Transnational Cooperation:

The Transnational Nature of Minority Protection

Diversity in Europe has diverse causes. Usually they involve movement: Either people moved from their traditional territories to new areas and added ethnic or linguistic diversity in the process (→ Kaleidoscope of Demographic Change), or the borders moved and produced the same effect. Shifting borders are usually a side product of national power politics. Politicians have always invested considerable intellectual energy in explaining why political borders are also natural borders, but their political marketing efforts have rarely been convincing. It is true that Mother Nature placed a mighty obstacle on the road between Innsbruck in Austria and Bozen/Bolzano in Italy (for almost a hundred years now) in the form of the Brenner Pass. But there are no natural designs behind the Brenner as a political border, which in many places was rightly seen as an illegitimate border; it transformed the German-speaking South Tyroleans against their will into a minority in Italy. But if all such minorities were to be given their own state by moving the borders once again, little would change in the overall situation: new borders lead to new minorities (→ What is a “Minority”?). It is not unlike a Matrioska  doll, with a new minority face underneath every border layer.

Before Kosovo gained independence, the Albanians (who accounted for almost 90 percent of the population of the Autonomous Province of Kosovo and Metohija), were a minority in Serbia. Since February 2008, Kosovo has been an independent state and is recognised as such by about one third of the 192 members of the United Nations. Within the new state borders, the Albanians form the dominant majority population while the Serbs are now a minority in Kosovo. If a new dwarf state were to be created for the Serbs within the territory of Kosovo, that would in turn produce new minorities within that mini-state. In other words, minority situations are not eliminated by redrawing borders; that leads to a reversal of roles at best. The principle challenge for minority protection is therefore cooperation across old borders rather than the creation of new ones.

 

The role of bilateral agreements

Photo: Unsplash/Sincerely Media

Europe offers countless examples of cultural territories dissected by borders of nation-states. Such transnational ethnic groups live on both sides of the border and do not have a parent state, as in the case of the Friesians in Germany and the Netherlands, and the Basques and the Catalans in Spain and France. But national minorities, who live in one state but enjoy special relations with another state, their parent country, also have a transnational element due to that special relationship. It is only logical, for example, that Austria should show an interest in the South Tyroleans, Greece and Turkey in their ethnic groups on Cyprus, and Hungary in the Hungarians in Romania, Slovakia and Serbia.

Such interests have often been made the subject of bilateral agreements between the states concerned. Several were concluded in the interwar period (like the German-Polish Convention on Upper Silesia), but they were rarely successful, mainly because of the lack of political stability in the interwar years and the weakness of the League of Nations. Moreover, many of the agreements have negative connotations. A number of bilateral treaties were concluded in Europe for the exchange of populations, for example, and not always with the consent of the people concerned, as in the case of the population exchange treaty concluded between the Greeks and Turks on 30 January 1923 (→ Zero Tolerance). But there are also some positive examples involving the successful bilateralisation of minority conflicts such as the agreement on autonomy for the Aaland Islands signed by Finland and Sweden in the 1920s. And shortly after the end of the 2nd World War, Austria and Italy signed an accord for a form of autonomy for South Tyrol (→ Autonomies). In these two positive cases it must be admitted, however, that bilateralisation was only successful because bilateral negotiations were accompanied by debate at the level of the League of Nations and later the United Nations. It was ultimately the risk of internationalisation of the problems that persuaded Finland and Italy to move away from their principal negotiating position, namely that the Aaland Islands and South Tyrol were the internal affairs of those two countries alone. It is also worth noting that Europe did not play a role in either case; both were addressed at the level of the League of Nations and the United Nations. The Council of Europe and the European Union only became major players in the field of minority protection after the fall of the Iron Curtain (→ Organisations).

The Council of Europe’s Framework Convention for the Protection of National Minorities, which entered into force in 1998, speaks of the “right of persons belonging to national minorities to establish and maintain … contacts across frontiers”. But the formulation only defines a passive duty on the part of the states not to interfere with this right; no mention is made of an active duty to take concrete steps in support of transnational mobility. An overview of the bilateral agreements signed in Europe reveals a similar picture. The early Bonn-Copenhagen Declarations only provide for recognition of the special interest of the Danish and German minorities in regular contact with their respective parent states. The situation is similar with the numerous bilateral minority agreements concluded – in response to pressure from the EU and OSCE – between the young democracies in Eastern Europe following the fall of the Berlin Wall. At least the Hungarian-Slovak and Hungarian-Romanian agreements specifically provide for additional border crossings. But in general the potential of the agreements signed in the 1990s to erode national borders is limited. The same can be said of the texts of the more recent bilateral agreements concluded on the Balkans. The 2002 Romanian-Yugoslav agreement, for example, calls for recognition of the bridge function of national minorities and mentions the possible creation of transnational Euroregions, while the agreements concluded between Serbia-Montenegro and Hungary in 2003 and between Serbia-Montenegro and Croatia in 2004 make only very general reference to full and direct relations with the states’ respective minorities.

