The Application of the Framework Convention for the Protection of National Minorities in Belgium: The Opinion of the European Commission for Democracy through Law

In: European Yearbook of Minority Issues Online
View More View Less
  • 1 Head of Division at the Secretariat of the Venice Commission. The opinions expressed are solely those of the author.

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

  • 1 Adopted by the Venice Commission at its 50"- Plenary Meeting (Venice, 8-9 March 2002), CDL-r1D (2002) 1. 2 Upon signing the Framework Convention on 31 July 2001, Belgium declared that 'the notion of national minority will be defined by the inter-ministerial conference of foreign policy'. To date, it has not ratified the Framework Convention.

  • 3 See the Commission's opinion, para. 34. 4 Ibid., para. 34 in fine. 5 See Jochen Abr. Frowein and Roland Bank, "Ihe Effects of Member States' Declarations Defining `National Minorities' upon Signature or Ratification of the Council of Europe's Framework Convention for the Pro- tection of National Minorities', 59(3) ZaöRV(1999), 649-75, at 672.

  • 6 For an exhaustive explanation of the working methods of the Advisory Committee on the Framework Convention, see Rainer Hofrnann, preferential Treatment of Kin minorities and Monitoring of the Imple- mentation of the Framework Convention for the Protection of National \finorities', in Council of Europe, 1he Protection ofNational Minorities by tbeir kin-state, Collection Science and Technique of Democracy, No. 32 (Strasbourg, 2002), 235-60. 7 Notably in the light of Article 5(1) of the Framework Convention. 8 In Belgium, there are three communities, which are characterized by common language and culture: the Flemish, representing 58% of a population made up of approximately 10,200,000 people, the Walloons, representing 40% of the population, and the German-speaking group, who are approximately 65,000, or less than 1% of the population. For an explanation of the Belgian constitutional structure, see Jean-Claude Scholsem, 'Federalism and Protection of Minorities in Belgium, in Council of Europe, 1he Protection of Minorities, Collection Science and Technique of Democracy, No. 9 (Sttasbourg, 1997), 340-55; Philippe De Bruycker et al., 'Mecanismes instirutionnels et Droits Individuels dans la Protection des Minorites de la Belgique Federale', in Nicolas Levrat (ed.), Minorites et Organisation de I'Etat (Bruxelles,1998),189-230; Alexander Murphy, Belgium's Regional Divergence: along the Road to Federation', in Graham Smith (ed.), Federalism: The Multietbnic Cballenge (London,1995), 73-100. 9 \Vhether a 'constituent'group would wish to be regarded as a minority in order to benefit from the protec- tion of the Framework Convention is a matter which largely depends on complex factors, including the rel- evant historical background. In Bosnia and Herzegovina, for example, none of the three constituent peoples appears to intend to prevail itself of the guarantee of Article 20 of the Framework Convention (see CDL (2002) 32, 'Meeting of the Venice Commission rapporteurs with representatives of the Bosnian authorities and of the international community on the rights of persons belonging to national minorities in Bosnia and Herzegovna', para. 16).

  • 10 The Commission held that a numerically inferior group of persons which finds itself in a dominant or codominant position is not to be considered as a minority (para. 40 of the opinion) as opposed to saying that a group needs to find itself in a subdominant position in order to be considered as a minority. It is to be noted that in its Proposal for a European Convention for the Protection of National Minorities, the Commission did not include, amongst the constitutive elements of a national minority, the position of subdominance (see Article 2(1) of the Venice Commission's Proposal for a European Convention for the Protection of Minorities, CDL(1991)7). 11 For the purposes of this opinion, the Commission took for granted that the three Belgian communities were, in principle, capable of falling within the ambit of application of the Framework Convention pursuant to Article 5(1). It thus confined itself to assessing whether and where they were in a position of dominance or codominance. 12 For an explicit reference to the scope of this provision in the relevant preparatory works, see in particular, CAHMIN(94)19, 7-8. See also Article 15(2) of the Venice Commission's Proposal for a European Conven-

  • tion for the Protection of Minorities,. 13 5 RUDH(1993),156-64. 14 See paras.18-19 of the Commission's opinion. 15 There are no German-speakers in the Dutch-language region and no Dutch-speakers in the German-lan- guage region. 16 This opinion extensively served as a basis for the report of the PACE's Rapporteur, zits. Lili Nabholz Haidegger (see Doc. 9536, Report of the Committee on Legal Affairs and Human Rights). The PACE subsequently adopted its Resolution 1301(2002)1,'Protection of Minorities in Belgium' on 26 September 2002 (30'" Sitting).

  • 17 See para. 4 in fine.

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 31 14 1
Full Text Views 36 1 0
PDF Downloads 1 1 0