Managing the 'Minority Problem' in Post-Cold War Europe Within the Framework of a Multilayered Regime for the Protection of National Minorities

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  • 1 Petra Roter is a PhD candidate at the University of Cambridge and a Research Fellow at the University of Ljubljana, Centre of International Relations. The author would like to thank Geoffrey Edwards, Marc Weller, Zlatko Šabič for their helpful comments on earlier drafts.

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  • 1 The Yugoslav crisis indicated a new type of crises in the post-Cold War Europe. Accordingly, the European statesmen feared that the war in Yugoslavia might directly affect possible future events, especially in other Eastern European multinational states - the Soviet Union and Czechoslovakia, see Predrag Simic, "Europe and the 'Yugoslav Issue"', XLIII/1001 Review of International Affairs (1992), 1-5, at 3. 2 See Petra Roter, "Locating the 'Minority Problem' in Europe: A Historical Perspective". 4(3) Journal of International Relations and Development (2001), 221-49.

  • 3 See Ernest Barker, Principles of Social and Political Theory (Oxford, 1951); Inis L. Claude, National Minorities: An International Problem (Cambridge, 1955); and Edward Chaszar, The Internationa! Problem of National Minorities (Indiana, 1988). 4 According to the so-called consensus definition, international regimes are "sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors' expectations converge in a given area of international relations. Principles are beliefs of fact, causation, and rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision-making procedures are prevailing practices for making and implementing collective choice", Stephen D. Krasner, "Structural Causes and Regime Consequences: Regimes as Intervening Variables", in Stephen D. Krasner (ed.), International Regimes (Ithaca, 1983), 1-21, at 2.

  • 5 Dov Ronen, The Challenge of Ethnic Conflict, Democracy and Self-Determination in Central Europe (London, 1997), xxxi. 6 Katherine Birmingham, The OSCE and Minority Issues (The Hague, 1995), 11. 7 Merja Pentikainen, "The Role of the Human Dimension of the OSCE in Conflict Prevention and Crisis Management", 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/London/Boston, 1997), 83-122, at 113.

  • 8 The first indication of these new directions in addressing minority issues in Europe (which were to develop into an international regime in the aftermath of the Cold War) had come in the 1970s within the CSCE process. This was very much in line with earlier developments globally, especially with the adoption in 1966 of the International Covenant on Civil and Political Rights (ICCPR; entered into force in 1976) whose Article 27 guarantees that persons belonging to ethnic, religious or linguistic minorities "shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language". 9 Concluding Document of the Vienna Meeting 1989 of Representatives of the Participating States of the Conference on Security and Co-operation in Europe, Held on the Basis of the Provisions of the Final Act Relating to the Follow-up to the Conference, adopted on 15 January 1989, hereinafter "1989 Vienna Concluding Document", at http://www.osce.org/docs/english/1973-1990/ follow_ups/vienn89e.htm. 10 Ibid., Questions Relating to Security in Europe, Principles, para. 18.

  • 11 Ibid., para. 19. 1Z Stefan Lehne, The Vienna Meeting of the Conference on Security and Cooperation in Europe, 1986-1989: A Turning Point in East-West Relations (Boulder,�San Francisco/Oxford, 1991), 159. 13 1989 Vienna Concluding Document, Questions Relating to Security in Europe, Principles, para. 19. 14 Documents of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE. adopted on 29 June 1990, hereinafter "1990 Copenhagen Document", at http:/.www.osce.org/docs/ english/1990-1999/hd/cope90e.htm. 15 Framework Convention for the Protection of National Minorities, adopted by the CoE Committee of Ministers on 10 November 1994, opened for signature on 1 February 1995, entered into force on 1 February 1998, ETS No. 157, hereinafter "Framework Convention". 16 1989 Vienna Concluding Document, Questions Relating to Security in Europe, Principles, para. 19. 1 See 1990 Copenhagen Document, 1V/31, and Framework Convention, Art. 4.

  • 'g 1989 Vienna Concluding Document, Co-operation in Humanitarian and Other Fields, Human Contacts, para. 31. '9 Mala Tabory, "Minority Rights in the CSCE Context", in Yoram Dinstein and Mala Tabory (eds.), The Protection of Minorities and Human Rights (Dordrecht/Boston/London, 1992), 187-211, at 209. 20 1990 Copenhagen Document, IV/30-40.7. Those rights are discussed in section IV A below. 2' Arie Bloed, "A New CSCE Human Rights 'Catalogue': The Copenhagen Meeting of the Conference on the Human Dimension of the CSCE", in Arie Bloed and Pieter van Dijk (eds.), The Human Dimension of the Helsinki Process: The Vienna Follow-up Meeting and its Aftermath (Dordrecht/ Boston/London, 1991), 54-73, at 56. 22 Indeed, Florence Benoit-Rohmer, The Minority Question in Europe: Towards a Coherent System of Protection for National Minorities: Texts and Commentary (Strasbourg, 1996), explains that although the 1990 Copenhagen Document is not legally binding on states, "it is nevertheless considered as the 'European Charter of Minorities' to the extent that it establishes a certain number of political principles protecting minorities on which consensus has been reached among the 34 signatory states". This was reflected within the CoE: the Parliamentary Assembly of the CoE (PACoE) had reaffirmed the need for the full implementation of the CSCE commitments, including those from Copenhagen, just a few months after the Copenhagen meeting (Recommendation 1134 (1990) on the Rights of Minorities, adopted on 1 October 1990, at http://stars.coe.fr/ta/ta90/erecll34.htm, hereinafter "PACoE Recommendation 1134 (1990)", para. 14).