 

The pioneer role of the Austro-Italian Accordino

South Tyrol provides an example of an agreement that goes well beyond the normal international standard: The Gruber-De Gasperi Agreement signed by the foreign ministers of Austria and Italy in 1946 was not limited to the recognition of minority and autonomy rights (and both can be interpreted as an expression of the principle of autonomy); in Article 3 the agreement also provided for the strengthening of transnational relations and cross-border movements between Austria and Italy (→ Autonomies). The call for cross-border mobility was formulated to supplement the rights of autonomy. While autonomy permitted a degree of disengagement from Rome (by conferring special rights), the inclusion of transnational mobility held promise of a degree of (renewed) linkage with Innsbruck and Vienna. The two states were required to conclude an “agreement on the mutual recognition of the validity of certain academic titles and university diplomas”, “agreement[s] for the free movement of persons and goods in transit between North and East Tyrol by rail and as far as possible also by road”, and “special agreements to facilitate extended cross-border movements and the local exchange of certain quantities of characteristic products and goods between Austria and Italy”. It can accordingly be said that in the Gruber-De Gasperi Agreement the free movement of persons and goods is seen as an agent of osmosis for the border on the Brenner Pass.

This focus on mobility is most clearly developed in the Accordino, which was signed by Italy and Austria on 12 May 1949 as a follow-up to the Gruber-De Gasperi Agreement. The Accordino called for the establishment in the Trentino and South Tyrol in Italy and North Tyrol and Vorarlberg in Austria of a regional customs regime offering the privileged mobility of a transnational market for “characteristic products and goods”. That was far from normal in post-war Europe and anticipated the later development of the European Single Market. Back in 1949 – at a time when every element of national sovereignty was a holy cow – the agreement provided for quotas of goods for the preferential regime to be laid down, not on a national basis by Italy and Austria but by a Joint Commission on a quasi-supranational basis. With this significant reduction to trade barriers, the Accordino continued in the spirit of the Gruber-De Gasperi Agreement as a border-blurring experiment. At the same time the Accordino reveals the European dimension of the regime proposed by the Ministers Gruber and De Gasperi, as it soon became clear that enhanced cross-border mobility would also be at the heart of the process of European integration. To that extent, the Accordino – as a regional cross-border agreement – can be said to have anticipated developments in Europe before being absorbed and ultimately made obsolete by those developments.

 

The border-blurring effects of the process of European integration

Photo: Pexels/Zachary DeBottis

Back in 1957, the EEC Member States expressed their conviction in Article 2 of the EEC Treaty that it was the task of the Community to promote “closer relations between the states belonging to it”. As the European Single Market serves to eliminate the barrier effect of national borders, it is clearly also in the interest of transnational minorities living on either side of such borders. This was made even more clear in the 1980s when the EEC became increasingly active at the regional level and at the beginning of the 1990s when the first Interreg programme was launched and cross-border contacts at the regional level were actively supported through financial stimulus from Brussels. Regional cross-border cooperation thus became a declared goal of European regional policy.

Since Austria was not a member of the EEC, however, these developments in Europe did not at first have any direct impacts on the relationship between Italy and Austria. Nevertheless, the powerful gravitational forces of the European integration project soon made themselves felt. Every step that Austria took in the direction of the EEC reduced the practical significance of the Accordino; with tariff reductions agreed in the framework of the free trade agreement concluded between Austria and the European Communities, the Accordino lost many of its practical benefits and hence its political importance. The step-by-step abolition of the Brenner border reached a new climax at the level of the EU with a trio of highly political steps towards integration: the creation of European Union citizenship in the Treaty of Maastricht (applicable to Austria as of 1995), the discontinuation of border controls on the Brenner following the introduction of the Schengen regime (1998), and introduction of a common currency in the framework of Economic and Monetary Union (2002).

