European Yearbook of Minority Issues: 2005-2006, Volume 5; Volumes 2005-2006

European Yearbook of Minority Issues

European Yearbook of Minority Issues General Editors

Arie Bloed Rainer Hofmann Joseph Marko James Mayall John Packer Marc Weller Managing Editors

Emma Lantschner Jonathan Wheatley Assistant Editors

Alice Engl Vladislav Michalcik Gabriel N. Toggenburg Matthew Ward

VOLUME 

European Yearbook of Minority Issues VOLUME , /

LEIDEN • BOSTON 2007

Printed on acid-free paper. A C.I.P. record for this book is available from the Library of Congress.

isbn: 978 90 04 16146 7 © 2007 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Hotei Publishers, idc Publishers, Martinus Nijhoff Publishers and vsp. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. printed and bound in the netherlands.

Table of Contents—2005/6 Issue

Foreword

ix

PART I: ARTICLES



A. General Articles Section



Resistance to Immigrants and Asylum Seekers in the European Union Marcel Coenders, Marcel Lubbers and Peer Scheepers Ethnic Minority Entrepreneurship, Diversity and Competitiveness David Smallbone





Social Inclusion and Ethnic Minorities. Building an Integrated Society: The United Kingdom Perspective Nick Johnson



The Latest Recommendations Endorsed by the HCNM on Ethnic Policing: A New Development in Relation to Minority Protection? Kristin Henrard



Complexities of Conflict Prevention and Resolution in the Post-Soviet Space: EU–US–Russian Security Dimensions Olga Kamenchuk



Sustainable Peace and Cooperation in Borderlands: The Danish–German Bonn–Copenhagen Declarations – Jørgen Kühl



B. Special Focus: The Concept of ‘Nation’ The Concept of ‘Nation’ Joseph Marko Cultural Nation versus Civic Nation: Which Concept for the Future Europe? A Critical Analysis of the Parliamentary Assembly’s Recommendation  () on “The Concept of ‘Nation’” Bogdan Aurescu

 



Table of Contents Deconstructing the ‘Nation’ for the st Century through a Critical Reading of the Parliamentary Assembly’s Recommendation  () Tove H. Malloy

C. Special Focus: The Balkan Region





The Balkan Minorities: Divided States, Peoples and Societies Dmitriy I. Polyvyannyy



Bosnia and Herzegovina: Ten Years After Dayton Dino Abazović



Constitutional Reform in Bosnia and Herzegovina - Joseph Marko



Independence without Standards? Kosovo’s Interethnic Relations Since  Joseph Marko Serbia: Minorities in a Reluctant State Florian Bieber





PART II: REPORTS



A. International Developments



vi

Frameworking: Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities Antti Korkeakivi



The Work of the Committee of Experts of the European Charter for Regional or Minority Languages ( June -June ) Vesna Crnić-Grotić



Highlights in the Case Law of the European Court of Human Rights Relevant to the Protection of Minorities ( June -June ) Viktor Soloveytchik



European Commission for Democracy through Law: Review of Recent Reports and Opinions Relevant to the Protection of National Minorities Alain Chablais and Pierre Garrone



The Activities of the OSCE High Commissioner on National Minorities ( July -June ) Krzysztof Drzewicki and Vincent de Graaf



Table of Contents The Use of Minority Languages in the Broadcast Media Sally Holt and John Packer The Minority Rights Activities of the UN Independent Expert on Minority Issues, UN Working Group on Minorities, and the Office of the High Commissioner for Human Rights ( July -June ) Graham Fox and Erik Friberg

B. National Developments







Positive Action and the Principle of Equality: Discussing a Decision of the Constitutional Court of the Slovak Republic Alexander Bröstl



What Has Happened to Our Model Child? The Creation and Evolution of the Hungarian Minority Act Balázs Majtényi



Legal Status of National Minorities in Poland: The Act on National and Ethnic Minorities as well as Regional Language Agnieszka Malicka and Karina Zabielska



The New Act on Autonomy of Catalonia Eduardo J. Ruiz Vieytez



Minority Issues in Belgium: A Brief Overview of Recent Developments Wouter Pas



Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine Kataryna Wolczuk

Appendix





vii

Foreword This is the fifth year of publication of the European Yearbook of Minority Issues. In this volume, the first special focus—after a series of topical general articles—is on the concept of the nation, following the adoption by the Parliamentary Assembly of the Council of Europe of Recommendation . The articles provide a critical appraisal of Recommendation  and its implications for the debate between the cultural or ethnic nation, on the one hand, and the civic nation, on the other. As Professor Joseph Marko explains in his introduction to the special focus section, the articles in this section bring “fresh food for thought into the perennial discussion on the relationship of the modern state and nation without already heralding a new ‘end of history’”. The second special focus deals with recent ethno-political developments in the Balkan region, specifically in the successor states of the former Yugoslavia, where the events of the s continue to cast a long shadow over attempts to create a new institutional order. The Yearbook continues its regular reports on international developments, namely within the Council of Europe, the Office of the OSCE High Commissioner on National Minorities and the relevant bodies of the UN System, as well as on national legal and political developments in various European countries. This European Yearbook has once again benefited from the practical experience and scholarly expertise of the Board of General Editors. However, this undertaking would not be possible without the dedication of the authors, whose contributions cover some of the most important developments in the field of minorities, both of a conceptual and of a practice-oriented nature. I also take this opportunity to express my sincere thanks to the editorial team of the Institute for Minority Rights at the European Academy Bozen/Bolzano and the European Centre for Minority Issues in Flensburg, Ms. Emma Lantschner, Ms. Alice Engl, Mr. Matthew Ward, Dr. Tove Malloy, Ms. Ewa Chylinski, Mr. Vladislav Michalcik and Dr. Jonathan Wheatley. I am particularly grateful to Dr. Malloy for all the hard work she has put into this and previous yearbooks in her former capacity as managing editor. Thanks also to our proofreaders Ms. Gill Colver and Mr. Matthew Isom. Finally, as always, a particular debt is owed to Ms. Lindy Melman of Martinus Nijhoff Publishers. Please note that unlike Volumes - of the Yearbook, which covered the second half of  and the first half of , Volume  will cover the second half of  and the full calendar year . It will appear in the summer of . Subsequent editions will cover calendar years. Marc Weller Director of the European Centre for Minority Issues ECMI

Part I Articles

A GENERAL ARTICLES SECTION

Marcel Coenders, Marcel Lubbers and Peer Scheepers*

Resistance to Immigrants and Asylum Seekers in the European Union

In this contribution, we focus on the present resistance to immigrants and asylum seekers in European Union countries. We take advantage of recent, high-quality, cross-national data, which provide the means to perform rigorous tests using advanced statistical methods on hypotheses from previously accumulated theoretical propositions. These tests reveal large differences between countries, which are not well explained by the various economic and demographic characteristics of these countries. Among such characteristics, only GDP was significantly related to resistance to immigrants: the lower the GDP per capita, the stronger the resistance to immigrants. We also found that resistance to immigrants and asylum seekers prevails strongly among underprivileged people and self-employed people. Moreover, we found strong resistance to immigrants and asylum seekers among distrustful people, people overestimating the presence of out-groups in their country and people perceiving migrants to pose a threat. I. Introduction and Questions The influx and presence of migrants in European countries have become major political issues causing much controversy. European countries had not actually developed immigration policies when they were faced, beginning in the s, with growing numbers of immigrants who knocked on the doors of West European states for work or reunification of families. Significant growth in immigration sparked public debates on immigration policies that continue in the present,1 indicating resistance to immigrants. When, in the s and particularly in the s, growing numbers of asylum seekers from all

*

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Marcel Coenders is Assistant Professor at the Department of Social Science Research Methodology of the Radboud University, Nijmegen. Marcel Lubbers is Assistant Professor at the Department of Sociology of the same university. Peer Scheepers is Professor at the Department of Social Science Research Methodology of the same university Thomas Pettigrew, “Reactions Toward the New Minorities of Western Europe”,  Annual Review of Sociology (), –.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 5-34. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Marcel Coenders, Marcel Lubbers and Peer Scheepers around the world also found their way to European states, a related debate came to the fore, implying resistance to asylum seekers. European policy makers have come to realize that immigrants and asylum seekers are not temporary problems but rather, persistent issues they have to face and deal with. However, European politicians have failed to reach consensus on effective policies across the European Union, agreeing on EU joint migration policies that are set to begin only in . Immigrants and asylum seekers also feature high on the public agendas of their host societies. The influx and presence of migrants and asylum seekers have become major public issues, causing much controversial resistance to these immigrants and asylum seekers, while also increasing the likelihood of votes being cast for extreme right-wing parties across Europe.2 These so-called ethnic racial attitudes have been largely absent in studies of the US, at least in the grand overviews compiled by Schuman et al.3 Exceptions in this regard are the studies by Espenshade and Hempstead,4 and Hood and Morris.5 More recently, Fetzer has compared two European countries with the US.6 In Europe, on the other hand, large-scale, cross-cultural comparisons regarding resistance to immigrants and asylum seekers have become possible only recently. This, in turn, now allows us to discover the relationships between national demographic and economic conditions, on the one hand, and public resistance to immigrants and asylum seekers, on the other. The crucial question, then, is to what extent does resistance to immigrants and asylum seekers actually prevail in the general publics of societies of the European Union? More precisely, to what extent do the general publics of different countries vary in their resistance to immigrants and asylum seekers? A second, related question is more specific: which particular social characteristics determine public resistance to immigrants and asylum seekers and, moreover, are there specific determinants of resistance to immigrants versus resistance to asylum seekers? Third, we would like to take into account the very different national contexts of these countries, which differ not only with regard to the influx of migrants but also in regard to economic conditions, in order to address the question as to the extent to which particular national characteristics affect resistance to immigrants and asylum seekers.

 

  

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Marcel Lubbers, Merove Gijsberts and Peer Scheepers, “Extreme Right-wing Voting in Western Europe”, () EJPR (), –. Howard Schuman, Charlotte Steeh and Lawrence Bobo, Racial Attitudes in America, Trends and Interpretations (Harvard University Press, Cambridge, MA, ); and Howard Schuman, Charlotte Steeh, Lawrence Bobo and Maria Krysan, Racial Attitudes in America, Trends and Interpretations (Harvard University Press, Cambridge, MA, rev. ed. ). Thomas Espenshade and Katherine Hempstead, “Contemporary American Attitudes Toward U.S. Immigration”,  International Migration Review (), –. Marvin Hood and Irwin Morris, “Amigo o Enemigo? Context, Attitudes, and Anglo Public Opinion Toward Immigration”,  Social Science Quarterly (), –. Joel Fetzer, Public Attitudes Toward Immigration in the United States, France and Germany (Cambridge University Press, Cambridge, ).

Resistance to Immigrants and Asylum Seekers in the European Union II. General Theories on Resistance to Immigrants and Asylum Seekers We regard resistance to immigrants and asylum seekers as dimensions of ‘ethnic exclusionism’, a more general term that encapsulates a multitude of racial attitudes on phenomena ranging from various types of prejudice,7 avoiding social contact with ethnic out-groups,8 rejection of principles and implementation of equal treatment,9 to actual support for discrimination of out-groups.10 Therefore, we use theoretical knowledge previously accumulated in studies on ethnic exclusionism to derive hypotheses for explaining cross-national and inter-individual differences in resistance to immigrants and asylum seekers in order to answer the above questions. In previous publications, two complementary paradigms—‘realistic conflict theory’ and ‘social identity theory’—were explored. Central to realistic conflict theory is the proposition that competition over scarce resources between groups is considered the catalyst of antagonistic intergroup attitudes; this has been underlined by two quite different traditions, both dating back to the s. Social psychological experiments have shown that competition between groups improves solidarity within a specific group and increases hostility between groups.11 Sociologists have focused on the societal causes of group conflicts as well as on the societal conditions under which these conflicts arise. Coser claimed that each social system is characterized by competition over scarce resources (material resources, power and status) between social groups, such as ethnic groups.12 Blumer added that the dominant group has a sense of claims on these scarce resources over subordinate groups.13 In this theoretical tradition, Blalock made an analytical distinction between, on the one hand, ‘actual competition’ and, on the other hand, ‘perceived competition’.14 Blalock used ‘actual competition’ to refer to macro- or meso-level socioeconomic conditions, such 

  

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James Jones, Prejudice and Racism (McGraw-Hill, New York, ); Thomas Pettigrew and Roel Meertens, “Subtle and Blatant Prejudice in Western Europe”,  European Journal of Social Psychology (), –; Marcel Coenders, Peer Scheepers, Paul Sniderman and Genevieve Verberk, “Blatant and Subtle Prejudice: Distinct Dimensions, Different Determinants, Different Consequences? Some Comments on Meertens and Pettigrew”,  The European Journal of Social Psychology (), –; Genevieve Verberk, Peer Scheepers and Albert Felling, “Attitudes and Behavioral Intentions Towards Ethnic Minorities: an Empirical Test of Several Theoretical Explanations for the Dutch Case”,  JEMS (), –. Louk Hagendoorn, “Intergroup Biases in Multiple Group Systems: The Perception of Ethnic Hierarchies”,  European Review of Social Psychology (), –. See, for example, Schuman, Steeh, Bobo and Krysan, op.cit. note . Marcel Coenders and Peer Scheepers, “Support for Ethnic Discrimination in the Netherlands –: Effects of Period, Cohort and Individual Differences”,  European Sociological Review (), –. Muzafer Sherif and Carolyn Sherif, Social Psychology (Harper & Row, New York, ); and id., “Research on Intergroup Relations”, in William Austin and Stephen Worchel (eds.), The Social Psychology of Intergroup Relations (Brooks/Cole, Monterrey, ). Lewis Coser, The Functions of Social Conflict (The Free Press, Glencoe, ). Herbert Blumer, “Race Prejudice as a Sense of Group Position”,  Pacific Sociological Review (), –. Hubert Blalock, Toward a Theory of Minority Group Relations ( John Wiley and Sons, New York, ).



Marcel Coenders, Marcel Lubbers and Peer Scheepers as the availability of scarce resources. Moreover, he suggested that actual competition may also refer to a micro level, i.e., competition between individuals from different ethnic groups that hold similar social positions, such as those who work in similar niches of the labour market, as was elaborated by Olzak.15 Blalock proposed that these actual competitive conditions might affect the majorities’ perceptions of competition, i.e., a subjectively perceived socioeconomic threat on the part of ethnic out-groups, which, in turn, may induce hostile, unfavorable stances toward these out-groups. This argument was explained in a similar fashion by Bobo,16 building on Blumer,17 who proposed a relationship between ‘external threat’ and ‘perceived threat’ to explain opposition to racial policies. This line of theorizing started from the bedrock assumption, explicated by Bobo, that dominant group members distinguish themselves as group members from other subordinate out-groups.18 This distinction is linked to the presumed traits of both the in-group and the out-groups. The latter proposition has been substantiated by a second paradigm, social identity theory,19 according to which individuals have the fundamental need to achieve a positive social identity, which induces them to perceive their in-group as superior to ethnic out-groups. Subsequently, they apply favourable characteristics that they perceive among members of the in-group to themselves via mental processes labelled as social identification while valuing out-groups negatively via mechanisms of social contra-identification. It is obvious that these mechanisms may have their effects, even in the actual absence of ethnic out-groups, and therefore may explain the prevalence of anti-Semitism without the presence of Jews in the population, as a consequence of the social contexts of majority peoples.20 We propose that these identification processes may intensify under the competitive conditions on which realistic conflict theory focuses. Therefore, we consider social identity theory to be complementary to propositions from realistic conflict theory.21  

  

 

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Susan Olzak, The Dynamics of Ethnic Competition and Conflict (Stanford University Press, Stanford, ). Lawrence Bobo, “Group Conflict, Prejudice, and the Paradox of Contemporary Racial Attitudes”, in Phillis Katz and Dalmas Taylor (eds.), Eliminating Racism. Profiles in Controversy (Plenum Press, New York, ), –; and id., “Prejudice as Group Position: Microfoundations of a Sociological Approach to Racism and Race Relations”,  Journal of Social Issues (), –. Blumer, op.cit. note . Bobo, op.cit. note . Henri Tajfel and John Turner, “An Integrative Theory of Intergroup Conflict”, in Austin and Worchel, op.cit. note ; Henri Tajfel, Human Groups and Social Categories, Studies in Social Psychology (Cambridge University Press, Cambridge, ); id., “Social Psychology of Intergroup Relations”,  Annual Review of Psychology (), –; and Rupert Brown, Prejudice. Its Social Psychology (Blackwell, Oxford, ). Tajfel, op.cit. note . This elaboration is considered to be odd by some but is underlined by others. For the former position, see Harold Forbes, Ethnic Conflict, Commerce, Culture and the Contact Hypothesis (Yale University Press, New Haven, London, ). For the latter position, see Brown, op.cit. note ; and Jones, op.cit. note . In the early s, it was found that some level of in-group favouritism exists even in minimal (experimental) conditions, i.e., in conditions of ‘random’ social categorization. See Tajfel, op.cit. note .This implies that there is some level of in-

Resistance to Immigrants and Asylum Seekers in the European Union Accordingly, we propose to refer to the synthesis of realistic conflict theory and social identity theory as ‘ethnic group conflict theory’. This synthesis can be summarized in a single core proposition: intergroup competition, at an individual as well as at a contextual level, may reinforce the mechanisms of social identification and contra-identification, eventually resulting in ethnic exclusionism. At the contextual level, competition refers to macro-social conditions. At the individual level, competition may be specified in terms of the social conditions of the individual members of ethnic groups. Individual level competition may also be specified in terms of the perceived threat of competition, which, we propose, mediates the effects of social conditions on ethnic exclusionism. This specification implies a more fully elaborated theoretical model.22 A. From General Theories to Testable Hypotheses 1. Social Position and Religion We use ethnic group conflict theory to derive hypotheses with regard to the effects of individual characteristics on resistance to immigrants and asylum seekers. We propose that the level of ethnic competition can be expected to vary between social categories. Those social categories that hold similar social positions to ethnic minorities, i.e., all non-majority groups residing in the country23 or those social categories that live close to ethnic enclaves,24 in particular, may experience higher levels of ethnic competition than average and may therefore display more widespread resistance to immigrants and asylum seekers. In many European countries, the overwhelming majority of non-autochthonous residents, immigrants and asylum seekers are located in the lower strata of society and are also very often concentrated in urban areas.25 This implies that lowerstrata members of the European majority population who hold social positions comparable to those of ethnic minorities—that is, those with a low level of education26 or a low

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group favouritism, even without any actual or perceived competitive conditions. Realistic conflict theory states that actual competition between ethnic groups may reinforce both in-group favouritism and out-group hostility or ethnocentrism. See Peer Scheepers, Merove Gijsberts and Marcel Coenders, “Ethnic Exclusionism in European Countries, Public Opposition to Civil Rights for Legal Migrants as a Response to Perceived Ethnic Threat”,  European Sociological Review (), –. See Blalock, op.cit. note ; Olzak, op.cit. note ; Robert Simon and Simon Alexander, The Ambivalent Welcome: Print Media, Public Opinion and Immigration (Praeger, Westport, ); and Fetzer, op.cit. note . See Hood and Irin Morris, op.cit. note . Martin Kiehl and Herbert Werner, The Labour Market Situation of the EU and of Third Country Nationals in the European Union (Institut für Arbeitsmarkt- und Berufsforschung der Bundesanastalt für Arbeit, Nurnberg, ). Several distinct mechanisms, other than the one we propose, might be responsible for the relation between low level of education and ethnic exclusionism. For an overview, see Paul Vogt, Tolerance and Education (Sage, Thousand Oaks, London, New Delhi, ); Evelyn Hello, Merove Gijsberts and Peer Scheepers, “Education and Ethnic Exclusionism in European Countries, Explanations for Differential Effects of Education Tested”,  Scandinavian Journal of Educational Research (), –; and Marcel Coenders and Peer Scheepers, “The Effect of Education on Nationalism and Ethnic Exclusionism, an International

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Marcel Coenders, Marcel Lubbers and Peer Scheepers income level, those performing manual labour, those who are unemployed or those who live in urban areas—will have to compete more with immigrants in, for instance, the labour market. These actual competitive conditions might reinforce the process of social identification and contra-identification, which may induce more widespread resistance to immigrants and asylum seekers, particularly among the social categories mentioned above. Hence, we expect that: Hypothesis : resistance to immigrants and asylum seekers will be strongly prevalent among social categories of the dominant group in similar social positions as ethnic out-groups, more particularly among (a) people with a low level of education; (b) manual workers; (c) unemployed people; (d) people with low income; and (e) people living in urban areas.

Since we suspect that the general public may consider the differences between immigrants and asylum seekers in regard to their motives in coming to their country, the latter category may be treated with somewhat more compassion. Hence, we suspect that differences in resistance to asylum seekers may be less pronounced than differences in resistance to immigrants. From quite a different perspective, evidence has been provided that religious people were rather prejudiced compared to non-religious people.27 We would like to take these empirical findings fully into account but we are restricted by the data available on how people practise their religion,28 which includes, among other aspects, people’s current church attendance. Researchers found rather strong indications that the nature of this relationship was curvilinear: non-attenders and frequent attenders are supposed to be less prejudiced than infrequent to moderately frequent church attenders.29 However, in previous research that covered  European countries, a simple linear relationship was found: the more frequently people attend church, the more exclusionism they display.30 Considering the teachings of religions around the world (e.g., to love thy neighbour), we propose that there may be differential effects of church attendance: frequently attending people may want to help and welcome people in need, i.e., asylum seekers, while resisting immigrants in general. Therefore, we expect that: Hypothesis : church attendance is (a) negatively related to resistance to asylum seekers; and (b) positively related to resistance to immigrants.

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Comparison”,  Political Psychology (), –. However, the focus is not on these mechanisms as such. Richard Gorsuch and Donald Aleshire, “Christian Faith and Ethnic Prejudice, A Review and Interpretation of Research”,  Journal for the Scientific Study of Religion (), –; and Ralf Hood, Bernard Spilka, Bruce Hunsberger and Richard Gorsuch, The Psychology of Religion, an Empirical Approach (The Guilford Press, New York, London, nd ed. ). See Rodney Stark and Charles Glock, American Piety, Patterns of Religious Commitment (University of California Press, Berkeley, Los Angeles, ). Gorsuch and Aleshire, op.cit. note . Peer Scheepers, Merove Gijsberts and Evelyn Hello, “Religiosity and Prejudice in Europe; Test of a Controversial Relationship”,  Review of Religious Research (), –.

Resistance to Immigrants and Asylum Seekers in the European Union 2. Contextual Conditions Ethnic group conflict theory offers a coherent explanation concerning the effects of societal circumstances on exclusionist reactions that can now be rigorously tested across countries that may be quite different in terms of contextual conditions, both historical and contemporary, such as the (former) candidate countries for the EU. The deduction that follows from the theory is that ethnic exclusionism varies with the level of actual competition within countries. We propose that the level of actual competition may be related to conditions where there are: (a) increasing numbers of people competing for, ceteris paribus, approximately the same amount of scarce resources; or (b) stable numbers of people competing for a decreasing amount of scarce resources. These conditions all imply, ceteris paribus, a stronger competition for scarce resources between the dominant group and ethnic out-groups.31 Following this rationale, also suggested by Fossett and Kiecolt, Olzak, Quillian, and Coenders and Scheepers,32 we propose that: 



It would have been appropriate to test whether the presence and content of (restrictive) immigration policies that may possibly be related to the level of actual competition would affect resistance to immigrants and asylum seekers. However, it is difficult, if not impossible, to obtain the cross-national empirical evidence to compare so many countries in this respect. This evidence substantially refers to extensive documents regarding official policies (and practices) on immigrants and asylum seekers. These documents are, by their nature, incomparable and require quite substantial scientific efforts to make them comparable on different dimensions of immigration policies. Previous efforts deliver information (merely) on a rather small number of countries: for a typological description of some European countries, see Stephen Castles, “How Nation-states Respond to Immigration and Ethnic Diversity,”  New Community (), –; for the United States, Canada, Australia, Japan, France, Britain and Germany, see John Lynch and Robert Simon, Immigration the World Over. Statuses, Policies, and Practices (Rowman & Littlefield, Lanham, Boulder, New York, Oxford, ); and for the United States, Britain, the Netherlands and Germany, see Ellen Meyers, The Political Economy of International Immigration Policy, a Comparative and Quantitative Study (University of Chicago, Chicago, ); and id., International Immigration Policy, a Theoretical and Comparative Analysis (Palgrave Macmillan, New York, ). Moreover, Money considers these efforts invalid because they fail to take into account the differences in levels of openness across countries. See Jenny Money, Fences and Neighbors, the Political Geography of Immigration Control (Cornell University Press, Ithaca, New York, ). The evidence available and comparable at some point in time would also have to consider the changes in such policies that take place over time—changes that may actually be quite severe. The report on this issue by the United Nations does not fill this gap in our knowledge on immigration policies, either: no efforts to show its validity or reliability are made; no distinctions are made between policies towards different categories of migrants; nor is the level of openness considered. See United Nations Population Division, International Migration Report  … Similar or even more severe problems pertain in regard to the empirical cross-national data for testing hypotheses on contextual conditions, for that matter, and may affect explanations on cultural and historical differences between countries. These types of substantial methodological problems make researchers who are interested in testing well-elaborated theoretical frameworks instead of somewhat particularistic explanations based on a restricted number of countries very cautious about including such rationales on contextual conditions. Mark Fossett and Jill Kiecolt, “The Relative Size of Minority Populations and White Racial Attitudes”,  Social Science Quarterly (), –; Olzak, op.cit. note ; Lincoln Quil-



Marcel Coenders, Marcel Lubbers and Peer Scheepers Hypothesis : resistance to immigrants and asylum seekers will be stronger in countries where the actual level of ethnic competition is relatively high, more particularly in contextual conditions of (a) a relatively high proportion of resident migrants; (b) a relatively high level of immigration; (c) a relatively high number of asylum seekers; and (d) a high level of unemployment.33

The actual level of available resources may be indicated by gross domestic product and therefore we propose to test that: Resistance to immigrants and asylum seekers may be high in contextual conditions where (e) the GDP is relatively low.

3. Individual Perceptions The distinction between actual and perceived competition that follows from Blalock34 has often been recognized in mere theoretical terms.35 In operational terms, however, this crucial theoretical proposition is often neglected, although there are some excep-



 



lian, “Prejudice as a Response to Perceived Group Threat, Population Composition and Anti-immigrant and Racial Prejudice in Europe”,  American Sociological Review (), –; and Coenders and Scheepers, op.cit. note . Moreover, a number of other actual contextual conditions that might possibly be related to perceived ethnic threat could be spelled out. We refer to contextual conditions at the mesolevel, as elaborated by Susan Olzak, or to other contextual conditions indicating actual competition but not necessarily related to socioeconomic conditions, such as changes in political power or changes in the dominant values. See Olzak, op.cit. note . However, since we have become aware of the lack of cross-national comparable data on many of these relevant conditions, we will not go into this line of reasoning. Complementary hypotheses on ethnic exclusionism have been suggested from quite a different angle. Thraenhardt argues that particularly conservative governments or, more generally, conservative politicians have paved the way for more widespread ethnic exclusionism. That is why these politicians have approved of restrictions on immigration and citizenship for ethnic minorities. See David Thraenhardt, Europe, a New Immigration Continent (Lit Verlag, Munster, ). However, testing whether exposure to particular governments increases ethnic exclusionism requires rather specific measures of knowledge of governmental policies that are unfortunately not available or rather general measures of exposure to these governmental policies (such as the percentage of conservatives in government or in any other democratic institution), which is only valid on the quite crude assumption that all the inhabitants of a country have been exposed to this political context equally. Blalock, op.cit. note . See Stephen Castles and Gerald Kosack, Immigrant Workers and the Class Structure in Western Europe (Oxford University Press, Oxford, ); David Kinder and Donald Sears, “Prejudice and Politics, Symbolic Racism versus Racial Threats to the Good Life”,  Journal of Personality and Social Psychology (), –; Louk Hagendoorn and Jacques Janssen, Rechtsomkeer [Turn right] (Ambo, Baarn, ); and Christa Krauth and Rolf Porst, “Soziooekonomischen Determinanten von Einstellungen zu Gastarbeitern”, in Karl Mayer and Peter Schmidt (eds.), Algemeine Bevoelkerungsumfrage der Sozialwissenschafte (Campus, Frankfurt, New York, ).

Resistance to Immigrants and Asylum Seekers in the European Union tions.36 Quillian explicitly proposes to regard racial prejudice as a response to perceived group threat.37 Then, however, he proposes the latter determinant to be indirectly measured in terms of factors related to actual competition, such as the relative size of the subordinate group relative to the dominant group or a precarious economic situation,38 because he emphasizes that “surveys to date have not asked questions to measure perceived threat from other racial groups” as an intervening variable.39 This consequently implies that a crucial part of ethnic group conflict theory—perceptions of the relative size of out-groups as well as perceptions of collective ethnic threat—has not often been tested to date. These views may be complemented by the work by other theorists who have derived complementary hypotheses from general propositions of realistic conflict theory. In particular, symbolic racism researchers40 have opted for a rather narrow definition of conflicting ethnic interests: ethnic threat refers to real and tangible threats that ethnic out-group members pose to dominant group members’ personal lives, i.e., to their short-term interests. Consequently, these theorists have conceptualized conflicting interests as a tangible personal risk.41 Building on the earlier work in this area, we will include perceived threats to personal interests as opposed to collective interests. The corresponding hypotheses are that: Hypothesis : resistance to immigrants and asylum seekers will be affected by: (a) perceptions of the relative size of ethnic out-groups; (b) perceptions of collective ethnic threat; and (c) perceptions of personal threat.

The latter determinants may relate to perceptions of financial troubles as well as to a lack of personal safety. More generally, we will include related determinants on political distrust and more general social distrust, as previously suggested by Espenshade and Hempstead.42 Sniderman et al. provided empirical evidence for the relevance of the latter determinants, based on the idea that people who do not trust their political lead-



   

 

See Fossett and Kiecolt, op.cit. note ; Mary Taylor, “How White Attitudes Vary with the Racial Composition of Local Populations, Numbers Count”,  American Sociological Review (), –; Fetzer, op.cit. note ; Scheepers, Gijsberts and Coenders, op.cit. note . Quillian, op.cit. note ; and id., “Group Threat and Regional Change in Attitudes towards African-Americans”,  American Journal of Sociology (), –. Quillian, op.cit. note , at ; and id., op.cit. note , at . Quillian, op.cit. note , at . Kinder and Sears, op.cit. note ; David Sears and Donald Kinder, “Whites’ Opposition to Busing: On Conceptualizing and Operationalizing Group Conflict”,  Journal of Personality and Social Psychology (), –; and David Sears, “Symbolic Racism”, in Katz and Taylor, op.cit. note , –. Bobo, op.cit. note . Thomas Espenshade and Katherine Hempstead, “Contemporary American Attitudes toward US Immigration”,  International Migration Review (), –.



Marcel Coenders, Marcel Lubbers and Peer Scheepers ers or, more generally, members of their in-group, will surely be prone to resistance to out-groups.43 Therefore, we propose also to test the hypotheses that: (d) resistance to immigrants and asylum seekers will be affected by political and social distrust.

B. Data Data were derived from the European Social Survey (ESS) /.44 The ESS project is funded by the European Commission’s th Framework Programme, the European Science Foundation and academic funding bodies in participating countries. The ESS team emphasizes the exceptionally high standards of the design and of the operation of the project. We selected those countries that were either members of or candidates for membership in the EU, with the exception of France, for which the data were not available in time.45 With regard to the candidate countries, we had access to data from Poland, the Czech Republic, Hungary and Slovenia. For an extensive data description and sampling procedure, one should refer to the ESS data documentation.46 It is important to emphasize that much attention has been paid to the formulation of the questions in the interviews. Scientific meetings were held to evaluate possible items to be included in the survey. Moreover, rigorous translation protocols were used. Respondent selection involved a strict random probability sampling. In all countries, face-to-face interviews were conducted. The response target aimed at was very high. Indeed, in quite a number of countries, the response rate was higher than often reported in previous data collections, but the % target was not met in most countries.47 Detailed information on countryspecific stratification of samples can be found in the country reports, as provided by the ESS team in the ESS Documentation Report /. The samples were weighted by differences in probabilities of selection in the sample. Moreover, we constructed a weight to adjust to a standard size of , interviews for each sample ( for Luxembourg). Finally, we decided to select only those respondents with the nationality of the respective country.48 For an extensive description of the measures, at the individual as well as at the national level, please refer to Appendix , which contains the details.

   

 



Paul Sniderman, Pierangelo Peri, Robert De Figueiredo and Thomas Piazza, The Outsider, Prejudice and Politics in Italy (Princeton University Press, Princeton, ). European Social Survey, “ESS Data File, Version .”, at . Data on Israel, Norway and Switzerland were dropped from the data set due to the fact that they are not EU members. European Social Survey, “ESS Survey Documentation and Fieldwork Documents”, at ; Roger Jowell and Members of the Central Coordinating Team, European Social Survey: Technical Report (Centre for Comparative Social Surveys, City University, London). See Appendix . See Appendix .