  • 23 vienna Declaration, Appendix II: National Minorities, para. 6; published in Europe Documents No. 1855, 15 October 1993, hereinafter "1993 CoE Vienna Declaration". za 1993 CoE Vienna Declaration, Appendix II: National Minorities, para. 7. Paragraph 9 instructs the Committee of Ministers, inter alia, to draft a framework convention on national minority protection, and "to begin work on drafting a protocol complementing the European Convention on Human Rights in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities". 25 blued, "A New CSCE Human Rights 'Catalogue'...", 67. 26 According to the 1989 Vienna Concluding Document, Human Dimension of the CSCE, para. 1, the HD concept refers to "respect for all human rights and fundamental freedoms, human contacts and other issues of a related humanitarian character". A general agreement on the meaning of the HD, as explained by Arie Bloed, "The Human Dimension of the OSCE: Past, Present and Prospects", 3(3) OSCE ODIHR Bulletin (1995), 15-26, at 16, is that "it encompasses human rights and fundamental freedoms, questions of democracy and rule of law, the protection of the rights of persons belonging to national minorities and all other humanitarian issues of a related character". 27 Pentikainen, "The Role of the Human Dimension ...", 88. On other characteristics of the HD, such as the non-confrontational way of operating and the strictly political character of its commitments, see Bloed, "The Human Dimension of the OSCE ...". ze Pentikainen, "The Role of the Human Dimension ...", 88.

  • z9 1990 Copenhagen Document, para. 32. 3° Bloed, "A New CSCE Human Rights 'Catalogue'...", 67. 3` Elaine Eddison, "The Protection of Minorities at the Conference on Security and Co-operation in Europe", Papers in the Theory and Practice of Human Rights: No. 5 (Colchester, 1993), 18. 3z 1990 Copenhagen Document, IV/30. 33 Charter of Paris for a New Europe, adopted on 21 November 1990, at http:// www.osce.org/docs/english/1990-1999/summits/paris90e.htm, A New Era of Democracy, Peace and Unity, Human Rights, Democracy and Rule of Law, para. 1. At the 1993 CoE summit, the CoE member states similarly observed that all "our countries are committed to pluralist and parliamentary democracy", 1993 CoE Vienna Declaration, para. 2. 3" Framework Convention, Preamble, para. 7. 3s 1990 Copenhagen Document, IV/30.

  • '6 The 1975 Helsinki Final Act, Questions Relating to Security in Europe, l.a) Declaration on Principles Guiding Relations between Participating States, VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, para 5. " PACoE Recommendation 1134 (1990), paras. 6 and 4, respectively. '8 1993 CoE Vienna Declaration, paras. 3 and 4. 39 bid., para. 5. framework Convention, Preamble, para. 6. 41 Recommendation 1201 ( 1993) on an Additional Protocol on the Rights of Minorities to the European Convention on Human Rights (hereinafter "PACoE Recommendation 1201 (1993)"), Text of the Proposal for an Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning Persons Belonging to National Minorities, hereinafter "Proposal for an Additional Protocol", Preamble, para. 3. The text of the proposal has not been subsequently adopted as an additional protocol to the European Convention on Human Rights and Fundamental Freedoms (ECHR).

  • 12 Lehne, The Vienna Meeting ..., 187. During the Cold War, such an agreement would have been impossible. 43 1990 Copenhagen Document, IV/36. 44 A similar provision can be found in PACoE Recommendation 1201 ( 1993)- Proposal for an Additional Protocol, Preamble, para. 5. 45 Reports of the CSCE Meeting of Experts on National Minorities (adopted in Geneva on 19 July 1991, 30 I.L.M. 1692 (1991), hereinafter "1991 Geneva Report", at http://www.riga.lv/minelres/osce/ gene9le.htm). 46 1991 Geneva Report, II/para. 3. °' E.g. at the third Conference on HD of the CSCE in Moscow, 10 September-15 October 1991. The Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE (adopted on 3 October 1991, available at http://www.osce.org/docs/english/1990-1999/hd/mosc9le.htm) not only confirmed (111/37) the provisions and commitments of, inter alia, the 1991 Geneva Report, but it also extended the legitimate international concern to cover the entire HD ('Preamble', para. 9). This was subsequently reiterated at the fourth follow-up meeting in Helsinki in 1992. See the CSCE Helsinki

  • Document 1992. the Challenges of Change, adopted on 10 July 1992. 31 I.L.M. 1395 (1992). at http://www.osee.org,docsenglish/1990-1999'summitshels92e.htm, hereinafter "1992 Helsinki Document", Helsinki Summit Declaration. Promises and Problems of Change, para. 8. 48 Adopted on 21 September 1991. at http://stars.coe.fr,ta ta91 eres969.htm. 49 Resolution 969 ( 1991 ) on the Crisis in Yugoslavia, para. 7. so Eddison, "The Protection of Minorities ...", 20-1. The 1991 CHD Moscow meeting was openly critical of, for instance. Bulgaria and Turkey - the former for refusing to register ethnic political parties, and the latter for its treatment of Kurds. Perhaps even more remarkable was Gorbachev's opening speech at that international forum, in which he admitted that minority rights were not respected everywhere in the Soviet Union, ibid. 51 William Korey, "The Unanticipated Consequences of Helsinki", 3(3) OSCE ODIHR Bulletin (1995). 7-14. at 14. See the 1990 Paris Document, New Structures and Institutions of the CSCE Process. sz 1990 Copenhagen Document, IV/36. 53 Ibid., IV137.

  • 54 Bloed, "A New CSCE Human Rights 'Catalogue'...", 68. ss Adopted by the European Commission for Democracy through Law (also known as the Venice Commission) on 8 February 1991, hereinafter "1991 Venice Commission's Proposal for a European Convention". sb Ibid., Art. l(l). ). 57 Ibid., Art. 1(2). See also Framework Convention, Art. 21. sa 1992 Helsinki Document, Helsinki Declaration, Promises and Problems of Change, para. 8. s9 1992 Helsinki Document, Helsinki Decisions, VI: The Human Dimension, Enhanced Commitments and Co-operation in the Human Dimension, National Minorities, para. 27. bo 1992 Helsinki Document, Helsinki Decisions, II: CSCE High Commissioner on National Minorities. 61 1992 Helsinki Document, Helsinki Summit Declaration, Promises and Problems of Change, para. 10.

