Organisations:

The Roles of the OSCE, the Council of Europe and the EU

The subject of minority protection involves questions of social participation (→ Participation), the prevention of discrimination (→ Discrimination), the establishment of equal opportunities (→ Formal Equality), the protection of minority languages (→ Speaking of Languages), the provision of a minority-friendly school system (→ Education), the creation of structures of civil society (→ NGOs), public awareness building (→ Media), and in some cases the provision of group rights (→ Quota and Proportional Systems) or even rights of self-determination (→ Autonomies). It is not difficult to see that all these elements relate to political fields that can be considered sensitive. The nation-states of the 19th and 20th centuries typically saw minority protection as a purely internal matter; how a state dealt with its minorities was the concern of that state alone. Interference from above (international organisations, for example), from below (like the affected regions and/or municipalities), let alone from left or right (i.e. neighbouring countries, → Transnational Cooperation), was neither usual nor welcome. In the last few decades, the picture has changed, however. In Europe especially, countries have been increasingly embedded in international networks; they have become “integrated states” and as such have accepted the transfer of sovereignty both upwards (in particular to the European level) and downwards (through processes of regionalisation). Europe has become an interconnected system of multilevel governance. Even though the individual European state remains the first port of call with primary responsibility for its minorities (→ Case Studies, → Autonomies), it is clear that competence in minority matters is now distributed in a complex pattern among a variety of policy-makers (→ Yin and Yang). The purpose of this chapter is to show how three major international organisations have responded to the subject and have developed European Standards of minority protection in the process.

 

Raising the Iron Curtain on the Europeanisation of minority protection

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Churchill’s metaphor of the Iron Curtain was apt in several respects: The East-West divide lay like a lead blanket with suffocating effects on developments in international law and coexistence. The threat of a “njet” from Moscow had paralysed the UN Security Council and all the other international bodies. The collapse of this bipolar world accordingly had the effect of a liberating blow and put an end to a long period of stagnation. This is particularly clear in the case of European minority protection. Although all three organisations treated here, namely the Council of Europe (established 1949), the European Community (established 1957) and the Organisation for Security and Cooperation in Europe (OSCE, launched 1975), were created decades earlier, it was not until the magical decade following the fall of the wall that the subject of minority protection was permanently raised to the international level.

That can be demonstrated with the help of a few facts: In 1992, only three years after the fall of the wall, the European Charter of Regional or Minority Languages was drawn up by the Council of Europe. Three years later, in 1995, the Framework Convention for the Protection of National Minorities, the flagship of minority protection in Europe, was adopted. These two key documents came into force in 1998, ten years after the end of the division of Europe. And only one year later, the Council of Europe established the office of the European Commissioner of Human Rights in Geneva. At the OSCE, too, the minorities agenda was tightly packed following the 1989 annus mirabilis: One year after the fall of the wall, the Office for Democratic Institutions and Human Rights (ODIHR) was opened in Warsaw and the OSCE’s participating states signed the Copenhagen Document (see below). Two years after that, in 1992, the Office of the High Commissioner on National Minorities (HCNM) was opened in The Hague. And finally, the dynamics triggered by the fall of the wall are also reflected in developments within the EU: the prospect of the accession of eight young post-Soviet democracies motivated the Union to include respect and protection for minorities as a criterion for membership in the Community and to monitor the progress made by the candidate countries in this field (the Copenhagen Criteria). Thus, in the decade following the fall of the Iron Curtain, the minority protection agenda was removed from the sole authority of the state and europeanised.