Resistance to Immigrants and Asylum Seekers in the European Union C. Multi-level Analyses In line with our hypotheses, we estimated multi-level models after centring all independent variables49 for both measurements of exclusionism. First, we evaluated the fit of the successive models in terms of decreases in the log-likelihood statistic. The first model, containing random variation at the level of countries, was compared to a so-called null model, with merely random variation at the individual level. This comparison provided evidence for strong and significant differences between the countries under consideration. Next, we estimated a model containing the individual characteristics referred to in Hypotheses  and . A comparison of this model with the previously estimated model showed that there are also significant differences between social categories. However, adding in the next model country characteristics referred to in Hypothesis  did not significantly improve the fit of the model for either dependent variable. However, taking into account the intermediate characteristics referred to in Hypothesis  improved the fit of the model, even more strongly than had previous determinants related to individual and national conditions. D. Results 1. Differences between Countries To answer our first question—to what extent resistance towards immigrants and asylum seekers is prevalent within the societies of the European Union—we calculated the average degree of resistance towards immigrants and asylum seekers for each country. The results of these calculations are presented in Figures  and . With regard to resistance to immigrants (Figure ), we found a number of countries in which this phenomenon is far more widespread than the European average (grand mean): resistance to immigrants is highest in Greece and Hungary, and relatively high also in Portugal. In other countries, this type of resistance is somewhat above the grand mean of all the countries together: in Finland, Great Britain, Luxembourg and Austria. Other countries are (well) below the grand mean: one Nordic country (Sweden), some Western European countries (Ireland and the former West Germany), some of the Mediterranean countries (Spain and Italy), as well as one country in Eastern Europe (Poland). We found similar variation in resistance to asylum seekers (Figure ). Resistance of this type is more widespread than average in some Western European countries (such as Great Britain, Belgium and the Netherlands), as well as in some Eastern European countries (such as the former East Germany, Hungary and Slovenia). Support for the strict treatment of asylum seekers is far less widespread in the Nordic countries (Finland, Sweden and Denmark), as well as in Luxembourg, Spain and Poland.



See Tom Snijders and Roel Bosker, Multilevel Analysis (Sage, London, ).



Marcel Coenders, Marcel Lubbers and Peer Scheepers Figure 1: Mean Country Scores on Resistance to Immigrants 1 0.8

EU GRAND MEAN .50

0.6 0.4 0.2

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PT

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E

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W

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SE

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0

Figure 2: Mean Country Scores on Resistance to Asylum Seekers 1 0.8

EU GRAND MEAN .44

0.6 0.4 0.2

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2. Resistance to Immigrants: Multivariate Multi-level Analyses The results of the multivariate multi-level analyses of resistance towards immigrants are presented in Table . The parameters of Model  show that the effect of educational attainment reaches significance: the higher the level of people’s education, the less they resist immigrants. In addition to being consistent with previous work,50 this finding supports our Hypothesis a. Our Hypotheses b and c are corroborated by the finding that most of the differences between occupational categories as compared to the reference category—i.e., higher professionals—are significant: people performing skilled and unskilled manual work and those dependent on social security (i.e., the unemployed) are more resistant to immigrants. On the other hand, people who have been unemployed do not turn out to differ from those who have never been unemployed. An unexpected result was our finding that those running a household and the selfemployed resist immigrants more strongly than do higher professionals. Also worth men



See Vogt, op.cit. note .

Resistance to Immigrants and Asylum Seekers in the European Union tioning is the finding that routine non-manual labourers differ significantly from higher professionals in their resistance to immigrants. The effect of income is negative: the lower people’s household income, the more they resist immigrants. This corroborates our Hypothesis d. In terms of urbanization, our finding that people living in more urbanized parts of the country resist immigrants less strongly than people living in the countryside is at odds with our Hypothesis e. Resistance to immigrants prevails more strongly among the elderly. We find no significant differences between categories of religious service attendance and gender, with the former finding disconfirming our Hypothesis b. Table 1: Unstandardized Parameter Estimates from Multi-level Models on Resistance to Immigrants. Intercept Individual characteristics Education (in years) Occupation: (higher prof. = ref.) Lower professionals Routine non-manuals Self-employed people Skilled manuals Unskilled manuals Students Unemployed people Retired people Housewives Others not working Income Been unemployed (no = ref.) Age Gender: Male (female = ref.) Urbanization: (countryside = ref.) Country village Town or small city Suburbs or outskirts of big city Big city

Model  . (.)

Model  . (.)

Model  . (.)

-. (.)

-. (.)

-. (.)

. (.) . (.)

-. (.) . (.) . (.) . (.) . (.) -. (.) . (.) . (.) . (.) . (.)

. (.) . (.) . (.) . (.) -. (.) . (.) . (.) . (.) . (.)

. (.) . (.) . (.) . (.) -. (.) . (.) . (.) . (.) . (.)

-. -. (.) (.) . (.) . (.) .- .- (.) (.) . (.) . (.) -. -. (.) (.) -. -. (.) (.) -. -. (.) (.) -. (.) -. (.)

Model  Model  Model  . (.) . (.) . (.) -. (.)

-. (.)

-. (.) . (.) . (.) . (.) . (.) -. (.) . (.) . (.) . (.) -. (.) -. -. (.) (.) . (.) -. (.) .- . (.) (.) . (.) . (.)

-. (.) . (.) . (.) . (.) . (.) -. (.) . (.) . (.) . (.) -. (.) -. (.) . (.)

-. (.) -. (.) -. (.) -. (.)

-. (.) -. (.) -. (.) -. (.)

. (.) . (.) -. (.) -. (.) -. (.) -. (.)



Marcel Coenders, Marcel Lubbers and Peer Scheepers Church attendance: (never = ref.) Attendance rarely Attendance once a month

. (.) . (.) . (.) . (.) . (.) -. -. -. -. -. (.) (.) (.) (.) (.) -. -. -. -. -. (.) (.) (.) (.) (.)

Attendance frequently Contextual characteristics Non-Western nonnationals:  Net migration: – Asylum applications: –

. (.) . (.) . (.) . (.) . (.) -. (.) -. (.) -. (.)

Unemployment:  GDP:  Intermediate characteristics Estimation % foreign-born (correct = ref.) Underestimation (>%) Small overestimation (–%) Overestimation (–%) Strong overestimation (>%) Cannot estimate it More immigrants than other countries Dissatisfied with national economy Difficulty living on own income Perceived unsafety Social distrust Political distrust Left–right placement Perceived ethnic threat Variance components Individual (Percentage explained) Country (Percentage explained)

. (.) -. (.) -. (.) -. (.)

. (.) . (.) -. -. (.) (.) -. -. (.) (.) -. -. (.) (.)

-. (.) . (.) . (.) . (.) . (.) . (.)

-. (.) . (.) . (.) . (.) . (.) . (.)

-. (.) . (.) . (.) . (.) . (.) . (.)

. (.)

-. (.) . (.) . (.) . (.) . (.) . (.) . (.)

. (.) . (.) . (.) . (.) . (.)

. .

. (.) . (.)

. (.) . (.)

. (.) . (.)

. (.) . (.)

. (.) . (.)

Note: Bold parameters indicate significance at p < ., italic parameters indicate significance at p < .. Standard errors in brackets (N=,).

Regarding the effects of country characteristics, presented in Model , we find that the effect of GDP reaches significance, corroborating our Hypothesis e: the higher the country’s GDP, the lower the resistance to immigrants. The effect of unemployment is 

Resistance to Immigrants and Asylum Seekers in the European Union significant, too (p < .), but in a direction which is at odds with our Hypothesis d: the higher the country’s unemployment level, the lower the resistance to immigrants. The other country characteristics do not reach significance and therefore we have to reject these hypotheses. Here, it is nonetheless worth mentioning that the effect of the presence of non-Western non-nationals and the effect of net migration are in the direction that we proposed, whereas the effect of asylum applications is in the opposite direction to that described in our hypotheses. The inclusion of a number of intermediate characteristics in Models ,  and  contributes quite strongly to the explained variance at the individual as well as at the contextual level. We find that nearly all intermediate determinants contribute significantly and in accordance with our hypotheses to explaining resistance to immigrants. The more people overestimate the presence of foreign-born persons in the country, the more resistance they show to immigrants. This also holds for the people who actually answer that they cannot estimate the numbers of foreign-born persons. Furthermore, those who perceive more immigrants coming to their country than to other countries also show stronger resistance to immigrants. Only dissatisfaction with the national economy was not significantly related to resistance to immigrants in Model . People who experience difficulties in living on their household income also show more resistance to immigrants but the effect is no longer significant when we controlled for perceived ethnic threat. Moreover, we find that either the more people’s political orientation is on the right wing of the political spectrum, the more they perceive that they are unsafe, the more they distrust other people, the more they distrust political leaders or the more they perceive immigrants as a collective threat, the more they resist immigrants. These findings corroborate our hypotheses. When we compare the parameters of Model  with those of Models ,  and , we see that the intermediate characteristics included in Models ,  and  reduce the effects of educational attainment and income previously shown in Model . Moreover, the intermediate characteristics reduce differences between occupational and residential categories, with some differences (for example, that between unemployed people and higher professionals) even reduced to non-significance (compare these parameters in Models  and ). We also found that the effects of GDP and unemployment were reduced to non-significance (compare Models  and ). The latter findings all imply that these intermediate characteristics actually explain, at least to some extent, why people in non-privileged positions (in terms of education, occupation and income) or people in the countryside exhibit relatively strong resistance to immigrants: while distrust and perceptions of danger both play a role, the perception of collective ethnic threat stands out as the most important determinant of this type of resistance.51 3. Resistance to Asylum Seekers: Multivariate Multi-level Analyses In Model  of Table  we find that the effect of educational attainment on resistance to asylum seekers is negative. This finding is comparable to the finding explaining 

This information cannot be derived from the parameters in the table. Strictly speaking, we would have to present so-called standardized parameters, which would be detrimental to the surveyability of the table. Nonetheless, information on these standardized parameters that would justify such statements is available from the authors.



Marcel Coenders, Marcel Lubbers and Peer Scheepers resistance to immigrants, supporting Hypothesis a. It is worth mentioning that this parameter is less negative in the case of asylum seekers than in the case of resistance to immigrants, indicating that differences between educational categories regarding resistance to asylum seekers are smaller. We find similar but, again, less pronounced differences between occupational categories: people performing manual labour resist asylum seekers more strongly than average but so do retired people. These findings support Hypothesis b. On the other hand, we have to reject Hypothesis c: the difference between the unemployed and higher professionals does not reach significance. People who have been unemployed also do not differ in this respect from those who have never been unemployed. The negative effect of income again reaches significance: the lower one’s income, the more one resists asylum seekers, supporting Hypothesis d. The older people are, the more resistance they show to asylum seekers. The finding that males resist asylum seekers more strongly than females is also worth mentioning. The finding that people living in large cities and their suburbs appear to resist asylum seekers less strongly than people residing in the countryside disconfirms Hypothesis e. Here, as in the case of immigrants, we find no differences between people who attend religious services and people who never attend, thus disconfirming our Hypothesis a on the relationship between church attendance, on the one hand, and resistance to immigrants and asylum seekers, on the other. Table 2: Unstandardized Parameter Estimates from Multi-level Models on Resistance to Asylum Seekers Intercept Individual characteristics Education (in years) Occupation: (higher prof. = ref.) Lower professionals

Routine non-manuals Self-employed people Skilled manuals Unskilled manuals

Students Unemployed people Retired people



Model  . (.)

Model 

Model 

Model 

Model 

Model 

. (.)

. (.)

. (.)

. (.)

. (.)

-. (.)

-. (.)

-. (.)

-. (.)

-. (.)

-. -. -. -. -. (.) (.) (.) (.) (.) . (.) . (.) . (.) . (.) . (.) . (.) . (.)

. (.) . (.) -. (.)

. (.) . (.) . (.)

. (.) . (.) -. (.)

. (.) . (.) -. (.)

. (.) . (.) -. (.)

. (.) -. (.) -. (.)

. (.) . (.)

. (.)

. (.)

-. (.)

. (.)

. (.)

-. (.)

. (.)

. (.)

Resistance to Immigrants and Asylum Seekers in the European Union Housewives

. (.)

. (.) . (.)

Others not working

. (.)

. (.)

-. (.)

-. (.) -. (.)

-. (.)

-. (.)

-. (.)

-. (.)

-. (.) -. (.) -. (.)

Been unemployed (no = ref.)

. (.) . (.) . (.)

Age

.- .- .- (.) (.) (.) . (.) . (.) . (.)

-. (.) .- (.)

-. (.) .- (.)

. (.)

. (.)

Income

Gender: Male (female = ref.) Urbanization: (countryside = ref.) Country village

Town or small city Suburbs or outskirts of big city Big city

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.) -. (.)

-. (.)

-. (.)

-. (.)

-. (.)

-. (.)

Church attendance: (never = ref.) Attendance rarely

Attendance once a month Attendance frequently Contextual characteristics Non-Western nonnationals: 

Net migration: – Asylum applications: – Unemployment:  GDP:  Intermediate characteristics Estimation % foreign-born (correct = ref.) Underestimation (>%)

. (.)

-. -. -. (.) (.) (.) -. -. -. -. (.) (.) (.) (.) . (.) . (.) . (.) . (.) -. (.)

-. (.)

-. (.)

-. (.)

-. (.)

-. (.)

. (.)

. (.)

-. (.)

-. (.)

-. (.)



Marcel Coenders, Marcel Lubbers and Peer Scheepers . (.) . (.) . (.)

Small overestimation (–%) Overestimation (–%)

. (.) . (.) . (.)

Strong overestimation (>%) Cannot estimate it More immigrants than other countries

. (.) . (.) . (.)

. (.) . (.)

Dissatisfied with national economy

. (.)

Difficulty living on own income Perceived unsafety Social distrust

. (.)

Political distrust

. (.)

. (.) . (.) . (.) . (.) -. (.) -. (.)

. (.) . (.)

. (.)

Left-right placement

. (.)

Perceived ethnic threat

. (.) . (.) . (.) . (.)

Variance components Individual

.

(Percentage explained) Country (Percentage explained)

. (.)

. (.)

. (.)

. (.)

. (.)

.

.

.

.

.

.

()

(.)

(.)

(.)

(.)

Note: Bold parameters indicate significance at p < ., italic parameters indicate significance at p < .. Standard errors in brackets (N=,).

Model  of Table  shows that none of the effects of the contextual characteristics reaches significance. Nonetheless, we would like to mention that the effects of GDP, as well as the presence of non-nationals and asylum seekers, are in the direction we proposed. The same does not hold for the effect of unemployment and net migration. Turning to the effects of the intermediate characteristics in Model , we find that people who (strongly) overestimate the presence of foreign-born persons in the country tend to resist asylum seekers. Again, even those who answer that they cannot estimate the percentage of foreign-born persons in the country, as well as those who perceive many immigrants coming to their country, tend to resist asylum seekers. Regarding resistance to asylum seekers, it does not matter significantly whether people are dissatisfied with the national economy or whether they experience difficulties in living on their household income. We again find that all other intermediate characteristics are in the direction we proposed: the more they distrust other people or political leaders, the more rightwing people are, the more they perceive themselves as being unsafe or, more specifically, threatened by the presence of immigrants, the more they resist asylum seekers. Inclusion of these determinants increases the explained variances at both levels, i.e., the individual 

Resistance to Immigrants and Asylum Seekers in the European Union and the contextual level. Moreover, these determinants reduce the effects of educational attainment and income, and reduce most differences between all occupational and residential categories to non-significance, implying that the previously ascertained differences between these categories are (partially) due to these intermediate characteristics. III. Conclusions and Discussion In this contribution, we focused on resistance to immigrants and asylum seekers in a number of European countries where their influx has led to debates among both politicians and ordinary citizens. We considered resistance to these migrants to be dimensions of ethnic exclusionism, allowing us to derive testable hypotheses from theoretical propositions developed in previous studies. We were also able to make use of high-quality, cross-national data that have recently become available to the international scientific community, enabling us to execute cross-national comparisons on a scale larger than that of most previous work in this particular domain of racial attitudes. Making use of advanced methodological techniques, we tested our hypotheses as rigorously as possible in order to provide robust empirical insights. As a general answer to our first question, we found that public resistance to immigrants seems to be more widespread than resistance to asylum seekers. We have to be a bit cautious in this particular respect, however, since such a general statement would require measures that show more resemblance to one another. The differences between resistance to immigrants and resistance to asylum seekers may be explained in terms of the degree of public sympathy for each category of migrants: asylum seekers may be able to count on more human compassion than immigrants, who are more often associated in media reports with criminality.52 We found large differences between countries in the extent to which people resisted immigrants and asylum seekers. We tried to account for these differences by including both individual and contextual characteristics regarding demographic and economic conditions to ascertain decisive determinants. To answer our second question, we performed multivariate multi-level analyses. We found that resistance to immigrants and asylum seekers strongly prevails among underprivileged people: less-educated people, people performing skilled and unskilled manual work, and people with low incomes. These findings corroborate our hypotheses and are consistent with previous findings.53 Unemployed people exhibited significantly stronger resistance to immigrants but not to asylum seekers. We had not anticipated the finding that retired people exhibit stronger resistance to both immigrants and asylum seekers or that self-employed people exhibit such strong resistance to immigrants. This latter finding may be, post hoc, consistent with our theoretical propositions as explicated above, if we consider the finding that ethnic migrants often start their own business instead of finding other kinds of employment, possibly to avoid discriminatory practices





Marcel Lubbers, Peer Scheepers and Fred Wester, “Ethnic Minorities in Dutch Newspapers –: Results of Systematic Content Analyses”,  Gazette International Journal for Communication Studies (), –. See, for example, Fetzer, op.cit. note ; and Coenders and Scheepers, op.cit. note ..



Marcel Coenders, Marcel Lubbers and Peer Scheepers in the labour market.54 In this manner, self-employed people find themselves in social positions or niches comparable to ethnic migrants, explaining their level of resistance. Also, unexpectedly, we found that people living in big cities exhibited weaker rather than stronger resistance to immigrants and asylum seekers. This offers some ground for the ‘contact hypothesis’,55 i.e., the more (opportunities for) interethnic contact, the less resistance to ethnic out-groups, though only for spatial proximity. Urbanism increases exposure to diversity and promotes social interaction between groups and thus could reduce negative attitudes toward ethnic minorities. In terms of religiosity, we found no evidence for a relationship between attendance at religious services and resistance to immigrants and asylum seekers, or for the differential effects of attendance at religious services on resistance to immigrants versus resistance to asylum seekers that we proposed to test. These findings clearly disconfirm our hypotheses. This finding is the more puzzling since previous studies showed convincing evidence on the relationship between attendance at religious services and prejudice toward resident minorities.56 Yet, in spite of the finding that European people who frequently attend religious services are more strongly prejudiced toward ethnic minorities, these frequent church visitors do not resist ethnic migrants any more strongly. This paradox may be solved if one considers the possibility that religious people may want to welcome immigrants and asylum seekers on grounds of human or religious compassion, whereas resident minorities may be considered to be not in need of such compassion. Considering our evidence, we may state that there are relatively few differences in the determinants for resistance to immigrants versus resistance to asylum seekers. However, we also found that the determinants of resistance to asylum seekers were less pronounced, as demonstrated by the amount of explained variance. This indicates that the general public is less divided on asylum seekers than on immigrants, possibly due to differences in the amount of compassion that asylum seekers and immigrants evoke in the broader population. To answer our third question, we took into account the different demographic and economic conditions prevailing in the European states included in our study. The contribution of these national conditions to the explanation of cross-national differences turned out to be somewhat disappointing. We found that the presence of non-Western non-nationals and net migration had weak, non-significant effects on resistance to immigrants and asylum seekers. The relative number of asylum applications also turned out to have a non-significant effect on resistance, although the effect on resistance to asylum seekers was in the direction we proposed. The effect of the level of unemployment turned out to be negative, yet only barely significant. These findings clearly disconfirm our hypotheses, with the only finding corroborating our hypotheses being that a higher level of GDP is associated with lower resistance to immigrants. These findings together seem to imply that other contextual characteristics (possibly other than demographics and economics) are needed for the explanation of cross-national differences regarding resistance to migrants. As yet, these findings do not permit policy makers   



Frank Van Tubergen, Ineke Maas, Henk Flap, “The Economic Incorporation of Immigrants in  Western Societies”,  American Sociological Review (), –. Brown, op.cit. note . Scheepers, Gijsberts and Hello, op.cit. note .

Resistance to Immigrants and Asylum Seekers in the European Union to draw simple conclusions on restrictive immigration policies in order to reduce the resistance to immigrants and asylum seekers. Finally, in line with our hypotheses, we found a number of (intermediate) subjective perceptions that had rather strong significant effects on resistance to immigrants and asylum seekers. People perceiving their social situation to be insecure and threatened, on the one hand, by resident migrants and, on the other hand, by untrustworthy fellow citizens and political leaders, exhibit strong resistance to immigrants and asylum seekers. Moreover, we found that people who (strongly) overestimated the presence of foreignborn persons in the country as well as those who confessed to not being able to estimate this percentage also tend to exhibit strong resistance to immigrants and asylum seekers. In addition to being consistent with our theoretical propositions, these findings on the basis of intermediate characteristics (i.e., perceptions) provide support for the more elaborate version of ethnic group conflict theory. Taken together, these findings provide us with the additional insights that the perception of the number of foreign people in the country rather than the actual demographic or economic situation determines people’s resistance to immigrants and asylum seekers. This being the case, the distribution by governments of accurate factual information on immigrants and asylum seekers within the general public, so as to bring about a closer match between perceptions and reality, has the potential to reduce the prevalence of more generally exclusionist stances.



Marcel Coenders, Marcel Lubbers and Peer Scheepers Appendix I. Number of Interviews Completed and Response Rate by Country

Finland Sweden Denmark Great Britain Ireland Netherlands Belgium Luxembourg Germany Austria Spain Portugal Italy Greece Poland Czech Republic Hungary Slovenia



Total number of interviews completed                  

Response rate

Field work period

.% .% .% .% .% .% .% .% .% .% .% .% .% .% .% .% .% .%

/–/ /–/ /–/ /–/ /–/ /–/ /–/ /–/ /–/ /–/ /–/ /–/ /–/ /–/ /–/ /–/ /–/ /–/

% of respondents with country’s nationality .% .% .% .% .% .% .% .% .% .% .% .% .% .% .% .% .% .%

Resistance to Immigrants and Asylum Seekers in the European Union Appendix II. Measures A. Measures at the Individual Level The European Social Survey provides valid measures for resistance to immigrants and asylum seekers. Resistance to immigrants was measured with three questions, asking: would you allow many/some/a few/no immigrants: () of a different race or ethnic group; () from poorer countries in Europe; or () from poorer countries outside of Europe. Resistance to asylum seekers was also measured with three Likert items, asking the extent to which respondents agreed or disagreed with statements such as: () refugee applicants should be allowed to work while their applications for refugee status are considered; () financial support should be granted to applicants while their cases are considered; and () granted refugees should be entitled to bring in close family members. To answer the question of whether these items can be applied as valid and reliable measures across countries, we tested them by means of structural equation modelling, applying the LISREL computer program, as developed by Jöreskog and Sörbom,57 using the multi-sample option. The findings provided us with evidence for equivalent model form as well as for invariant factor loadings. As the fit statistics turned out to be satisfactory (RMSEA < ., GFI > . in all countries), we concluded that dimensions of resistance to immigrants and resistance to asylum seekers have been validly and equivalently measured in all countries by the same indicators. Missing values of respondents, providing that they had answered more than % of the items, were replaced by missing value substitution based on regression estimation. We regressed an item on all other items referring to exclusionist stances. In this manner, a missing score of a respondent on a particular item was replaced by an estimate based on the answers that this respondent provided on the other items referring to ethnic exclusionism. Substituted values were then rounded into the original category values of the original item. The eventual scores to be used are summated rating scales. To measure ‘educational attainment’, we used information on the highest educational level of the respondent. We applied an interval measure of attained education in years. In order to assign a numerical value for the respondents who were still studying at the time of survey, we took their study length at the time of the interview. Furthermore, to prevent extreme high scores on the educational attainment variable, we regarded  years of education as an upper limit. With regard to ‘social class’, we distinguished between people presently employed and non-employed people. For those respondents currently employed, we recoded the available occupational classification codes into the nominal class typology of Erikson, Goldthorpe and Portocarero (EGP).58 In the European Social Survey, the International Standard Classification of Occupations (ISCO) of the International Labor Office of  

Karl Joreskog and Dag Sorbom, LISREL  User’s Reference Guide (Scientific Software International, Chicago, ). Robert Erikson, John Goldthorpe and Lucille Portocarero, “Intergenerational Class Mobility and the Convergence Thesis in England, France and Sweden”,  British Journal of Sociology (), –.



Marcel Coenders, Marcel Lubbers and Peer Scheepers the United Nations was applied.59 To derive the EGP categories from ISCO, we followed the procedures of and standard modules generated by Ganzeboom, Luijkx and Treiman,60 and Ganzeboom and Treiman.61 In order to construct more appropriate EGP categories, the occupational classification is enhanced by additional information on employment status and supervisory status. We used information that indicated whether respondents were self-employed or not and whether they supervised others at work. For the self-employed, the number of employees was taken into account. For respondents who supervised others at work, the number of employees under supervision was taken into account. We distinguished higher professionals, lower professionals and routine non-manual workers. Self-employed people with or without employees, as well as farmers, were subsumed under a single category of self-employed people. Manual supervisors and skilled manual workers were taken together as a separate category. The final occupational social class category was that of the unskilled manual workers, to which farm labourers were added. To these occupational categories we added distinct categories of people who were temporarily not active in the labour force: students; unemployed people; retired people or disabled people; people working in their own household and looking after their children; and, finally, a residual category that could not be categorized (among which people in military service were classified). ‘Monthly net household income’ was measured with a standard number of categories with standard ranges. Only for Ireland and Hungary were country-specific coding schemes used.62 The ESS documentation provided information on how to make the country-specific coding congruent with the standard coding. To compare incomes between countries, for each country, separately, the mean income was set to one. Missing values for household income were imputed for each country separately by an estimated value based on other information that is available for the respondents. More specifically, we estimated missing income values by means of a regression analysis of household income on four variables related to household income. ‘Urbanization’ was measured by means of five categories: farm home or countryside; country village; town or small city; suburbs or outskirts of large city; and large city, as judged by the respondent. We also used information on attendance at religious services, which we categorized into never; rarely; once a month; and frequently, which is more than once a month. ‘Gender’ and ‘age’ were also included as variables in the analysis.

  





International Labor Office, International Standard Classification of Occupations: ISCO (International Labor Office, Geneva, ). Harry Ganzeboom, Ruud Luijkx and Donald Treiman, “Intergenerational Class Mobility in Comparative Perspective”,  Research in Social Stratification and Mobility (), –. Harry Ganzeboom and Donald Treiman, “Internationally Comparable Measures of Occupational Status for the  International Standard Classification of Occupations”,  Social Science Research (), –. The ESS documentation provided information on how to make the country-specific coding congruent with the standard coding.

Resistance to Immigrants and Asylum Seekers in the European Union B. Measures at the Contextual Level The national statistical data for the countries included in the European Social Survey are displayed in Appendix . As a measure of the presence of resident migrants in a country, we took for the Western European countries the number of ‘non-nationals with a nonWestern citizenship’ as a percentage of the total population. The figures from Eurostat refer to January , .63 In some countries, the number of naturalizations is much higher than in others, particularly in Sweden, Belgium and the Netherlands,64 and most naturalizations are applied to non-Western citizens;65 we included these numbers of naturalizations in our measure of ‘non-nationals with a non-Western citizenship’. For the Czech Republic, Hungary, Poland and Slovenia, similar figures from Eurostat were not available. For these countries we derived the percentage of foreign citizens from the OECD and the UNDP.66 More precise information on sources is included in Appendix . From the United Nations Population Division,67 we derived the ‘average annual net migration in the period  to , per , capita’ to indicate the level of immigration. The average annual net migration is the annual number of immigrants less the annual number of emigrants, including both citizens and non-citizens. Next, we took the ‘average number of asylum applications in  and  per , capita’ as an additional indicator. The number of asylum applications in each country is registered by the United Nations High Commissioner for Refugees.68 To take into account strong yearly fluctuations, we took the average number of asylum applications in the two years prior to the time of the survey ( and ). To compare the burden of the absolute numbers of asylum applications across countries, we related this to the size of the total population of a country as derived from Eurostat.69 Figures on the ‘unemployment rate’ in  were taken from Eurostat70 and refer to the number of unemployed persons as a share of the total active population. 

    

 

Eurostat, European Social Statistics: Migration,  Edition (Office for Official Publications of the European Communities, Luxemburg, ). For Austria and Luxembourg, the figures refer to the percentage of non-EU nationals. We derived separate figures for former West and East Germany based on the figure for reunified Germany, as reported by Eurostat, and the ratio of the percentage of foreigners in former West and East Germany, as reported by the Statistisches Bundesamt. See Statistisches Bundesamt, “Arbeitlose in Prozent der alle Erwerbspersonen (ohne Soldaten/-innen)”, at . Eurostat, op.cit. note ; OECD, Trends in International Migration. Annual Report,  Edition (OECD, Paris, ). OECD, op.cit. note . OECD, op.cit. note ; United Nations Population Division, op.cit. note . United Nations Population Division, op.cit. note . UNHCR, Statistical Yearbook : Refugees, Asylum-seekers and Other Persons of Concern – Trends in Displacement, Protection and Solutions (United Nations High Commissioner for Refugees, Geneva, ); UNHCR, “ UNHCR Population Statistics, Version August , ”, at Eurostat, op.cit. note . Eurostat, “Total Unemployment Rate in ”, at .



Marcel Coenders, Marcel Lubbers and Peer Scheepers The estimates of the number of unemployed are based on the results of the European Union Labour Force Survey.71 Figures on ‘GDP’ were also taken from Eurostat.72 GDP is measured per head in thousands of PPS (Purchasing Power Standards) at current prices, indexed at  for the  EU members in the year . Next, these relative figures are multiplied with the actual GDP per head in thousands for the EU to derive the real GDP per capita in thousands of PPS for each country.73 C. Measures of Individual Perceptions In the multi-level analyses, we also included intermediate characteristics. In this category, we included some measures on ‘perceptions of the relative size of out-groups’, pertaining to the accuracy of respondents’ estimation of the percentage of foreign-born people living in the country. Respondents’ estimations were compared with the actual percentage of foreign-born people, enabling us to distinguish between categories of people who (strongly) underestimate or overestimate percentages of foreigners, respectively. The distribution of this variable is presented in Appendix . This distribution shows that, in most countries, vast majorities of respondents overestimate the presence of foreign-born people quite strongly. We also used an item asking respondents whether there are (far) more or (far) fewer people from other countries that come and live in their country as compared to other European countries of about the same size as their country. For the direct measurement of ‘perceptions of collective ethnic threat’, we used six bipolar items (immigrants take jobs away versus create new jobs; immigrants take out more taxes and services than they put in versus they put in more than they take out; immigration is bad versus good for the economy; the country’s cultural life is undermined versus enriched by immigrants; immigrants make the country a worse versus better place to live; immigrants make crime problems worse versus better), which appeared to be a reliable form of measurement (Cronbach’s alpha = .). This measurement has a range from  to . We also included a general measure of respondents’ dissatisfaction with the present state of the national economy. This measure turned out to be significantly correlated with the perceptions of the relative size of out-groups (Pearson r = .). ‘Perceptions of personal threat’ were measured with two items. One item captures the difficulties that respondents experience with living on their own household income. 

 



We applied data from the German national statistical office (Statistisches Bundesamt) to derive the unemployment rate in (former) West and East Germany. The unemployment rate for Germany as a whole, as reported by Eurostat, was adjusted for the ratio in unemployment rates in West Germany and East Germany, as reported by the Statistisches Bundesamt. See Eurostat, op.cit. note .; Statistisches Bundesamt, op.cit. note . Eurostat, Gross Domestic Product , First Results. Statistics in Focus, Theme - (Office for Official Publications of the European Communities, Luxemburg, ). Eurostat, “GDP Per Capita in Purchasing Power Standards. General Economic Background”, at . The German figure was adjusted for East Germany and West Germany by the GDP ratio for the regions, as reported by the Statistisches Bundesamt, “Gross Domestic Product Per Inhabitant in Germany by Bundesland at Constant  Prices”, at .