  • bzpemi Torstila, "The OSCE - the New CSCE - is Still about the Individuar', 3(3) OSCE ODIHR Bulletin (1995), 30-4, at 33. 63 Benoit-Rohmer, The Minority Question in Europe .... 12. 6' This followed the modest provisions in the 1991 Geneva Report ( VII/para. 3) on unimpeded contacts across frontiers. of persons belonging to a national minority and their ethnic kin, seen as contributing to mutual understanding and good-neighbourly relations. Accordingly, the 1991 Geneva Report ( VII/para. 4) encouraged transfrontier cooperation agreements. ss 1992 Helsinki Document, Helsinki Decisions, IX: The CSCE and Regional and Transfrontier Co-operation, para. 1. 66 Ibid., para. 3. 67 Ibid., paras. 4 and 5, respectively.

  • 68 1992 Helsinki Document, Helsinki Decisions, VI: The Human Dimension, Enhanced Commitments and Co-operation in the Human Dimension, National Minorities, para. 25. 69 1993 CoE Vienna Declaration, Appendix II: National Minorities, para. 5. 70 From the perspective of international law, some bilateral agreements - e.g. between Germany and Romania, Hungary and Slovakia, Hungary and Romania - are particularly important as they gave legal force to certain international documents on minority protection, such as the 1992 UN Declaration, the 1990 Copenhagen Document, or the PACoE Recommendation 1201 (1993), see Kinga Gal, "The Role of Bilateral Treaties in the Protection of National Minorities in Central and Eastern Europe", 10(3) Helsinki Monitor 1999, 73-90. " 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/London/Boston, 1999), 1-15, at 14. 72 A/RES/47/135/Annex (1992), 3 February 1993, 32 I.L.M. 911 (1993), hereinafter "1992 UN Declaration", at http://www.unhchr.ch/html/racism/minorpartl-l.doc. " See Birmingham, The OSCE and Minority Issues, 11. 1. '° The 1992 UN Declaration thus adheres to the central norm that the existence and identity of minorities should be protected (Art. 1(1)), it guarantees a number of minority rights (Art. 2) and their exercise

  • without discrimination and in full equality before the law (Arts. 3(I) and 4(1)), whereas none of these commitments can be construed as permitting any activity contrary to sovereign equality, territorial integrity and political independence of states (Art. 8(4)). satan Lerner, "The 1992 UN Declaration on Minorities", 23 Israel Yearbook on Human Rights (1993), I11-28, at 124. '6 E.g., Recommendations 1134 (1990), 1177 (1992). 1255 (1995), 1285 (1996). " Adopted by the Committee of Ministers in June 1992, opened for signature on 5 November 1992, in force since 1 March 1998, ETS No. 148, hereinafter "1992 European Charter"- for instance, the Central European Initiative (CEl ) adopted a document on minority protection. See CEI Instrument for the Protection of Minority Rights, adopted at Turin, on 19 November 1994, hereinafter "1994 CEI Instrument", at http://www.ceinet.org/minority.htm. '9 See Georg Brunner. Nationality Problems and Minority, Conflicts in Eastern Europe: Strategies for Europe (Gutersloh, 1996), 72.

  • 8° In this respect, the developments within the EU seem to be lagging behind. Similarly to Article 14 of the 1950 CoE European Convention on Human Rights and Fundamental Freedoms, the Charter of Fundamental Rights of the European Union (2000/C 364/01, at http://europa.eu.int/comm/ external-relations/human-rights/doc/charter -364- Olen.pdf) mentions national minorities only with respect to non-discrimination. The Charter's Article 21 thus prohibits discrimination in the enjoyment of other rights on the basis of, inter alia, membership of a national minority, race, language, religion, and ethnic origin. 81 On the definition of the term 'minority' see, among many others, Malcolm N. Shaw, "The Definition of Minorities in International Law", in Yoram Dinstein and Mala Tabory (eds.), The Protection of Minorities and Human Rights (Dordrecht/Boston/London, 1992), 1-31; John Packer, "On the Definition of Minorities", in John Packer and Kristian Myntti (eds.), The Protection of Ethnic and Linguistic Minorities in Europe (Abo/Turku, 1993), 23-65; and Gaetano Pentassuglia, Defining 'Minority' in International Law: A Critical Appraisal (Rovaniemi, 2000).

  • 82 According to Capotorti, a minority (in the sense of Art. 27) is "a group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members - being nationals of the state - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language", Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.l (1979), at 568. 83 Deschenes suggested that a minority be defined as "a group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic 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", Promotion, Protection and Restoration of Human Rights at the National, Regional and International Levels, UN Doc. E/CN.4/Sub.2/1985/31 (1985), at 181. In comparison to Capotorti's definition, Deschenes' proposal is explicit on equality in fact and in law, and it replaces the term `nationals' with 'citizens', reportedly with a view to removing any doubt about the meaning of 'nationality' and thus dispelling "potential criticism on the vagueness of the Capotorti term". Patrick Thornberry, International Law and the Rights of Minorities (Oxford, 1992), 7. 84 1989 Vienna Concluding Document, Questions Relating to Security in Europe, Principles, para. 19. See also the 1990 Copenhagen Document, which not only reiterates this wording (IV/33), but also translates it into the right of persons belonging to national minorities "freely to express, preserve and develop their ethnic, cultural, linguistic or religious identity" (1V/32). See also Framework Convention, Preamble, para. 7.