Twenty years after the fall of the wall, the countries of Europe are integrated states with a duty to respect decisions taken by the international organisations to which they are affiliated. These organisations’ circles of members are concentric. All EU Member States participate in the OSCE and are members of the Council of Europe. The OSCE comprises 56 participating states, while the Council of Europe has 47 Member States (with no fewer than 750 million inhabitants) and the EU now has 27 member countries (with some 500 million inhabitants). The three organisations differ greatly in terms of approach, subject matter and normative force. With its Office of the High Commissioner, the OSCE is active in the field of crisis diplomacy and in that context makes use of covert diplomacy and the development of (purely) political guidelines. The Council of Europe, on the other hand, sees itself as a legal norm-setter. It produces legal norms, which are binding on all the members states that ratify the corresponding treaties. Such instruments, however, have their normative status in international law alone: They must be implemented by the Member States, but the latter have considerable freedom in this regard. The European Union, for its part, only has regulatory powers in selected areas, and minority protection at the EU level is more of a concomitant political objective than an autonomous policy area (→ Lisbon Treaty). On the other hand, the EU’s scope for intervention is broad and is supported by considerable political power and a juridical punch that is not to be found in classic international law (→ Discrimination).

 

The outer circle: The political focus of the OSCE

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In June 1990, 35 heads of state and government came together in Copenhagen and agreed on rights and duties relating to minorities. Although the Copenhagen Document is not legally binding, it is both specific and comprehensive to a degree that must be considered revolutionary. It states that minorities are entitled to fully and effectively exercise their human rights and recognises that “special measures” may be required for that purpose, which the states should adopt if necessary. The document stresses that belonging to a minority is a matter of individual choice and that no disadvantages may derive from the choices made. It also states that members of minorities have the right to freely express, preserve and develop their identity. The heads of state and government agreed that the right to a minority identity constitutes a duty on the part of the states. This positive duty is formulated only very indirectly, however, as a duty to create conditions for the promotion of the identity of the minority. The politicians also underlined that such measures had to be in conformity with the principles of equality and non-discrimination, thus guaranteeing “protection from protection” for the majority populations. With regard to language, the Copenhagen Document stipulates that the states must endeavour to ensure that members of minorities have “adequate opportunities” for instruction in their mother tongue and, “wherever possible and necessary”, for its use in dealings with public authorities (→ Speaking of Languages). With regard to education, the document also refers to the need to take account of the history and culture of national minorities (→ Education). On the subject of political participation, finally, the Copenhagen Document calls upon the states to “respect the right of persons belonging to national minorities to effective participation in public affairs” (→ Participation). In this context, forms of local or autonomous administration are described as “one of the possible means to achieve these aims” as long as they correspond to the specific historical and territorial circumstances and are “in accordance with the policies of the State concerned” (→ Autonomies).

In July 1991, an OSCE meeting of experts took place and produced the Geneva Document, which was adopted by 35 representatives of the participating states. The signatories also included the European Community represented by the Dutch EU Presidency. The representatives of the states underlined that minorities are “an integral part of the society of the States in which they live”, where they are “a factor of enrichment”. The document also stresses the significance of special measures taken in support of minorities and includes a list of measures that can produce positive results:

–         advisory bodies in which minorities are represented, in particular in the fields of education, culture and religion;

–         elected bodies for national minority affairs;

–         forms of territorial autonomy;

–         self-administration of aspects concerning identity where there is no autonomy on a territorial basis;

–         bilateral and multilateral agreements;

–         adequate education in the mother tongue with due regard to the numbers, geographic settlement patterns and cultural traditions of minorities;

–         funding for the teaching of minority languages to the general public;

–         recognition of diplomas issued abroad for study programmes held in the language of the minority;

–         government research agencies to review legislation and disseminate information related to equal rights and non-discrimination;

–         financial and technical assistance for the establishment of cultural associations;

–         governmental assistance for addressing local difficulties relating to discriminatory practices;

–         support for communication between minority communities and between majority and minority communities, and for transnational communication, and finally the creation of permanent mixed commissions in border regions.

At the same time the states note that not all ethnic, cultural, linguistic or religious differences necessarily lead to the creation of national minorities. This Geneva Document is not legally binding on the participating states, but it explicitly acknowledged back in 1991 that minority affairs are not an exclusively internal matter.