Resistance to Immigrants and Asylum Seekers in the European Union Another question, ‘perceived unsafety’, asks whether respondents felt unsafe walking in the street after dark. This measure runs on a scale from very safe to very unsafe. ‘Social distrust’ was measured with three items, which, with reliability analyses, turned out to form a strong scale (Cronbach’s alpha = .). The three items (you can’t be too careful versus most people can be trusted; most people try to take advantage of you versus most people try to be fair; and most people look out for themselves versus most people try to be helpful) were recoded so that a high score means distrust in other people and a low score means low social distrust. Then we took the mean score of the three items. ‘Political distrust’ was measured with four items: politicians, in general, care what people like me think; politicians are interested in votes rather than in people’s opinions; trust in country’s parliament; and trust in politicians. The items were transformed into items with similar scale lengths, running from  to , at which  means no trust. After factor analyses showed the single dimensionality and reliability analyses provided satisfactory statistics (Cronbach’s alpha = .), we computed one scale of political distrust by taking the mean of the scores on the four items. To control additionally for the political views of respondents, we included ‘political left–right self-placement’, measured by asking respondents to place their own political viewpoints on an -point scale, ranging from left (score ) to right (score ).



Marcel Coenders, Marcel Lubbers and Peer Scheepers Appendix III. Contextual Characteristics of Countries in the ESS Unemployment rate in a

Real GDP per capita (PPS) in , x . b

(Non-Western) non-nationals as percentage of population in c

. . . . . . . . .f .f . . . . . . . . .

. . . . . . . . . g . g . . . . . . . . .

. . .h . .i . . .h .j .j .k . . .l .m .n, p .n, p .n, p .o, p

Country Finland Sweden Denmark Great Britain Ireland Netherlands Belgium Luxembourg West Germany East Germany Austria Spain Portugal Italy Greece Poland Czech Republic Hungary Slovenia a

b

c

d e

f



Average annual Average annual net migration in number of –, per asylum applica, capitad tions in  and , per , capitae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -. . . . -. . . .

Source: Eurostat “European Social Statistics …” Unemployed persons as a share of the total active population. Source: Eurostat “European Social Statistics …” GDP per capita in purchasing power standards, x .. Non-nationals with a non-Western citizenship and naturalizations – as percentage of the total population on  January . Only non-nationals with a non-Western citizenship are displayed; non-nationals with a citizenship from one of the European Union countries, the European Free Trade Association countries or the United States, Canada, Australia or New Zealand are not taken into account. Source: Eurostat “European Social Statistics …”. For Poland, Czech Republic, Hungary and Slovenia figures refer to percentages of foreign citizens. Source for Poland, Czech Republic and Hungary: OECD, Trends in International Migration … Source for Slovenia: United Nations Population Division, International Migration Report  … Source: United Nations Population Division, International Migration Report  … Source for asylum application figures: UNHCR,  UNHCR Population Statistics; and UNHCR, Statistical Yearbook  … Total population on  January  and  derived from Eurostat “Gross Domestic Product  …” Source: Eurostat “European Social Statistics …”; and Statistisches Bundesamt, “Arbeitlose in Prozent der alle Erwerbspersonen (ohne Soldaten/-innen)”, Report of the Statistiches Bundesamt (), at .

Resistance to Immigrants and Asylum Seekers in the European Union g

h i j k l

m

n o p

Source: Eurostat “European Social Statistics …”; and Statistisches Bundesamt, “Gross Domestic Product per Inhabitant in Germany by Bundesland at Constant  Price”, Volkswirtschafliche Gesamtrechnungen der Laender (), at . Data  January . Data April . Source: Eurostat “Gross Domestic Product  …”; and Statistisches Bundesamt (). Data on naturalization for  and  imputed by average of  to . Data on naturalization for  to  taken from OECD, Trends in International Migration … Data for  January  taken from the Greek census data (General Secretariat of National Statistical Services of Greece, “Table  …”) with similar definition instead of older Eurostat  figures; data on naturalization for  and  imputed by average of  to . Source: OECD, Trends in International Migration … Source: United Nations Population Division, International Migration Report  … Data exclude number of naturalizations, which were not available in the Eurostat publications. See OECD, Trends in International Migration …, for estimates of a shorter period showing relatively small numbers for the respective countries.



Marcel Coenders, Marcel Lubbers and Peer Scheepers Appendix IV. Distribution of Estimation of Percentage of Foreign-born Persons as Compared to Actual Percentage of Foreign-born Persons 100% 80% 60% 40% 20%

Under

Correct

Over

U

SI

Z

H

C

R

Strong over

PO

IT

G

PT

ES

EE

Small over

AT

D

LU D EW

BE

IE

N L

K

K U

D

FI SE

0%

Don't know

Legend Under = underestimation: more than % below the actual percentage of foreign-born. Correct = correct estimation: not more than % from the actual percentage of foreign-born. Small over = small overestimation: between –% over the actual percentage. Over = overestimation: between –% over the actual percentage. Strong over = strong overestimation: more than % over the actual percentage. Don’t know = confesses not to be able to estimate the actual percentage.



David Smallbone*

Ethnic Minority Entrepreneurship, Diversity and Competitiveness

I. Introduction A. Entrepreneurship as an Agent of Change It is increasingly recognized that entrepreneurship plays a central role in economic development and that entrepreneurs are key elements of change in market economies.1 However, as well as contributing to the development of more competitive economies, fostering entrepreneurship has increasingly been seen by policy-makers as a means of combating social and economic exclusion, by encouraging enterprise in disadvantaged communities and localities. In this context, entrepreneurship appears to offer a mechanism for drawing marginalized ethnic minorities and immigrant communities into the mainstream of societies and economies, with potential benefits at both the macro and micro levels. There is already a good deal of literature on ethnic minority entrepreneurship focusing on its contribution to social inclusion. By contrast, this particular paper examines the arguments and evidence to support the proposition that ethnic diversity, as such, is a potential source of competitiveness, through the involvement of members of ethnic minorities in entrepreneurship. The involvement of ethnic minorities in entrepreneurial activities has attracted growing interest in recent years for various reasons. One of them is that as well as contributing to reducing social exclusion and raising living standards in groups that are often among the more disadvantaged in society, it can be argued that, from an economic standpoint, the ability of European economies to be entrepreneurial depends on their ability to encourage and support entrepreneurship in all sections of society, including ethnic minorities. The argument needs to be viewed

* 

Professor of Entrepreneurship and Small Business, Small Business Research Centre, Kingston University. Sander Wennekers and Roy Thurik, “Linking Entrepreneurship and Economic Growth”, () Small Business Economics (), –.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 35-52. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

David Smallbone in the wider context of the growing evidence of the links between entrepreneurship and economic development at the national level. In the UK, for example, the current strategic framework for government policy with respect to small businesses includes ‘enterprise for all’ as one of its seven priority themes, referring to “the encouragement of more enterprise in disadvantaged communities and disadvantaged groups”.2 Because of a tendency for ethnic minorities to concentrate in particular localities, the development of some local economies—and the standards of living within them—may be heavily influenced by the nature and extent of ethnic minority involvement in self-employment and business ownership. As a consequence, the UK government views the promotion of different forms of entrepreneurship as a mechanism for developing those communities and areas. The rest of this paper is concerned with ethnic minority entrepreneurship in the UK. In the UK context, ethnic minority communities are a result of a long history of immigration, which includes migrants from former colonial territories, as well as, more recently, asylum seekers and migrants from other member states of the EU. In established ethnic minority communities, members include second- and third-generation migrants, who have been born and educated in the UK. Following a discussion of some of the distinctive characteristics of and challenges facing ethnic minority entrepreneurs and a summary of ethnic minority involvement in entrepreneurship in the UK, the proposition that ethnic diversity may be a source of potential competitive advantage will be examined. The case of London is used to illustrate the argument, partly because it represents one of the most ethnically diverse cities in Europe and partly because the research on which this paper is based was commissioned by the London Development Agency (LDA).3 If supported, the proposition is potentially powerful in political terms, since it suggests that an ethnically diverse society is potentially stronger economically than a less diverse one, with potential welfare gains for the population as a whole. As a consequence, policies designed to encourage and support ethnic minority business development may be justified by the potential economic benefits for the society, as well as promoting greater social inclusion for ethnic minorities. B. Challenges Facing Ethnic Minority Entrepreneurs Since most ethnic minority-owned businesses (EMBs) are small firms, they share many of the characteristics and challenges faced by small firms more generally. These include frequent problems in raising finance to start a business and/or expand (particularly in the early stages) and deficiencies in certain core management competencies, such as marketing and financial management skills. One of the distinctive characteristics of small firms in comparison with their large firm counterparts is a more limited internal resource base (particularly in terms of finance and management) and many EMBs share with other small firms the constraints that stem from this. As a consequence, a  



Small Business Service, “Business Plan ”, at , –, at . The author acknowledges the substantial contribution of Dr John Kitching and Rosemary Athayde from the Small Business Research Centre at Kingston University to the project on which this paper is based.

Ethnic Minority Entrepreneurship, Diversity and Competitiveness case can be made for policy intervention designed to assist EMBs in overcoming such constraints, in order that they may fulfil their potential contribution to social inclusion and economic development. Some previous research has also drawn attention to the tendency of EMBs to focus, initially at least, on coethnic customers and markets, either because of the intrinsically ethnic nature of the product or service being offered for sale or because of a reliance on informal sales and ‘marketing’ methods based largely on word of mouth. Finally, the informality that is commonly found in the recruitment practices of small—and particularly very small—enterprises can be associated with a reliance on coethnic labour in small EMBs, which means that growth is likely to be associated with increased employment opportunities for members of ethnic minorities. At the same time, it is important to recognize the diversity of ethnic minority business activity that exists within a single country, as well as internationally. In the UK, for example, there is a considerable diversity between ethnic minority groups, as well as between generations within the same ethnic group, which, in some cases, can affect the distinctiveness of this type of enterprise compared with other small firms. There is also a variety of experience between different countries, according to the social, economic and political contexts in which particular ethnic minorities are found. This diversity is reflected in the types of business activity chosen by members of different ethnic groups, the strategies they use to mobilize resources (such as the degree of reliance on social capital to raise finance), as well as their wider business behaviour. Cultural factors can affect the value placed on entrepreneurship and the motives for starting a business, although it is important also to recognize the role of ‘opportunity structures’ presented by the social and economic context as a contributory factor in this regard, as well as cultural influences. For example, while culture may contribute to the members of some minority groups having a longstanding ambition to start their own businesses (e.g. Nigerians in the UK), translating this ambition into action may be influenced by the pattern of opportunities and difficulties they face in the labour market. Clearly, there are many interrelationships between ethnicity, culture and enterprise, which mean that EMBs are a heterogeneous group, yet share many of the underlying characteristics of the small business population more generally. One aspect of the heterogeneity of ethnic minority involvement in entrepreneurship in an international context is the relationship with immigration, since in most cases ethnic minority populations have resulted from a process of in-migration at some stage. This is important because the timing, scale and circumstances in which immigration has taken place affects the skills and resources available for entrepreneurship, as well as the high propensity of some ethnic minority groups to seek to engage in entrepreneurial activity.



David Smallbone II. Ethnic Minority Entrepreneurship in the UK A. The National Picture According to the  census, non-white ethnic minorities account for % of the UK population (% in England).4 Indians are the largest ethnic minority group, followed by Pakistanis, Mixed Ethnic groups, Black Caribbean, Black Africans, Bangladeshis and Chinese. The non-white population of the UK is heavily concentrated in the major urban areas, with approximately two thirds living in just five cities (London, Manchester, Birmingham, Bradford and Leicester). This reflects a wider international tendency for ethnic minority communities to cluster in large cities, particularly where the minority communities consist of migrant groups. Overall, ethnic minority communities in the UK are younger and growing more rapidly than white communities, which means that the proportion of the total population comprising ethnic minorities is predicted to rise. Turning to the involvement of ethnic minorities in business ownership, it is estimated that, in , there were a total of . million small and medium-sized businesses (SMEs) in the UK, accounting for more than half of total employment in private sector businesses.5 More than . million of these businesses were owned by members of an ethnic minority group and may be characterized as ethnic minority businesses (EMBs), contributing an estimated £ billion to the UK economy annually. EMBs in the UK are also increasing as a proportion of the total business stock, reflecting a growing share of the total number of new business start-ups in the country annually during the - period.6 B. London: an Ethnically Diverse City London is the most ethnically diverse city in the UK and one of the most ethnically diverse cities in the world.7 For centuries, London has been (and remains) the first destination for most migrants, defined as those born abroad, into the UK.8 Ethnic minority groups constitute % of the London population and today London is home to nearly two million migrants. There are at least  non-indigenous communities  









Office of National Statistics, “ Census”, , at . Stella Mascarenhas-Keyes, “Ethnic Minority Small and Medium Enterprise in England: Diversity and Challenges, ”, Paper presented at the st Conference of the International Council for Small Business, Melbourne, – June, –, at . Barclays Bank, “Black and Minority Ethnic Business Owners: a Market Research Perspective”, SME Research Team, Barclays Bank (), at . Lisa Benton-Short, Marie Price and Samantha Friedman, “Globalization from Below: the Ranking of Global Immigrant Cities”, () International Journal of Urban and Regional Research (), –, at . BBC, “Born Abroad: an Immigration Map of Britain”, (), at .

Ethnic Minority Entrepreneurship, Diversity and Competitiveness based in London with populations of , or more. Table  gives a broad overview of ethnic minority categories9 in London, showing that the two largest groups were Asian/Asian British and Black/Black British. Since ethnic minority communities are typically younger and also growing more rapidly than white communities, their share of London’s population is growing, to an estimated % by .10 Table 1: Ethnic Minorities in London Ethnic Group White Mixed Asian/Asian British Black/ Black British Chinese/Other ethnic group Total

Source:

Total London ,, , , , , ,,

Percentage London . . . . . .

Mackintosh .

A distinctive characteristic of ethnic minorities in the UK, compared with some continental European countries, is the high proportion of second and third generation migrants, reflecting the longstanding nature of the UK as a destination for migrants, particularly for those from former colonial territories. Many of London’s EMB groups are children or grandchildren of first generation migrants. For example, almost % of Black Caribbeans and almost % of Bangladeshi and Pakistani people in London were born in the UK. This is important because people born, reared and educated in the UK might be expected to have different motivations and resources with respect to entrepreneurial activities compared with newly-arrived migrants, as a result of having been brought up and educated in the host country environment. Ethnic diversity is also reflected in the wide variety of languages spoken by minority groups. In the case of London, it is reported that more than  languages are spoken, with almost one in four schoolchildren speaking a language other than English at home, reflecting the migrant status of their families in many cases. In policy terms, the Regional Language Network in London is actively promoting foreign language support as a central element in the capital’s preparation for the  Olympic Games. In these terms, London’s linguistic diversity (which is now viewed as a potential asset) is associated with its ethnic diversity, which in turn reflects its attraction to migrants over a long period of time. This includes the most recent period, when sources of in-migration have included new member states of the European Union. 



In the UK censuses of population in  and , respondents were asked to which of a number of specified ethnic groups they belonged. The main ethnic groups specified included: White, Mixed, Indian, Pakistani, Bangladeshi, Other Asian, Black Caribbean, Black African, Other Black, Chinese, Other Ethnic Groups. See for more detail . London Development Agency, “Redefining London’s BME Businesses, ”, at , –, at .



David Smallbone As far as London’s ethnic minority businesses are concerned, the most up-to-date source of data is the London Annual Business Survey  (LABS ), which in  was based on a telephone survey of , private sector businesses in the capital.11 The sample data was weighted to reflect the broad sector, size and location characteristics of the business population in London, in order to enable grossed-up estimates of the responses to be produced with respect to a range of business characteristics and types of behaviour. Based on this survey, almost one in four businesses in London (.%) can be classified as EMBs. Collectively, it is estimated that they employed , people or % of total private sector employment in the capital. Asian owners comprised .% of the total, while Black owners represented .% (see Figure ). The remaining businesses were made up of Mixed-race (.%) and Other (.%) ethnic groupings. Figure 1: Ethnicity of London’s Business Owners 80.0

70.0

60.0

50.0

40.0

30.0

20.0

10.0

0.0 White

Black

Asian

Mixed

Other

Don’t Know/Refused

Source: London Annual Business Survey, 

The largest ethnic minority business group is from South Asia (i.e. from India, Pakistan, Bangladesh, Sri Lanka, Afghanistan and Nepal). Black-owned businesses are the next largest groups (i.e. from Black Caribbean and Black African groups). The third largest group is from East Asia (i.e. from China, Japan, Vietnam, Korea, Indonesia and the Philippines). The smallest group is from West Asia (Turkey, Turkish Cypriot and Kurdish communities, and groups from the Middle East). There are around , Indian-owned businesses, accounting for an annual sales turnover of more than £ billion; , Pakistani-owned businesses;  Bangladeshi-owned businesses; and 



London Development Agency/Business Link, “London Annual Business Survey ”, Report of the London Development Agency (), –, at . The fieldwork for the  survey was undertaken in September and October by BMG Research, and analysis and report writing were carried out by the Small Business Research Centre, Kingston University.

Ethnic Minority Entrepreneurship, Diversity and Competitiveness approximately , Black Caribbean and Black African business owners, turning over around £ billion.12 In gender terms, the LABS report showed that black women had the highest level of business ownership (.%), compared with .% of white women and .% of Asian women.13 A consistently reported characteristic of EMBs is their tendency to be mainly small and microenterprises. The evidence from London confirms this, with Black- and Asian-owned business establishments employing . and . people, respectively, on average, which is significantly lower than the London average of . (all mean values). Mixed-race-owned businesses employed on average . people. EMBs have also traditionally tended to be disproportionately concentrated in low entry threshold sectors (such as catering and retailing), although there are also a number of new emerging fields of activity (such as information technology and creative industries), the latter often involving second or third generation migrants, who are typically better educated than their parents. The evidence for London shows that EMBs are more likely to be involved in the wholesale and retail trades, as well as real estate, renting and business service activities. Asian-owned businesses were most likely to be involved in the wholesale and retail trades (.%), whereas Black (.%) and Mixed-race (.%) owned businesses were most likely to be in real estate, renting and business service activities. III. Ethnic Diversity and Competitiveness A. An Overview Diversity is currently topical in policy circles, driven by a combination of the social inclusion and competitiveness agendas and fuelled by the writings of Richard Florida14 in the context of wider globalization debates. Diversity competitiveness linkages may be explored at the micro (individual enterprise) and/or the macro (e.g. city/region)15 levels. At its simplest, city/regional competitiveness can be defined in terms of the trading performance of the city’s/region’s enterprises. As a consequence, city/regional competitiveness can be enhanced by creating and sustaining the conditions that enable local enterprises to trade successfully. Cities/regions may enable businesses to become successful by offering close proximity to resource suppliers and markets and through the availability of assets that are external to but benefit individual enterprises. Such assets include the public infrastructure (e.g. transport links, communications), a local skills    

Ibid. London Development Agency, “London Annual Business Survey ”, at . Richard Florida, The Rise of the Creative Class, revised edition (New York: Basic Books, ); and Id., Cities and the Creative Class (London and New York: Routledge, ). Here the term ‘city/region’ is used as a generic label to refer to sub-national territories, while recognizing that recent discussion distinguishes cities and regions in order to indicate their interrelations. See, for example, Office of the Deputy Prime Minister, “Cities, Regions and Competitiveness”, Second Report of the Working Group of Government Departments, at .



David Smallbone base, knowledge and technology spillovers and high levels of trust between economic actors. Each of these assets can potentially enable businesses to achieve a higher level of performance than would otherwise be possible. The rest of this section considers ways in which ethnic diversity (defined in terms of the proportion of the population composed of EMBs, their distribution between EMB groups, and the associated social and cultural differences) might be an asset that enhances competitiveness. From a policy perspective, there is interest in identifying the existence of such linkages as well as the ways in which policy intervention might contribute to enhancing the role of diversity in stimulating city/region competitiveness. Ethnic diversity at the level of the city/region can, potentially, contribute to business competitiveness through a variety of causal mechanisms. A recent review of the international evidence base in this regard (in which the author was involved) led to the identification of seven potential diversity competitiveness links.16 . Entrepreneurship and new venture creation, associated with the high propensity of some minority groups to be involved in entrepreneurial activity . Ethnic diversity as a source of creativity and innovation . Exploitation of diaspora-based linkages by ethnic minority businesses for business development purposes . Supplier diversity, where an ethnically diverse supply base can be a source of innovation in the purchasing organization and/or enable it to access ethnically diverse markets . Ethnic diversity and tourism, where ethnic minority events and activities contribute to a more attractive tourist ‘offer’ . Ethnic attraction, where an ethnically mixed population may enhance the attractiveness of a location for foreign direct investment from countries of origin, and . Workforce diversity, on the basis that there is a business case, as well as one based on social equity, for employers recruiting, retaining and developing job seekers from minority ethnic groups. Because this paper is focused on the links between ethnic diversity, entrepreneurship and competitiveness, only the first five themes listed above are considered; themes six and seven are more applicable in the case of large enterprises and less concerned with aspects of entrepreneurship.17 In each case, hypotheses are put forward specifying the mechanisms through which ethnic diversity might generate specific competitiveness effects, which are then considered in relation to the available evidence.







London Development Agency, “The Competitive Advantage of Diversity: an Introduction to the Project and Mid-Term Research Findings”, Report prepared by the Small Business Research Centre, Kingston University (). For a review of the evidence base with respect to the remaining themes and a more detailed review of those covered in this paper, see ibid.

Ethnic Minority Entrepreneurship, Diversity and Competitiveness B. Ethnic Diversity and Entrepreneurship Increasing attention—for example, in the UK,18 the Netherlands,19 Germany,20 Canada21 and Australia22—is being paid to ethnic minority and immigrant business ownership and policy issues associated with it. Moreover, the tendency for some ethnic minority groups to be disproportionately involved in entrepreneurship is a consistent feature in the international literature. For example, in the UK, self-employment rates vary considerably between ethnic minority groups. According to the  census of population, Chinese, Pakistani, Indian and White Irish groups have the highest rates of selfemployment in London, at over % of those in work in each group. This contrasts with Black Caribbean, Black African and Other Black groups, which have among the lowest rates at –%. In each minority ethnic group, male self-employment is considerably higher than female. In this context, ethnic diversity can contribute to competitiveness if members of ethnic minority groups start businesses offering new goods and services, or enter established markets. By extending the range of products available in the marketplace, the former is an inherently more innovative process than the latter, with potentially more enduring effects on economic development. The demand for ethnic-based products can foster business opportunities for local inner-city providers of products such as food and drink.23 Entry into established markets is a less innovative means by which ethnic diversity can contribute to city/region competitiveness, namely, through the cheaper provision of goods and services already available. One UK example was the move into low-order retailing in several inner cities by Asians during the s and s.24 Market entry puts pressure on already existing firms to lower prices or improve efficiency in order to retain market share. Unless hitherto untapped demand exists or market growth

 







 

Monder Ram and David Smallbone, “Policies to Support Ethnic Minority Enterprise: the English Experience”, () Entrepreneurship and Regional Development (), –. Robert Kloosterman, Joanne van der Leun and Jan Rath, “Mixed Embeddedness: (In) Formal Economic Activities and Immigrant Businesses in the Netherlands”, () International Journal of Urban and Regional Research (), –. Antoine Pecoud, “Entrepreneurship and Identity: Cosmopolitanism and Cultural Competencies among German-Turkish Business People in Berlin”, () Journal of Ethnic and Migration Studies (), –. Robert B. Anderson and Robert J. Giberson, “Aboriginal Entrepreneurship and Economic Development in Canada: Thoughts on Current Theory and Practice”, in Curt H. Stiles and Craig S. Galbraith (eds.), Ethnic Entrepreneurship: Structure and Process (Elsevier, Amsterdam, London, ), –. Jock Collins, “Cultural Diversity and Entrepreneurship: Policy Responses to Immigrant Entrepreneurs in Australia”, () Entrepreneurship & Regional Development (), – . Michael Porter, “The Competitive Advantage of the Inner City”, () Harvard Business Review (), –. Trevor Jones, Giles Barrett and David McEvoy, “Market Potential as a Decisive Influence on the Performance of Ethnic Minority Business”, in Jan Rath (ed.), Immigrant Businesses (Basingstoke: Macmillan, ), –, at .



David Smallbone can absorb an expansion in the business stock, it might lead though to effects on existing businesses.25 C. Ethnic Diversity, Creativity and Competitive Advantage A major contributor to the diversity competitiveness debate is Richard Florida,26 who argues that diversity, in its various forms, influences economic competitiveness indirectly by fostering creativity and innovation, which is the principal driving force of economic development. Creative people, he suggests, are attracted to tolerant places, where there are low barriers to entry. Tolerant places provide the habitat where all forms of creativity (artistic, cultural, technological and economic) can take root and flourish. Creative people move to such places because they provide opportunities to validate their identities as creative. Places with diverse mixes of creative people, it is argued, are more likely to generate new combinations of ideas and resources which, in turn, lead to greater innovation, firm formation, job generation and economic growth. Florida has developed three quantitative indices of diversity to rank cities/regions (the Gay Index, Bohemian Index and Melting Point Index), plus a fourth, composite, index. These diversity indices are then correlated with measures of human capital, hightechnology industry and economic performance. Associations are strongest with the Composite Diversity Index, suggesting that all three influences contribute. Taken individually, the Gay Index is the strongest predictor of the performance indices, followed by the Bohemian Index and then the Melting Pot Index, although the latter appears to be more important in smaller cities. It is not suggested that gays, bohemians or immigrants cause economic growth directly but rather that their presence in a particular city/region is an indicator of a place that is open and conducive to new ideas. Two criticisms can be made of Florida’s work from the standpoint of ethnic diversity and competitiveness. First, his Melting Pot Index is a measure of immigrants rather than ethnicity and it should not be assumed that all immigrants into the US are from visible minorities. In fact, Florida suggests there is no correlation between the proportion of non-whites in a city/region and the concentration of high-tech industry.27 Second, correlation alone does not provide a sound foundation for making causal inferences. Beyond proposing a vague notion of a ‘creative ecosystem’, Florida does not discuss the precise causal mechanisms through which ethnic diversity generates creativity and economic development effects.28 In empirical terms, there is some evidence of the role of ethnic diversity in stimulating creativity and innovation in relation to London’s creative industries, referring 



 

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Monder Ram, Tareq Abbas, Balihar Sanghera and Geoffrey Hillin, “Currying Favour with the Locals: Balti Owners and Business Enclaves”, () International Journal of Entrepreneurial Behaviour & Research (), –. See, for example, Florida (), op.cit. note ; Id. (), op.cit. note ; and Sam Youl Lee, Richard Florida and Zoltan Acs, “Creativity and Entrepreneurship: a Regional Analysis of New Firm Formation”, () Regional Studies (), –. Florida (), op.cit. note  at . Michael Storper and Anthony Venables, “Buzz: Face-to-Face Contact and the Urban Economy”,  Journal of Economic Geography (), –.

Ethnic Minority Entrepreneurship, Diversity and Competitiveness specifically to London’s Asian population’s contribution to the music and performing arts and software and computing sub-sectors.29 Music and the performing arts are good examples of activities where diversity can feed into creativity through fusion, by drawing on different cultural traditions and creating something new. In such cases, an individual’s ethnicity and cultural experience has a major potential input into the creative process and may thus be regarded as a key element in the core business concept. Another example is the fashion business, where there is strong interest from young Asians in developing traditional designs into forms that are suitable for contemporary garments. A successful fusion can lead to products that have an appeal both in the mainstream as well as narrowly Asian markets. Young British Asians are in a good position to achieve that, since the fusion reflects their own experience. The link between diversity, creativity and innovation may also apply between individual firms within clusters of firms, as well as within firms. The principle of fusion in relation to ethnic and cultural diversity can also be a source of innovation in ethnic minority firms involved in the food processing sector. The relatively high value-added nature of the business activities involved in London’s creative industries, which are typically knowledge or skill based, contrast with the low value-added nature of many of the traditional areas of Asian business activity in the UK, in sectors such as clothing, catering and low-order retailing. In this context, it is perhaps not surprising that Asian businesses in the creative industries are typically owned and run by second or third generation migrants, many with graduate level education. The higher value-added characteristic is an important one for Asian entrepreneurship (in a UK context), in view of the recognition by policy-makers of the need to encourage the diversification of minority ethnic business activity out of low value-added, low entry threshold activities into higher value-added activity. The trend can potentially contribute to more competitive Asian business development, as well as to increased social inclusion, with potential welfare gains for the society as a whole. D. Exploiting Diaspora Networks Ethnic diversity at the city/region level may enhance business competitiveness by enabling or stimulating business owners to commercially exploit diaspora links, which may be viewed as a form of social capital. While accepting that commentators attach multiple meanings to the term ‘diaspora’,30 the term is used in this paper to refer to the dispersion of ethnic and national groups across international borders. No assumptions are made regarding diaspora members’ self-identities vis-à-vis their host societies or their orientations towards any putative homeland. Diaspora networks vary in terms of the number of actors they incorporate, their location, the benefits they can make available to individual members and the strength of relations between network actors, all of which can influence business competitiveness. Business owners may exploit diaspora 



David Smallbone, Marcello Bertotti and Ignatius Ekanem, “Diversification in Ethnic Minority Business: the Case of Asians in London’s Creative Industries”, () Journal of Small Business and Enterprise Development (), –, at . Roger Brubaker, “The ‘Diaspora’ Diaspora”, () Ethnic and Racial Studies (), –, at .

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David Smallbone networks in two main ways: firstly, to access resources that are unavailable or more expensive to acquire from other sources; and, secondly, to provide a market for goods and services. Cities and regions that are home to EMB groups possess a potential competitive asset if these diaspora-based linkages can be exploited commercially. International studies show extensive use of ethnic-based networks to access sources of finance, labour, information and markets for goods and services.31 Rath, for example, refers to networks as being instrumental in acquiring knowledge, distributing information, obtaining capital, recruiting labour and establishing strong relations with clients and suppliers.32 Ethnic networks in Canada were considered essential to business success for the Asian, Chinese, Indian, Korean, Sri-Lankan, Vietnamese and Jewish communities; and in the US for Chinese, Asian, Iranian, Korean, Jewish and AfricanAmerican communities (among others). A number of UK studies have also found that EMB groups use diaspora-based networks to access valuable resources and to provide markets for products.33 McEwan, Pollard and Henry stress the importance for the ethnic food and Bhangra music industries in Birmingham of import/export linkages with countries of origin, such as India and China.34 Jones, Ram and Edwards highlight the importance of drawing on local and illegal coethnics as a source of labour in the West Midland’s restaurant and clothing sectors; many businesses would simply not survive without undocumented immigrant labour.35 Some EMBs are able to generate business with companies based abroad because they have been exposed to a blend of knowledge and experience from their own culture and Western culture. For example, a small London-based EMB operating in design, was able to offer packaging services to foreign companies that wanted to invest in London and needed help in tuning their packaging to the tastes of English custom-





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For example, James Rauch, “Business and Social Networks in International Trade”,  Journal of Economic Literature (), –; Jock Collins, “Chinese Entrepreneurs: The Chinese Diaspora in Australia”, (/) International Journal of Entrepreneurial Behaviour & Research (), –; David Smallbone, Rosemary Athayde and John Kitching, “Ethnic Diversity, Entrepreneurship and Competitive Advantage in a Global City”, Paper presented to the st Conference of the International Council for Small Business Annual Conference, Melbourne, – June; Gordon Cheung, “Chinese Diaspora as a Virtual Nation: Interactive Roles between Economic and Social Capital”,  PS (), –. Jan Rath, “The Commodification of Cultural Resources in a Historic Inner City: Amsterdam Chinatown from an International Comparative Perspective”, Paper presented at the Conference on The Future of the Historic Inner City of Amsterdam, September , University of Amsterdam. Nick Henry, Cheryl McEwan and Jane Pollard, “Globalization from Below: Birmingham – Postcolonial Workshop of the World?”, () Area (), –. Cheryl McEwan, Jane Pollard and Nick Henry, “The ‘Global’ in the City Economy: Multicultural Economic Development in Birmingham”, () International Journal of Urban and Regional Research (), –. Trevor Jones, Monder Ram and Paul Edwards, “Ethnic Minority Business and the Employment of Illegal Immigrants”, () Entrepreneurship & Regional Development (), – , at .