  • 85 Explanatory Report, published in Framework Convention for the Protection of National Minorities and Explanatory Report, H (95) 10, Strasbourg, February 1995, paras. 43 and 44, respectively. ab Shaw, "The Definition of Minorities ...", 21-2. Cowell Barrington, "Rethinking the Triadic Nexus: External National Homelands, International Organisations, and Ethnic Relations in the Former Soviet Union", paper delivered at the Fourth Annual Convention of the Association for the Study of Nationalities, New York, 1999, 12. sa Jelena Pejic, "Minority Rights in International Law", 19(3) Human Rights Quarterly (1997), 666-85, at 673; Pentassuglia, in Defining 'Minority' ..., 37, similarly argues that neither the citizenship link nor the link with other linguistic and cultural groups constituting a greater nation "really conflict with the traditional idea of minority at the European level". 89 Barrington, "Rethinking the Triadic Nexus ...", 12. 9° See Art. 2(2) of the 1991 Venice Commission's Proposal for a European Convention.

  • 91 They PACoE later confirmed "the principles listed in its Recommendation 1201 (1993) and the addi- tional proposal it then proposed, in particular the definition of a 'national minority"', Recommendation 1255 (1995) on the Protection of the Rights of National Minorities, adopted on 31 January 1995, at http://assembly.coe.inljDocumenls/AdopledTextjta95¡erec 255.htm, para. 2. 92 Interview with Frank Steketee, Minorities Section, Directorate of Human Rights, CoE. Strasbourg, 16 June 1997. 9' Clearly drawing on Capotorti's definition of 1979, the definition of the term national minority in Recommendation 1201 (1993) combines both objective criteria (i.e. the existence of a distinct popula- tion, its numerical size and nondominant position) and subjective criteria (i.e. the willingness to preserve the specific minority identity), see Benoit-Rohmer. The Minority Question in Europe .... 14. 9' See Section II, Art. 11(2) of the 1978 Draft of an International Convention on the Protection of National or Ethnic Groups or Minorities (prepared by the International Institute for Ethnic Group Rights and Regionalism), and Art. 2(1) of the 1992 Convention on the Fundamental Rights of Ethnic Groups in Europe (Additional Protocol to the ECHR), prepared by the Federal Union of European Nationalities (FUEN). fourth version, 28 May 1992, hereinafter "1992 FUEN Convention".

  • 9s The first HCNM also explained that he was "always looking at the situation of particular groups - usually those in a numerically inferior position; in other words minorities", Max van der Stoel, "Building a Solid Foundation: Minority Rights and Their Implementation", address to the interna- tional conference Challenges of the Minority Policy in Croatia Today, Zagreb, Croatia, 5 April 2001, 1. 96 Brunner, Nationality Problems ..., 21. 9' Packer, "On the Definition of Minorities ...", 49; and Philip Vuciri Ramaga, "The Group Concept in Minority Protection", 15 Human Rights Quarterly (1993), 575-88, at 577. 98 Benoit-Rohmer, The Minority Question in Europe ..., 14. 99 A similar point was made by Capotorti, UN Doc. E/CN.4/Sub.2/384/Rev.l, at 566. 100 Indeed, Switzerland has defined its national minorities in the sense of the Framework Convention as those groups of individuals who are, inter alia, "numerically inferior to the rest of the population of the country or of a canton", Declaration Contained in the Instrument of Ratification Deposited on 21 October 1998, at http://conventions.coe.int/Treaty/EN/cadreprincipal.htm. 101 Brunner, Nationality Pro6lems ..., 29. Doz Shaw, "The Definition of Minorities ...", 25-6.

  • 103 John Packer, "On the Content of Minority Rights", in Juha Raikka (ed.), Do We Need Minority Rights? Conceptual Issues (The Hague/Boston/London, 1996), 121-78, at 168. In other words, "power resides in the application of the majority rule in relation to which a minority is defined", Packer, "On the Definition of Minorities ...", 48. 104 in addition to other relevant CoE and CSCE/OSCE international documents, the 1992 FUEN Convention reiterates this requirement in Art. 2(1). ). ios Brunner, Nationality Problems ..., 21. '°6 Shaw, "The Definition of Minorities ...", 27. 'o' Ibid., 28. 108 E/CN.4/Sub.2/384/Rev.l, at 567. For Capotorti, therefore, the subjective element is implicit in the very existence of a group: "the will in question generally emerges from the fact that a given group has kept its distinctive characteristics over a period of time", ibid. 1W It had already been mentioned in the UN Secretary-General's memorandum of 1950, E/CN.4 Sub.2/85, at 54. "0 1990 Copenhagen Document, para. 32. See also 1991 Venice Commission's Proposal for a European Convention, Art. 2(3).

  • 111 See e.g. Estonia's Declaration Contained in the Instrument of Ratification, Deposited on 6 January 1997, and the Declaration Contained in a Letter from the Permanent Representative of Germany, Dated 11 May 1995, Handed to the Secretary General at the Time of Signature, on 11 May 1995. Both available at http://conventions.coe.int/Treaty/EN/cadreprincipal.htm. 112 in General Comment No. 23 (CCPR/C/21/Rev.I/Add.5, dated 6 April 1994), the HRC established, inter alia, that the persons to be protected under Article 27 "need not be citizens of the State party", para. 5.1. 113 Thornberry, International Law and the Rights of Minorities, 8. 114 E/CN.4/1992/SR.38, at 30. 115 Ibid. "6 Turkey, for example, has criticized the Western states' ignorance of their own minority conflicts especially with respect to immigrants, see E/CN.4/Sub.2/1991/SR.20.

  • 117 Declaration Contained in the Instrument of Ratification Deposited on 21 August 1998, at http://conventions.coe.int/Treaty/EN/cadreprincipal.htm. 118 Van der Stoel, "Building a Solid Foundation ...", 3. Accordingly, the HCNM suggested Croatia "drop the requirement of citizenship" in the definition included in a draft law on national minorities, ibid., 4.