In the middle of the 1990s it seemed that the quest for common standards was over in the OSCE countries, but in the following years the search for a common denominator in European minority protection took on a new form with the drafting of various Recommendations. They differ significantly from the documents described above. On the one hand they were prepared by groups of experts. The official involvement of the OSCE was limited to the fact that they were drawn up at the request of the High Commissioner, i.e. an office of the OSCE, and on the other hand they offer a structured and concentrated treatment of standards relating to one clearly defined area of minority rights. The recommendations released so far address education rights (The Hague Recommendations, October 1996), linguistic rights (Oslo Recommendations, February 1998), participation in public life (Lund Recommendations, September 1999) and the use of minority languages in broadcast media (October 2003). The latest recommendations, which were the first to be issued explicitly in the name of the High Commissioner, address the role of the kin state in interstate relations (Bolzano/Bozen Recommendations, October 2008, → Transnational Cooperation). Although these recommendations are very useful as objective standards at the political level, and especially in the context of the High Commissioner’s diplomatic interventions, they are simply recommendations and as such have no power to commit countries to a certain course of action. The objective of the Council of Europe, on the other hand, is to establish state obligations with due legal force.

 

The middle circle: The legal focus of the Council of Europe

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The Council of Europe had already made a significant contribution to minority protection in Europe with the decisions taken by the European Court of Human Rights in Strasbourg based on the European Convention on Human Rights (→ Judiciary). Following the annus mirabilis of 1989, however, the Council of Europe wanted to go still further and create an instrument of protection for minority rights. In 1990 the Parliamentary Assembly of the Council of Europe recommended the adoption of a legally binding protocol to the Convention dealing specifically with linguistic and national minorities (Recommendation 1134). On the other hand, the Assembly rejected a draft for a separate agreement in international law submitted by the Venice Commission in March 1991, which defined the concept of “minorities”, combined individual and collective rights, proposed a European Committee for the Protection of Minorities, and provided for rights of state and individual application. In 1991 Austria submitted a detailed proposal for a protocol to the European Convention on Human Rights which provided amongst other things for the mandatory observance of ethnic proportionality in the public services (→ Quota and Proportional Systems), but the negotiations failed at the Vienna summit conference held in October 1993. The heads of state and government thereupon mandated the Committee of Ministers to elaborate a framework convention which would also be open to non-Member States. The idea of an independent agreement in international law was thus back on the agenda.

The document was completed on 14 October 1994 and opened for signature on 1 February 1995. Following ratification by the mandatory minimum of twelve national parliaments, the Framework Convention for the Protection of National Minorities (FCNM) entered into force on 1 February 1998. Unlike the originally planned protocol to the ECHR, the Framework Convention makes no mention of rights of autonomy and no effective rights of complaint for members of minorities. Its control mechanisms are politically dominated and weak in terms of legal remedies. In certain parts, individual rights are so diluted by the conditions attached as to be unrecognisable as rights and lacking in force. It must nevertheless be considered a substantial achievement that, with the Framework Convention, a legally binding instrument has been created that obliges the states to maintain a permanent internationalised dialogue on the subject of the protection afforded to their minorities. In view of this dialogue and the monopoly position of the Framework Convention as a European legal instrument, it is predestined to function as a catalyst for the development of generally accepted European standards in the field of minority protection.