Ethnic Minority Entrepreneurship, Diversity and Competitiveness ers.36 Sunrise Radio is another UK example of the competitive advantages of an Asian network. This media company has radio stations in seven cities in England and Scotland with high concentrations of Asian communities. Transnational elements of the company include five national radio stations in Sri Lanka, two in Mauritius and one in Dubai. Additionally, anecdotal evidence suggests that London’s diversity contributes to attracting people looking for ethnic-based products in, for example, Chinese medicine. Trust is an important component of ethnic networks, without which they would not function effectively.37 Trust is a necessary condition for the sustainability of networks, and the deterrence of opportunistic behaviour that could undermine them is enforced by the threat of expulsion from the network. At the same time, networks also need to be open to new members; otherwise, such “efficiency enhancing domestic networks” can actually impede international trade.38 Encouraging business start-up in areas of high concentration can generate agglomeration benefits but can also harm the interests of existing business owners by increasing levels of competition.39 It is important to recognize the role of the broader social context, rather than focusing exclusively on ethnic resources and networks, as an influence on business competitiveness. The ‘mixed embeddedness’ thesis suggests that competitiveness depends not only on business owners’ embeddedness in ethnic networks but also their capacity to draw on and exploit wider market and institutional contexts,40 which can vary spatially. EMB groups often operate in product markets that do not require high financial outlays or high skill or qualification levels, as these are easier to enter. Because of this, coethnic markets are often very competitive and dependence on them is likely to constrain business performance and growth.41 The concept of ‘breakout’ was introduced to describe the capacity of EMB-owned enterprises to reach customers beyond the ethnic group.42 In order to achieve this, business owners may have to exploit their ‘weak ties’,43 which are those with whom they do not have close relationships but possess key resources or  

  

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Smallbone, Bertotti and Ekanem, op.cit. note  Collins, op.cit. note  at ; David Smallbone, Fergus Lyon and Xiao Li, “Trust, Cooperation and Networking in an Immigrant Business Community: the Case of Chineseowned Businesses in the UK”, in Hans-Hermann Hohmann and Friederike Welter (eds.), Trust and Entrepreneurship: A West-East Perspective (Cheltenham and Northampton, MA: Edward Elgar, ); McEwan, Pollard and Henry, op.cit. note . Rauch, op.cit. note , emphasis in original. Ram, Abbas, Sanghera and Hillin, op.cit. note . Jan Rath and Robert Kloosterman, “Outsider’s Business: a Critical Review of Research on Immigrant Entrepreneurship”, () International Migration Review (), –; Robert Kloosterman and Jan Rath, “Immigrant Entrepreneurs in Advanced Economies: Mixed Embeddedness Further Explored”, () JEMS (), –. Giles Barrett, Trevor Jones, David McEvoy and Chris McGoldrick, “The Economic Embeddedness of Immigrant Enterprise in Britain”, (/) International Journal of Entrepreneurial Behaviour and Research (), –. For a review, see Monder Ram and Trevor Jones, Ethnic Minorities in Business, Report of the Small Business Research Trust (Small Business Research Trust, London, ). Mark Granovetter, “Strength of Weak Ties”, () American Sociological Review (), –.

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David Smallbone can become important customers. This contrasts with a continued reliance on ‘strong ties’ (e.g. family members and others with whom the owner has close relations) to provide key resources. E. Supplier Diversity It can be argued that a diverse supply base can contribute to enhanced performance for the purchasing organization, whether this is a large corporate or a public sector organization. In this regard, the US experience provides useful evidence of the business case for supplier diversity. One argument is that small businesses can offer a more customized and flexible solution than larger providers, either alone or in partnership. Diversity may also be viewed as a source of creativity and innovation, implying that supplier diversity may enhance the innovative and entrepreneurial propensities of the organization. Another factor is the potential public relations value for the organization in terms of being able to demonstrate diversity of suppliers to match the diversity of its customer base. There is also the potential reputation value for an organization from being known to support socially beneficial initiatives and actively promote equal opportunities. Because of a tendency for many ethnic minority businesses to be focused on low value-added activity, an important policy priority is to help to diversify the ethnic business sector by helping EMBs to exploit new market opportunities. This can be achieved by assisting established EMBs to ‘break out’ of a reliance on coethnic markets into ‘mainstream’ markets, which in many cases will be a necessary step for these businesses to grow. More fundamentally, it can involve taking steps to open up completely new markets for EMBs, thereby offering an opportunity to diversify the ethnic business base. In this context, in the UK, there are a number of supplier diversity programmes that seek to increase the access of EMBs and other small firms to procurement contracts. thereby increasing the diversity of the supply base. Such initiatives offer a potential mechanism for facilitating the diversification of EMBs into higher value-added activity, with public sector procurement as a potentially valuable tool for achieving this.44 In the UK, there has been considerable interest recently in examining the US experience, where this type of initiative has a longer track record and public policies for ethnic minority businesses have included procurement preference initiatives for some years. Many states now have an office for minority businesses and a network of local branches, though not in all cases, because of political opposition to the principles of affirmative action. Affirmative action is based on ‘set-aside’ public procurement contracts whereby a minority business that is within % of the lowest bid will be awarded the contract. In the private sector also, there are numerous examples in the US of corporate supplier diversity programmes. Support for supplier diversity is said to be strongest in the US automobile industry, where Ford, Daimler-Chrysler and General Motors spent a total of $. billion on diversity supplier contracts in . Major corporations (i.e. Fortune  companies) are using their public websites to support supplier diversity initiatives. For instance in Cincinnati, Kroger, which operates supermarkets under 

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Monder Ram and David Smallbone, “Ethnic Minority Enterprise: Policy in Practice”, Research Report RR/, Small Business Service, at .

Ethnic Minority Entrepreneurship, Diversity and Competitiveness the names Fred Meyer, Ralphs, Smith’s, King Soopers, Dillon, Fry’s and City Market, has a ‘supplier diversity programme’ that seeks to ensure that minority-owned and female-owned businesses are part of their mainstream supply base. Unfortunately, there has been little evaluation of such programmes, making it difficult to assess the impact they have had on ethnic-minority-owned businesses and the amount of ‘deadweight’ involved in such initiatives (in other words, how many ethnic minority businesses would have become suppliers without being involved in a particular initiative). It has been suggested that affirmative action supplier diversity policies in the US have contributed to the diversification of second generation minority-owned enterprises, as well as to local economic development in disadvantaged urban areas.45 At the same time, the US model of prioritizing disadvantaged groups in awarding procurement contracts has, not surprisingly, led to allegations of favouritism and attempted misuse by those excluded from the programme and criticisms regarding the effects of bidding procedures on the quality of supplies. In fact, litigation against specific cases of minority business preferment and state-wide referendums resulted in the states of California and Washington banning preferment based on race or ethnicity, thus weakening its effectiveness as a policy tool to help minority businesses. Critics of ‘preferential procurement’ argue that it puts qualified non-EMBs at a disadvantage and that these schemes can be poorly administered. It is also argued that the difficulties EMBs face in accessing procurement contracts stem from their small size and lack of experience, due to the young age of many of these firms. Supplier diversity programmes are relatively new to the UK and therefore tend to be in the very early stages of development.46 In the UK, the key drivers for supplier diversity are economic development, equal opportunities and corporate social responsibility, although some private sector companies claim to base their initiatives on ‘the business case’. Attempts have been made to assist in building the capacity of small EMBs to meet the requirements of procurement opportunities created. One example is ‘Fit-toSupply’, which is an intermediary-led initiative, run by Business Link for London. The programme provides information to participating EMBs about supply opportunities, as well as training to help firms achieve the quality standards of purchasers. F. Ethnic Diversity and Tourism Ethnic diversity can also contribute to city/regional competitiveness (a so-called ‘diversity dividend’) by attracting visitors/tourists to ethnocultural events and to ethnic precincts providing a range of retail and food and drink outlets.47 Urban tourism currently accounts for approximately % of European tourism and is expected to continue to grow. European examples include tropical carnivals in London’s Notting Hill, Berlin and Rotterdam; the Bollywood film festival in The Hague; and the Turkish Klein Istanbul in Berlin. However, traditional countries of settler immigration acknowledged the   

Thomas Boston, Affirmative Action and Black Entrepreneurship (London: Routledge, ). Monder Ram and David Smallbone, “Supplier Diversity Initiatives and the Diversification of Ethnic Minority Businesses in the UK”, () Policy Studies (), –. Jan Rath (ed.), Tourism, Ethnic Diversity and the City (London and New York: Routledge, ).

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David Smallbone potential of cultural diversity a long time ago and were ahead of Europe in this regard. Examples include the Chinese Quarter in Melbourne since the s and Chinatown in New York; Chinatown in Vancouver opened up to tourism in the s.48 One attempt at an integrated policy initiative focused on ethnically based tourism is the Hague’s ‘City Mondial’ project, which was part of a wider ‘Big Cities Policy’ in the Netherlands to address social needs in deprived city districts.49 The aim was to offer an integrated approach combining physical, economic and social measures with locally based initiatives involving local residents and representative groups (e.g. housing associations and voluntary groups). Local governance was a key feature of the policy and social cohesion a key aim. The Hague is the most segregated city in the Netherlands and is home to  of the  most deprived neighbourhoods, with more than % of the population being of nonDutch origin. Although the second cultural city of the Netherlands (after Amsterdam) historically, the cultural potential of immigrants had not been recognized and exploited. The tourist sector was identified as an important component of regeneration strategy because it provides many jobs to lower-skilled residents. City Mondial was perceived as a major opportunity to enrich the cultural repertoire of The Hague and to encourage the economic activities of immigrants. More than % of the population in the district covered by City Mondial have an ethnic background and they now form one of the fastest growing groups of entrepreneurs in the city, mainly in the hospitality and retail sectors. Many new shops and restaurants have opened in recent years and the City Mondial Foundation has developed a range of activities. Strong local networks were one of the factors behind the success of the initiative. At the same time, many of the ethnically based activities are said to run in parallel, with little crossover or joint participation by different ethnic groups,50 suggesting that there may be missed opportunities for creativity and innovation, compared with a situation where a higher degree of interaction occurs. It has been suggested that in order to reap the ‘diversity dividend’ from ethnic tourism, certain conditions need to be in place.51 To be successful, the ethnic tourist sector needs to be integrated into a larger existing tourist industry and be included in mainstream promotion. In addition, Zukin argues there is a ‘critical infrastructure’, comprised of knowledge workers that design cultural production, such as marketing bureaux, tourist boards and national and local government, which influences the popularity of particular ethnic activities.52 These actors need to work together to promote ethnic cultural activities with a committed organization or individual taking the lead. There also needs to be a critical mass of consumers for the ethnic tourist sector to take off, as well as a critical mass of ethnic attractions to sustain tourist interest. The social and regulatory infrastructures must be capable of supporting the development of a reg    

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Rath, op.cit. note . Van Kempen, “Big Cities Policy in the Netherlands”, () Tijdschrift voor Economische en Sociale Geograffe (), –. Ibid. Rath, op.cit. note . Sharon Zukin, “Urban Lifestyles: Diversity and Standardization in Spaces of Consumption”, (–) Urban Studies (), –.

Ethnic Minority Entrepreneurship, Diversity and Competitiveness ular precinct into a tourist attraction. Finally, small innovative EMB businesses need to be nurtured through business development programmes designed to support growth and facilitate quality upgrading. However, there are also a number of potentially negative influences of such developments that need to be carefully managed. For example, in a study of  English cities, Hankinson found that local residents were not always involved in such initiatives because the perceived benefits were targeted at outside business interests rather than helping local communities.53 The displacement of low-rent residents and small businesses is just one of the negative effects of tourism development in previously deprived areas highlighted by other researchers.54 IV. Conclusions and Wider Implications Examination of the UK experience with respect to ethnic minority entrepreneurship demonstrates that self-employment and business ownership can provide a route for immigrant-based ethnic minorities to play an active role in a host society, as well as a means for individuals to earn a living and achieve a degree of self-fulfillment. The above average propensity of members of some ethnic minority groups to be involved in entrepreneurial activity must be viewed as positive overall, even if the social inclusion effects may sometimes be exaggerated.55 While some of this involvement in entrepreneurship may initially have been driven by need, which in some cases may have included negative experiences in seeking employment in mainstream labour markets, it is misleading to characterize all ethnic minority entrepreneurship in Britain in such terms. What is also unquestionable is the significant and growing contribution that ethnic-minority-owned businesses are making to the UK economy, particularly from those that are members of well-established ethnic minority communities. Moreover, as generational change contributes to a shift towards greater involvement in higher value-added activities, the nature and extent of this contribution is likely to increase. At the same time, increasing attention should be paid to the needs and aspirations of members of newly arrived migrant groups from Central and Eastern Europe and asylum seekers, about whom the evidence base is currently thin. Since creating and developing a business requires resources, as well as aspiration and commitment by individuals, the ability of members of minority and/or immigrant groups to successfully follow such a path is likely to be affected by the nature and extent of the resources they are able to mobilize. While the social capital that often exists within such communities is undoubtedly a potentially valuable asset in this regard, it is unlikely to be sufficient in itself if finance and human capital resources are limited. The argument that ethnic (and other forms) of diversity can contribute to the competitiveness of an economy is an attractive one because it emphasizes the integrated   

Graham Hankinson, “Location Branding: a Study of the Branding Practices of  English Cities”, () Journal of Brand Management (), –, at . Zukin, op.cit. note . Robert Blackburn and Monder Ram, “Fix or Fixation? The Contribution and Limitations of Entrepreneurship and Small Firms to Combating Social Exclusion” () Entrepreneurship and Regional Development (), –.



David Smallbone nature of contemporary societies and the interdependence between their members. If the proposition can be supported with convincing evidence, there is a potentially powerful message to be disseminated within society, with implications for social inclusion. However, in this context, it must be recognized that, although a number of hypothesized links between ethnic diversity and competitiveness can be identified, the empirical evidence required to confirm, refine or reject these is currently rather scarce. While a number of the suggested causal connections seem plausible, without further systematic research it is difficult to argue whether such connections exist in practice, how strong such connections are and what conditions support or hinder their influence in practical terms. This conclusion is consistent with feedback received in regard to ongoing research being undertaken by Kingston University for the London Development Agency, from other academic researchers and government policy-makers from around the world. This includes informants in Australia, Canada and the US, who were approached as experts on ethnic minority business or representatives of agencies with an interest in the topic. Most of them reported an interest in the topic being investigated, yet few were able to provide, or point the research team towards, convincing evidence to support ethnic diversity competitiveness links. At the same time, the lack of previous evidence underlines the potential contribution of the case studies and empirical research being undertaken in London. Recognizing the limitations of the existing empirical evidence, detailed examination of specific links suggests that the high propensity of some ethnic minority groups to engage in entrepreneurship is undoubtedly a potential asset for a city, provided more can be channelled into higher value-added activity. In addition, diaspora-based linkages are undoubtedly a potential asset of London’s EMB population, as far as mobilizing resources and exploiting new markets is concerned. However, further research is required in order to clarify the circumstances in which such linkages are most likely to be positively exploited. In the creative industries, in particular, there is some evidence of diversity contributing to the development of innovation that is generating profitable business opportunities, as well as employment. The overall conclusion is that ethnic diversity may be a potential asset for city competitiveness but the evidence currently available requires strengthening before significant public policy resources are committed to seeking to enhance it. While it may be argued that the position of London is unique with regards to the diversity of its ethnic minority population, the principles discussed in this paper are worth exploring and potentially transferable to other contexts. Perhaps the key point to note is that while diversity is a source of potential competitiveness, resources are needed to exploit it, which in some ethnic minority communities requires a strong supplementary or pump-priming role for public policy.

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Nick Johnson*

Social Inclusion and Ethnic Minorities. Building an Integrated Society: The United Kingdom Perspective

I. Introduction Britain is becoming a society that, almost without noticing it, is more and more divided by race and religion. We are becoming more unequal by ethnicity. In terms of race relations, Britain is unique, due to the diversity of racial backgrounds that live here and the legislation that is in place to promote race equality. However, like many other countries, Britain is struggling to meet the demands of ensuring equality within diversity and at the same time tackling the challenges posed by the threat of international terrorism, increased immigration, the rise of extremist groups and the changed dynamics of race and culture. For example, Britain is struggling with the increased numbers of those with dual heritage and the influx of white Eastern Europeans. In addition, Britain, like many countries across Europe, is grappling with the role that faith may play in the public sphere and how that is to be managed in a secular society. Events over the past year, including the disturbances in Birmingham, Paris and Sydney, the London bombings, the tragic events in New Orleans and the blurred lines between freedom of speech and incitement of racial hatred, succinctly illustrate the challenges faced not only by the Commission for Racial Equality (CRE) but by all those who work in the field of equality and race relations, from the grassroots voluntary worker to the new Commission for Equality and Human Rights.1 The London bombings and the ongoing terrorist threat have clearly had a big impact on race relations in Britain. Also, while we cannot draw direct comparisons with the US, hurricane Katrina and events across the southern states in  highlighted some issues that we have been ignoring for too long, as well as how things can go wrong if policy makers do not step in and act before it is too late.

* 

Director of Policy & Public Sector, Commission for Racial Equality. This Commission was brought into law by the Equalities Act of  and will open its doors in the autumn of .

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 53-66. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Nick Johnson Community cohesion has been at the core of British race relations policy since the riots in our northern towns in the summer of . This policy provides a strong framework to develop community relations at a local level but has in some cases led to a coded meaning of ‘making sure people don’t riot’, with the absence of riots and open conflict in the streets being seen as success. However, by the time violence erupts, we will have gone way beyond the situation we needed to address. In the US, we saw a group of people who were socially, economically, culturally and psychologically all marooned outside the mainstream of society. Where you have a society that is so segregated, equality cannot exist. This might sound like doom and gloom but there is complacency in some quarters which we need to address. Do we want to live in a society where % of parents in one local authority area in the West Midlands refused to allow their children to go on an educational visit to a mosque because they claimed it was “run by al-Qaeda”?2 For too long, policies to deal with the social consequences of migration and diversity have focused more on the ‘multi’ in multiculturalism and not enough on the common culture. We have emphasized what divides us rather than what unites us and tolerance of diversity has led to the effective isolation of communities. While Britain is a diverse and multiethnic nation, multiculturalism as a policy framework is now in danger of emphasizing the divisions within our society and making us more fragmented. If we ignore these challenges, we give succour to those who argue that our inequality and lack of cohesion is due to our diversity. We must not only argue that diversity does not have to lead to inequality but go further and argue that true equality in a diverse society depends upon successful integration. II. An Integration Agenda A. The Emerging Debate Over the past two years, there has been a robust debate about diversity and identity in Britain today. In debating and discussing ideas around multiculturalism, integration and cohesion, people have explored the ways in which these terms have theories and policies ascribed to them. In many respects, the plethora of terminology is used to describe similar desires in terms of public policy. The wish is to create and sustain a Britain where we can celebrate our diversity but where difference does not have to mean division and where everyone has the chance to participate in making the decisions that count. We believe that the best and most inclusive term for this agenda is ‘integration’, which we have now made the centrepiece of our work. This is not assimilation but rather an interdependent combination of factors. An integrated society is one where everyone signs up to a concept of citizenship based on values, culture and behaviour that is held in common and defined legally: democracy, equality between men and women, the integrity of the person and freedom of expression. When and where these core values conflict with ancestral cultural values, 

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This information was passed on to the CRE by a teacher, who wishes to remain anonymous.

Social Inclusion and Ethnic Minorities. Building an Integrated Society: The UK Perspective

the core values must always win. It is a society in which the statistical chance of any member of society gaining access to a service, acquiring a job or achieving educational success is unrelated to his or her race or other characteristic but only to his or her talent, ambition and desire. However, at the CRE, we have developed the integration agenda into something more specific. We already know a lot about what an integrated society looks like. It has three essential features: . Equality: everyone is treated equally, has a right to fair outcomes and no one should expect privileges because of who or what they are. . Participation: all groups in society should expect to share in how we make decisions but also expect to carry the responsibilities of making the society work. . Interaction: no one should be trapped within their own community and, in a truly integrated society, who people work with or the friendships they make should not be constrained by race or ethnicity. In short, there must be equality for all sections of the community, interaction between all sections of the community and participation by all sections of the community. 1. Equality One crucial error we could make is to forget that equality is an absolute precondition for integration. A society in which you can predict the outcomes for any individual by their race or other determining factor is one that is not only not equal but also unable to achieve full integration. The fact that most ethnic minority Britons are poorer, less educated, less healthy and less politically engaged than their white counterparts greatly inhibits any moves towards integration. In Britain, we have legislated against discrimination and yet the differential outcomes between racial groups are still stark and pernicious. We have to say that we are still failing when a Black Caribbean male is statistically twice as likely to go to prison than to get a university degree, when a Pakistani man will earn on average over £, per year less than his white peer with equivalent qualifications and living in the same town or when unemployment is over one-third higher among ethnic minority communities than their white counterparts. In the health service, where over one quarter of doctors are from an ethnic minority, we see just five or six as heads of health trusts.3 While racism exists on its own, it is also inextricably linked with the inequality of ethnic minorities. Evidence of the persistence of racism, as it evolves and adapts to the legal codification of equality principles and consequential behavioural changes in society, can be seen by the disproportionate experience of ethnic minorities in the main public sectors when compared with the experiences of the white majority.4

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Information extrapolated from Department for Communities and Local Government, “Improving Opportunity, Strengthening Society: One Year On – A Progress Report on the Government’s Strategy for Race Equality and Community Cohesion, ”, at . Ibid.

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Nick Johnson The causes of this inequality have changed over the past  years. While the number of reported racial incidents is falling slightly and a  ICM survey for the CRE has indicated that blatant discrimination or harassment is not found as frequently as in the past,5 other forms of racism are prevalent. By this, we mean something that could be described as ‘stealth racism’, which in practice means a series of small, apparently insignificant decisions, incidents or encounters, none of which by themselves could be the subject of court proceedings but all of which are to the disadvantage of ethnic minority employees or clients. For example, the practice of banks having computerized systems to assess customers’ credit ratings can have a discriminatory effect. Some ethnic communities do not accumulate debt and therefore have a poor credit history when they might want to apply for a mortgage. This is also increasingly the case for some faith communities, with the basis of discrimination and prejudice being found in religion in ways that it was not previously. It must also be borne in mind that it is easier to achieve and measure anti-discrimination than to generate ‘deep’ or ‘thick’ equality, where somebody’s ethnic background does not affect their life chances. This goes beyond ‘thin’ equality, which simply measures equality in terms of position or progress. To achieve this, we need equality through the strengthened participation of ethnic minorities in all strands of civil society and enhanced interaction between individuals from different ethnic backgrounds. There are more invisible and subjective aspects to persistent inequality, which are harder to identify and measure. One example is low aspirations and expectations, which have huge potential effects on equality outcomes, as becomes increasingly clear in the research on the education of ethnic minority children. Others are the perception of being unsafe or vulnerable to crime and the insecurity that comes with the realization that one does not have the same life chances as others. Insecurity and risk are clearly important contextual factors that affect more than just equality and are commonly thought about in relation to community relations and good race relations. Context features and the feelings these generate within groups influence the nature of interaction and participation profoundly. The government has commissioned an independent review of equality in the UK, which is due to be published at the turn of this year. Its interim report was published in March  and recommended a new framework for addressing equality issues. This report has the potential to reframe the terms of the debate over how governments should address persistent inequality.6 This review has already identified the detrimental debate regarding the definition of equality for the purposes of public policy. By stressing a ‘strand’ approach looking at inequality solely through labels such as race, gender and age, the cause of equality has often been marginalized in wider policy debates. The emphasis has been on the individual strand and thus links between them have been missed. This also undermines attempts to win wider popular support for some equality policies and legislation, and it becomes almost impossible to make a robust case for prioritizing action on one equality issue over action on another. Achieving a consensus on this remains crucial if govern-

 

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ICM, Unpublished Report for CRE, . See for further information.

Social Inclusion and Ethnic Minorities. Building an Integrated Society: The UK Perspective

ment, policy makers and others are to be able to make strategic decisions that will achieve change. Comparisons between large groups or domains against other domains/strands often tell us little about the varying experiences of individuals within a large group. For example, if we look at employment rates among all Afro-Caribbeans, one picture will emerge. However, if we interrogate that same data but look instead at different patterns within the Afro-Caribbean ‘group’ by age or sex, then a more complex picture emerges, which may require very different policy approaches to address the nature of the inequality experienced. Furthermore, by stressing a strand-specific approach to combating inequality, the argument of the benefits for wider society of greater equality is in great danger of being lost. This, in turn, may weaken the basis for garnering greater public support in favour of achieving equality. Equality is currently seen through a prism of minority rights, with strands competing against one another for limited resources or legislative privileges. Measures to address inequality are seen as helping some individuals or groups rather than benefiting society as a whole. This particularly applies to the benefit system where people can claim money for various issues such as disability or being a single parent. While this can be justified on fairness grounds, other taxpayers see people as being rewarded for being different. In race terms, this was seen in the policy of many local authorities in the s and s of funding individual groups marked by their ethnic homogeneity rather than looking at the needs of the wider community. This not only hampers the cause of greater equality but is also damaging to issues of community solidarity and cohesion. If the case for measures to increase equality is to be persuasive and command public support, we must not allow what separates people to be more important than what unites them. Too much emphasis on strands and minority rights risks making equality a fringe issue in the political discourse. As the Equalities Review said, “what is in fact a true attempt to remedy an unjust inequality may appear to be the action of self-interested groups to close gaps for which they in part are themselves responsible”.7 Furthermore, a strand-only focus has perhaps blinded policy makers to the fact that those initiatives that frequently have the greatest impact on combating inequality have been mainstream policy developments such as Sure Start8 and the New Deal9, rather than measures targeted at individual groups or strands. It is imperative that equality is seen as a goal for the whole of public policy and not just specific aspects of it. 2. Participation We must recognize that real commitment to equality in government, in our neighbourhoods and in the workplace, will not happen until all communities have a voice. Unless all Britons are able to participate in decision-making, services and businesses will never 

 

The Equalities Review, “Interim Report for Consultation”, Cabinet Office,  March , at , at . See for further information. See for further information.

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Nick Johnson provide for us all equally as citizens. If you consistently exclude a group or groups from the processes by which society functions, then they are bound to have less positive opportunities and life experiences. There should be great concern that the number of ethnic minority councillors fell between  and , that there were fewer ethnic minority people on public bodies in  than in the years beforehand and that ethnic minorities are still grossly underrepresented in a number of local institutions such as health boards, school governing bodies and cultural bodies. While we can welcome the election of  ethnic minority MPs in , if the House of Commons were to be truly reflective of Britain today, it would have over . It is troubling that, in terms of minority representation, the House of Lords is currently more representative than the Commons. Civic participation is lower among certain ethnic groups. While % of Britons claimed that they volunteered regularly in a -month period up to , this was down to % among those individuals at risk of social exclusion, defined as people with no qualifications, with a disability or limiting long-term illness or from a minority ethnic group.10 This is within a climate of declining civic involvement in any case. In the  Citizenship Survey, just % of people in England felt they could influence decisions in their local area while only % thought they could so at a national level.11 The highest levels of participation can be found in the most prosperous areas, among the young and people with free time.12 The lowest levels of participation are found among the poorest in society, who are therefore deemed to be partly responsible for the increased levels of inequality, as they cannot expect rights if they do not fulfil their responsibilities. This is not something peculiarly British, as the same can be seen from Robert Putnam’s research on the decline of social capital in the US. Importantly, he also shows how that decline is not an inevitable downward spiral: it can be reversed with courageous and ambitious public policy.13 3. Interaction Increasingly, communities in Britain live with their own kind. Residential isolation is increasing for many minority groups, especially South Asians. Some minorities are moving into middle-class, less ethnically concentrated areas but what is left behind is hardening in its separateness. The number of people of Pakistani heritage in what are technically called ‘ghetto’ communities trebled during –; % in Leicester live in such communities (the figure was .% in ) and .% in Bradford (.% in ).14 There should be alarm at the research produced by Professor Simon Burgess and his colleagues at Bristol University, which shows that children are slightly more seg    

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From the  United Kingdom Citizenship Survey, at . Ibid. Ibid. . Mike Poulsen, Macquarie University, speech to Royal Geographical Society on  September .

Social Inclusion and Ethnic Minorities. Building an Integrated Society: The UK Perspective

regated in the playground than they are in their neighbourhoods.15 Recent research in one London borough’s primary schools showed that  schools had more than % Bangladeshi pupils, while nine others had fewer than %.16 This is a real concern. Not only are the children not interacting with one another but nor will the parents be either. Policy makers look to the education system to lead and pave the way to bring people together and bring about change but the education system is actually going in the wrong direction, with further problems down the line. Alongside this type of hard, spatial segregation, communities increasingly inhabit separate social, religious and cultural worlds. In , the CRE commissioned research that showed that most Britons could not name a single good friend from a different race, while fewer than one in ten could name two.17 When we repeated the exercise one year later, the overall situation had not changed.18 In , % of white Britons said that all or most of their friends were white, while this was % in  and once again a majority (%) could not name a single non-white friend. This was true of white Britons of all ages, classes and regions.19 However, the  research showed that this separation was increasing among ethnic minority communities.20 In , % of ethnic minority Britons said that most or all of their friends were from ethnic minority backgrounds and this had grown to % in . The % of ethnic minority Britons who said that most or all of their friends were white in  shrank to % in . It also remains true that younger Britons are more exclusive than older Britons. It must surely be the most worrying fact of all that younger Britons appear to be integrating less well than their parents.21 Many communities, such as racial or faith groups, find it increasingly difficult to break out of their isolated clusters, leaving them culturally and sometimes even physically ring-fenced within cities. In these segregated neighbourhoods, ethnic minority communities can feel intimidated and under siege, and neighbouring majority communities can also feel excluded, so the two simply never interact. These communities will steadily drift away from the rest of society, evolving their own lifestyles, playing by their own rules and increasingly regarding the codes of behaviour, loyalty and respect that the rest of us take for granted as outdated behaviour that no longer applies to them. This applies just as much to certain white communities and white ghettos, particularly in rural areas, as it does to some of the inner city areas. We need to stress how you can bridge between communities. What are those networks, those spheres and those agents that bring people together? We want no one to       

Simon Burgess, Deborah Wilson and Ruth Lupton, “Parallel Lives? Ethnic Segregation in the Playground and the Neighbourhood”, () Urban Studies (), –. Geoff Dench, Kate Gavron and Michael Young, The New East End: Kinship, Race and Conflict (Young Foundation, London, ). Polling conducted by YouGov for CRE, , at . Polling conducted by YouGov for CRE, , at . Ibid. Ibid. Ibid.

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Nick Johnson be trapped in their own communities and the people you work with or the friendships you make to be completely unconstrained by race or ethnicity. However, clearly, a society where most ethnic minority Britons are poorer, less well educated, less healthy and less politically engaged cannot be integrated. It is a big agenda and all four factors are preconditions for an integrated society. Without one of them, you will not achieve the other three. B. Research and Data Collection One of the key challenges facing policy makers is the inability to set out a comprehensive and complete picture of inequality and the lack of integration in Britain today. In part, this is due to the fact that there is no centrally held store of data on inequality and no common definition or measurement in use. The data currently collected are too diverse and there are significant ‘data deserts’ in some areas. Furthermore, there is little reliable evidence that indicates why some people enjoy superior life chances or educational and employment outcomes apart from some research on socio-economic status. However, in many ways, Britain is in a better position as far as data are concerned than our European or US counterparts. Data are vital in informing policy. If Britain did not monitor by ethnicity, we would be severely hampered in our ability to tackle inequality maps, the social consequences of migration and increasing diversity within our populations. Britain is lacking in terms of analysis and cross-referencing—in many cases, we are ‘data rich but analysis poor’. From the CRE’s experience, ethnic monitoring has provided a wealth of data, particularly in education (although not all that is collected is ever published or made available to policy makers). However, the categories and timeframes used are not consistent across policy areas, causing major problems in coming to a more comprehensive understanding of the evolution of equality as well as using these data to change practices on the ground. There is a need for government to enable a more consistent collection of equality data and to ensure wide public availability. The CRE is of the opinion that this is best managed by an independent body such as the Economic and Social Research Council (ESRC), which would also be responsible for regular baseline analysis. It is important that such work is seen as being independent of government and also linked explicitly to policy. The benefits of this approach have been clearly seen in the work undertaken by the ESRC’s Research Centre for Analysis of Social Exclusion (CASE) at the London School of Economics. Extended work of this nature, funded by government, would be a significant step forward in this area.22 One area that has hitherto been greatly under-analysed is the effect of migration on the labour market and society in general. Migration is commonly taken into account in terms of population growth and demographic projections but more needs to be done to look at the impact of the growing diversity of populations, the increasingly shorter periods of stay, the diversity of migration routes and the effects of globalization on mobility. This hyper-diversity is just starting to develop and it will profoundly affect our understanding of inequality, community relations, belonging and social cohesion. 



See for examples of their work.

Social Inclusion and Ethnic Minorities. Building an Integrated Society: The UK Perspective

In addition to exploring the impact of hyper-diversity from migration, more work needs to be undertaken to understand how people from different backgrounds and different abilities experience inequality and what the impact of context features is on how they define their life chances. As discussed in the section on the general approach to equality, research has too often focused on single strand issues, leaving us with a rather limited understanding of how age, religion, sexual orientation and other potential identity components interact. Insight in multiple experiences that define life chances goes hand in hand with a deeper understanding of how we can achieve greater equality between different groups within society, both between minorities and the rest of the population and between minority groups themselves. C. Measurement A new policy framework will require a new approach to measurement. However, we need to be clear about what—and why—we are measuring. Measurement must be seen as a way of tracking progress or being a trigger for intervention rather than determining policy. Clearly, there will always be a link between the two but the range of potential indicators of equality is so wide that any measurement index cannot hope to be exhaustive and so it should be explicitly acknowledged that it is indicative of wider trends within society. An undue emphasis on any basket of indicators could narrow the focus for policy makers. Measurement is indeed important but this should come at the end of the process not at a formative stage. The key should be to identify the evidence and look for the policy levers and then find ways of measuring their effectiveness. Additionally, measurement is the key to evaluating the effectiveness of the levers used and should be designed with these in mind. In terms of defining the critical threshold that would determine any policy intervention, this must come through theoretically sound and empirically based research. Setting equality criteria is inherently a political decision. To combine both outlooks, individual states will need to look at a number of EU defined norms and goals related to agreed standards of life quality. Working within a European framework would enable a comparative outlook, build on a wider research base and enable a more objective assessment of needs. Any measurement framework should give thought both to objectively needed skills and to including the skills needed for personal development, such as the ability to plan, self-steer, reflect and evaluate. Less-appreciated skills, such as linguistic ability and intercultural competence, might be as important to policy makers as educational attainment or employment rates. Indeed, they might lead to measurement of the causes rather than simply the symptoms of inequality. In doing this, the CRE advocates an approach that is more focused on developmental and capacity-building skills than simply on ‘lists of skills’. The CRE is currently preparing a set of ‘integration indicators’ that will enable international comparisons as well as analysis on a regional and local basis within Britain. These are being developed under the integration model outlined above.

