between Fragmentation and Globalization", 8 EJIL (1997), 421-34; Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, 1995). 99 Anne-Marie Slaughter, "Pushing the Limits of the Liberal Peace: Ethnic Conflict and the 'Ideal Polity"', in David Wippman (ed.), International Law and Ethnic Confiict (Ithaca, London, 1998), 128-44, at 140-4. 100 Essentially security-oriented rather than legally progressive considerations have led Western Europe to take an interest also in group issues which do not necessarily display any strict connections with the traditional framework of international minority rights law. See e.g. Pentassuglia, "The EU ...", 21. 101 Yet, for a convincing comprehensive liberal defense of minority rights, see Kymlicka, Multicultural Citizenship .... 102 In specific terms of westward integration under EC/EU law, one may even argue that to date, there has been a general tendency to reinforce, rather than limit, the central states as regards educational and cultural policies and matters concerning sub-national groups generally, from both a 'top-down' and 'bottom-up' perspective. See Pentassuglia, Minorities in International Law ..., ch. VII; id., "The EU ...", 5 and 34. For a general assessment, see Maria Amor Martin Estebanez, International Organizations and Minority Protection in Europe (Turku, 1996), 149-70; Bruno De Witte, "The Cultural Dimension of Community Law", 4(1) Collectiue Courses of the Academy of European Law (1995), 229-99. '03 Pentassuglia, Minorities in International Law ..., ch. VII; id., "The EU ...", 31 and 34-7. 'o' The only relevant references to 'internal' minorities are indirectly made in the Accession Treaties, such as those relating to the status of the Aland Islands in Finland and the position of the Sami in both this country and Sweden, as well as in connection with the EU Special Support Programme for Peace and Reconciliation in Northern Ireland.

  • zoos Indeed, fears have been raised that the Charter might lead to a more constrained human rights jurisprudence in the EU. See Jonas Bering Liisberg, "Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law? Article 53 of the Charter A Fountain of Law or Just an Inkblot?", 04/01 Harvard Jean Monnet Working Paper (2001), 1-55, at 43. There is in fact a risk that the EC EU consolidates its 'constitutional' human rights regime without acceding to the ECHR and its protocols, and without specific references to the 'internal' protection of minority rights.

  • 'ob See e.g. Pentassuglia, "The EU ...", 22-5. A problematic question concerning conditionality models is what approach to the relevant human/minority rights requirements should be adopted by the conditioning bodies following assessment of the targeted country context. Too loose an interpretation of such requirements may reduce leverage over the human/minority rights record of the country, whereas too strict an interpretation of them may prove inadequate vis-d-vis 'borderline' countries. Ibid., 28.

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 51 32 11
Full Text Views 63 3 0
PDF Downloads 6 6 0