With regard to the control mechanisms (i.e. monitoring) of the Framework Convention, the states are obliged to submit a report every five years to the Secretary General of the Council of Europe, which he forwards to the Council’s Committee of Ministers. In evaluating the “adequacy of the measures taken by the Parties” (Article 26 FCNM), the Committee of Ministers is assisted by an Advisory Committee. This group of experts has a maximum of eighteen members, half of whom are renewed or replaced every two years. The Committee of Ministers is entitled to request ad hoc reports. The dialogue between the Council and states that ensues when a report is requested can be divided into a reporting phase and a two-part evaluation phase. In the reporting phase, the state concerned produces a comprehensive report on the situation of its national minorities and the relevant legislation and forwards it to the General Secretariat of the Council of Europe, which publishes the report. In a first evaluation phase, the activities of the state as described in the report and in other sources, i.e. shadow reports (i.e. reports from NGOs or interviews and reports from other reporting systems), are discussed in a working group of the Advisory Committee. The Committee may also request additional information from the reporting state. The working group produces a questionnaire, which the state must answer within a reasonable period of time. The Advisory Committee may also hold working sessions in the reporting country and meet representatives of its government and civil society. Indeed, such meetings have become standard practice. The part of the evaluation phase that is dominated by the Advisory Committee comes to an end when the working group’s report is adopted in plenary session and forwarded to the Committee of Ministers. The second part of the evaluation phase is dominated by the Committee of Ministers of the Council of Europe, who are free to accept the findings of the Advisory Committee or not. The conclusions produced by the Committee of Ministers mark the end of the evaluation phase of the round of reporting.

Article 1 of the Framework Convention states: “The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation.” Here, for the first time the internationalisation of the protection of national minorities, as expressed at the political level in the context of the OSCE, was incorporated in a legally binding text. The Framework Convention contains no definition of the term “minority”, however (→ What is a “Minority”?). This “pragmatic approach” can be explained in terms of the absence of agreement on the subject among the countries of the Council of Europe. The definition of “minority” ultimately relates to the general problem of the question to whom the Framework Convention applies – a question which prima facie is left to the states to answer. In fact the states tend to include as few (groups of) persons in the scope of the Convention as possible. Latvia, for example, has defined the concept so as to exclude its Russian speakers without Latvian citizenship. The Advisory Committee responds to these restrictive tendencies with what it sees as a “pragmatic and flexible approach”. What this means is that, although the Committee respects the latitude available to the states in recognising minorities within the terms of the Framework Convention, it also emphasises that this latitude must nevertheless be applied in line with general legal principles. After all, Article 3 of the Framework Convention concedes all individuals the right to freely decide whether they wish to be treated as members of minorities or not (→ Uncounted). For that reason, the Advisory Committee considers it one its duties to scrutinise the definitions applied by the states so as to avoid “arbitrary and unjustified distinctions”. In the case of Denmark, for example, the Advisory Committee stated that the Faroese, Greenlanders, Roma and Germans living outside of South Jutland could not be excluded a priori from the scope of the Framework Convention. In short, it is an approach based on cooperation. In general, however, the Committee stresses that it has a clear preference for an inclusive interpretation. This is also relevant for religious minorities, whose treatment as national minorities is unclear in international law; both the Advisory Committee and the Committee of Ministers share the view held by Northern Cyprus that the Framework Convention also refers to religious minorities. Finally, the Advisory Committee rejects the standpoint that classification of an ethnic group as an indigenous people is tantamount to exclusion from the scope of the Framework Convention.

On the subject of protection from discrimination, Article 4 para. 1 Framework Convention contains a formal ban on discrimination, which is accompanied in para. 2 by the duty of the state parties “to adopt, where necessary, adequate measures in order to promote … full and effective equality”. Mention is also made of the need to “take due account of the specific conditions of the … minorities”. The states specifically have to undertake “to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture” (Article 5 para. 1 FCNM). In its commentary, the Advisory Committee particularly stresses the position of smaller minorities like the Roma or Irish Travellers (→ Roma), and the need for adequate involvement of the people concerned in the relevant programmes. The Convention states that assimilation should not be the objective of general integration policies, and that members of minorities are to be protected from assimilation (Article 5 para. 2 FCNM) and against “threats or acts of discrimination, hostility or violence” with the help of “appropriate measures” (Article 6 para. 2 FCNM). The Committee also underscores the role of the press and makes reference to a corresponding resolution of the Council of Europe. Article 9 Framework Convention provides for non-discriminatory accesses to the media (→ Media). In particular, minorities are not to be hindered in the creation and use of printed media. A positive duty can be seen in the requirements for states to “adopt adequate measures in order to facilitate access to the media for persons belonging to national minorities and in order to promote tolerance and permit cultural pluralism” (Article 9 para. 4 FCNM). At all events, the Advisory Committee is of the opinion that the fact that a minority has transnational access to media in its own language (e.g. from the kin state) cannot be an argument against the need for the minority to have its own media.