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Nick Johnson III. Building an Inclusive National Identity A. Britishness, Citizenship and Identity Recent political, constitutional and cultural changes have fuelled public discussion about the definition of ‘Britishness’. The discussion has encompassed many different sectors, from the government to academia to the media, presenting diverse views on British values, institutions and narratives. It is likely to be a battleground in British politics with both the Labour Chancellor of the Exchequer Gordon Brown and the Conservative Party Leader David Cameron putting great store by making ‘Britishness’ part of their political philosophies and platforms. However, we cannot consider Britishness only in itself. It is one facet of the way in which people identify themselves. The principles that are ascribed to being British are almost entirely consistent with those that people include in notions of citizenship. In seeking to define Britishness, we are also looking for something that can unify people and tie communities together. In that context, we should see it as a manifestation of collective identity and perhaps an overarching bridging tool. Recent emphasis has been on an emotional identification with Britain, a sense of belonging to a broader community, expressed through shared symbols and values. The current interpretation of citizenship, however, concentrates on active participation, which, in turn, involves the sharing of risks and responsibilities between citizens and the state. Government looks to expand democratic participation by reengaging citizens in the decision-making process, particularly in relation to public services. Any progressive agenda should imply that citizens have a political as well as a consumerist relationship with the state. The underlying social values of citizens who are committed to the common good share a collective interest in the aims and objectives of policies, which override the self-interest of service users. These values will not be evident in a society where life chances are dependent on individual wealth and ability, so diversity and social capital should be emphasized through positive action and the redistribution of resources. This is where notions of Britishness, identity and citizenship link explicitly to the integration agenda. Both the solutions that we need to achieve full equality, interaction and participation, and the result of an integrated society are things that require a collective and shared notion of what that society looks like, that it is a good thing and how we get there. The changing nature of British society has transformed social composition and dynamics, brought greater cultural diversity and altered the sources of power and influence and the distribution of wealth. As a result, many citizens now possess inadequate social rights or the necessary resources. Those with the most to gain do not or cannot have a presence in their local community or networks. Deprivation leads to disaffection and social unrest, and the debate on citizenship must address the concerns of the most deprived in the interest of community cohesion. A citizen cannot be a truly equal member of the community if they are in a state of permanent dependency. In the most visible cases, this is why some current migration policies could be so damaging to the forging of any collective identity within Britain. As equality can only exist between economically and politically independent individuals, ‘aliens’ are unde

Social Inclusion and Ethnic Minorities. Building an Integrated Society: The UK Perspective

serving of the honour of citizenship. However, it is in the interest of the host community to bestow the legal and psychological security of citizenship on immigrants to enable them to establish roots, contribute to the local community, invest in social capital and care about integration. As outlined earlier, Britishness must not be an imposed or dominant identity. It is one part of every citizen’s range of identities. As recent CRE research says: “Identity remains a fluid and context-sensitive construct”.23 The academic Tariq Ramadan argues that everyone has multiple and moving identities, where the context defines which part of your identity is stronger. He uses the example of a vegetarian poet who would pronounce his vegetarianism at a dinner party but would not think it salient at a poetry reading.24 B. Generating and Promoting a Shared Identity If we are defining Britishness as a positive thing by linking it to citizenship and social solidarity, then we need to know how to encourage it. We need to capture a sense of the ways in which identities become more or less salient as a function of the situations in which people find themselves. This is the so-called ‘identity spike’. The decision as to which identities we assert, when we want to assert them and what we want to do with them is ours but the decision does not take place in a vacuum. While some situations may be of our choosing and a positive thing, be it a social setting or supporting a sports team, others will be a reaction to something. These are likely to be a more defensive assertion of identity. This could be at a personal level when someone is the subject of abuse or discrimination, or the impact of national or international events such as the war in Iraq or a terrorist attack. For Britishness to succeed we must seek common, equal citizenship. There must be a general agreement to a set of values based on justice, human rights and social responsibility, and a sense of common belonging so that all groups feel at home. All people must be of equal value and deserve equal respect, and all individuals must have the opportunity to voice their opinion on issues that affect them. The part of any individual’s collective identity that defines them as British is there or has the potential to be there; it is just very low or dormant in many people. We need to look at ways we can cause it to spike, not so that it is dominant or that it replaces another part of that identity but so that it is strong enough to forge a sense of solidarity, of ‘we’re all in this together’, in society as a whole. If we can equate Britishness and its associated values with collective membership of society, we can then promote that. However, it can only be encouraged if we live in a society where there is true equality, interaction and participation.

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Ethnos Research and Consultancy, “Citizenship and Belonging. What is Britishness?”, Ethnos Report prepared for the CRE, , at . Dominic Casciani, “Islamic Militant or Revolutionary?”, BBC News,  July , at .

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Nick Johnson IV. The Implications for Policy We need to have a debate about these difficult and sensitive issues, and about respecting the differences that we come across daily. In a sense this would be a general ‘code’ of behaviour, taking into account cultural, religious and racial differences that would provide a baseline for common agreement as to how we conduct ourselves in the public sphere. For instance, should councils print all their important documents in several languages to encourage participation or does this encourage separatism? What should we do about holy days that are not bank holidays? Are judges right to say that school uniform may not be compulsory for the devout, even though for some it is compliant with Islamic modesty? What this discussion will hope to achieve is to reassert fundamental values. We all obey the same laws, we all respect each other’s rights, we all sign up to the equality of women and to equal rights for people whatever their sexual orientation. Also, we accept responsibility for participating in and preserving the integrity of our community and our polity. This would also serve to provide a starting point that looks at what binds us as communities and an opportunity to negotiate differences without falling into the trap of it being interpreted as ‘special treatment’. The Equalities Review discussed earlier helpfully identified three major drivers of change over the last  years: legislation, social policy and cultural change.25 We need to have a greater understanding of the vulnerabilities of some groups within the population and the trigger episodes of inequality before knowing exactly what the appropriate levers for intervention are. In addition, without a thorough and consistent research base, policy makers will often be making short-term judgements, which might address some aspects of inequality without altering long-term trends. In Britain, we have benefited from legislative changes that have enshrined a positive duty upon all public authorities to work towards the elimination of racial discrimination, promote equality of opportunity and encourage good race relations between people from different racial and ethnic backgrounds.26 These positive duties have marked a significant step forward from the previous era of voluntary equality measures and an over-reliance on individual litigation, to a requirement for public authorities to adopt a positive and proactive approach to achieving equality. In practice, the major initiative in this has been the Race Equality Duty (RED)27 and sufficient lessons from this experience can be taken to ensure that any future equality duties arrangements are effective, fit for purpose and reflective of priorities. There are concerns that the RED as currently being enacted may not be the most effective lever for change.28 However, we would not want to give the impression that it has produced   



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The Equalities Review, op.cit. note . See for further information on this legislation and some examples of what it means in practice. The Race Equality Duty is a Commission term that refers to the General Statutory Duty under Section () of the Act and the various specific duties that have been introduced by way of statutory instrument under Section () of the Act since  December . Written evidence provided by CRE to the Equalities Review, January .

Social Inclusion and Ethnic Minorities. Building an Integrated Society: The UK Perspective

no benefits and would refute any assertion that it is more a hindrance than help for public authorities. An example of how legislation has not necessarily delivered cultural change is shown by the police service, where the Race Relations Amendment Act  and a formal investigation into the service by the CRE have led to stringent top-down policies in terms of procedures and employment. Although visible and substantial progress has been made in dealing with racial attacks, harassment and a more representative police service,29 there is still little cultural change on the ground as evidenced by the high disproportionality of ethnic minorities in stop and search actions and the repeated occurrence of racially abusive emails among staff and the lack of appropriate action. In contrast with the police, health is a sector where there are indications that there has been significant cultural change in frontline services, with some Primary Care Trusts (PCTs) having made systematic efforts to mainstream race equality into service delivery and commissioning. However, there is a lack of consistent policies to take advantage of this and there is little evidence to show that this has resulted in meaningful change in outcomes. There remain strong differences in health between the general population and ethnic minorities, such as a higher risk of strokes, premature death rates and greater long-standing illnesses.30 Although national targets have been developed to address these, little progress seems to have been made.31 In education and youth services, targeted top-down policies have been developed to tackle the most prominent disparities in exclusions and underachievement of ethnic minorities in education. Although effective on their own, these national policies lack overall coherence and are detached from school race equality policies. The same is true for policies on children and young people, where there is little coherence between different policies and limited connection between national frameworks and local delivery vehicles. Local policies in education and services for children and young people are often general, tend to respond formally to legal requirements rather than engage with issues and seem removed from the experience and needs of practitioners and ethnic minorities. As a consequence, racial equality practices in schools and services for children and young people are disparate, varying from very good to totally absent. There is a clear need for the development of consistent local policies that translate the national targeted policies within the local institutions and services, based on the identification of needs







Over the period –, the proportion of ethnic minority police officers rose from % to .%; the  figure was % for newly appointed officers, .% for special constables and .% for civilian staff. Home Office, “Statistics on Race and the Criminal Justice System ”, Home Office Report under Section  of the Criminal Justice Act , at ; and Id., “Statistics on Race and the Criminal Justice System ”, Home Office Report under Section  of the Criminal Justice Act , at . Health and Social Care Information Centre, “Health Survey for England : Health of Minority Ethnic Groups”,  December , at . Department for Communities and Local Government, op.cit. note .



Nick Johnson and the active involvement of children and young people in the development, implementation and evaluation of policies geared towards them. There is significant untapped potential for the role of shareholder activism in improving diversity in the private sector. Although shareholder activism has been limited in Britain, there have been notable success stories that demonstrate the impact this can have. Recent campaigns regarding executive remuneration were an effective lever for intervening in senior pay awards. There is growing awareness in Britain of business practices that are no longer deemed to be socially acceptable. Public opposition to exploitation, discrimination and poor working conditions is widespread, yet media attention is often needed to convert this into a cohesive, effective campaign with a critical mass of support. There should also be a more open and considered debate on the use of positive action. However, any suggestion of positive action measures must be considered in the context of their impact upon public perceptions and community relations. V. Conclusions The best and fairest societies are ones in which people share experiences and common ambitions whatever their racial, religious or cultural backgrounds. In essence, we must reassert the need for a society based on solidarity in which everyone’s life chances are unaffected by what or where they were born. This is what true integration should mean. Not an assimilation process where some communities are told to leave their identities behind but a process in which everyone who lives in Britain has the right to every opportunity the country offers and the duty to make every contribution of which they are capable. To achieve this, the three legs of the integration agenda go together. Unless we have greater interaction, some communities will find themselves on islands cut off from the mainstream and suffer the fate of being separate and perpetually unequal. Integration has also to be a two-way street, in which the settled communities accept that new people will bring change with them. Newcomers realize that they too will have to change if we are to move closer to an integrated society. Integration is about striking a balance between an ‘anything goes’ multiculturalism, on the one hand, which leads to deeper division and inequality, and an intolerant, repressive uniformity on the other. Any agenda for creating a more integrated Britain should explicitly welcome diversity and reject assimilation. It should also, however, emphasize what unites us as a nation rather than what divides us. The challenge of achieving integration is not simply about building bridges across racial or cultural divides but also means coming to terms with racism and establishing a foundation of shared values and a common citizenship that can successfully be shared by the diverse range of ethnic, cultural and faith communities in Britain. This is a big agenda. It will not happen without positive action and plenty of effort. The hardest challenge will be in encouraging interaction, on top of the already taxing work of fighting inequality and increasing participation. It is here that policy is least developed and requires most thought. However, we cannot afford to ignore it.



Kristin Henrard*

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing: A New Development in Relation to Minority Protection?

I. Introduction and Overview The aim of this contribution is twofold. It sets out to provide an overview of the content and process of developing the latest recommendations sponsored by the High Commissioner on National Minorities (HCNM), namely the ones on Policing in Multi-Ethnic Societies (hereinafter, “Policing Recommendations”). At the same time, this article situates these recommendations in the broader schema of issues related to minority protection. More specifically, it sets out to analyze them in terms of continuation versus difference in relation to the previous sets of Recommendations (and guidelines). Finally, an estimation is made of possible topics for new ‘instruments’ on minority protection and of the possible role the office of the HCNM can (be expected to) play regarding the formulation of these new standards. First of all, a background is sketched, explaining the reasons why the HCNM considered it important that recommendations be developed in relation to policing. This sketch is set against the more general practice of the HCNM in instigating the formulation of this kind of recommendation, as well as the outcomes of previous endeavours. Subsequently, the actual process that was followed leading up to the final version of the Policing Recommendations is reflected upon, including the identification of relevant themes, the ‘source’ material and the working methods of the expert group. The analysis will then focus on the extent to which the Policing Recommendations are new (innovative) both from a formal (procedural) point of view and from a more substantive point of view. The latter analysis will highlight the central themes and ethos of the Policing Recommendations. Finally, this paper concludes with an overview of other potential new developments in relation to minority protection (instruments) and a brief assessment of the possible role of the HCNM in this respect.

*

Associate Professor, University of Groningen.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 67-98. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Kristin Henrard II. The HCNM and the Development of Recommendations The HCNM was established to be “an instrument of conflict prevention at the earliest possible stage”,1 demanding that the High Commissioner be a neutral mediator between public authorities and minorities. The ensuing mandate obviously does not include standard setting, while the HCNM is meant to operate within the framework of existing legal standards2 (both in terms of general human rights and minority rights). In order to do so, it is of course important that these norms are sufficiently clear so as to provide effective, meaningful guidance. However, as is often emphasized, this is not really the case.3 Human rights norms are not minority-specific and everything depends on how supervisory bodies actually interpret these norms in relation to minorities and their specific situation (and needs). Minority rights may be minority-specific but are formulated in such a vague way, replete with qualifiers (also called escape clauses),4 that here everything depends on the way they are interpreted by the relevant supervisory mechanism. This need for clarification of the existing norms (inter alia, in light of the supervisory mechanisms) in order to guide the practice of both the HCNM and the OSCE states has led the HCNM to venture indirectly into the domain of standard setting, better described as standard clarification.5 Through the course of his practice, the HCNM has identified certain themes that have kept recurring (as sources of potential conflicts) and in relation to which he aspired to achieve a clarification of existing standards.6 Each time, he commissioned a group 

 









CSCE, “Mandate of the High Commissioner on National Minorities”, in CSCE, Helsinki Document : The Challenges of Change, chapter II, para. , at . See also Patrick Thornberry and Maria Amor Martin Estebanez, Minority Rights in Europe (Council of Europe Publishing, Strasbourg, ). CSCE, op.cit. note , para. . Kristin Henrard, Devising an Adequate System of Minority Protection (Kluwer Law International, The Hague, ). For the more general truth that the actual protection flowing from general human rights depends to a great extent on the interpretation of their reach and the extent to which their exercise may legitimately be limited, see also Francesco Palermo and Jens Woelk, “From Minority Protection to a Law of Diversity? Reflections on the Evolution of Minority Rights”,  EYMI (/), –; and Anastasia Spiliopoulou-Akermark, Justifications of Minority Protection (Kluwer Law International, London, ). A prototypical example of a minority provision with several qualifiers is Article , Para. , FCNM: “In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if those persons so request and where such a request corresponds to a real need, the Parties shall endeavour to ensure, as far as possible, the conditions which would make it possible to use the minority language in relations between those persons and the administrative authorities”. Qualifiers make it very difficult to deduce what the actual content of this right is. See, for example, Kzryztof Drzewicki, “The Lund Recommendations on the Effective Participation of National Minorities in Public Life – Five Years after and More Years Ahead”,  IJMGR (), –. Compare in this respect the introductions to the first three sets of recommendations enumerated below.

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing of international experts to formulate recommendations ‘based on’7 existing standards as interpreted by the relevant supervisory bodies. Having these recommendations would arguably ensure consistency in his own approach, while encouraging and facilitating the adoption by states of specific measures to alleviate tensions relating to national minorities. Be that as it may, the themes addressed in these recommendations can be considered good indicators of focal points in relation to minority protection. Initially, the focus was on obvious minority themes such as education (e.g., the  Hague Recommendations regarding the Education Rights of National Minorities) and language more broadly (the  Oslo Recommendations regarding the Linguistic Rights of National Minorities). The latter theme—or, more accurately, a specific sub-set of issues from the latter theme—was taken up again later in the  Guidelines on the use of Minority Languages in the Broadcast Media. In , the Lund Recommendations took up and elaborated upon a theme that had already been present in the previous recommendations, the ‘Effective Participation of National Minorities in Public Life’. Before getting into an analysis of the Policing Recommendations, it appears important to highlight the essential principles or overarching themes of an adequate system of minority protection. Without claiming to be exhaustive, foundational importance can be attached to both the right to identity of minorities and the principle of substantive or real equality (as opposed to mere formal equality).8 When translating these essential principles in terms of the integration/separation continuum (integration/inclusion/considering yourself part of the broader society, on the one hand, and separation/attention to one’s own, separate characteristics, on the other hand), the right to identity would come closer to the latter. Nevertheless, integration9 does not have to imply (voluntary)10 assimilation and abandoning one’s own, separate identity. Ultimately, the optimal midway point would imply a focus on “integration without forced assimila 





See infra for a more nuanced analysis in this respect. See, inter alia, Asbjorn Eide, “Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities”, Document for the UN Working Group on Minorities, UN Doc. E/CN./Sub./AC.//WP.,  May , ; and C. L’Heureux-Dube, “Making a Difference: The Pursuit of Equality and a Compassionate Justice”, South African Journal of Human Rights (), –, at . See also Boutros Boutros-Ghali, “Protection of Minorities: Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities”, Report of the Secretary-General of the UN, UN. Doc. E/CN./Sub.//,  June , . Note the different use of the term ‘integration’ by Tove Malloy, who connects this term to the basic approach of the EU while also indicating that this approach has repercussions for minorities and minority protection. According to her, the three approaches of the OSCE, the Council of Europe and the EU, namely security, democratization and integration, respectively, would constitute the European international politics of accommodation of national minorities. Tove Malloy, National Minority Rights in Europe (Oxford University Press, Oxford, ), –. Forced assimilation is in any event prohibited in terms of positive international law. Article  ICCPR has been interpreted as enshrining the prohibition of forced assimilation as a corollary of the right to identity of minorities. See Patrick Thornberry, International Law and the Rights of Minorities (Clarendon Press, Oxford, ), –



Kristin Henrard tion”.11 As will be developed later, it is possible to identify a constant shift in relative importance of the two themes12 (as is also reflected in the different recommendations sponsored by the HCNM). III. The ‘Recommendations on Policing in Multi-ethnic Societies’: Background and Process In his opening address to the meetings of the expert group, of which this author was a member,13 the HCNM emphasized that there were often (and across OSCE states) allegations of racism and police brutality against persons belonging to minorities. Obviously, these problems can lead not only to mistrust on the side of the minorities in relation to the police but also more generally to a deterioration of interethnic relations and possibly even ethnic tensions. Discussions on the importance of some standards/principles concerning policing in the context of multiethnic societies have a long history. In the US, they have been a feature of debate since the s, while in the UK the outbreak of riots with a racial undertone in the s triggered attention as well. These discussions and related experiments already underscored that there are a great many ways in which the relationship between minorities, on the one hand, and police and policing activities, on the other, are crucial for optimal integration of minorities as well as the peaceful coexistence of various population groups within a country.14 As will be discussed later, certain documents were drawn up in this respect but these either have a broader focus (and only partially fit into the minority protection framework) or a minority focus ‘limited’ to (or predominantly targeting) a certain region.15 











There is often a debate about the relationship between ‘integration’, ‘assimilation’ and minorities but, in view of the right to identity of minorities, ‘integration’ should never amount to forced assimilation. See also Thornberry, op.cit. note , –. For a more theoretical reflection on the two poles of ‘integration’ and ‘separation’ in relation to minority protection, see the excellent article by Tom Hadden, “Integration and Separation: Legal and Political Choices in Implementing Minority Rights”, in N. Ghanea and A. Xanthaki (eds.), Minorities, Peoples and Self-Determination (Brill, Leiden, ), –, especially –. The author is aware that her membership of the expert group might raise doubts about her impartiality. She has attempted to give a balanced discussion and review of the Policing Recommendations, inter alia by also carefully addressing the criticisms that have been formulated in relation to them. See also Robin Oakley, “Police Training Concerning Migrants and National Minorities”, in CoE, Human Rights and the Police: Seminar Proceedings (Council of Europe Publishing, Strasbourg, ), –. The HCNM became convinced, through his work in several OSCE participating states, that there is a correlation between the quality of policing, on the one hand, and the state of interethnic relations, on the other. See also Vincent de Graaf and Annelies Verstichel, “Recommendations on Policing in Multi-Ethnic Societies”, OSCE Yearbook () (forthcoming). Krzysztof Drzewicki, “Introducing Recommendations on Policing in Multi-Ethnic Societies: A New Tool for the OSCE High Commissioner on National Minorities”, () HM, –, at .

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing In , the HCNM decided to take up the policing theme as well. In response to the question ‘why so late?’, it can be argued that it makes sense first to elaborate on existing minority rights standards and the typical, recurring themes that can be identified therein. It should be kept in mind that the entire policing was picked up on by the OSCE only at the end of the s anyway.16 The question ‘why now?’ can be answered by pointing to the persistent and even increasing role of so-called ethnic dimensions in policing generally and notably in the Balkans and Central Asian Republics. It has become increasingly clear (to the HCNM) that the police, especially the local police, may play an important role in shaping intercommunal attitudes and public perceptions at the local level in regard to minorities. While this role can be positive, it can also be negative, depending on numerous factors. Against this background, it is worthwhile to highlight some of the broad aims of the Policing Recommendations. As was also the case with previous recommendations, the Policing Recommendations deal with a topical issue, often present in minority situations, which has the potential to lead to an escalation of tensions. Hence, the recommendations can clearly be considered to be tools to accomplish the role of conflict prevention assigned to the HCNM.17 As before, the aim is to identify recommendations that are in line with (translate)18 the (relevant) existing human and minority rights standards; in the case of the Policing Recommendations, the aim of providing practical guidance to states is even stronger than before, while for the first time explicit reference is made to the fact that this guidance is “based on international experience and best practices”.19 The latter points invite a few more comments (also in view of some criticisms being voiced against the Policing Recommendations). As before, the proclaimed intention of the Policing Recommendations is to clarify the implications of existing human rights and minority rights standards. In relation to the previous sets of recommendations, it is correctly pointed out that they amounted to “bold and realistic interpretations” of these standards, which actually developed the existing minority rights standards and gave them more concrete content.20 The clarification and provision of more concrete content is indeed no unnecessary luxury in relation to minority rights, as these norms tend to be rather vague and full of escape clauses or qualifiers. However, in relation to policing, there are no explicit minority rights standards or human rights standards that directly target this activity. Still, it is not correct to state that policing questions would not be covered by existing standards. Both human rights and minority rights are addressed to all public authorities and this obviously includes the police. In relation to the former, the overarching prohibition of discrimination is 

   

Drzewicki, op.cit. note , –. In this respect reference can be made to the Charter for European Security adopted by the OSCE Summit in Istanbul (), the establishment of the post of a Senior Police Adviser in  and of the Strategic Police Matters Unit (SPMU) under the latter’s guidance. See . See also de Graaf and Verstichel, op.cit. note , . See infra for a more nuanced discussion. HCNM, Recommendations on Policing in Multi-Ethnic Societies (), . Arie Bloed, “Comments on the New Set of Recommendations on Policing in Multi-Ethnic Societies”,  HM (), –, at .



Kristin Henrard essential as is the obligation to respect the fundamental rights of all persons under the jurisdiction of the state party concerned.21 The case law of, inter alia, the European Court of Human Rights (ECtHR) has revealed the importance of adequate protection of individual human rights by the police. In this respect, reference can be made to several cases in relation to Roma, dealing, inter alia, with the right to respect for life, the prohibition of torture and inhuman and degrading treatment, and the right to security of the person.22 Several minority-specific rights also have implications for the police in various respects. Consequently, it is not surprising that some of the Policing Recommendations take up themes developed in the previous sets of recommendations.23 Nevertheless, it remains the case that there is not a single provision dealing with policing as such, let alone policing in relation to minorities. When comparing this to the legal basis of the previous sets of recommendations,24 it cannot be denied that there are obvious differences in the degree of available legal basis. A cursory review of existing minority-specific standards shows that language rights are addressed in several settings, while education also received ample attention. Notwithstanding the fact that the concept of ‘political participation’, as such, does not feature in many provisions, there are several human rights provisions of direct relevance to this theme. In relation to the media, the scarcity of explicit minority-specific rights is not to the same extent complemented by human rights provisions.25 This would seem to be one of the reasons why in relation to the ‘use of minority languages in the broadcast media’, the concept of ‘guidelines’ was used instead of ‘recommendations’.26







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



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The text of the general human rights conventions obliges contracting states to guarantee the rights in the convention to persons who find themselves “within the jurisdiction of the state concerned”. See, inter alia, Article () ICCPR and Article  ECHR. The most important question here is the reach of the concept ‘jurisdiction’. It seems generally accepted that this is not limited to the territory of the state concerned. See, inter alia, ECtHR, Assenov v Bulgaria,  October , ///; ECtHR, Velikova v Bulgaria,  May , /; ECtHR, Anguelova v Bulgaria,  June , /; ECtHR, Nachova v Bulgaria,  February  and  July  (GC), / and /; and ECtHR, Moldovan et al. v Romania,  July , / and /. See infra for a further elaboration. For now it can already be highlighted that provisions on language use in relation to public authorities are obviously relevant in relation to the police as well, while the ‘representation’ dimension of political participation would require a certain presence of members of minorities in the police service. This can be done by comparing the explanatory notes of the respective recommendations (and guidelines), as these explicitly spell out the corresponding standards in terms of human rights and minority rights. Only Article  FCNM would qualify in this respect. It should be acknowledged that the Oslo Recommendations regarding the Linguistic Rights of National Minorities contain some provisions on the media but the Explanatory Note in this respect refers back to general human rights provisions on freedom of expression, which are generously interpreted. It should be highlighted in this respect that several of the experts expressed a preference for the use of the concept ‘guidelines’ also in relation to provisions drafted in relation to ethnic policing.

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing When talking about hard rights, it has already been highlighted that there is not one that expressly targets policing. This would imply that the Policing Recommendations are (rather) about the extrapolation of existing standards in view of the overarching goals of minority protection, in particular substantive equality, the right to identity and (its corollary) the prohibition of forced assimilation. On the other hand, it should be highlighted that several documents had been drawn up on the issue of policing from various, often overlapping, angles, albeit not clearly within the context of human rights generally or minority rights more specifically. Policing and ethics (and good standards of policing more generally) were taken up in the UN Code of Conduct for Law Enforcement Officials () and the European Code of Police Ethics ().27 In addition to these codes made up in intergovernmental fora, reference should also be made to (at least) two documents that do not have similar de facto authority. In relation to the Budapest Recommendations on Police in Transition (),28 it should be underlined that ‘transition’ tends to affect minorities and other disadvantaged communities more strongly. Last but not least, the Rotterdam Charter has an explicit focus on policing in multiethnic societies. In this respect, the criticisms that have been voiced in relation to the Policing Recommendations seem to some extent self-contradictory. On the one hand, the need for the Policing Recommendations is questioned because the content would be rather similar to the Rotterdam Charter.29 On the other hand, at the same time the Policing Recommendations are also criticized for not building sufficiently on existing standards.30 Admittedly, the Rotterdam Charter does not concern legally binding standards but it appears nevertheless incongruous to complain about the fact that the Rotterdam Charter was not sufficiently31 referred to in the Explanatory Note of the Policing Recommendations because of the high degree of similarity and at the same time to find fault with the lack of basis in existing standards of the latter Recommendations. The criticism would need further refinement at least. There might not be many human and minority rights directly addressing policing; nevertheless, several deductions can be made from these norms and the concomitant ‘jurisprudence’ of the supervisory mecha



  

The Code of Ethics has provisions on effective cooperation with ethnic minority groups (No. ), on recruitment of persons belonging to ethnic minority groups (No. ), on the need to respect human rights in the exercise of the police functions (Nos –) and hence also on training in human rights standards (No. ). Nevertheless, it is clear that the focus here is on general ethical police behavior and that minority issues are only touched upon en passant. While the Budapest Recommendations include attention for adequate human rights training for police officers (Recommendation No. ) and several provisions on the need to respect human rights while exercising police powers (Recommendations , , , ,  and ), there is little attention given to the specific needs and concerns of minorities (one recommendation concerns the need to involve minorities at both management and staff levels of policing (No. )). See infra for several nuances to this similarity. Bloed, op.cit. note , –. The Rotterdam Charter is referred to in a footnote in the beginning of the Explanatory Note as an important source of inspiration across the board for the Policing Recommendations.



Kristin Henrard nisms. In this respect, it can still be said that “the HCNM’s decision to launch the idea of drawing up a body of recommendations on policing in the ethnic context is yet another manifestation of approaching conflict prevention with human-dimension tools in hand”.32 The experts drafting the Recommendations, in any event, took existing human and minority rights standards into account, as well as the related supervisory practice. In relation to the complaint that the Policing Recommendations would be too much of a ‘copy’ of the Rotterdam Charter, it needs to be acknowledged that broadly similar themes are taken up in both documents. Nevertheless, there seem to be several differentiating elements. First of all, the Rotterdam Charter is meant to address tensions surrounding policing in Western European societies and, more particularly, relations between police and minorities of migrant origin in urban areas,33 while the Policing Recommendations are drafted in such a way as to apply both west and east of Vienna. Second (and related to the first point), the Rotterdam Charter does not address the prevention and management of ethnic conflicts and hence does not provide guidance on particular policing problems in transitional states and post-conflict situations (as are often found in Eastern Europe). Third, even though the Rotterdam Charter proclaims to be concerned not only with principles but also with “action which could and should be taken to implement these principles in everyday police practice”,34 it remains rather declaratory. The Policing Recommendations, however, offer much more practical guidance to states.35 Finally, the Policing Recommendations are squarely situated within the human rights and minority protection framework, in the sense that the parameters set by these existing standards (and their interpretation by supervisory mechanisms) is (at least more explicitly) taken into account. In relation to the aim of providing guidelines of a practical nature, aimed at promoting, through sound police practices, confidence building and strong intercommunal relations (at the pre-conflict stage), it should be noted that this explains (to some extent) the greater detail of the Policing Recommendations and especially the Explanatory Note.36 IV. The Procedure Followed to Arrive at the Policing Recommendations37 The identification of relevant themes and issues to be taken up by the Policing Recommendations were followed by extensive discussions on the exact formulation of the related recommendations and the concomitant part of the Explanatory Note.

     



Drzewicki, op.cit. note , . See the first principle taken up in the Rotterdam Charter. Rotterdam Charter, “The Creation Of The Charter”, para. . See, in this respect, another goal of the Policing Recommendations, which is addressed immediately below, namely that of providing practical guidance. See also Drzewicki, op.cit. note , . See also Drzewicki, op.cit. note , –; and de Graaf and Verstichel, op.cit. note , .