  • "9 Georg Brunner and Herbert Kupper, "European Options of Autonomy: A Typology of Autonomy Models of Self-Governance", in Kinga Gal, Minority Governance in Europe (Budapest, 2002), 11-36, at 17. zoo Bi�ingham, The OSCE and Minority Issues, 9. 'z' Collective rights are "rights afforded to human beings communally, that is to say, in conjunction with one another or as a group", Yoram Dinstein, "Collective Human Rights of Peoples and Minorities", 25(1) International and Comparative Law Quarterly (1976), 102-20, at 102-3.

  • 122 Articles 1 of both international covenants accords the right of self-determination to the people. 123 see Natan Lerner, "The Evolution of Minority Rights in International Law", in Catherine Brolmann, Rene Lefeber and Marjoleine Zieck (eds.), Peoples and Minorities in International Law (Dordrecht/Boston/London, 1993), 77-101, at 80. there are only few exceptions: Hungary grants collective rights to its national minorities in its internal legal system, under the Act LXXVII of 1993 on the Rights of National and Ethnic Minorities. Similarly, Slovenia recognizes collectiveness of and group rights to its two traditional national minorities, the Hungarian and the Italian minority. See Report Submitted by Slovectia Pursuant to Art. 25. Para. 1, of the Framework Convention for the Protection of National Minorities, submitted on 29 November 2000, at http://www.humanrights.coe.int/Minorities/Eng/FrameworkConvention/StateReports/2000i slovenia, slovenia.html. 125 I.e. the so-called Western or civic tradition, according to which the state chronologically preceded the nation, can be distinguished from the Eastern or ethnic tradition, according to which the national idea that every nation should have its own nation-state was introduced in the nineteenth century when people had already begun to identify nationally, within individual multinational empires. See Roter, "Locating the 'Minority Problem' ...'. 126 in line with Article 27 of the ICCPR, this formulation has been reiterated in, e.g., the 1990 Copenhagen Document (para. 32.6), the 1992 UN Declaration (Art. 3), and Framework Convention (Art. 3(2)). PACoE Recommendation 1201 ( 1993) - Proposal for an Additional Protocol (Art. 3(2)), rephrases it into "individually or in association with others".

  • 127 on different cases of local self-government (e.g., the Aland Islands, Italy, Spain, Belgium, Switzerland, Slovenia, and Hungary), see the Venice Commission's study "Local Self-Government, Territorial Integrity and Protection of Minorities" (1996). iza gai Hailbronner, "The Legal Status of Population Groups in a Multinational State under Public International Law", 20 Israel Yearbook on Human Rights (1990), 127-54, at 151. 129 PACE Recommendation 1201 ( 1993) - Proposal for an Additional Protocol, Art. 11. l3o Those rights are, inter alia, the rights to freedom of thought, conscience and religion (Art. 18 ICCPR; Art. 9 ECHR), to freedom of expression (Art. 19 ICCPR; Art. 10 ECHR), and to freedom of peaceful assembly and association with others (Arts. 21 and 22 ICCPR; Art. 11 ECHR). Although these rights are not established as individual minority rights, case law (especially under the ECHR) has shown their applicability to persons belonging to minorities. 131 The right to existence of minorities is "a necessary prerequisite for other rights", Thornberry, International Law and the Right of Minorities, 57. Its violation, genocide, is an international crime. It has to be added that 'ethnic cleansing' in the former Yugoslavia has resulted in a commitment by the CSCE participating states to refrain from any resettlement and change by force of the ethnic composi- tion of populations in their territories, see the 1992 Helsinki Document, Helsinki Decisions, VI: The Human Dimension, Enhanced Commitments and Co-operation in the Human Dimension, National Minorities, para. 27.

  • 132 see e.g. 1990 Copenhagen Document, para. 31, Framework Convention, Art. 4(l), and PACoE Recommendation 1201 ( 1993 ) - Proposal for an Additional Protocol, Art. 4. 133 Benoit-Rohmer, The Minority Question in Europe ..., 16. satan Lerner, Group Rights and Discrimination in International Law (Dordrecht/Boston/London, 1991),27. 135 Max van der Stoel, "Minority Rights, Participation and Bilateral Agreements", address to an interna- tional seminar on Legal Aspects of Minority Rights: Participation in Decision-Making Processes and Bilateral Agreements on Minority Rights, Zagreb, Croatia, 4 December, 2000, 1. "6 See PACoE Recommendation 1201 (1993) - Proposal for an Additional Protocol, Art. 12(2), and Framework Convention, Art. 4(3). 137 E/CN.4/Sub.2/384/Rev.l, at 232. 138 Thornberry, International Law and the Rights of Minorities, 197.

  • '39 Benoit-Rohmer, The Minority Question in Europe ..., 51. 140 Explanatory Report of the Framework Convention, para. 64. 141 Ibid., para. 65. 142 Ibid..

  • 'a' pACoE Recommendation 1201 (1993) - Proposal for an Additional Protocol, Arts. 7(3) and 7(4), respectively. 144 In some states, national minority languages have a status of official languages (Belgium, Slovenia, Switzerland), whereas in other states the majority language is the only official language (Germany) or different minority languages enjoy a different status in the same state (Italy). 145 Explanatory Report of the Framework Convention, para. 74. 146 Framework Convention, Art. 14( 1). 147 Ibid., Art. 14(2). I. "8 PACoE Recommendation 1201 (1993)- Proposal for an Additional Protocol, Art. 8(2). 149 Framework Convention, Art. 14(2). An almost identical phrase had been formulated in the 1990 Copenhagen Document, para. 34. 150 CCPR/7, 32nd session, 800th meeting, at 42. 151 see Dinstein, "Collective Human Rights ...", 119. 152 1990 Copenhagen Document, para. 34, Framework Convention, Art. 12(1). 153 The Foundation on Inter-Ethnic Relations, The Hague Recommendations Regarding the Education Rights of National Minorities and Explanatory Note, October 1996. 5.