The Convention guarantees freedom of peaceful assembly and freedom of expression (Article 7 FCNM) as well as religion or belief (Article 8 FCNM). On this point the Advisory Committee points out that there is no obligation to provide financial support for religious activities and that the principle of equality must apply to any funding provided. Article 10 Framework Convention addresses the use of minority languages, which must be permitted “in private and in public” (para. 1). A duty to make it possible for a minority language to be used in dealings with the “administrative authorities” is dependent on conditions of “real need” (para. 2). In this context, the Advisory Committee says that the necessary “substantial numbers” of members of minorities should be ten percent and that a threshold of fifty percent is definitely too high (→ Speaking of Languages). The Convention also states that all members of minorities have the right to use their names “in the minority language” and a right to official recognition of their names “according to modalities provided for in their legal system” (Article 11 para. 1 FCNM). Members of minorities are also given the right to public display of signs “and other information of a private nature” in their minority language (para. 2). Topographical indications can be displayed “also in the minority language”, although the relevant duty of the state parties is conditional in more than one respect: It is limited to “areas traditionally inhabited by substantial numbers of persons” belonging to the minority and even then only “in the framework of their legal system” and “taking into account their specific conditions” and “when there is a sufficient demand” (Article 11 para. 3 FCNM). In terms of hard figures, the Advisory Committee holds a threshold of twenty percent of the local inhabitants (with half of them supporting minority language place names) to be acceptable but considers the requirement of a majority to be excessive.

Articles 12ff Framework Convention deal with protection for minority identities and access to education. The states have a duty “where appropriate” to take measures “to foster knowledge of the culture, history, language and religion of their national minorities and of the majority” (Article 12 para. 1 FCNM). In addition the states undertake “to promote equal opportunities for access to education” for members of minorities (Article 12 para. 3 FCNM). In this context the Advisory Committee has criticised the practice of assigning Roma children to special schools. With regard to the minorities’ right to their own educational facilities, the Convention expressly states that this may not “entail any financial obligation for the Parties” (Article 13 para. 2 FCNM). The Convention recognises the right of members of minorities to learn their own language (Article 14 para. 1 FCNM), but this obligation to perform on the part of the states is made so heavily conditional as to significantly undermine the legal duty. The Advisory Committee is nevertheless of the opinion that bilingual education is the best solution for implementation of Article 14 Framework Convention.

In Article 15, the Framework Convention commits the states parties to creating the “conditions necessary” for “effective” minority participation in “cultural, social and economic life and in public affairs, in particular those affecting them”. Article 16 Framework Convention forbids the states from making changes to the proportions of the population groups in minority areas. Finally, the Convention forbids the states to interfere in the rights of members of minorities to establish and maintain transnational contacts (Article 17 para. 1 FCNM) and to participate in the national and international activities of NGOs (Article 17 para. 2 FCNM), while Article 18 FCNM contains a general requirement for the states to enter into bi- and multilateral agreements in the interest of minority protection and to encourage cross-border cooperation (→ Transnational Cooperation).

By the middle of 2012, the Framework Convention had entered into force in 39 states, and all EU Member States had ratified except Belgium, France, Greece and Luxembourg (see the table and pie charts in the Annex). The Framework Convention can be considered the most comprehensive legally binding instrument in the field of multilateral minority protection. Unlike the European Charter for Regional or Minority Languages, which opened for signing in November 1992 and entered into force in 1998, the Framework Convention has also played a not insignificant role in the context of the EU (→ Speaking of Languages).