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing During the first meeting, the HCNM pointed in his opening remarks to certain themes he already considered to be particularly relevant in relation to policing in multiethnic societies.38 Obvious points include the need for an equitable representation of minorities within the police force, at all levels in the hierarchy. This has repercussions not only for initial appointments but also for promotions. The underlying concerns go beyond issues of legitimacy and symbolism (inclusion) but also touch on questions of operational effectiveness. The latter would arguably be enhanced both because of the skills in relation to minority languages brought in by police officers who belong to a minority and the heightened confidence and trust by the minorities towards a police force that also includes minority members. The latter already points to another important point, namely the communication and overall relations between the police and the minority communities concerned. The interaction between minorities and the police force was also acknowledged to benefit from appropriate training of the police force (in interethnic relations)39 and from appropriate ‘operational practices’,40 including questions of the use of force and the need to avoid even the impression of ‘ethnic profiling’.41 During the subsequent discussions of the experts (in the presence of HCNM staff ) other themes were added, often as sub-components of issues already taken up by the HCNM himself. Since all experts were supposed to have read the source material hinted at above, most of the additional points can be traced to these documents, especially the Rotterdam Charter. An important addition, which cannot be directly traced back to the source documents, concerned the importance of a neutral working environment or, better, a working environment that adequately accommodates the linguistic and religious diversity present in the force. While the importance of the initial appointment of minority members to the police force cannot be underestimated, it was pointed out that adequate retention measures should be included as well and this is closely tied to the need to have a ‘neutral’ or accommodating working environment. When appoint-

 

 

Personal observations as one of the experts present. See also Queensland Police Service, “Strategic Directions for Policing with Ethnic Communities”, Report of the Queensland Police Service, at , which underlines the importance of “recognizing that adequately resourced and professionally delivered cross-cultural awareness training should be fully integrated in education and training courses for police” and of “promoting recruitment from ethnic communities without compromising professional standards, and ensuring that all recruitment policies, practices, and standards are equitable and free from any racial and/or cultural bias”, . See, inter alia, T.R. Tyler, “Policing in Black and White: Ethnic Group Differences in Trust and Confidence in the Police”,  Police Quarterly (), –, at . See, inter alia, K. Radford, J. Betts and M. Ostermeyer, Policing, Accountability and the Black and Minority Ethnic Communities in Northern Ireland (Institute for Conflict Research, Belfast, ), -; Mary O’Rawe, “Ethnic Profiling, Policing and Suspect Communities: Lessons from Northern Ireland”, Open Society Justice Initiative, at , –.



Kristin Henrard ing members of minorities to the police force, this should indeed have repercussions for the internal structure and operations of the force.42 In the end,  recommendations were formulated, divided into six major parts:43 general principles (Recommendations –); recruitment44 (promotion, retention) and representation (Recommendations –); training and professional development (Recommendations –); engaging with ethnic communities (Recommendations – ); application of the law (later renamed operational practices) (Recommendations –); and, finally, prevention and management of conflict (Recommendations –). Notwithstanding the focus of the last part, the Policing Recommendations emphasize throughout “the role of the police in de-escalating tensions and promoting harmonious inter-ethnic relations”.45 This is actually not surprising considering the HCNM’s mandate. The actual formulation of the Policing Recommendations and the Explanatory Note are a result of a ‘dialogue’ between the independent consultant (Dr. Robin Oakley) and the team of independent experts.46 In regard to the kind of expertise to be represented in the team of international experts, it was obviously important to have people on board who were experts in regard to policing generally, possibly in regard to ethnic policing (including policing in societies going through major transitions), and experts in relation to minority protection. The previous sets of recommendations, especially the first three, deal with ‘typical’ minority themes, hence a certain level of combination of interests in, for example, language rights and minorities was easier to find. Admittedly, the previous sets of recommendations also included people with non-legal expertise such as educationalists for the Recommendations on Education Rights and linguists for those on Language Rights. Nevertheless, in view of the absence of explicit ‘policing’ minority rights (or even human rights), the necessary expertise had to be accumulated from a broader range of sources. This already explains to some extent the selection of a larger number of experts than was the case for previous sets of recommendations.  



 



Personal observations as one of the experts present. Even at this general outline level, certain differences with the Rotterdam Charter can be pointed out, in addition to the strong parallels with the latter’s themes of “recruitment and retention”, “training of police officers” and “building bridges between ethnic minorities and police”. The theme “the implementation of anti-discrimination law” in the Rotterdam Charter is only one of the several aspects addressed under the Policing Recommendations’ heading “Operational Practices”. The Rotterdam Charter’s attention to “migrant participation in crime versus police participation in criminalizing migrants” is not as such taken up in the Policing Recommendations, while the relevant points are present under other headings. The Policing Recommendations furthermore include a topic which is not addressed by the Rotterdam Charter, namely “prevention and management of conflict”. Two examples of methods that can be used to enhance representation of minorities in the police force without (necessarily) lowering standards are “bridging courses at selected Technical and Further Education Colleges to assist non-English speaking background people in meeting the police entry standards” and “inclusion of representatives from ethnic communities on Recruit Selection Panels”. Queensland Police Service, op.cit. note , . Drzewicki,op.cit. note , . Drzewicki, op.cit. note , .

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing The eventual composition of the group of experts was determined by the HCNM in close consultation with experts in policing in the Strategic Police Matters Unit in the OSCE Secretariat in Vienna, as well as with Dr. Oakley (the independent consultant who was the main drafter of the Policing Recommendations). It seems that the opinions of the experts were actually followed most of the time. The team of experts was meant to represent and arguably provide a balanced mix of people working with the police (experts), police officers, academics, members of the NGO community and officials of relevant international organizations (OSCE, Council of Europe and EU). In view of legitimacy concerns, care was also taken that, in addition to this more substantive breadth, an adequate geographic breadth was realized as well, with experts (in the various sub-categories) coming from both the East and the West. The latter was especially important in view of the fact that, in contrast to the Rotterdam Charter, the Policing Recommendations were meant to cater for both Eastern and Western Europe. The resulting requirement for additional representation further justified the size of the expert group. When some critics question the criteria that were used to select this “large group of experts”,47 this seems to miss the point about the broad but not strong basis of the Policing Recommendations. As there do not yet exist specific minority rights or general human rights standards specifically targeting the police and their practice, it was clear that there was extra need for deduction from broader standards. In that respect, it was very important to have sufficient persons with specific expertise in relation to policing and police training both from an Eastern perspective and from the perspective of societies in transition. At the same time, adequate knowledge of relevant human rights and minority rights standards was ensured through the presence of academics, persons working with NGOs specializing in human and minority rights and several representatives of Council of Europe bodies (such as ECRI and EUMC). When considering the rich variety in respective expertise that was reached in the end, the expert group was well composed. Throughout the discussions among the experts in relation to the actual formulation of the recommendations, the Rotterdam Charter was an important source of inspiration. In order to avoid constant references to the same document in the Explanatory Note, the decision was taken to make one general reference at the beginning of the Note. Nevertheless, it might have been more appropriate to do so in the main body of the text, instead of as a footnote. Be that as it may, the experts constantly paid attention to ensuring that the actual formulation that was being negotiated was not in conflict with existing human and minority rights standards. As has already been pointed out above, even though there are not many hard norms that deal specifically with policing in relation to minority communities, it has been accepted as essential that the broader human rights framework, as well as the relevant minority rights (inter alia, on language rights and ‘participation/representation’) ought to be fully respected. The subsequent analysis confirms this, inter alia, when the points taken up from previous recommendations are highlighted. However, it should be acknowledged that it is unfortunate that these relevant standards were not clearly enumerated in the Explanatory Note, in contrast to the prac

Bloed, op.cit. note , .



Kristin Henrard tice in the previous recommendations. The absence of these references could be partially explained by the fact that the initial drafting was done by a non-lawyer, without denying his particular qualifications in relation to ethnic policing (inter alia, through his involvement in drafting the Rotterdam Charter). Nevertheless, it remains striking that this lacuna was picked up by neither the HCNM staff nor the academics present. The experts not took into account relevant standards but also the interpretations that could be drawn from the concomitant supervisory practice. Indeed, where relevant, the practice of the Advisory Committee (AC) of the FCNM was explicitly considered, inter alia, in relation to ethnic representation in the police force as a component of minority participatory rights.48 Similarly, the case law of the ECtHR was taken into account, as was, more specifically, the steadily expanding jurisprudence in terms of racial discrimination, which arguably developed mainly in relation to cases concerning police violence against minorities,49 the lack of protection of minority members by the public authorities against private discriminatory acts50 and, more recently, lack of access to administrative regions in a state.51 Two related issues were extensively debated, which reflected their obvious sensitivity. The first issue concerned special measures of affirmative action and, more particularly, the acceptability of the use of quotas versus mere statistical targets for appointments. Substantive equality (in addition to the right to identity for minorities) is a central goal of any system of minority protection. In this respect, it has often been pointed out that ‘equality in fact’ might require the adoption of ‘special’ measures for minorities. Substantive or real equality is also the goal of affirmative action measures, hence pointing towards the legitimacy of these measures. Nevertheless, they still need to be ‘proportional’ to the legitimate aim (of achieving substantive equality) in order not to violate the prohibition of discrimination.52 It is exactly this proportionality principle that is the main hurdle in relation to affirmative action measures, especially in relation to affirmative action measures focused on ‘equality of results’ and not merely ‘equality of opportunities’. The restrictive attitude of several supervisory bodies can be explained by a demanding proportionality test (or strict scrutiny), which tends to ‘outlaw’ measures targeting ‘equality of results’.53 As is highlighted by the jurisprudence of the European 

   





Drzewicki, op.cit. note , . For a good analysis of this line of argument of the AC, see Annelies Verstichel, “Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities: Review of the Opinions of the Advisory Committee Regarding Article  of the CoE Framework Convention for the Protection of National Minorities”,  EYMI (/), –, at –. ECtHR, Nachova v Bulgaria,  February  and  July  (GC), / and /; ECtHR, Bekos and Koutropoulos v Greece,  December , /. ECtHR, Moldovan et al. v Romania,  July , / and /. ECtHR, Timishev v Russia,  December , / and /. Indeed, it can be argued that the prohibition of discrimination constitutes the outer limit of legitimate affirmative action measures. In other words, one can determine whether an affirmative action measure is legitimate by testing it against the criteria of non-discrimination (legitimate aim and proportionality). See, inter alia, Kristin Henrard, Mensenrechten vanuit Internationaal en Nationaal Perspectief (BJU, Boom, ), at . See, inter alia, ibid., –.

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing Court of Justice (ECJ), quotas (and especially rigid quotas) seem to fall foul of the prohibition of discrimination because they tend to be qualified as disproportionate.54 In this respect, it is to be welcomed that the Policing Recommendations take up this substantive equality theme55 and elaborate on it in relation to the question of representation. While the experts took into account the relevant case law, in the end a position was adopted that also reflected political considerations related to the special needs of (certain) societies in full transition. The less problematic ‘equal opportunities’ approach is clearly the base line and gets considerable attention. Special measures aimed at achieving equal opportunities are addressed in Recommendation No.  and further elaborated in the Explanatory Note. In addition to the more common mechanism of providing extra training possibilities for suitable and motivated candidates, the experts also targeted recruitment campaigns and “action to identify and address any possible (hidden) causes of discrimination against minority applicants in the recruitment and selection process” are envisaged.56 In the latter respect, it is suggested that procedures should be reviewed for possible bias or unnecessary disadvantage to minority candidates and that criteria for selection should be reviewed so as to prevent the inclusion of unnecessary hurdles that (indirectly) disadvantage minorities. Recommendation No.  suggests the use of statistical targets to ensure that staff are representative of the population and is arguably more a measure aimed at addressing the dichotomy between ‘equality of opportunities’ and ‘equality of results’, the latter being far more controversial. Still, it could not be put squarely into the ‘equality of results’ camp, in contrast to quotas (especially rigid quotas), because targets are inherently soft and more of a ‘guiding principle’ then a clear norm. The Explanatory Note in relation to Recommendation No.  arguably takes a balanced position in this respect. On the one hand, it underscores that targets (as recommended in Recommendation No. ) should be distinguished from quotas but, on the other hand, it does leave a severely narrow possibility for quotas: The use of targets to ensure that staff are representative of the population constitutes good practice. Quotas are allocations of places for members of particular groups to be filled during a selection process. The use of quotas as a means of achieving targets for recruitment of minorities often gives rise to complaints of unfairness and risks lowering standards and should be avoided if possible. However, the use of quotas may be appropriate and justifiable in special circumstances. Where for example, as part of a police reform programme in a multi-ethnic State an entirely or largely new cadre of police personnel is being established, it may be essential for legitimacy and effectiveness that this cadre is from the outset ethnically representative of the population as a whole. In such circumstances it may be justifiable to set and fill ethnic quotas, especially at the initial stage of selection and training, provided that the minimum professional standards are required for members of all groups at the stage at which they become confirmed as police



 

See, inter alia, D. de Prins, S. Sottiaux and J. Vrielink, Handboek Discriminatierecht (Kluwer, Mechelen, ), –. See also Daniela Caruso, “Limits of the Classic Method: Positive Action in the EU after the New Equality Directives”,  Harv. ILJ (), –. See also infra. HCNM, op.cit.note , .



Kristin Henrard officers. However, the use of ethnic quotas should be considered only for a transitional period after which the aim should be to achieve the targets by other means.57

The sections in italics underscore that the opening for quotas is very limited indeed. Quotas are only possible in exceptional circumstances, should be temporary and should not have long-term effects on the level of standards. In this respect, it should be highlighted that, in regard to promotion (following recruitment), Recommendation No.  adopts even more careful language—“equal opportunities for progression in their careers”58—with no further mention of statistical targets. This seems to indicate that even the use of targets should be limited as much as possible, while quotas would be totally out of the question at this stage. Arguably, this could be interpreted as implying that the need for an adequate representation of minorities at more senior levels would in principle not be that urgent and is expected to flow from an equitable balance at entry. Another topic that was debated for somewhat longer than the other topics is intrinsically related to the use of targets and concerns the question of the collection of ethnic data. It is obvious that, in order to work with targets or quotas, one needs ethnic data. However, the collection and storage of ethnic data raises concerns over the right to respect for privacy. This is reflected in the national laws of some countries, which qualify ethnic data as sensitive, prohibiting any usage of it.59 Nevertheless, as the Explanatory Note points out, the latter sensitivities in terms of privacy can be avoided if ethnic data are anonymized and converted into statistical data without any possibility of tracking it back to personal databases.60 Overall, the need to take into account the relevant human rights and minority rights framework tended to translate into very careful wording where the experts were confronted with having to balance the need to be legally correct and hence adding sufficient qualifications, on the one hand, and formulating a workable document (that is not drowning in details), on the other hand. The richness of the composition of the expert group also ensured that certain sensitivities in particular countries and regions were taken on board, hence ensuring the broad legitimacy of the document. At the same time, the experts remained mindful that the legal soundness of the text in terms of the relevant international human and minority rights standards was not compromised. The independent consultant (Dr. Oakley) aimed after each session to draft a document that reflected the consensus reached. This document was, each time, sent to all the experts, with opportunity for feedback, after which a revised document was sent out to

   



HCNM, op.cit. note , –, emphasis added. HCNM, op.cit. note , . See, inter alia, the Dutch Law on the Protection of Personal Data, Article . See also Henrard, op.cit. note , . See also Ivan Szekely, “Counting or Numbering? Comparative Observations and Conclusions Regarding the Availability of Race and Ethnic Data in Some European Countries”, in Andrea Krizsan (ed.), Ethnic Monitoring and Data Protection: The European Context (CEU Press, Budapest, ), –, at .

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing all experts again. These multiple feedback rounds were carefully monitored in order to ensure that, in the end, all the experts agreed with the final outcome. V. Analysis of the Policing Recommendations and the Extent to which They Are ‘New’ A. In Relation to Form/Procedure From a procedural point of view, it can be argued that the Policing Recommendations are new in at least two respects. It seems, if only implicitly, that the HCNM adopts more of a steering function towards standard setting here61 and is also much more focused on practical implementation (see also the detail in the next section). In the previous recommendations, the HCNM commissioned the experts consistently to formulate recommendations on a particular theme that he had identified as of special relevance to minority protection, not only ‘in accordance with’ but actually ‘on the basis of ’ international standards. When comparing the Introduction to the Policing Recommendations with those of previous recommendations, it is striking that standard phrases of the latter are missing in the former. These phrases indicate that the recommendations concerned merely translated existing standards and supervisory practice (interpretation).62 While not identical in structure and wording because they were adapted to the particular theme of each set of recommendations, these standard phrases started by underlining the most relevant individual human rights and minority rights, as well as the ultimate goal of real, full equality. Subsequently, the recommendations were said to “clarify in relatively straightforward language the content of minority education rights/ minority language rights generally applicable in the situations in which the HCNM is involved”.63 In regard to the Lund Recommendations on the Effective Participation of National Minorities, the wording already gets more vague: “clarify in relatively straightforward [sic] language and build upon the content of minority rights and other standards generally applicable in the situations in which the HCNM is involved”.64 The minority rights and other standards no longer refer to the theme at hand, which can arguably also be explained by the fact that fewer standards explicitly deal with this matter. In this respect, reference should be made to the Guidelines on the Use of Minority Languages in the Broadcast Media. The Introduction to these Guidelines clearly does  





Contra Drzewicki, op.cit. note , . It was nevertheless already acknowledged in relation to these older recommendations that the “High Commissioner contributed to the development of the normative minority rights framework by initiating the drafting of a set of guidelines”. Rianne M. Letschert, The Impact of Minority Rights Mechanisms (Asser Press, The Hague, ), . It is in any event not surprising that the recommendations and guidelines are used not only by the HCNM itself but also by other international bodies (outside the OSCE). See id., . Respectively, HCNM, The Hague Recommendations regarding the Education Rights of National Minorities (), ; and id., The Oslo Recommendations regarding the Linguistic Rights of National Minorities (), . HCNM, The Lund Recommendations on the Effective Participation of National Minorities (), .



Kristin Henrard not follow the above practice and is even vaguer than the Lund Recommendations. While starting with “in seeking to clarify the content of existing rights”, the relevant paragraph goes on to describe the aim of the Guidelines as being to provide guidance in developing policies “which fully respect the letter and spirit of internationally agreed standards”.65 Arguably, this wording can be explained by the fact that there are few explicit standards on languages and the media, which necessitates the need to deduce standards from overarching principles (like real equality) and more general human rights. It has been argued in this respect that, in relation to languages in the media, the term ‘guidelines’ was/is more appropriate than ‘recommendations’ because there would be less explicit standards on the topic concerned.66 Several experts working on the Policing Recommendations actually preferred the use of ‘guidelines’ in relation to this particular theme. According to them, the use of this term would reflect the paucity of international standards dealing explicitly with the topic. While, in the end, the HCNM decided that he wanted to use the concept of ‘recommendations’, the Introduction to the Policing Recommendations is even further away from the standard phrases in the first three sets of recommendations than the Media Guidelines. There is, indeed, no longer any reference to ‘clarifying the content of existing rights’ but the recommendations are described as being “based on international experience and best practice”, while being “in accordance with international norms and standards”.67 This seems to express that, while the recommendations respected the broader human rights framework, they are based less on human and minority rights standards and rather find their inspiration in ‘experience and practice’ (as reflected, inter alia, in the Rotterdam Charter). The Introduction to the Policing Recommendations acknowledges that there are so far no explicit standards in relation to policing and minorities. In other words, the HCNM, in this respect, did not set out to take stock of what there is (allowing the experts to come up with bold and progressive interpretations of the existing standards) but seems to give a strong indication that there is a need for standard setting in this domain. In this respect, the HCNM adopted a steering function towards standard setting. However, it seems unlikely that new binding instruments will be adopted in relation to minority protection any time soon. The danger inherent in this steering position is that this might negatively affect the legitimacy of the recommendations (inter alia, because they are strongly criticized by academics as not having a solid enough basis in positive international law). As it stands, the Policing Recommendations have been very positively received by the OSCE member states68 and, in that respect, they have already passed an important legitimacy hurdle.

   



HCNM, Guidelines on the Use of Minority Languages in the Broadcast Media (), . Discussions with HCNM staff. HCNM, op.cit. note , . See, inter alia, the reactions at the nd Plenary Meeting of the OSCE Permanent Council, Vienna, Austria,  February .

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing Second, the Policing Recommendations can also be considered to realize an important shift in emphasis on practical guidance. While this theme features to some extent in the introductions to all the preceding recommendations, it is limited each time to an indication that the relevant “standards have been interpreted in such a way as to ensure their coherence in application”.69 The first actual mention of an aim to provide practical guidance was found in the Media Guidelines.70 The following analysis demonstrates that this aim of providing practical guidance is much more prominent in the Introduction to the Policing Recommendations and that, likewise, the actual formulation of the Policing Recommendations reveals a much stronger impregnation with practicability considerations. The focus on practical guidance could also be related to the previous point. The Policing Recommendations do not so much provide a (progressive) interpretation of relevant existing minority and human rights standards (in a well-structured overview) but, rather, offer more practical guidance (based on best practice, etc.) for policy makers and police, as well as NGO and minority communities, on how to approach policing in a multiethnic environment. In any event, it is emphasized both in the Introduction and later throughout the Explanatory Note, that the specific choice in a certain context should always be contextspecific. Arguably, the target audience of the Policing Recommendations also explains this attempt to provide more practical guidance. This target audience not only consists of policy and law makers but also of police managers and people closer to the field, who are hence more hands-on and concerned with practicalities. The stronger presence of practical considerations resulted in a different kind of document compared to the previous sets of recommendations, as is also reflected (to some extent) in the greater degree of detail in the Policing Recommendations. During the meetings of the experts, the issue of the length of the overall document came up several times. In the end, the arguments for a longer document in relation to policing were accepted. One of the most prominent points was that, in relation to policing, there was more need for practical guidance, which necessitates more detailed and hence longer provisions. It was also remarked that police managers and policy makers would not read the entire document in one go but would rather consult it for a specific issue each time, and the length of each section or each recommendation would thus not be a problem.71 In any event, compared to the previous sets of recommendations, the Policing Recommendations do not stick out; rather, it is the Explanatory Note that is bulkier than the previous ones. As will be developed infra (in the next section), the Policing Recommendations pay much more attention to questions of symbolism and actual implementation, to the extent that these themes are taken up each time they are relevant, revealing a holistic approach in that respect. This could stem from multiple reasons, one of which would seem to be that policing is much closer to potential conflicts in the sense that problems in relation to policing and minorities have more direct potential for escalation of con  

HCNM, op.cit. note , ; HCNM, Oslo op.cit. note , ; and HCNM, op.cit. note , . HCNM, op.cit. note , . Personal observations as one of the experts present.



Kristin Henrard flicts. Another reason could be that, over the years, the need to pay more attention to the actual implementation of minority-related norms and policies has come more to the forefront (as is also emphasized by the AC of the FCNM), as well as the importance of symbolism for the accommodation of population diversity . B. In Relation to the Content of the Recommendations The Policing Recommendations do confirm and take up several of the themes of the previous sets of recommendations but also exhibit various distinctive themes/focus points that are not (as clearly) reflected in the previous sets of recommendations. The Policing Recommendations ostensibly take up themes that are developed in the Oslo and Lund Recommendations. In regard to the former, there are several pointers towards language rights and the use of the minority language for both internal and external purposes. Arguably, the neutral working environment hinted at in the Explanatory Note (to Recommendation No. ) could be related to the possibility of the use of minority languages between colleagues, at least when it would be within the framework of associations set up by minority personnel (also referred to in the Explanatory Note). This would take up Oslo Recommendation No. . In relation to the use of minority languages externally, Recommendation No.  arguably takes up Oslo Recommendation No.  and would actually seem to broaden it, in the sense that in relation to police officers there would be fewer qualifiers (such as “regions and localities where they are present in significant numbers” and “wherever possible”).72 In terms of the Lund Recommendations, both ‘representation’ issues in the narrow sense and the broader ‘consultation’ theme (the importance of consulting minorities) are taken up. In regard to the former, paragraph  of the Lund Recommendations highlights the importance of ‘special measures for minority participation in the civil service’. This representation issue is arguably equally important in relation to the police. The Policing Recommendations Nos – seem not only to confirm this point but actually address this issue more thoroughly, inter alia by setting more ambitious goals (in relation to the statistical targets) and by highlighting the importance of the broader need for an accommodating working environment. Furthermore, the Explanatory Note to the Policing Recommendations underlines the crucial importance of wide ‘consultations’, definitely also of the minorities concerned, in order to win multiethnic consensus on the policies (on policing and minorities).73 In addition to the consultation and dialogue theme that pervades the Lund Recommendations,74 Lund Recommendation No.  is particularly pertinent as it requires states to ensure that minorities have opportunities to have an effective voice,

  



HCNM, op.cit. note , . Under general principles. Kristin Henrard, “‘Participation’, ‘Representation’ and ‘Autonomy’ in the Lund Recommendations and their Reflections in the Supervision of the FCNM and Several Human Rights Conventions”,  IJMGR (), –, at .

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing which might necessitate special measures for minority participation in the civil service (which includes the police).75 A first striking difference with the previous sets of recommendations is that this one explicitly says something about the meaning of the concept ‘national minority’. The trend in the OSCE in general seems to be to adopt a more pragmatic approach (avoiding specific theoretical stances in this respect), as was exhibited by the attitude of the previous HCNM, Max van der Stoel, who is famous for saying: “I know a minority when I see one.” While the Policing Recommendations do not address the definitional questions in a full-blown way, they do address the sensitive relationship between national and other types of minorities. Some states and academics argue that ‘national’ implies an additional characteristic in comparison with other and, especially, ethnic minorities.76 However, a careful analysis of various proposals of definition and reports on this concept,77 some of them made within the framework of intergovernmental organizations,78 of ‘national’ versus ethnic, religious and linguistic minorities, reveals that, in the end, the definitional components are the same (hence dispelling the claim that national minorities would be special and qualitatively different in comparison to the other minorities).79 Be that as it may, the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities deliberately chose to adopt an inclusive approach, in an attempt to counter claims by states that a particular minority would not be included in the scope of application. Arguably, a similar approach is seen in the Policing Recommendations when it is emphasized that “in the view of the experts, the term ‘national minorities’ encompasses a wide range of minority groups, including religious, linguistic and cultural as well as ethnic minorities”.80

 









See also Drzewicki, op.cit. note , . See, inter alia, Arie Bloed, “The OSCE and the Issue of National Minorities”, in Allan Phillips and Allan Rosas (eds.), Universal Minority Rights (Abo Akademi Tryckeri, Turku, ), ; and Christian Tomuschat, “Protection of Minorities under Article  of the International Covenant on Civil and Political Rights”, in R. Bernhardt et al. (eds.), Volkerrecht as Rechtsordnung, Internationale Gerichtsbarkeit Menschenrechte (Springer, Berlin, ), –. See, inter alia, Jules Deschenes, “Qu’est-ce qu’une minorité?”, Les Cahiers de Droit (), –; and Mala Tabory, “Minority Rights in the OSCE Context”, in Yoram Dinstein and Mala Tabory (eds.), The Protection of Minorities and Human Rights (Martinus Nijhoff, Dordrecht, ), –, at . The Committee of Government Experts, commissioned by the Council of Europe to formulate a proposal for an additional protocol to the ECHR regarding minority rights, also discussed the relationship between ‘national’ and ‘ethnic, religious or linguistic’ minorities. The resulting report is ambiguous but does indicate that in most cases a national minority is also an ethnic, religious or linguistic minority. Committee of Government Experts, “Rapport du Comité d’ Experts en matière des droits de l’homme au Comité des Ministres”,  November , DH/Exp () , . See also Kristin Henrard, Devising an Adequate System of Minority Protection: The Interrelation of Individual Human Rights, Minority Rigths and the Right to Self-Determination (Kluwer Law International, The Hague, ), –. HCNM, op.cit. note , .



Kristin Henrard On a broader conceptual level, it can furthermore be argued that the Policing Recommendations have a different focus altogether, in the sense that they seem to represent a shift in emphasis, in various respects. Arguably, four points can be made in this respect. First, and this point is developed most elaborately, the Policing Recommendations seem more focused on integration and less on the promotion of a minority’s own, separate identity. This latest set of recommendations also appears more focused on the realization of substantive equality and the effective implementation of policy choices for which a holistic, encompassing approach is advocated. Finally, in several respects, the Policing Recommendations acknowledge the importance of the symbolism of symbolic messages for optimal integration of minorities. It is clear that the Hague and Oslo Recommendations, the two earliest recommendations, focused on themes of special relevance to a minority’s own, separate identity and, more specifically, educational matters (including language in education) and language rights. Even though in these first two recommendations participatory themes (and, more specifically, consultation) were also addressed,81 this theme was singled out in the Lund Recommendations. The Lund Recommendations can be divided conceptually into two prongs: participation in governance of the state (representation); and self-governance over certain local or internal affairs (autonomy). While, for the first prong, the emphasis is on integration through taking part in decisions of broader societal relevance (not only related to a minority’s own identity), the second prong is less about integration but rather focuses on separateness (and the ensuing possibility of promoting the minority’s own identity).82 Nevertheless, it should be acknowledged that the relative importance that the Lund Recommendations seem to attach to the first dimension of representation, and thus integration, clearly outweighs the emphasis given to the autonomy dimension. The Guidelines on the Use of Minority Languages in the Broadcast Media clearly focus more on identity issues and, more particularly, minority languages, which should get a fair share in the media. While some attention is also paid to integration, such as the importance of the exposure of the minority language to the wider public, which would contribute to awareness raising, the Media Guidelines place more emphasis on the minority’s own, separate identity than on the integration dimension. The first, second and fourth recommendations (guidelines) focus attention on both identity issues (emphasizing separateness) and integration, more specifically integration without forced assimilation. While the ultimate goal each time is inclusion (in the sense that the minorities should integrate and not want to exit),83 there is strong emphasis on the promotion of a separate identity. In this respect, reference can be made, inter alia, to Hague Recommendations  and  (on intercultural education), 

 



The participation (in decision-making) theme clearly features in Hague Recommendation No. , Oslo Recommendation No.  and also in the more recent Media Guidelines No. . See also Henrard, op.cit. note , . This theme is arguably reflected in the introduction to each set of recommendations when it is said that the purpose of the recommendation is “to encourage and facilitate the adoption by States of specific measures to alleviate tensions related to national minorities and thus to serve the ultimate conflict prevention goal of the HCNM”.

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing Oslo Recommendation No.  (having topographical indications also in the minority language) and Media Guidelines ,  and  (read together). There are even some recommendations/guidelines that come close to creating some genuine ‘separateness’, such as the Hague Recommendations on private minority schools, Oslo Recommendation No.  on the right to establish minority associations and institutions using the minority language, and the Media Guidelines on separate minority media in the minority language (in addition to provision of minority languages in the public media). The Lund Recommendations on effective participation have less of a direct focus on identity issues,84 while participation is obviously an important instrument to protect identity features.85 It has already been highlighted above that most attention goes to the integration dimension. This is not only visible in the respective extent of elaboration of the representation and autonomy prong but also in the fact that consultation and dialogue between minorities and authorities are central throughout and that it is emphasized that autonomy (as a strong form of separateness) is never absolute and needs to be exercised within a broader, national framework (hence while still focusing on integration).86 The Policing Recommendations fit nicely within the broader scheme of minority protection, accommodation of population diversity and the promotion of multicultural societies, which implies a positive assessment of cultural diversity (and hence of different identities).87 Nevertheless, the overall focus of these recommendations is less on active promotion of the separate identity of minorities but still pays ample attention to the need to respect this separate identity and accommodate it to a reasonable extent. Overall, the optimal integration of minorities is the ultimate focus of the Policing Recommendations. While the following analysis of the Policing Recommendations highlights the integration point, reference will also be made to the other focus points of the Policing Recommendations highlighted above. These other points will be further discussed below. In regard to the General Principles, it can be underlined that the focus is clearly on ‘integration’ of minorities in society, which is supposed to have repercussions for the police force, its activities and the related policies by government authorities (Recommendation No. ). At the same time, the symbolic message of inclusion that would flow from effective respect for the Policing Recommendations is clearly acknowledged. The state 

 



‘Direct’ identity features seem hardly present. A rare example is the reference in Recommendation No.  to “the provision of public services in the language of the national minority”. See also Henrard, op.cit. note , . Ibid., at . It should be highlighted that Lund Recommendation No.  specified that local policing would be a power that tends to be successfully exercised by autonomous administrations. While the Lund Recommendations do not state that local policing should be an autonomous power, it does seem to express a preference in that regard. Nevertheless, it should not be forgotten that ‘autonomous powers’ are never absolute and need to be exercised within the ‘framework’ set by the national authorities. Dominic McGoldrick, “Multiculturalism and its Discontents”, in Ghanea and Xanthaki, op.cit. note , –, at .