  • isa1992 UN Declaration, Art. 2(2). 155 Framework Convention, Art. 15. 156 This recommendation is also important as it lists those provisions from the PACoE Recommendation 1201 (1993) that could be included in an additional protocol to the ECHR on cultural rights. Those provisions involve, inter alia, cultural identity, aspects of the minority language, and education. 157 Thornberry, International Law and the Rights of Minorities, 189-90. `sa 1992 UN Declaration, Art. 2(1). See also ICCPR, Art. 27. 159 Framework Convention, Art. 8. See also the 1990 Copenhagen Document, paras. 32.2 and 32.3. `so p similar provision can be found in the 1994 CEI Instrument, Art. 14. 161 see Benoit-Rohmer, The Minority Question in Europe ..., 17. the freedom of information has been formalized in the 1990 Copenhagen Document, para. 32.4, the 1992 UN Declaration, Art. 2(1), and in the Framework Convention, Art. 9. `63 See 1990 Copenhagen Document, para. 32.6, 1992 UN Declaration, Art. 2(4), and Framework Convention, Art. 7.

  • �6' See 1990 Copenhagen Document, para. 32.6, and Framework Convention, Art. 17(2). Additionally. PACoE Recommendation 1201 I 1993) - Proposal for an Additional Protocol (Art. 6) establishes the right of persons belonging to a national minority "to set up their own organisations, including political parties". However, this right has not been upheld as a pan-European standard. 165 Krasner, "Structural Causes ...", 2. 166 See Gaetano Pentassuglia, "On the Models of Minority Rights Supervision in Europe and How They Affect a Changing Concept of Sovereignty"; and Rainer Hofmann, "Review of the Work of the Advisory Committee on the Council of Europe Framework Convention for the Protection of National Minorities", in this volume.

  • �6' See Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commission: A Contextual Study of Peace-Making Efforts in the Post-Cold War World (Aldershot, 2000), 80. '� Opinion No. 1 of the Arbitration Commission of the Peace Conference on Yugoslavia, 29 November 1991, 31 I.L.M. 1494 (1992), para. I.e. 169 Opinion No. 2 of the Arbitration Commission of the Peace Conference on Yugoslavia, 11 January 1992, 31 I.L.M. 1497 (1992), para. 2. 170 opinion No. 5 on the Recognition of the Republic of Croatia by the European Community and its Member States, 11 January 1992, 31 I.L.M. 1503 (1992), para. 3. "' On this contested issue see Crawford, Beverly, "Explaining Defection from International Cooperation: Germany's Unilateral Recognition of Croatia", 48(4) World Politics (1996), 482-521.

  • 172 Croatia appears a relevant example in this respect, with its rather extensive efforts to establish minority protection, which however failed to satisfy its Serbian minority. See Misha Glenny, The Fall of Yugoslavia: The Third Balkan War (New York/London/Ringwood/Toronto/Auckland, 1996). " Bruno de Witte, "The European Community and Its Minorities", in Catherine Brolmann. René Lefeber and Marjoleine Zieck (eds.). Peoples and Minorities. in International Law (Dordrecht�BostonjLondon. 1993), 167-85. 17. I.e. the Proposal for an Additional Protocol as attached to PACoE Recommendation 1201 (1993). ). 175 PACoE Order No. 484 (1993) of 1 February 1993. 1'6 1993 CoE Vienna Declaration, para. 7. 177 see Opinion No. 174 (1993) on the Application by the Czech Republic for Membership of the Council of Europe of 29 June 1993, and Opinion No. 175 ( 1993) on the Application by the Slovak Republic for Membership of the Council of Europe of 29 June 1993. In both of these opinions, the PACoE asked the authorities of the state in question "to base their policy regarding the protection of minorities on the principles laid down in Recommendation 1201 ( 1993 )". Romania, however, had already commit- ted itself to base its policy regarding minority protection on those principles before it applied for CoE membership. On that occasion, the PACoE then, inter alia, called for implementation of "legislation on national minorities and education" (Opinion No. 176 (1993) on the Application by Romania for Membership of the Council of Europe, adopted on 28 September 1993). ).

  • 178 Conclusions of the European Council in Copenhagen, 21-22 June 1993, reprinted in Europe Documents No. 1846, 26 June 1993. The accession criteria established by the 1993 Copenhagen European Council provided the basis for the approach developed in Agenda 2000; fulfilment of the Copenhagen political criteria is a precondition for opening accession negotiations, Communication from the Commission to the Council and the European Parliament: The European Union's Role in Promoting Human Rights and Democratisation in Third Countries, Brussels, 8 May 2001, COM(2001) 252 final, 5; at http://europa.eu.int/eur-lex/en/com/pdf/2001/en SO1PC0252.pdf For Agenda 2000, see at http://europa.eu.int/comm/agenda2000/index-en.htm. "9 The fulfilment of these criteria also plays a role in the granting, by the EU, of pre-accession aid to the applicant countries; the Commission guidelines, adopted in October 1999, for the implementation of the Phare programme for the period 2000-2006 emphasize the relevance of the Copenhagen political criteria, Special Report No. 12/2000 on the Management by the Commission of European Union Support for the Development of Human Rights and Democracy in Third Countries, together with the Commission's Replies, Official Journal C 230 (10 August 2000), 1, at 2, at http://europa.eu.int/ eur-lex/en/lif/dat/2000/en_300Y0810_Ol.html. '8° Max van der Stoel, "Looking Back, Looking Forward: Reflections on Preventing Inter-Ethnic Conflict", address to an international conference on Facing Ethnic Conflicts, Bonn, Germany, 14 December 2000, 2. 181 Signed on 2 October 1997, in force since 1 May 1999. '8z Gabriel N. Toggenburg, "A Rough Orientation through a Delicate Relationship: The European Union's Endeavours for (Its) Minorities", 4(16) European Integration online Papers (2000), at http://eiop.or.at/eiop/texte/2000-016a.htm, 17.