 

The inner circle: The legal and political commitment to minorities of the European Union

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It is a useful simplification to divide EU activities on behalf of the minorities of Europe into three phases. In an early phase (from about 1980 to 1993), it was primarily the European Parliament that sought to arouse interest in the question of minorities, calling mainly for measures to be taken – without resort to legal force – in the fields of culture and language policy. Attempts by a number of MEPs such as Count Stauffenberg and Mr. Alber to have an EU Charter establishing the rights of European ethnic groups drawn up in the Parliament’s Legal Affairs Committee soon failed. Work in the Culture and Education Committee, however, was more successful and a whole handful of much-quoted resolutions were adopted. The European Parliament itself was successful with three practical and highly visible measures: In 1982 a NGO was founded – and accepted for funding by the Commission – to work in support of minority languages in Europe, namely the European Bureau for Lesser Used Languages (EBLUL; → NGOs). Second, a budget line was created, providing for the regular flow of EC funds for the promotion of minority languages from 1982 to 1999 (→ Speaking of Languages). And third, a minorities Intergroup was established in the Parliament. Intergroups are unofficial working groups comprised of parliamentarians from several political groupings who come together to address a certain issue regardless of their political affiliations; they have to be reconstituted after every election to the European Parliament. The  Intergroup (the group “Traditional National Minorities, Constitutional Regions and Regional Languages” has currently over 40 members) made the Parliament the first and only EU institution to have a dedicated platform for minority agendas. All these developments in the early phase of minority protection in the EU helped to make the Parliament a prominent advocate of minority interests on the territory of the EU.

Following this early phase of commitment to minority policy in the EU came the phase of conditionality from 1993 to 2004. As mentioned above, the heads of state and government of the European Community formulated the Copenhagen Criteria in June 1993, stipulating a number of conditions of accession to be met by EU candidate countries. At the political level, they have to have achieved the institutional stability needed to ensure “respect for human rights, as well as respect for and the protection of minorities” before they can accede to the EU (conditionality). Four years later this political condition of accession was raised to the juridical nobility of treaty law: Article 49 EU Treaty explicitly grants the right to apply for membership to the Union to those states that respect the principles set out in Article 6 EU Treaty. That in turn contains all the elements of the political condition for accession from the Copenhagen Criteria – with one exception: minority protection! Obviously, the Member States were not (yet) ready to risk formulating an explicit written commitment for the EU’s internal regime in an area that seemed to be particularly sensitive and not yet fully defined. It is true that in the decade of enlargement, the candidate countries were groomed by the EU Commission in the direction of minority protection, but no attempt was made to impose such values within the Union itself. In this context, the well known expert on European law Bruno de Witte made the ironical comment that the Europe of the EU saw minority protection as an export item that was not designed for domestic consumption.

All together, the conditionality phase differs from the early phase of commitment to minorities in the EU in two ways: On the one hand it was not dominated by the Parliament but by the European Commission, namely in its assessment and reporting functions vis à vis the candidate countries, and on the other it was influenced, not by considerations of cultural and language policy but by an objective based in security policy: The fifteen “old” Member States (and the Union itself) wanted to see the various ethnic tensions overcome in the states of Central and Eastern Europe before the latter were to accede to the Union.

Of course, these phases are not completely distinct; the conditionality phase also involved the further development of certain activities from the early phase. This is due to the fact that the 1992 Treaty of Maastricht added a new item to the Treaty relating to EC cultural policy. The new Article 151 of the EC Treaty provided for the Community to “contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore”. In summer 2003, on the basis of a report submitted by the South Tyrolean MEP Michl Ebner, the European Parliament accordingly proposed the creation of a European Agency for Linguistic Diversity and Language Learning as well as a separate funding programme for linguistic diversity. His proposals met with little response on the part of the other organs of the EU. Nevertheless, the field of minority protection has not stagnated at the level of the EU and we are justified in speaking of a third phase in the EU’s commitment, a phase of internalisation, in which a commitment that originally expressed itself as a purely external strategy began increasingly to impact the domestic agenda of the Union and the minorities in its Member States.