Kristin Henrard authorities are to ensure that the public at large, including the minorities, understand the role of the police in promoting interethnic relations (in various ways, as developed in the more specific recommendations as well as more generally in Recommendation No. ). Recommendation No.  also shows the emphasis on effective implementation and realization, which is approached in a holistic way. Indeed, action plans need to be developed so as to ensure the adoption and implementation of new policing policies, and the monitoring thereof. The second part of the Policing Recommendations deals with a very visible aspect, namely the presence of minorities within the police. The physical inclusion of minorities in the police obviously contributes to the broader societal integration of minorities, which is related to the strong symbolic message flowing from this presence (Recommendation No. ). The considerable attention given to this inclusion theme shows that minorities are considered to be part and parcel of society, which, in turn, should enhance their feeling of belonging. Also here, the importance attached to effective implementation is visible, seemingly inviting the adoption of a holistic approach. The Policing Recommendations, indeed, do not stop short at the numbers question but also pay considerable attention to the smooth inclusion and effective integration of minorities into the police force. The Explanatory Note to Recommendation No.  emphasizes the importance of ensuring a neutral working environment: … one in which police from minority backgrounds are fully accepted as equals and individuals, and are not subject to any disadvantage or negative stereotyping on account of their ethnic identity. However, this should also be an environment that is sensitive to diversity in the needs, customs and religions of different groups (e.g. with regard to matters of dress, diet, and religious observances such as prayer and holy days).88

In the latter regard, it should be highlighted that in the Policing Recommendations— unlike in the previous sets of recommendations and guidelines—specific attention goes to the accommodation of religious diversity. Recommendations  and  clearly adopt an equality of opportunities approach, with necessary attention given to substantive equality. Recommendation No.  underscores the need to adopt special measures to increase recruitment of underrepresented minorities and enumerates several types of measures that could be used to that effect, while avoiding even hints at measures aimed at equality of results. The emphasis is, indeed, on adapted (additional) training programmes to help persons belonging to minorities reach the required standards. Recommendation No.  (and the Explanatory Note to it) does the same in relation to promotion levels. In regard to the part on training and professional development of policemen, it is also obvious that the inclusion of training both on relevant standards and on particular sensitivities of the minorities in the region/country (Recommendations  and ) reflects a holistic approach, which contributes to the overall adequate operationalization (and effective implementation) of the other recommendations. This attention to actual implementation is indeed very visible in this part, more particularly in the recommendation on the development of a police code of conduct that translates these 



HCNM, op.cit. note , , emphasis added.

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing norms and sensitivities into “professional standards for policing in multi-ethnic societies”89 (Recommendation No. ), while police managers should be tasked to monitor the actual compliance with these standards (Recommendation No. ). The part of the recommendations on “engaging with ethnic communities”90 takes up the theme of integration again and acknowledges the importance of symbolism attached to having mechanisms in place to ensure communication and cooperation with minorities (Recommendation No. ), whereby the necessary capacity should be created to understand and use the minority languages (Recommendation No. ). The holistic approach to the actual realization of the principles is visible in Recommendations  and . Recommendation No.  calls on the police to take a proactive role in regard to the establishment of relationships with minorities and Recommendation No.  underscores the need to have complaints mechanisms in place that are accessible to minorities. The part on operational practices again reflects a holistic approach to the question of policing in multiethnic societies. This obviously goes beyond issues of representation within and communication with the minority communities and should also be taken up in the way the police exercise their functions. Not only is it essential that police officers exercise their powers in a non-discriminatory fashion (Recommendation No. ) but—and here the attention to symbolic messages comes back into the picture—attention should also be paid to the composition of patrols in multiethnic areas (Recommendation No. ). The police are also asked to take a proactive role in regard to reporting of (and addressing) ethnically motivated crimes (Recommendation No. ). A final holistic touch is added in Recommendation No. , where it calls upon states to ensure that support mechanisms for victims of crime are in place and are, especially, “equally accessible for persons belonging to national minorities”.91 The final part of the Policing Recommendations goes to the core of the HCNM’s mandate, being the prevention of ethnic conflict. The attention given to the training of police officers in regard to reducing ethnic tensions (Recommendation No. ) and managing incidents of interethnic conflict in a way that tends to deescalate the problems, possibly through the use of mediation (Recommendation No. ), again underscores the holistic approach taken, which is aimed at the effective realization of the recommendations and their underlying goals. The final recommendation builds further on this theme, as it calls for the coordination of the activities of public authorities with broader integration policies, thus also pointing to the central importance of the integration theme. The preceding analysis of the Policing Recommendations points out that they are more focused on the optimal integration of persons belonging to minorities as full members of society than on the promotion of their separate identity. This assessment does not mean, however, that the Policing Recommendations do not pay attention to the identity concerns of persons belonging to minorities. In this respect, the latest set of   

HCNM, op.cit. note , . HCNM, op.cit. note , . HCNM, op.cit. note , .



Kristin Henrard HCNM-sponsored recommendations confirms once again the importance for integration purposes of an adequate accommodation of population diversity and, thus, adequate respect for the separate minority identity. In addition to several linguistic themes (taking up the Oslo Recommendations), the Policing Recommendations also address the accommodation of religious diversity, a topic which hitherto has not received much attention.92 In this respect, the Explanatory Note more generally underscores the need to “ensure that in all police activity, minorities are treated fairly and with respect, so that minorities perceive the police organization as a desirable place of employment”.93 This clearly also refers to the other focus points already highlighted in the preceding analysis of the Policing Recommendations, namely the centrality of the concern for substantive equality, the attention to symbolism and symbolic messages, and the holistic approach towards actual implementation concerns. As will be clarified in the subsequent analysis, these three focus points were all, to some extent, present in the previous recommendations (and guidelines) but never to the extent that they feature in the Policing Recommendations. The latest set of recommendations clearly extends their importance as ‘central’ attention points toward adequate minority protection. In line with the fact that substantive equality is considered to be an overarching goal of minority protection,94 it can be said that all of the four preceding sets of recommendations (and guidelines) are imbued with ‘substantive equality’ considerations. A focus on effective and de facto equality is surely present, for example, in Oslo Recommendations  and , and in several of the Media Guidelines (inter alia, Recommendations , ,  and ). However, the preceding analysis has revealed that, in the Policing Recommendations, much more central importance is given to this theme, at least much more explicitly so. Several of the recommendations in the previous sets acknowledged the importance of the ‘effective implementation’ of the principles spelled out, inter alia, by pointing to necessary supporting measures, which often concerned training or broader resource questions. In the Hague Recommendations, for example, it is pointed out that “ensuing from their obligation to provide adequate opportunities for minority language education, States should provide adequate facilities for the appropriate training of teachers”95 (Recommendation No. ), while the importance of centres for minority language education curriculum development is also highlighted (Recommendation No. ). A similar concern with the necessary training of state personnel (of public social services) is taken up in Oslo Recommendation No. , while Recommendation No.  highlights the importance of using an equitable share of the state’s total resources to support cultural and social activities by minorities. The latter theme of the necessary resources 

 





Arguably, the recent rise in religious intolerance, related to the terrorist attacks of / and subsequently, could be a reason for explicitly taking up the need to accommodate also religious diversity. In terms of Recommendation No. . See HCNM, op.cit. note , . Asbjorn Eide, “Comprehensive Examination of the Thematic Issues Relating to Racism, Xenophobia, Minorities and Migrant Workers”, Working Paper for the th session of the Sub-Commission Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN./Sub.//, . HCNM, op.cit. note , .

The Latest Recommendations Endorsed by the HCNM on Ethnic Policing to effectively realize certain measures taken in favor of minorities is also taken up in Lund Recommendation No.  (for the effective functioning of advisory bodies) and Recommendation No.  (for self-governance arrangements). The Media Guidelines already go beyond concern for training programmes and adequate resource bases, for example, by paying extensive attention to mechanisms to ensure meaningful access to minority language broadcasting (Guideline No. ) and by calling on states to contribute to the building of the capacity of minority language broadcasting (Guideline No. ). The Policing Recommendations further extend this attention to supporting measures by adopting a more holistic approach aimed at effective realization of the recommendations’ basic underlying principles and goals. Supporting measures are not only a recurrent theme throughout the Policing Recommendations but it can also not be denied that many more types of supporting measures are tapped into. In addition to the known measures relating to appropriate training and adequate resources, the Policing Recommendations consistently address the need for regular monitoring and related accountability mechanisms. Already, the text of the Policing Recommendations is telling in itself, most specifically in regard to its reference to the need for training in certain topics (especially visible in terms of the sections on training and professional development and on engaging with ethnic communities), to put in place complaints mechanisms and accountability structures (inter alia, in Recommendations  and ) and to task specific officers with certain tasks in relation to minorities or with monitoring responsibilities in this respect (inter alia, in Recommendations  and ). In addition, the Explanatory Note emphasizes the importance of the broader integration framework and highlights the double focus in this respect, both internally (within the police structure) and externally (in relations between the police and persons belonging to minorities).96 Nevertheless, even though there is much more attention given to practicability and practical guidance, it is not correct to call the Policing Recommendations a practical guide,97 at least if by the term ‘practical guide’ we mean a set of very detailed prescriptions that do not require any further translation or concretization to the specific circumstances in a particular case. This is actually acknowledged or better expressed in the Introduction, where it is underlined that the “Recommendations need to be implemented in a way which is sensitive to the specific situation in each State – including such factors as the ongoing police reform process and the actual situation on the ground”.98 This statement actually is perfectly in line with the more general position in relation to minority protection standards, more particularly that the concrete minority standards should each time be tailored as much as possible to specific circumstances.99

   

In terms of Recommendation No. . Contra Bloed, op.cit. note , . HCNM, op.cit. note , . See, inter alia, Adeno Addis, “Individualism, Communitarianism and the Rights of Ethnic Minorities”, Notre Dame Law Review (), –, at ; and Francesco Capotorti, “Les Developpements Possibles de la Protection Internationale des Minorités”, Cahiers de Droit (), –.



Kristin Henrard While it remains a question of interpretation, it can be argued that the importance of the ‘symbolic message of inclusion’ was only clearly present in the Lund Recommendations. The following overall assessment can be highlighted in this respect: “when studying carefully all the Lund Recommendations it can in any event be argued that they reveal a concern for the inclusion of minorities, for the consideration of their interests, which in turn can be understood in terms of a right of minorities to be taken seriously”.100 Attention is also paid to symbolism in the Policing Recommendations, in the sense of the representation dimension of participation, but this theme is more strongly and broadly developed. While not claiming to be exhaustive, it seems appropriate to highlight a couple of elements of the Explanatory Note that are particularly illustrative in this respect. In regard to Recommendation No. , the Note emphasizes that “it is important that the multi-ethnic character of the police is both present and visible in all regions. This is important in mono-ethnic and multi-ethnic localities … It is also important that minorities are present in senior positions within the hierarchy”.101 In relation to Recommendation No. , it is underlined that representation of minorities does not stop at recruiting a few persons belonging to minorities but also requires that the working environment in the police force be sufficiently accommodating towards those persons and their different identities. As highlighted (and quoted) above, the Explanatory Note indicates in this respect that a neutral working environment should be ensured. The recommendations in relation to ‘engaging with ethnic communities’ are strongly imbued with considerations of symbolism, sending out messages of inclusion towards minorities. In this respect, reference is made to the importance of multiethnic community forums, community advisory boards and contact points at police stations, as well as dedicated patrol officers regularly visiting particular communities (in relation to Recommendation No. ) and to the need to have adequate minority language skills (related to Recommendation No. ). In terms of operational practices, the Explanatory Note cautions against the practice of racial profiling, which is also very important for perceptions on the part of both the minority and of the rest of the population (about the role of persons belonging to minorities). Finally, the Explanatory Note in relation to Recommendation No.  notes the importance of ethnically mixed patrol teams in multiethnic areas, both from the perspective of communication possibilities (instrumental) and that of confidence building (symbolism). The messages about inclusion and equal value that are being sent through these actions and policies are undoubtedly important from an integration perspective as well. VI. Overall Assessment of the Policing Recommendations It has already been pointed out that the emphasis in the Policing Recommendations is not so much on identity issues (language) or on instrumental or underlying themes (education, participation) but on the composition of the police force and the actual  Henrard, op.cit. note , –, emphasis added. See also HCNM, op.cit. note , –.  HCNM, op.cit. note , .



The Latest Recommendations Endorsed by the HCNM on Ethnic Policing functioning of that force, including the exercise of its specific powers. While attention is still paid to identity features, in that care is taken to promote adequate accommodation of the linguistic and religious diversity both within the police force and externally, the Recommendations focus on the police as a public authority whose composition and functioning (in a broad sense) are essential for the success of peaceful coexistence in multiethnic societies. The police’s special function in relation to the prevention and deescalation of ethnic conflicts should not be underestimated. Depending on the view one takes, one could qualify this as a move towards the core of minority protection (e.g., in relation to the HCNM, whose core mandate is the prevention of ethnic conflict) or rather to the periphery (for those who connect minority protection primarily with identity issues, the protection of identity and against forced assimilation).102 VII. Speculating About (Other) New Themes That Might Be (Are Expected to Be) Addressed in Terms of Minorities and the Possible Role of the HCNM It is obvious that identity issues remain important and this will be the case for the future as well. In this respect, it should be highlighted that language issues are and will be in any event always present, since every exercise of public power implies a certain language through which this is realized. In this respect, it has been highlighted by several authors that: “language is undeniably a necessary component of almost every service provided by public authorities. Consequently, members of linguistic minorities are systematically put in an unequal and disadvantaged position regarding the enjoyment of public services that are exclusively provided in the dominant language.”103 Hence it should not come as a surprise that language issues are extensively present in the recommendations sponsored by the HCNM. Not only are they a dominant theme in the Oslo Recommendations and Media Guidelines but they are also prominent in the Hague Recommendations and feature in the Lund Recommendations as well as in the ones discussed here. While, traditionally, few minority-specific standards took up the theme of the accommodation of religious diversity, it has already been highlighted that this features more explicitly in the Policing Recommendations (especially in the Explanatory Note). In view of the events related to religiously inspired terrorism since the / attacks, it is  The Policing Recommendations could, in that respect, be argued to imply a move away or a step back from the move in the past decade from toleration to promotion of the minority identity. See, inter alia, Marc Weller, “Conclusion: the Contribution of the European Framework Convention for the Protection of National Minorities to the Development of Minority Rights’’, in Marc Weller (ed.), The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford University Press, Oxford, ), at . However, I would not put it in this way. The Policing Recommendations do not negate the need for promotion in other domains like education, media, etc., but focus in relation to policing not on identity promotion of minorities.  Henrard, op.cit. note , . See also Fernand De Varennes, Language, Minorities and Human Rights (Kluwer Law International, The Hague, ), ; and Bruno de Witte, “Le Principe d’Égalité et la Pluralité Linguistique”, in H. Giordan (ed.), Les Minorités en Europe: Droits Linguistiques et Droits de l’Homme (Kime, Paris, ), .



Kristin Henrard not unlikely that this theme will receive more attention in the future, also in line with the gradual inclusion of so-called new (immigrant) minorities within the parameters of minority protection. While minority rights are characterized by vague formulations and qualifiers, leaving considerable discretion to states, the concomitant supervisory practice (particularly in relation to the FCNM and the European Charter for Regional or Minority Languages) has revealed that this discretion is being narrowed constructively.104 Furthermore, the developing practice of supervision in terms of general human rights conventions has demonstrated an increasing attentiveness to minorities and their specific concerns and protection needs.105 In addition to traditional identity issues, it has been argued106 that new standards are expected to focus on issues not directly related to a separate minority identity. Some of these issues have been around for a very long time but have proven too sensitive for states to reach an agreement (consensus) on. Hence, I do not really expect any new intergovernmental document on either the definition of the concept ‘minority’ and, more particularly, the question of whether new or immigrant groups could qualify as such or on the need versus advisability of the use of real group rights (in the sense of rights for groups, as right holders) in addition to individual and collective rights (in the sense of rights for individuals as members of a particular group). Nevertheless, in regard to ‘new’ minorities, it should be underlined that the supervisory practice of the AC in relation to the FCNM seems to confirm a trend to include new minorities within the concept of ‘national minority’.107 This practice furthermore hints at the potential to distinguish between the rights granted to different minority groups, where traditional ones, especially when they reside in strong territorial concentrations, would have stronger rights than immigrant groups, which anyway tend to be more dispersed.108 In this respect, it could be argued that it would seem a good idea to  See, inter alia, Kristin Henrard, “Charting the Gradual Emergence of a More Robust Level of Minority Protection: Minority Specific Instruments and the European Union”, () Netherlands Quarterly of Human Rights (), –. See also several contributions from a conference, in Council of Europe, Filling the Frame: Five Years of Monitoring the Framework Convention for the Protection of National Minorities (Council of Europe, Strasbourg, ).  For an extensive analysis of this emerging ‘synergy’, see Kristin Henrard, “An Ever-Increasing Synergy Towards a Stronger Level of Minority Protection between Minority-Specific and Non-Minority-Specific Instruments”,  EYMI (/), –. See also Kristin Henrard and Rob Dunbar, Synergies in Minority Protection (Cambridge University Press, Cambridge, ) (forthcoming).  See, inter alia, the contribution by Arie Bloed and Rianne Letschert, “The OSCE High Commissioner on National Minorities: Strengthening the Minority Rights Regime through Conflict Prevention”, in Henrard and Dunbar, op.cit. note .  See, inter alia, Kristin Henrard, op.cit. note ; and id., op.cit. note .  See also John Packer’s address to the conference on the th anniversary of the FCNM, in which he underlined in relation to the meaning and scope of the concept ‘national minority’ that “the Advisory Committee’s article-by-article approach to the issue, has given fairly clear answers in concrete situations – always conscious of the object and purpose of the instrument. In this regard, it should be observed that, in fact, only three provisions of the



The Latest Recommendations Endorsed by the HCNM on Ethnic Policing construct a document that provides some further criteria on how to differentiate different ‘degrees’ of minority rights for different types of minorities. While this might not seem very likely to happen either, as states could perceive this as an attempt to further curtail their discretion, it could at the same time mitigate the fears of states regarding the recognition of certain (immigrant) groups as minorities. In relation to group rights, it is hoped that the ongoing academic debate over how to deal with conflicts of rights—and not only conflicts between individual rights but also between individual and group rights—could take away one of the fears (allegedly) underlying the refusal of states to contemplate real group rights.109 Other potential themes that could be taken up in relation to minorities and minority protection are (fairly) new. Growing attention seems to be being paid to the right to development of minorities, certainly at the level of academia and human rights NGOs.110 The issues addressed in this respect often deal with non-discrimination concerns in the economic and social sphere. Indeed, there is ample evidence of serious shortcomings in regard to these rights in relation to minorities.111 In terms of general human rights instruments, it is known that the supervision of the International Covenant on Economic, Social and Cultural Rights (ICESCR) is limited to periodic reporting and deprived of a proper complaints procedure (so far). Nevertheless, the coming into force in  of a collective complaints procedure in relation to the European Social Charter has already shown its potential in relation to the most disadvantaged European minor-

Convention (articles , and ) actually limit entitlements to groups which have existed ‘traditionally’ or ‘in substantial numbers’. These provisions related to entitlements which are relatively costly in their nature, and so I believe it is reasonable that they be so limited”. Council of Europe, op.cit. note , .  See, inter alia, E. Brems, “Conflicting Human Rights: An Exploration in the context of a right to a fair trial in the European Convention on Human Rights”, HRQ (), –; J. Crawford, “The Rights of Peoples: Some Conclusions”, in J. Crawford (ed.), The Rights of Peoples (Clarendon Press, Oxford, ), ; and L. Jacobs, “Bridging the Gap between Individual and Collective Rights with the Idea of Integrity”, Canadian Journal of Law and Jurisprudence (), .  A quick scan of the website of the Minority Rights Group International in any event shows a marked focus on development issues in relation to minorities (several reports and studies being available on this theme). See, inter alia, P. Justino and J. Litchfield, “Economic Exclusion and Discrimination: The Experiences of Minorities and Indigenous Peoples”, August ; and M. Salomon and A. Sengupta, “The Right to Development: Obligations of States and Rights of Minorities and Indigenous Peoples”, February . See also the special focus section on the ‘Economic Participation of Minorities’ in the European Yearbook of Minority Issues of /, especially, J. Veenman, “Social Cohesion, Social Integration and Labour Market Exclusion”,  EYMI (/), –; and A. Phillips, “The Framework Convention for the Protection of National Minorities and the Protection of the Economic Rights of Minorities”,  EYMI (/), –.  See, inter alia, N. Ghanea, “Repressing Minorities and Getting Away With It? A Consideration of Economic, Social and Cultural Rights”, in Ghanea and Xanthaki, op.cit. note , –; R. Riddell, Minorities, Minority Rights and Development (Minority Rights Group, London, ); and T. Bedard, Participation in Economic Life: An Advocacy Guide for Minorities in South-East Europe (Minority Rights Group, London, ).



Kristin Henrard ity, the Roma.112 While this might appear to hold the promise of a turning point, it should be noted that, so far, case law in terms of the most basic international law provision on minorities, Article  of the International Covenant on Civil and Political Rights (ICCPR), has rather supported the presumption that “the gradual decimation and impoverishment of a minority community as a whole would not come under the scope of the protection of Article ”.113 This lack of attention to minorities’ problems in relation to social and economic rights also seems confirmed by the fact that, so far, the participatory rights of minorities have largely been developed in relation to participation in the public life of the state and much less in terms of economic and/or social life.114 Still, it should be acknowledged that the AC of the FCNM has addressed problems of economic deprivation and disproportionate unemployment (of the Roma) in relation to the equality provision of the FCNM. Hence a document with further clarifications of (the implications) of the right to development for (persons belonging to) minorities (inter alia, in relation to housing and health) would be very welcome. This should not be implausible given the fact that it is closely related to non-discrimination concerns and actually concerns the effective implementation of general human rights.115 Be that as it may, it should be highlighted that while the right to development of peoples is a human right of the third generation, the research on development issues in relation to minorities has been careful not to explicitly address the extent to which minorities could qualify as peoples, in view of the possible repercussions for a right to (external) self-determination of minorities.116 A similar but even broader overarching theme that could be focused upon in relation to minorities is human security. Human security concerns would also take up the development strand, as well as some of the firmly existing strands of minority protection (reflected in the previous sets of recommendations), such as the need to consult minorities, the importance of culturally adapted social services and adequate minority representation in the media, etc. Human security can indeed be related to the fight against economic and social exclusion and/or political marginalization. Furthermore, human security concerns are also undeniably addressed in the Policing Recommendations. An explicit focus on human security, while developing it further as an overarching theme, would appear to be a logical next step.  European Committee of Social Rights, ERRC v Italy, Complaint /,  December ; European Committee of Social Rights, ERRC v Greece, Complaint /,  December . See also O. de Schutter, The Prohibition of Discrimination under European Human Rights Law: Relevance for EU Racial and Employment Equality Directives (European Commission, Brussels, ), –.  Ghanea, op.cit. note , .  Henrard, op.cit. note , –.  See, inter alia, Henrard, op.cit. note , .  See, inter alia, the discussion in T. D. Musgrave, Self-Determination and National Minorities (Clarendon Press, Oxford, ); and Henrard, op.cit. note , –. See also Alexandra Xanthaki, “The Right to Self-Determination: Meaning and Scope”, in Ghanea and Xanthaki, op.cit. note , –.



The Latest Recommendations Endorsed by the HCNM on Ethnic Policing It is hard to predict what the HCNM’s approach would be in relation to these potential new themes for minority protection instruments. In view of the fact that they all have some more or less explicit relation to existing standards and supervisory practices, the formulation of recommendations on these themes would seem to imply less of a steering approach. Nevertheless, it is hard to deny that, in relation to new minorities and group rights, any intergovernmental agreement has been so far elusive. In other words, if the HCNM would sponsor the development of recommendations on these themes, this would seem to point towards the adoption of a more steering role in relation to standard setting anyway. Even though the latter would be difficult to reconcile with the HCNM’s current mandate, it is obvious that it is difficult to draw neat demarcation lines between promoting ‘bold and progressive interpretations of existing norms’ and adopting a steering role.117 VIII. Conclusion While the Policing Recommendations exhibit marked differences in relation to the previous sets of recommendations (and guidelines) sponsored by the HCNM, they represent in several respects also a continuation, although some of the themes taken up become more prominent in the Policing Recommendations. It would be difficult to deny that the HCNM seems to be taking a more steering approach in relation to policing issues, as there are simply no existing legal standards on policing, let alone in relation to minorities. The previous recommendations also aimed at integrating minorities but the need to protect and promote the separate identity of minorities was dominant (either directly or instrumentally through a focus on participation). The Policing Recommendations, however, are all about the inclusion of minorities in mainstream society. While adequate attention to the accommodation of population diversity can be identified, it is more about respect of differences than the promotion of a minority identity. In many respects, the Policing Recommendations are a continuation of the previous recommendations. Here and there they actually take up specific provisions of the Lund or Oslo Recommendations. More generally, several focal points can be identified that were present to some extent in the previous recommendations but are made much more prominent in the Policing Recommendations. This particularly concerns the goal of substantive or real equality, the attention to symbolism and symbolic messages and a strong, holistic approach aimed at effective realization of the recommendations’ principles. In view of the ‘new’ focus points of the Policing Recommendations, it seems appropriate to attempt to identify possible themes or topics that would merit, in relation to minority protection, special attention and elucidation and that might be taken up in new intergovernmental documents and/or new HCNM-sponsored Recommendations. In addition to the fairly new themes of development and human security, which require elucidation in relation to minorities, two older issues also merit clarification, namely the inclusion of new minorities and the use of genuine group rights. In regard to the latter two, any HCNM-sponsored recommendations on these topics would seem to confirm 

See Bloed, op.cit. note .



Kristin Henrard that the HCNM takes a more steering role, as any intergovernmental agreement on these issues has so far been elusive. Concerning the former two, these themes can arguably be split into sub-themes, which can be related to existing norms. Hence, development of these issues would constitute more of a certain interpretation of existing norms, which might be progressive and bold, but would not be different from what happened in the first four sets of recommendations and guidelines. In any event, it should be acknowledged that there is a fine line between steering and promoting a progressive and bold interpretation of existing norms.



Olga Kamenchuk*

Complexities of Conflict Prevention and Resolution in the Post-Soviet Space: EU–US–Russian Security Dimensions

I. Introduction The death of the Soviet giant left Russia with an illusionary perception of its former brother republics as being unconditional satellites. However, despite the official rhetoric regarding the Commonwealth of Independent States (CIS) as the major focus of Russian politics, until recently Moscow has largely ignored the post-Soviet arena and freed the space for other players. The EU and the US, who originally also perceived the CIS as a realm of Russian influence, have changed their attitudes and stirred up their politics in the region. The ‘Wider Europe’ concept (and the European Neighbourhood Policy (ENP)), together with NATO Partnership programmes, have been the major indicators of the new vision of the West towards Eurasia—a new vision with (possibly) new prospects. Given that Moscow had perceived EU–US–Russian politics in the post-Soviet space as a zero-sum game, the complicated cooperation of the former Soviet republics both with the West and with Russia became burdened with the new rivalry. Recent political transformations in the region have further widened the gap both between some of the republics and vis-à-vis the forces that are engaged in this arena. On the one hand, EU–US–Russian cooperation projects started to stumble and froze at the stage of vague phrases. On the other hand, two major groups (consisting of the former USSR republics) formed. The first group united around the Russian Federation and includes such countries as Armenia, Belarus, Kazakhstan, Kyrgyzstan, Uzbekistan and Tajikistan. The second has leaned more towards western influences and is represented by Azerbaijan, Georgia, Moldova and Ukraine. In other words, the countries have been choosing between ‘Wider Russia’ and ‘Wider Europe’, or being a ‘near abroad’ or ‘abroad’. The former group has been more active in Russian-initiated (re)integrationist projects and has tended to follow the line of Moscow’s policy; the latter has created fora with a Western orientation (GUAM—Georgia, Ukraine, Azerbaijan and Moldova, and CDC—Community of Democratic Choice) and is less *

Senior Researcher, European Academy, Bolzano, Italy; Department Chair at International University, Vienna, Austria.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 99-116. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Olga Kamenchuk interested in integrationist perspectives with Russia. This new dividing line has deepened existing problems on several levels: − between the EU, the US and Russia; − between the two major groups of post-Soviet states; and − within those states, as certain regions/republics of these new countries have favoured a direction that differs from that followed by their ‘centre’ (e.g., the unrecognized Republic of South Ossetia has not only directed its policy towards Russia, as opposed to the Georgian agenda of a pro-US and EU orientation, but has even sought to join the Russian Federation as part of the North Ossetian Republic). This article will focus on the study of the frozen conflicts in the post-Soviet space, as they significantly contribute to these levels of separation. This will be done alongside a review of the security agendas of the three major actors—the EU, the US and the Russian Federation—in regard to the discussed events and areas by examining the interests of the parties and the problems that stand between them and those that separate them, as well as by addressing the potential for meaningful cooperation in conflict resolution and future conflict prevention. II. The Conflicts As in all conflicts, there are no sides that do not have their stakes as well as their share of guilt; as in all conflicts—in reality—it is hard to imagine a mediator not becoming a part of the conflict one way or another; and, as in all conflicts, the full truth is relative, as well as often unacceptable and contested by all the protagonists of the story. A. Moldova–Transdniestria When, in the late s, the USSR began to disintegrate, Moldova followed a similar trajectory to the other former Soviet republics: the road of confrontation with Moscow, demanding independence. However, there were certain specifics in the Moldovan case: a significant number of local politicians simultaneously aspired towards reintegration with Romania, of which Moldova had been a part prior to World War II. However, Transdniestria, the region situated on the left bank of the Dnestr river (See Map ), represented a different story. To begin with, this region did not previously belong to the Romanian state (as was true in the case of the rest of the Moldavian SSR before World War II). It had been part of the Russian Empire before the revolution of  and, later, part of the Ukrainian SSR (within the USSR, as the Moldavian Autonomous oblast (later a Soviet Socialist Republic)) and it had remained such until  when, due to the Molotov–Ribbentropp pact, the USSR incorporated the pre-revolutionary Russian imperial lands of Bessarabia (populated mostly by a Moldovan/Romanian population), after which this territory, as well as the former Moldavian Autonomous SSR of the Ukrainian SSR (Transdniestria) formed one of the  (post World War II) Soviet Republics: the Moldavian Soviet Socialist Republic. As a result, the new republic united both the Moldovan territory per se and the territories of Gagauzia (now a Turkicpopulated autonomous region of Moldova) and Transdniestria, the latter being populated equally by three ethnic groups: Moldovans, Russians and Ukrainians. Therefore, 

Complexities of Conflict Prevention and Resolution in the Post-Soviet Space the majority of the Transdniestrian population could hardly have had strong ties with Romania, as well as doubtful aspirations for (re)unification with this country. Map 1.

Moldova and Transdniestria

Source: International Crisis Group.

When the Moldovan authorities decided to divest the Russian language of its status as a state language in , Transdniestria and Gagauzia were rocked by a wave of protests and strikes and, in response to the Moldovan declaration of independence, both regions declared their separation from the Moldovan SSR and announced their new



Olga Kamenchuk status as republics within the USSR (as the Gagauz Republic of the USSR and the Transdniestrian Republic of the USSR).1 In , after the failure of the coup in the USSR, the Moldovan Parliament declared the Molotov–Ribbentrop Pact (according to which Moldova had been added to the USSR and, as a result, united with Transdniestria, forming the Moldavian SSR) as null and void, which gave Transdniestria a chance to view the  merger of the two sides of the Dnester river as having also been annulled. By the time of the collapse of the USSR, Transdniestria had already established its own president, parliament and police force, and considered itself independent of Moldova. Moldova, however, did not agree to recognize the independence of Transdniestria. In March , a war in which heavy armaments were used began in the region. In August , the conflicting sides, at that time only in the city of Bindery, were separated by Russian peacekeeping forces, which are still present in the region. However, the neutrality of such forces was and is questionable, as not only did the separatists manage to arm themselves from their supplies but also some of these forces’ military, especially those that came from the local population, fought on behalf of the Transdniestrians.2 Although the Transdniestrian conflict is generally not considered to be among the most violent ones on the territory of the former USSR, partially due to it not being a matter of interethnic confrontation per se, including the absence of ethnic cleansings and mass refugee flows that are so typical of the present-day conflicts of such kind. This meant that there was “no deep-rooted hostility between the populations on either bank of the Dnestr River”,3 which, in principle, could not become as serious an obstacle to reconciliation as would be the case for the conflicts in the South Caucasus. However, the character of the conflict was tragic enough to leave serious scars in Transdniestria. According to a Memorial Human Rights Centre report,4 which provides numerous eye-witness testimonies of this war, Moldovan troops had fired upon civilians who were hiding in their houses, burning such houses and firing at ambulances. Similar accusations, however, were made by the Moldovan side about the actions of the Transdniestrian separatist forces. In general, the originally shaky situation in the Transdniestrian region of Moldova was aggravated by several issues: – the initial harsh measures imposed by the central (Moldovan) authorities upon the rebellious territory; 



 



Interestingly, it was Gagauzia that proclaimed its independence first (on  August ). However, in this region, the conflict was successfully settled several years later and it is now an autonomous part of the Moldovan Republic. Human Rights Watch, “War or Peace? Human Rights and Russian Military Involvement in the ‘Near Abroad’”, Human Rights Watch Report (), December , at . Dov Lynch, “Russia’s Strategic Partnership with Europe”, () The Washington Quarterly (), –, at . Memorial Human Rights Centre, “Large-scale and Gross Violations of Human Rights and the Situation in the Zone of Armed Conflict in and around the City of Bendery ( June–July, )”, Memorial Human Rights Centre Report (), at .

Complexities of Conflict Prevention and Resolution in the Post-Soviet Space –

–

the Russian military, which, having managed to prevent a further escalation of violence, later turned into a part of the (frozen) confrontation and, therefore, furnished its share of negative contributions to the process; and the strong local Transdniestrian industrial elites (the region was, at the time, the engine of industry in the predominantly agrarian Moldova), who were not interested in the potential changes in the political orientation of the central government, let alone in a transfer of power to Bucharest.