 

Scope for the institutionalisation of regional cross-border cooperation

Photo: Pexels/fauxels

Although neither the Council of Europe nor the European Union have established detailed standards for transnational codes for minority protection, the two organisations are nevertheless key facilitators in the creation of transnational authorities that are relevant for the transnational dialogue in minority affairs. Since the beginning of the 1970s at the latest, cross-border cooperation between European regions has been a clear priority of the Council of Europe. It was not until 1980, however, that these endeavours bore fruit at the legal level in the form of the European Framework Convention on Cross-Border Cooperation of Territorial Communities and Authorities, which now has legal force in the majority of EU Member States. In the eyes of the Council of Europe’s Parliamentary Assembly, this established the basis for a “new doctrine” in international law. A closer inspection of the Convention, however, reveals that even in the 1980s there was little willingness on the part of the states to cede control in the field of cross-border cooperation. The Convention is basically a polite request to the states parties – accompanied by a number of sample agreements – to promote cross-border cooperation. The much more strongly worded protocol to the Framework Convention did not enter into force until the end of 1998. In that document the states go so far as to recognise an explicit right of territorial authorities to conclude agreements on cross-border cooperation with territorial authorities in other states. In addition, the signatory states agree that such agreements can be furnished with organs of their own (also with their own legal personality) and that measures taken by such organs have the same legal status as those taken by domestic territorial authorities. On the other hand, it must be conceded that the protocol has not entered into force in more than half of the EU Member States. Moreover, these activities in the framework of the Council of Europe have been superseded by more recent activities at the level of the European Union.

With its 2006 regulation on European Groupings for Territorial Cooperation (EGTC), the European Union has for the first time set supranational standards for reinforced cross-border cooperation and in doing so has freed transregional structures from the tutelage of diplomatic negotiation and the constraints of international law treaties and cast them in a supranational legal form that is valid throughout Europe. As a result, it is now possible to establish an EGTC in Europe that automatically enjoys practically the same legal capacity as is accorded to legal persons by their respective national laws. A transregional grouping does not have to wait for an international agreement to come into force in order to attain this legal status but rather acquires its legal personality on the day of registration and announcement of its legal domicile. The EU Member States only have the authority to forbid the establishment of an EGTC in cases where a legal norm has been violated. In spite of that, the EGTC is an asymmetrical instrument insofar as its activities must remain within the limits of the domestic mandates of each of its members (local, regional or other public authorities), and on no account may an EGTC exercise sovereign powers such as “police and regulatory powers, justice and foreign policy”. To date, only a small number of EGTCs have been created. One is now being established for the cross-border region Tyrol-South Tyrol-Trentino.

 

The bottom line: The emotional intelligence of the actors

From the recent history of neighbourhood conflicts triggered by questions of minority protection, it is hard to avoid the impression that structures and legal standards alone are not sufficient; another factor is the emotional intelligence and diplomacy of the actors. The scandal surrounding the 2001 Hungarian Status Law, with which the Hungarian Parliament afforded privileges on Hungarian territory to Hungarians living abroad as nationals of neighbour states is a case in point. Although the law addressed one or two points that were quite reasonable, the question remains whether the outbreak of tensions with Hungary’s neighbours could not have been largely avoided through grater empathy in Hungary’s foreign policy and intensive upstream consultations. The picture is similar on the Slovak side: The 2009 Slovak language law, which led to mass demonstrations of Hungarians living in Slovakia, Romania and in Hungary itself, seems to have been enacted under unfavourable conditions (→ Speaking of Languages). The OSCE’s High Commissioner on National Minorities pointed out that it would have been better to revise the Slovak language law together with the country’s minority protection law so as to prevent a number of misunderstandings from the start. Similarly, the Slovak government’s decision in August 2009 to refuse Hungary’s President László Sólyom entry to the border town of Komárno because of an alleged security risk can only be considered anachronistic in the age of the Single Market (Sólyom wanted to attend the unveiling of a monument to Stephen I, Hungary’s first king and patron saint). Mutual provocations can perhaps be avoided with the help of the recommendations made by the High Commissioner of the OSCE in October 2008 in the form of the Bolzano/Bozen Recommendations for transnational minority policy. Ultimately, of course, the climate between two states is also dependent on the sense of responsibility and professionalism shown by the main actors.

Two take aways: 

  1. For minorities, borders often have traumatic or at least negative associations. When borders are moved as in the case of South Tyrol following the 1st World War, populations may become minorities cut off from their parent state. Transnational ethnic groups like the Basques, on the other hand, have no parent state from which they have been separated, but their area of settlement is often dissected by national borders. The thinking behind European minority law is to prevent national borders becoming sealed cultural borders, causing minorities to lose their traditional contacts and their role as cultural mediators.
  1. The relevant provisions in the Framework Convention of the Council of Europe and in various bilateral agreements are very vague. But the process of European integration has greatly helped to deprive national borders within Europe of their power to divide. Freedom of movement, the abolition of border controls and the single currency have made national borders permeable, and that is a big advantage for minorities living on Europe’s national borders. In addition, both the Council of Europe and the EU have developed instruments to institutionalise transregional cooperation. In its 2008 Bolzano/Bozen Recommendations, the OSCE presented proposals for transnational minority protection. Ultimately, however, it depends on policy-makers and the actors concerned whether transregional cooperation can develop, and whether old divisions can be overcome in a spirit of harmony.
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