A good example of this internalisation of commitment to minorities can be seen in the adoption of the Racial Equality Directive on the basis of the new Article 13 of the EC Treaty (→ Xenophobia), as a result of which ethnic discrimination moved centre stage in Community equality law (→ Discrimination). The legislative focus in the field of anti-discrimination also attracted the necessary funding. Almost a hundred million euros was earmarked for an anti-discrimination programme created for the 2000-2006 funding period, and another 15 million euros were allocated to the European Year of Equal Opportunities for All in 2007, which was followed in 2008 by the European Year of Intercultural Dialogue. In this, the most recent phase of EU commitment, minority protection plays a role not only in the legislative area (legally binding provisions) and funding via EU programmes and European year campaigns; account is also being taken of minorities and their needs in the form of impact assessments for planned European legislation (i.e. the Commission’s duty to assess the impacts that measures taken in the EU could have on minorities). Minority interests also play a role in the context of the European Employment Strategy and the process of social integration (→ Business and Economic Crises), although the role of minorities is naturally even more apparent in the EU’s rapidly developing migration and integration policy (→ Kaleidoscope of Demographic Change). The EU’s interest in minority questions was also apparent in the establishment of the EU Agency for Fundamental Rights in Vienna in 2007, since minorities are a focus of its work. This EU institution operates as a European competence centre, counselling other institutions and Member States (in their implementation of EU law) on questions of fundamental rights. Evidence-based policy advice is what the Agency offers its clients. Its mandate covers the complete field of the protection of fundamental rights in Europe. The first large-scale poll conducted by the Agency, with almost 25,000 responders, related to the situation of members of minorities in Europe (the EU MIDIS study, → Discrimination). Between 2012 and 2020 the Agency is running a Roma programme, including major surveys on the situation of the Roma populations within the EU in order to monitor progress (or lack of progress) on the ground.

What distinguishes the internalisation phase from the two earlier phases is that all EU institutions are now involved in the subject – some relatively low-key, others more vociferously – and that minority affairs are being increasingly recognised as a transversal commitment, a fact that is also reflected in the new EU Treaty (→ Lisbon Treaty). In addition to the EU Commission, the Council has also become active in minority agendas, while the European Parliament has maintained its political commitment to minority protection after the last big round of enlargement. In June 2006, the Parliament stressed that in some cases it will be necessary to temporarily depart from a concept of equality that is related to the individual in favour of a group-based view (→ Formal Equality), and at the national level the Parliament is calling for traditional minorities to be protected by various forms of self-government or autonomy (→ Autonomies). Following the 2004 round of enlargement, in a resolution on the subject of minority protection submitted in the summer of 2006, the Committee of the Regions also spoke of the usefulness of positive measures and of positive discrimination. In spite of such developments at the political level, the fact remains that the legal reading of the concept of equality employed by the EU itself (and especially by the European Court of Justice in Luxembourg) is still purely formal in character (→ Discrimination). Finally, it should not be forgotten that the EU only has powers in certain areas of minority affairs and that diversity management in the EU is dependent on complex interaction between the local, regional, national and European levels (→ Yin and Yang).

 