  • 183 Andre Liebich, "Ethnic Minorities and Long-Term Implications of EU Enlargement", European University Institute, EUI Working Paper. RSC 98/49, European University Institute. Robert Schumann Centre, at http://www.iue.it;RSC,% WP-Texts/98 49t.html (1998). ). 184 Konrad Huber and Robert W. Mickey, "Defining the Kin-State: An Analysis of its Role and Prescriptions for Moderating Its Impact", in Arie Bloed and Pieter van Dijk (eds.). Protection of Minority Rights through Bilateral Treaties: The Case of Central and Eastern Europe (The Hague/London/Boston. 1999), 17-51, at 44. 185 Conclusions of the European Council in Copenhagen, 21-22 June 1993, Point 8, para. 2. 186 The French Memorandum as presented at the Copenhagen European Council reads as follows: "The break-up of Yugoslavia into several states and the war which has torn Bosnia-Herzegovina apart have revealed the acuteness of the problem of minorities and the powerlessness of the international commun- ity, including the Europe of Twelve, to apply the principles to which they have adhered." (Memorandum, 1./para. 2; reprinted in Europe Documents No. 1846, 26 June 1993. 187 Europe Documents No. 1927, 29 March 1995. 188 The Paris Conference on Stability in Europe took place on 20 and 21 March 1995.

  • the Pact on Stability in Europe, para. 2, herein - after "Stability Pact"; reprinted in Europe Documents No. 1927, 29 March 1995. 190 Benoit-Rohmer, The Minority Question in Europe ..., 31. "' Bloed and van Dijk, "Bilateral Treaties ...", 2. Germany initiated the process of adopting bilateral agreements after the end of the Cold War. As Gal points out, the reasons for that were rooted in German reunification and in "the related need to guarantee the frontiers resulting from World War II, as well as in the presence of minorities of German origin in Central and Eastern Europe whose protection needed to be ensured", Gal, "The Role of Bilateral Treaties ...", 75. 192 Part II/i contains agreements and arrangements between the interested countries and the EU member states, whereas Part II/ii includes agreements and arrangements concluded by the interested countries between them and with other states invited to the round table. '93 This actually resulted in the negotiating process and the conclusion of bilateral treaties between Hungary and Slovakia in March 1995, and Hungary and Romania, in September 1996. See Benoit- Rohmer, The Minority Question in Europe ..., 35; and Gal, "The Role of Bilateral Treaties ...", 76. '9' See also Emma Lantschner and Roberta Medda-Windischer, "Protection of National Minorities through Bilateral Agreements in South Eastern Europe", in this volume. 195 Stability Pact, para. 13. the Stability Pact (at 16) also envisages the possibility of bringing any disputes on the interpretation or implementation of good-neighbourliness agreements before the International Conciliation and Arbitration Court, according to the 1992 OSCE Convention on Conciliation and Arbitration. '9' See Benoit-Rohmer, The Minority Question in Europe ..., 33; and Gal, "The Role of Bilateral Treaties ...", 75-6.

  • 198 see Gal, "The Role of Bilateral Treaties ...", 76-7. is9 See Parts B and C of the Stability Pact. 200 Memorandum, para. 2, the reference to the collective aspect of minority rights is in para. 1 of 2.B. z°' Memorandum, para. 2. zoz The conclusion of bilateral treaties between Hungary and Slovakia, and between Hungary and Romania, lias revealed the actual political orientation of the states concerned: the treaties both consider cooperation on national minority protection as an important factor in the process of their integration into the Euro-Atlantic structures. See Gal, "The Role of Bilateral Treaties ...", 80. zo3 For the concluding documents of the launching conference of the Stability Pact, held in Paris on 26 and 27 May 1994, see Europe Document No. 1887, 31 May 1994.

  • 204 Stability Pact, Declaration, 4. zos Gudmundur Alfredsson points out that some bilateral agreements between CEE states "may be partially attributable to Western European pressure to resolve minority problems as an expected condition for future co-operation", whilst "many Western European countries are less than forthright in addressing similar issues at home, and thereby undermine the universality and objectivity necessary to maintain the rule of law", 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/London/Boston, 1999), 165-75, at 169. 206 At http://www.seerecon.org/KeyDocuments/KD1999062401.htm. 207 This was designed as a preventive strategy in the wake of the Kosovo war "which drastically impressed upon Western Europe the full consequences of the region's instability"; "crisis management in the former Yugoslavia lagged consistently behind events; whatever was done came too late and remained mere patchwork". Cyrill Stieger, "Europe's Plan for Pacifying the Balkans: The Stability Pact: Verbal Activism or a New Start?" Neue Zurcher Zeitung Online (16 November 1999), at http:// www.nzz.ch/english/background/background 1999/baekground991 l/bg9911 lObalkans.html. zos Stability Pact on South Eastern Europe, para. 9. To achieve that aim, the states pledge to cooperate in, inter alia, bringing about mature democratic political processes, based on full respect for human rights including the rights of persons belonging to national minorities, and in preserving national and ethnic diversity of states in the region as well as protecting minorities, preventing forced population displacement and ensuring the safe and free return of all refugees, Stability Pact on South Eastern Europe, 10.