The new challenge: “Interorganisational” cooperation

The countries of Europe have been cooperating at the international level for over half a century now and have become integrated states in the process. As the example of minority protection shows, this international cooperation takes place in a variety of international organisations, where there is an increasing degree of overlap with regard to membership and objectives. In order to avoid inefficiencies and ultimately the waste of public money as a result of egotisms and duplications of effort, it is important that the international organisations should coordinate their efforts and work together. Following decades of international cooperation, interorganisational cooperation is now the order of the day, and there are in fact clear signs of a growing interest in coordination. In the last two decades, the three organisations OSCE, Council of Europe and EU have been linked via an increasing number of cooperation platforms and mechanisms. The EU, which is channelling more and more of its integration dynamics in the direction of human rights and minorities (and attracting occasional suspicion from other organisations in the process), stresses that it is employing the standards formulated in the framework of the OSCE and the Council of Europe and strengthening them at the same time. The EU Commission has for example installed the Council of Europe’s Framework Convention as the yardstick of European minority protection when applying the above mentioned Copenhagen accession criterion. In fact, the political influence of the EU is not to be underestimated for the consolidation of minority standards as developed by the Council of Europe. Prior to the big wave of EU enlargement to the East, the Council of Europe’s Framework Convention was binding on just under one third of the Member States. But with ratification of the Framework Convention promoted to a de facto condition of accession, nine of the ten newcomers (all except Latvia) signed the Convention prior to accession. On the official day of Eastern enlargement (1 May 2004), therefore, the share of the EU Member States formally committed to observing the Framework Convention increased from just under two thirds to a good four fifths.

For its evaluation of the minority policies of the candidate countries, the EU Commission often referred to the reports prepared by the Advisory Committee of the Framework Convention. In addition, the EU Commission regularly consulted the High Commissioner of the OSCE in that context. This approach received general confirmation at a meeting of heads of state and government held in Warsaw: The guidelines drawn up in May 2005 for the EU’s future relationship with the Council of Europe specified that the European Union should try to incorporate in Community law those provisions of the Council of Europe conventions that relate to the powers of the Union. The question of cooperation between the EU and the Council of Europe was also an important topic in the case of the above mentioned EU Agency for Fundamental Rights in Vienna. For some self-proclaimed advocates of the Council of Europe, this new EU orientation represented a dangerous incursion into traditional Council of Europe territory. The emotions were only calmed when it was made clear that the remit of the Agency for Fundamental Rights did not extend to third countries and that the Agency would not be responsible for producing country-by-country reports but rather would issue thematic reports relevant for the specific EU context. In the founding regulation, the EU agency undertakes to collaborate with the Council of Europe and to refer to its findings. The Council of Europe was even conceded the right to appoint a representative to the Agency’s Management Board. Experience so far shows that there is in fact no duplication of effort and that, on the contrary, the Agency is promoting interorganisational cooperation and awareness about the other players. For example, the Agency has performed a study of inner European migration by Roma – in collaboration with the Council of Europe’s Commissioner of Human Rights, the OSCE’s High Commissioner for National Minorities, and the OSCE Office for Democratic Institutions and Human Rights. All this shows that not only states but also international organisations are becoming increasingly integrated – a development that benefits the cause of minority protection, too.

Three take aways: 

  1. The collapse of Soviet Communism and the end of the east-west divide in Europe stimulated developments in international organisations which increasingly shaped the face of Europe, namely the Organisation for Security and Cooperation in Europe (OSCE), the Council of Europe and the European Union. In the field of minority protection, the 1990s were a period of great activity and exciting developments. With the Framework Convention for the Protection of National Minorities, for example, the Council of Europe has established the most important agreement in international law in the field of minority protection to date. In the meantime it has been ratified by 39 European countries and is now binding on all EU member countries with the exception of Belgium, France, Greece and Luxembourg.
  1. In addition to this very significant contribution made by the Council of Europe to legal standards in the field, the OSCE has taken a big step forward at the diplomatic level with the establishment of the Office of the High Commissioner for National Minorities in The Hague. The EU for its part took advantage of the two organisations, the Council of Europe and OSCE, to flesh out its accession criterion relating to “respect for and protection of minorities”, which was also announced in the 1990s. At the same time, the pull-effects of the prospect of accession to the EU have promoted other international organisations’ interest in minority matters.
  1. After an extremely active decade of international cooperation between states in the field of minority protection, it is one of the challenges of the 21st century to build greater cooperation between the international organisations so as to make further progress with regard to minority protection in Europe (“interorganisational” cooperation).
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