  • 209 See Alfredsson, "Identifying Possible Disadvantages ...", 172. zio Ibid. 211 Van der Stoel, "Minority Rights, Participation and Bilateral Agreements ...", 4. 212 See Gal, "The Role of Bilateral Treaties ...", 80. z" Huber and Mickey, "Defining the Kin-State ...", 38. 214 Gal, "The Role of Bilateral Treaties ...", 86. zis See Bloed and van Dijk, "Bilateral Treaties ...", 15. 216 See Gal, "The Role of Bilateral Treaties ...", 74: and Huber and Mickey, "Defining the Kin-State ...", 19. 217 See Alfredsson, "Identifying Possible Disadvantages ..."; and Huber and Mickey, "Defining the Kin- State ...". ma Huber and Mickey, "Defining the Kin-State ...", 38-9.

  • z`9 Torstila, "The OSCE ...", 32. zzo Bloed and van Dijk, "Bilateral Treaties ...", 9. 221 John Packer, "Considerations on Procedures to Implement the Right to Self-Determination", in Michael C. van Walt van Praag and Onno Seroo (eds.), The Implementation of the Right to Self- Determination as a Contribution to Confiict Prevention: Report of the International Conference of Experts Held in Barcelona from 21 to 27 November 1997 (Barcelona, 1999), 149-65, at 161. 222 1992 Helsinki Document, Helsinki Decisions, II/1. zz3 The proposal for the establishment of the HCNM had been put forward by the Dutch Foreign Minister Hans van den Broek at the second meeting of the Council of Ministers for Foreign Affairs of the CSCE in Prague in January 1992. zza John Borawski, A Better Peace: The Organization for Security and Cooperation in Europe (Tampere, 1996), 31. zzs At the 1992 Prague meeting, the German Foreign Minister Hans-Dietrich Genscher drew attention to "the continuing structural weakness of the CSCE, particularly in conflict prevention and crisis management" highlighted in Yugoslavia (quoted in Borawski, A Better Peace ..., 30). zz6 Birmingham, The OSCE and Minority Issues, 22 (emphasis added). zzz Benoit-Rohmer, The Minority Question in Europe ..., 29. zze Arie Bloed, "Helsinki-II: The Challenges of Change", 3(3) Helsinki Monitor (1992), 37-50, at 48.

  • 229 1992 Helsinki Document. Helsinki Decisions, II/4 and 19. z3o Max van der Stoel, "Minority Protection, Integration and Stability in South-Eastern Europe", speech by the OSCE High Commissioner on National Minorities at the Conference on Democracy, Human Rights and the Protection of Persons Belonging to Minorities in South-Eastern Europe, Bled, Slovenia, 23 February 2001, 2. z3i Ibid. 232 1992 Helsinki Document, Helsinki Decisions, II%23 and 25. This provision was inserted in the text by Turkey, faced with the conflict centring on its Kurds. See Richard Dalton, "The Role of the CSCE", in Hugh Miall (ed.), Minority Rights in Europe: The Scope for a Transnational Regime ( London, 1994). 99-111, at 104. 233 1992 Helsinki Document, Helsinki Decisions, II/5a, c. z" Ibid., 11/27. zss Dalton, "The Role of the CSCE", 105. z3s p very similar institution is in place in the Baltic Sea area. The Council of the Baltic Sea States (CBSS) established a CBSS Commissioner on Democratic Institutions and Human Rights, Including the

  • Rights of Persons Belonging to Minorities, with a view to promoting and consolidating a democratic development and the protection of human rights, including the rights of persons belonging to minorit- ies, in the member states. The Commissioner may receive communications from individuals, groups and organizations, closely cooperates with IGOs (e.g. the CoE, the OSCE, the UN Centre on Human Rights) and NGOs, and then provides the CBSS with his/her opinion on human rights issues in members states, see at http://www.cbss-commissioner.org. z3' For example, at the Helsinki Follow-up in 1992, the implementation review concerned the situation of the Kurds in Turkey and Estonian citizenship laws. zsa Birmingham, The OSCE and Minority Issues, 17. z39 The HDM was developed at the Vienna Follow-up Meeting in 1989 (known as the "Vienna Mechanism") and enhanced at the 1991 CHD Moscow meeting ( known as the "Moscow Mechanism"). zao Bloed and van Dijk, "Bilateral Treaties ...", 8. 241 The CSCE/OSCE thereby called into question the consensus principle as it "turned out to be more and more an obstacle to the resolution of crisis situations", Benoit-Rohmer, The Minority Question in Europe ..., 27. The Prague Ministerial Council in January 1992 adopted the so-called 'consensus- minus-one' principle (used for the first time in 1992, with regard to the conflict in Yugoslavia), whereby in "cases of clear, gross and uncorrected violation" of OSCE commitments, decisions on appropriate actions can be taken without the consent of the state concerned, OSCE Hand6ook 2000, at http://www.osce.org/publications/handbook/handbook.pdf, 29.

  • 242 Arie Bloed and Pieter van Dijk, "Supervisory Mechanism for the Human Dimension of the CSCE: Its Setting-up in Vienna, Its Present Functioning and Its Possible Development towards a General Procedure for the Peaceful Settlement of CSCE Disputes", in Arie Bloed and Pieter van Dijk (eds.), The Human Dimension of the Helsinki Process: The Vienna Follow-up Meeting and Its Aftermath (Dordrecht/Boston/London, 1991), 74-108, at 98. 243 Birmingham, The OSCE and Minority Issues, 21. 244 See at http://www.osce.org/publications/survey/survey26.htm. 245 See at http://www.osce.org/publications/survey/survey03.htm. z°6 See at http://www.osce.org/publications/survey/survey05.htm. 241 See at http://www.osce.org/publications/survey/survey28.htm. 211 See at http://www.osce.org/publications/survey/survey08.htm.

  • za9 Simic, "Europe and the 'Yugoslav Issue"', 4.

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