From  onwards, the conflict in Transdniestria turned cold and negotiations started on the status of this territory. A huge number of documents have been signed by the Transdniestrians and the Moldovans, although none has brought much change to life on either bank of the Dnester river. In , Russia proposed the so-called ‘Kozak plan’5, which advocated the unification of Moldova and Transdniestria into one state with the creation of an asymmetrical federation6 with two subjects—Transdniestria and Gagauzia—and the introduction of a transition period until  (together with the demilitarization of Transdniestria but with Russian troops being present in the republic during this period). The plan also proposed that the Russian language should be granted the status of second state language (given that the Russian language ‘problem’ was seen as one of the reasons for the original confrontation). The plan, which originally was viewed by Moldovan President Voronin as being acceptable, was finally rejected at almost the last moment, after receiving negative reactions from the OSCE, EU and US. According to an OSCE press release, the OSCE Chairman-in-Office (CiO), Netherlands Foreign Minister Jaap de Hoop Scheffer, informed Moldovan President Vladimir Voronin: that several participating States had expressed serious reservations regarding some provisions of the Memorandum, such as the lack of clarity on the proposed division of powers between the central and regional authorities, the de-facto veto power of Transdniestria in the Senate until at least , and the absence of a satisfactory multinational guarantee system.

“Our consultations with participating States show there is no consensus to support this document,” the CiO told President Voronin.7 Strengthening the role of Russia in the region even further (which would have beeen the result had this plan been put into force, given the potentially higher role of Transdniestria in the ‘new’ all-Moldovan affairs and the clear pro-Russian orientation of the breakaway territory) ran counter to the interests of the EU and NATO. In addition, the EU and NATO dreaded the prospect of a continuing Russian military presence on the territory of the neighboring country, which Moldova was (to NATO) and was going to be (to the EU). The latter aspect would also continue to undermine the essence of the Treaty on Conventional Forces in Europe (CFE), which was linked by the West   

Also called ‘Kozak Memorandum’. If not confederation, given the powers that were envisaged for Transdnistria in the new state. “OSCE does not endorse Russian plan on Moldova”, OSCE Press Release.  November  at .



Olga Kamenchuk to the withdrawal of Russian troops from the former Soviet republics of Moldova and Georgia (although the authorities in Moscow emphasize that such obligations were made without specification of any fixed time scale.). Therefore the Memorandum was viewed as a ‘…deal, behind the West’s collective back, to turn Moldova into an outright Russian bridgehead in Europe, complete with Russian troops and political oversight.’8 Thus, competition and reshuffle within the ‘shared neighbourhood’ area continued. The political situation in the region changed again after the ‘Orange Revolution’ in Ukraine, which now attempted to make itself an alternative (to Russian) political power in the area and, thus, tried to play a more active and visible role in the resolution of the Transdniestrian–Moldovan conflict. There were other reasons for such rapt attention on the part of Ukraine to the Transdniestrian case. One reason was the fact that there is a sizable Ukrainian minority in Transdniestria; the other reason related to the political developments in Moldova that followed the ‘Orange Revolution’ in Ukraine. Moldovan President Voronin very quickly realized the ‘threat’ coming from the wave of coloured revolutions, which had spread across the post-Soviet space. As a result, Voronin—a leader of the Moldovan Communist party who had previously come to power on the basis of his promises to join the Russia–Belarus State Union and to introduce Russian as the second state language in Moldova—made a -degree political u-turn and switched his rhetoric to a pro-Western orientation. The most curious step was his attempt to label the previous parliamentary elections in Moldova (after which the same communist forces had remained in power together with their communist leader) as being another ‘coloured’ revolution, which, however, was not greeted with much support by too many for too long. The message, however, was clear: Moldova had transitioned to a pro-Western orientation, as had, at that time, neighbouring Ukraine, and, consequently, was more interested in Western participation in the Transdniestrian conflict resolution process than in mediation from the Russian side. Orange Ukraine thereupon played the important role of intermediary, which, in turn, was watched with irritation by Moscow. The last but far from least important aspect of the new configuration in the region was the new role of the West, as now both sides started to pay closer attention to each other. On the one hand, the date of Romania’s accession to the EU was drawing closer (and, consequently, Moldova was soon to become an immediate neighbour of the Union). On the other hand, Moldovans emphasized the importance of Western European actors to their politics. The so-called ‘Ukrainian plan’ of conflict settlement (suggested by Ukrainian President Yushchenko in April ) was, at first, warmly welcomed by all sides. However, after the ‘customs conflict’ of spring  (between Moldova and Transdniestria)9, the  



Vladimir Socor, “Double-Cross on the Road to Maastricht” Wall Street Journal Europe, November ,  at . Ukraine imposed new customs regulations on its border with Transdniestria in March . Now it was going to import only those goods from Transdniestria which were accompanied by the documentation processed by Moldovan customs offices. This was done in line with implementation of the joint customs protocol between Ukraine and Moldova (December ). While the US, EU and OSCE approved this move, Transdniestria and Russia saw it as a means of political pressure. On the one hand, this was a way to fight rampant smuggling in the region, but on the other the new regulations increased the influence of the Moldovan

Complexities of Conflict Prevention and Resolution in the Post-Soviet Space process came to another halt, which was aggravated also by the Transdniestrian authorities conducting another (already the seventh since December ) referendum regarding the status of their region. The results (which were not recognized by the OSCE, the EU, the US, Ukraine or Georgia) were the same as before: an overwhelming majority (.%) of the participants (the turnout at the referendum was .%)10 confirmed the old choice of integration with Russia and rejected (re)integration with Moldova. The problem, however, lay in the inability of the Transdniestrian regime to guarantee the truly democratic and free character of the referenda procedure, a fact that laid the foundation for questioning the outcome of the plebiscite. The present situation has obviously moved beyond the scope of a bilateral Moldova– Transdniestria negotiation process. It is obvious that the more active involvement of Western structures is, at least, unavoidable but, more realistically, necessary; however, it would be impossible and unwise to exclude the Russian Federation from the settlement process, as this would deny and ignore the importance of its role both in the past and in the future of the settlement process, from being the key force in achieving the ceasefire in the course of the war to participating in reaching the final settlement. B. Georgia–South Ossetia–Abkhazia As in the case of Transdniestria–Moldova, South Ossetians started first by declaring their wider autonomous status (from being an oblast [region] to being a full republic), followed by a full declaration of independence (from Georgia) and by South Ossetia an application to become the South Ossetian Democratic Soviet Republic within the USSR (on  September ). This was accompanied by aspirations and direct actions aimed at unification with North Ossetia (an autonomous republic of the Russian Federation), which resulted in the Georgian Parliament dissolving the autonomy in South Ossetia and proclaiming its territory to be just part of one of the Georgian regions. Up until the present day, Georgian authorities have refused to use the term ‘South Ossetia’, instead referring to it by the name of the medieval Georgian principality of ‘Samachablo’ or by the name of the capital of South Ossetia, ‘Tskhinvali region’.



authorities over the separatist area, which was consequently seen by Transdniestrians as the means of political/economic pressure. Central Election Committee of Transdniestria, “TsIK Pridnestroviia ofitsialno obiavil rezultaty referenduma: .% izbirateley – za soiuz s Rossiiei [Central Election Committee of Transdniestria Official Results of the Referendum: .% of the Participants are in Favour of the Union with Russia]”, Newsru, at .



Olga Kamenchuk Map 2.

Georgia, South Ossetia and Abkhazia

Source: International Crisis Group.

Another similarity with the Transdniestria conflict pertains to the language question. During the Soviet era, there were two state/administrative languages in the Georgian SSR: Georgian and Russian. When the Georgian nationalist leader Zviad Gamsakhurdia declared in  that the Georgian language would become the only state/administrative language of the republic, this was viewed with concern by the ethnic minorities of the country, the Ossetians included. As the aspirations of the Ossetians for autonomy and for the status of their language continued and as nationalist sentiment among Georgians grew, the tense situation developed into armed conflict in . South Ossetia held a referendum in January of , in which % of voters called for unification with North Ossetia and the consequent (re)integration into the Russian Federation. The results of the referendum, however, were not recognized either by Georgia or by Russia (or any other country). In June , the leaders of Georgia 

Complexities of Conflict Prevention and Resolution in the Post-Soviet Space (Eduard Shevarnadze) and Russia (Boris Yeltsin), as well as representatives from South Ossetia, signed an agreement,11 which defined the principles for the settlement of the conflict. Based on this document, a joint (Ossetian–Georgian–Russian) peacekeeping force was created, which is controlled jointly by Tbilisi, Tskhinvali, Vladikavkaz12 and Moscow. At the same time, a monitoring peacekeeping operation was set up by the OSCE. Up until , the South Ossetians have held several presidential elections, have repeatedly stated their independence (from Georgia) and have conducted pro-Russian politics. A significant number (%)13 of South Ossetians have received citizenship of the Russian Federation and do not see themselves as being part of Georgia any more. One of the biggest problems is the status of the refugees who fled the republic during the South Ossetian–Georgian conflict. Around ,-, of the refugees—the majority—settled in North Ossetia. However, a large number of people (mainly ethnic Georgians) fled to Georgia proper and the South Ossetian government has done little to ensure the safe return of these people, let alone to guarantee security to the remaining Georgian-inhabited communities. The ethnic problem is even more serious, especially when one bears in mind the checkerboard character of settlements in South Ossetia. Ossetians and Georgians live in small pockets around the predominantly Ossetianpopulated city of Tskhinvali. Ossetian settlements are governed by the South Ossetian separatist authorities, while Georgian towns and villages are controlled by the Georgian government. As was the case in the Transdniestria region, the major concerns of the Georgians towards the South Ossetian situation revolve around: – smuggling in the region; – continuing talk of independence; – the remaining Russian troops. Attacks on Georgian settlements have been carried out, as well as on Georgian officials.14 The Ossetians, meanwhile, in addition to their main grievance of not seeing themselves as being part of Georgia, have also accused the Georgians of taking hostages, making illegal arrests, engaging in killings and blocking roads in South Ossetia. As in the previously discussed cases, Abkhazia (an autonomous republic within the Georgian SSR) declared its independence and demanded to be recognized as a separate Soviet Socialist Republic within the USSR, a demand which was not accepted by the Georgian authorities. As a result of the ethnic conflict of -, most of the territory of Abkhazia is no longer under Tbilisi’s control. Like Transdniestria and South Ossetia, Sokhumi’s15 declaration of independence was not recognized by the    



The so-called ‘Dagomys agreement’. Capital of the North Ossetian Republic of the Russian Federation. S.Ossetia’s leader presses to join Russia. RIA Novosti,  July , at . As in September , when the helicopter carrying the Georgian Minister of Defence was attacked. However, without justifying the actions of the attackers, it is necessary to remember that, according to agreements between the parties, aircrafts are not to violate the zone of conflict. The Abkhaz capital.



Olga Kamenchuk world community. Nevertheless, as has been the case in the other regions discussed in this paper, this region has established its own institutions, including a presidency, army, police, etc. Just as was the case in the Transdniestrian and Ossetian regions, the peace settlement was achieved with the participation of Russian troops. However, just as in the other cases, their presence has been viewed by the central authorities (Moldovan and Georgian, respectively) as being part of the reason for the conflict not being settled, especially given that in Abkhazia (as in other regions) the Russian forces did not set an example of impartiality and objectivity during the war. However, the major problems for the negotiations between Georgia and Abkhazia were first, that the Georgian side refuses to see Abkhazia as an equal partner in negotiations and, naturally, does not share the Abkhaz view regarding its independence; and second, that Abkhazia does not want to (re)integrate with any country, including Georgia. One other big problem pertains in regard to the unresolved refugee question, as any elections or referendum held in Abkhazia are justifiably questioned by Georgians, due to the significant number of IDPs (the figures come to half of the pre-war Abkhaz population and constitute almost all of the Georgian inhabitants of the region) who still cannot return to their homes in Abkhazia and take part in elections/plebiscites regarding the future of the territory.16 At the present moment, there are CIS peacekeeping forces and UN observers in the region. The situation, as in South Ossetia, has remained on the verge of massive armed confrontation since . In general, tensions between South Ossetia, Abkhazia and Georgia have gone through several cycles and severely escalated after Mikheil Saakashvili came to power as a result of the peaceful Rose Revolution in Georgia (in November ). The new president, besides his clearer pro-Western orientation, with NATO and EU membership among his major goals (which is the opposite of the aspirations of the South Ossetian and Abkhaz authorities), and anti-corruption campaign, has also become known for his nationalistic slogans and calls to reunite Georgia, returning the separatist territories of South Ossetia and Abkhazia. Moreover, in May  Saakashvili’s government successfully brought the autonomous republic of Adjara under the full control of the Georgian state. The case of Adjara, however, differs significantly from the South Ossetian and Abkhaz cases. At the beginning the unrest was also triggered by the actions of the same nationalist President of Georgia, Zviad Gamsakhurdia, who attempted to abolish the autonomous status of Adjara. Following the civil war in Georgia, the defeat of Gamsakhurdia’s forces and Shevardnadze’s return to the political leadership of Georgia, the parties managed to work out a compromise. Adjara gained wider autonomous status within the state of Georgia and Abashidze’s Revival Party had representation in the 



The last census was conducted in the region in . At the time there were , Abkhaz and , Georgians residing in the Republic. Both Abkhaz and South Ossetians, however, also often point at the tragic politics of ‘Georgianization’ conducted in the republic during the Soviet period. Thus, according to census of , there were , Georgians and , Abkhaz residing in the same territory. Therefore the number of Georgians residing in the territory of Abkhazia grew eight times, whereas the Abkhaz population did not even double.

Complexities of Conflict Prevention and Resolution in the Post-Soviet Space Georgian parliament, where it was in moderate opposition to the government. This position changed significantly after the ‘Rose Revolution’ in Georgia; from now on Abashidze (who was by then exercising rather an authoritarian rule over the territory of Adjara) adopted a much harsher oppositional role towards the new central government. The conflict escalated to the point of sporadic clashes on the streets in Batumi (between anti- and pro-Abashidze groups). Finally, on May  , after mass demonstrations by anti-Abashidze forces (and the likely presence of Georgian Special Forces in the region) and after persuasion from the Russian side (conducted by Russian Minister of Foreign Affairs Igor Ivanov), Abashidze stepped down from his position and left the republic (for Moscow). Initially the Russian Federation was more or less supportive of the actions of Mikheil Saakashvili and hoped for a positive reshaping of the somewhat vague relationship with its southern neighbour, Georgia. The unclear position of the previous President Eduard Shevarnadze had irritated a significant number of Russian officials for too long. The new President was greeted ‘to the club’ if not with the warmest of welcomes, at least with constructive plans for an improvement in relations between the two states. In the case of the Abashidze–Saakashvili confrontation, Moscow played a decisive role in the resolution of this conflict in the interests of President Saakashvili. However, the expectation that the new leader would introduce a policy that was more positively oriented towards Russia and that would result in a toning-down of martial rhetoric did not materialize. The new president paired his pro-Western (NATO and EU) aspirations with an overt anti-Russian stance, thus counterpositioning the two. In addition, he continued the discourse of ‘the enemy from within’. Having relatively easily reintegrated the Adjaran territory, which boosted Saakashvili’s own perception of the efficacy of his energetic attempts to achieve his goals, he then turned his attention to South Ossetia and Abkhazia. However, the situation there was much more complicated, first, due to the more active involvement of Russia in the region (as well as its unwillingness now to support the military escapades of the new Georgian President) and, second, due to the longer period of de facto independence of the territories. Another problem was in the example that Saakashvili presented to the Ossetians and Abkhaz. Having originally promised wider autonomy and democratic governance to the regions, the Georgian president now introduced a highly centralised form of government in recently reintegrated Adjara.17 These actions—together with a growing nationalistic rhetoric, significant increases in Georgia’s military budget, concentration of troops on the Ossetian and Abkhaz borders and several massive attacks on the territories of the two regions (which clearly run counter to assurances that only peaceful means of reintegration of separatists regions would be used) —did not contribute to the creation of an image of a tolerant leader of a common state. Added to this, persecutions of the opposition in Georgia proper—including mass arrests, accusations of “a nation-wide prison riot plotted by criminal kidnappings” in March 18 or, a year 



According to the latest changes, the President of Georgia nominates the Council of Ministers of Adjara and the head of the region’s government. He/she also has powers to dissolve the assembly and government and to overrule the local authorities. Zaal Anjaparidze, “Protests, Accusations and Riots Shake Georgia” () Eurasia Daily Monitor (), at .



Olga Kamenchuk earlier, violence against demonstrators19, as well as an inability to held truly democratic elections on its own territory—and the picture was less than appealing for the populations of South Ossetia and Abkhazia. In a way, we are at a dead end, as the local populations of South Ossetia and Abkhazia do not consider reuniting with Georgia to be a feasible possibility, due to the cruelty of the past wars, especially given that both conflicts started as a result of military operations initiated by Tbilisi. Together with the factors examined above, this makes the position of the South Ossetian and Abkhaz de facto governments quite firm. C. The Nagorno-Karabakh conflict So far, we have focused on so-called ‘domestic’ conflicts: South Ossetia and Abkhazia in Georgia and Transdniestria in Moldova. Nagorno-Karabakh provides a different example of such separation: it represents an international conflict, which caused war between two neighbouring states, Armenia and Azerbaijan (see Map ), whereas the previous cases were set within the borders of one state. It would not be an exaggeration to state that the Nagorno-Karabakh conflict became one of the most violent confrontations of the end of the twentieth century. For many centuries this territory was populated and governed by Armenians (in medieval times independently and later on with certain autonomy within the Iranian Safavid dynasty state), but was incorporated into the Russian empire in the nineteenth century. While the overwhelming majority of the population was Armenian, this area became part of the Azerbaijani SSR as Nagorno-Karabakh Autonomous Oblast (NKAO) after the establishment of the USSR. The fact that this area would now belong to Azerbaijan was never accepted by Armenians and caused numerous tensions between the republics. During the Soviet period Nagorno-Karabakh remained populated predominantly by Armenians (% of Armenians in  and % in —this decrease in the percentage of Armenians is often used as a bitter illustration of an active policy of Azerification, conducted in the region by Azerbaijan during the Soviet period). Following the declaration of independence from Azerbaijan (in ), the formation of a Nagorno-Karabakh Republic (NKR) and the proclamation of unification with Armenia, the Azerbaijani government passed a decision to dissolve NKAO and create Azerbaijani districts in its place. Having started with severe clashes between Armenians and Azeri in this region (it being, at the time, still part of the Azerbaijan SSR of the USSR), mostly over territorial and ethnic (with less emphasis on religious) questions, Karabakh now finds itself under the jurisdiction of the unrecognized Republic of Nagorno-Karabakh, which is supported by Armenia and opposed by Azerbaijan, whose territory it encompasses. Conflict in this region has not only revolved around control over the territory of Nagorno-Karabakh but also over some territories of Azerbaijan proper (which were occupied in the course of the Armenian–Azerbaijani conflict of -). It has also been accompanied by a brutal war with ethnic cleansings committed by both sides, Armenian and Azerbaijani, and not only in the Nagorno-Karabakh region but also on 



Gulnoza Saidazimova, “Georgia: Opposition Lawmakers Protest Violence against Demonstrators”, RFE-RL (), at .

Complexities of Conflict Prevention and Resolution in the Post-Soviet Space their own territories, resulting in tens of thousands of dead and wounded and over a million internally displaced. Map 3.

Armenia, Azerbaijan, Nagorno-Karabakh Region

Source: International Crisis Group.

As in the previous cases, this territory has established its own political institutions (presidency, army, etc.) and does not recognize the authority of the former metropolis (Azerbaijan); however, its aspirations for unification with Armenia have also changed into rhetoric calling for complete independence. The Republic of Nagorno-Karabakh remains unrecognized by the world community, as was the case in the other regions discussed, and, like the other cases, has featured numerous rounds of negotiations over its status. Such negotiations, including OSCE mediation, have not produced any meaningful result either on the terms of its reintegration with Azerbaijan (the Azeri aspirations) or its international recognition as a sovereign state (the Armenian position). At most, 

Olga Kamenchuk international mediation has brought a ceasefire brokered by Russia (without the participation of its peacekeeping forces in the zone of the conflict) and led to a never-ending series of peace talks under the oversight of the OSCE Minsk group. Compromise was and is very hard to achieve, as any local politician who would be willing to make concessions to the opposite side would lose most of his support in his home country, as the positions among the Armenian and Azerbaijani populations regarding the resolution of this conflict are very clear and harsh. III. EU–US–Russian Agendas Although, after the collapse of the USSR, it was Russia that played the major role in the region, in the course of time, the EU and the US have developed a more active position and strategy in regard to the former USSR. Thereupon, a significant number of researchers have addressed the issue of convergence–divergence in the interests and goals of the EU, the US and Russia.20 Figure  provides an overview of the major points in the EU, US and Russian agendas, which have an impact upon the frozen conflict question. Evidently, the interests of the US and the EU in the region coincide in many respects, just as competing visions and goals with respect to the former Soviet states prevent deep cooperation between the EU, the US and Russia. On the one hand, Russia views itself as the major actor in the post-Soviet space; on the other hand, the EU is interested in increasing its participation in the affairs of its immediate neighbourhood and the US continues to try to maintain the status quo of being the only global leader, which means active participation in the post-Soviet transformations.





See, for example, Andrew Kuchins, Vyacheslav Nikonov and Dmitri Trenin, “US–Russia Relations: The Case for an Upgrade”, Carnegie Endowment for International Peace, Carnegie Moscow Center Report, at ; Hannes Adomeit and Anders Åslund, Russia versus the United States and Europe or ‘Strategic Triangle’? (Stiftung Wissenschaft und Politik, Berlin, ); Hannes Adomeit and Rainer Lindner, Die „Gemeinsamen Räume“Russlands und der EU (Stiftung Wissenschaft und Politik, Berlin, ), at –; Derek Averre, “Russia and the European Union: Convergence or Divergence?”  European Security (), –; Tuomas Forsberg, “Russia’s Relationship with NATO: A Qualitative Change or Old Wine in New Bottles?” () Journal of Communist Studies and Transition Politics (), –; R. Goetz, Russands Erdoel und der Welterdoelmarkt (Stiftung Wissenschaft und Politik, Berlin, ), at –; Hiski Haukkala, “A Problematic ‘Strategic Partnership’”, in Dov Lynch (ed.), The EU–Russian Security Dimension (Institute for Security Studies, Paris, ), at –; Dov Lynch, “Misperceptions and Divergences”, Challiot Paper, Institute for Security Studies () at –; and Dov Lynch, “Russia’s Strategic Partnership with Europe”, () The Washington Quarterly (), –.

Complexities of Conflict Prevention and Resolution in the Post-Soviet Space Table 1. Interests of the EU, the US and Russia. Territory

Power

Stability

US

To maintain the leading role in world affairs, especially with regard to military and security matters.

EU

To increase its role in neighbouring countries.

To prevent the emergence/ development of potentially destabilizing factors on its borders.

To maintain the leading role in the post-Soviet space and to further increase Russian influence in global affairs.

To prevent the emergence/ development of potentially destabilizing factors on its borders.

Russia

To maintain the territorial integrity of the state.

Security To fight extremism, illegal trade in arms, drug trafficking and illegal migration. To eradicate financial flows that support criminal forces. To fight extremism, illegal trade in arms, drug trafficking and illegal migration. To eradicate financial flows that support criminal forces. To fight extremism, illegal trade in arms, drug trafficking and illegal migration. To eradicate financial flows that support criminal forces.

Democratisation To promote the spread of democratic and market values and institutions.

Energy

To promote the spread of democratic and market values and institutions.

To maintain a stable energy supply.

To maintain a stable energy supply.

To maintain a stable energy transportation network.

The Russian side is naturally interested in maintaining stability around its borders, as well as in preventing the development of unfriendly politics in neighbouring states. The problem is that this has been pursued by Russia partly through support for separatists in its neighbours’ territories, a practice which, understandably, is not viewed as friendly by these neighbours. At the same time, interference from the EU and the US in the affairs of these countries is viewed by Moscow with suspicion, as usually ‘the West’ takes the opposite side. The stability question goes further in that it is associated with the need to prevent the development of unfriendly politics in neighbouring states, partly through 

Olga Kamenchuk support of authoritarian regimes in its neighborhood (e.g., in Belarus, Uzbekistan) and in active interference in the domestic affairs of the other former Soviet republics (as was evidenced in the case of the Ukrainian Orange Revolution). This, however, does not at all mean that the West is guided in such cases solely by the democratization agenda. Thus, US Vice-President Richard Cheney, during his trip to the post-Soviet space in the summer of , began with a critique of anti-democratic tendencies in Russia (in his speech in Vilnius) and then went on to Kazakhstan and expressed support to the local regime, which, led by its authoritarian president Nursultan Nazarbayev for  years now, hardly sets an example for democratization and liberalization, but certainly possesses rich oil and gas reserves. This, as well as Western support for GUAM, which consists of countries such as Georgia with its authoritarian tendencies and, even more so, Azerbaijan, where the presidency was transferred from father to son, raises the question as to what stands behind the democratization rhetoric of their supporters? Is it indeed solely concern for liberal values, or is it, as, in the Russian case, concern for its own interests, namely influence and energy security? “Maintaining a stable energy supply” (see Figure ) is viewed as equally important both by the EU and the US (as it is by Russia, although rather in terms of securing the transportation of its gas and oil). However, in the case of the EU and the US there are more nuances. While it is mostly the EU that is concerned with a stable energy supply from Russia to Europe through its traditional pipelines (and, consequently, stable relations with Russia), both the EU and the US are interested in alternative sources and conduits of energy, which may also lie through the South Caucasus, due to the Baku– Tbilisi–Ceyhan21 pipeline. Stabilizing the fragile states of the South Caucasus is thus definitely an important task on the way to securing energy sources and routes. Indeed, the energy question is seen as vital in the agenda of EU: The EU’s dependence on imports of … energy carriers will increase dramatically over the next years. In  the EU will have to import  per cent of its oil demand, and  per cent of its gas needs. This is due to growing demand, declining gas and oil extraction within the EU, insufficient measures to increase energy efficiency and make greater use of renewables and nuclear power … the EU must diversify both her energy carriers and her energy suppliers. Among those relevant for Europe are Iran, Saudi Arabia, Libya, Algeria or Nigeria. All of these countries are even less democratic than Russia. Should Europe refrain from importing any gas from authoritarian regimes?22

Obviously, Europe does not seem interested in refraining from importing (and transporting) its energy from these authoritarian regimes. Given that it actively supports some of them (Azerbaijan, for example) doubts arise as to whether tensions with Russia are linked exclusively to Europe’s democratisation agenda. At the same time, it should be noted that the US, Russia and Turkey are often viewed with greater suspicion by the various sides, while the EU is perceived more  



Azerbaijan-Georgia-Turkey respectively. The project did not see much support from the Russian side. Gerhard Mangott, Trading values for gas.  December , at .

Complexities of Conflict Prevention and Resolution in the Post-Soviet Space neutrally, facing as it does fewer accusations of so-called ‘hidden agendas’ (even if one takes into account the energy issues) and, therefore, able to contribute more effectively to the settlement processes. It is only natural that the EU should be interested in taking part in the affairs of its immediate (since ) neighbour, the Republic of Moldova. The relative simplicity of the Transdniestrian case lies in this conflict not being (as mentioned earlier) an example of heated interreligious (as both Moldovans and Transdniestrians are Orthodox Christians) and/or interethnic tensions. Given that unilateral attempts to settle the conflict (as demonstrated by the ‘Kozak memorandum’) have not worked, (re)turning to a truly multilateral format of settlement is vitally important. A serious obstacle to meaningful cooperation between Russia and the EU in security matters, however, also lies in the nature of the European Security and Defence Policy (ESDP). As Russia aspires to be treated on an equal footing at every level of the decision-making process in the course of involvement in ESDP missions, given the nature of ESDP (which allows for the possibility of a non-EU member participating in peacekeeping but only with a consultative role in the decision-making process), it finds itself left out of meaningful participation and therefore regards the potential for genuine EU–Russia cooperation in the frozen conflict zones with scepticism. As for the US, the root of the problem, as seen from the Russian perspective, lies in the fact, that the US refuses “to accept Russia’s security interest in what Russia calls the ‘near abroad’”.23 However, there is nothing new in this fact, as Washington always “loathed the idea of ‘spheres of influence’ … this was a throwback to another era—the Cold War, and the European balance of power, never very popular in the US”.24 Therefore, the major separating markers (between the ‘West’ and Russia) in the post-Soviet space lie within the issues of: ) games of power and influence; ) energy routes passing through the region; ) views towards the ESDP and the consultative versus decision-making role for Russia within it; ) democratization—perceived differently by different sides. It would be naïve to deny the interest of both the EU and the US in increasing their role and (simultaneously) containing the position of Russia among some of its neighbours. Both the US and the EU are clearly acting in this way to limit Russian influence in the post-Soviet space, especially if this pertains to support for changes in the ‘post-revolutionary’ area. In case of the EU, this means containing Russian influence in the north Black Sea region (Ukraine and Moldova); in the case of the US, it means limiting Russian (and Iranian) influence in the greater Middle East. The issues that are seen as important by all sides include addressing the threats posed by organized crime (human trafficking, drug trafficking, illegal arms trade, irregular migration, etc.) and terrorist structures. Such issues as the continuing war on terror, the necessity to improve the potential of the fight against organized crime, as well as cooperation in the energy sector, represent not only some of the major common inter-

 

Joerg Himmerlich, “The Caucasus: Coping with the Complexities of Conflict”, in Hannes Adomeit and Anders Åslund (eds.), op.cit., –, at . Dmitrii Trenin, “Russia’s Foreign and Security Policy under Putin …”, at .



Olga Kamenchuk ests but also the areas where cooperation is possible in the nearest future. All these areas also have relevance to the problems of the frozen conflicts discussed above. Denying the right of both the West and Russia to deal with post-Soviet issues is unwise, as unilateral actions obviously do not work. With regard to the frozen conflicts, this demands the inclusion of Western partners, for, as Dmitry Trenin noted: “Having become, in –, the guarantor of the cease-fires that stopped, but not ended ethnic conflicts in the Caucasus and Moldova, Russia turned itself into a beneficiary, and a defender of the status quo which some of the parties to the conflicts started to reject”.25 Therefore, a wider circle of participants as negotiators/mediators will contribute to the resolution of the problems in these complex areas. However, this also means that Russia should not be excluded from the settlement process, as attempting to ignore its concerns is hardly a constructive policy. Rather, a ‘spillover effect’ from the issues of cooperation to other, more difficult issues within EU–US–Russian relations could be feasible. From cooperation in these areas, the EU, the US and Russia could turn towards deeper cooperation in the conflict settlement processes.





Dmitrii Trenin, “Russia’s Foreign and Security Policy under Putin”, in Gerhard Mangott, Dmitrii Trenin, Martin Senn and Heinz Timmermann (eds.), Russlands Rückkehr. Außenpolitik unter Vladimir Putin (Nomos, Baden-Baden, ), –, at .

Jørgen Kühl*

Sustainable Peace and Cooperation in Borderlands: The Danish–German Bonn–Copenhagen Declarations 1955–2005

I. Introduction In , the Kingdom of Denmark and the Federal Republic of Germany celebrated the th anniversary of the so-called Bonn–Copenhagen Declarations on the status and rights of the national minorities in the Danish–German border region. The declarations were made public on  March  by the Federal German Chancellor Konrad Adenauer, notifying the rights of the Danish community holding German citizenship in the state of Schleswig-Holstein (the Bonn Declaration), and by the Danish Prime Minister Hans Christian Hansen, notifying the rights of the German community holding Danish passports in the southern part of Jutland (the Copenhagen Declaration).1 Germany did not notify the status of the German community in Denmark or vice versa. The th anniversary of the declarations was celebrated at the official state level, by regional and local actors, and by the minorities concerned. Denmark and Germany issued identical postal stamps celebrating the anniversary.2 Numerous popular events and conferences took place. In the summer of , some  young people from minorities and majorities from all over Europe met in the border region at a summer course called ‘Cultures in Dialogue’, focusing on the minority declarations and their European significance.3 A special anniversary exhibition was produced by the Danish * 





Director & Head of Department, Department of Border Region Studies, University of Southern Denmark (presently on leave). The declarations are documented in an English translation in Jørgen Kühl and Marc Weller (eds.), Minority Policy in Action: The Bonn–Copenhagen Declarations in a European Context – (Department of Border Region Studies/University of Southern Denmark, Aabenraa, Flensburg, ). See ; and . See .

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 117-140. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Jørgen Kühl museum in Sønderborg and travelled to several destinations in Germany and Denmark.4 Scholarly books and articles were produced in Danish, German and English.5 Both the Danish and German ministries of foreign affairs designed special websites on the Internet devoted to the anniversary.6 On  March , the Danish and German heads of government met at a summit in the historic Sønderborg Castle to celebrate the anniversary together with invited guests, including representatives of both minorities concerned.7 In May , the Schleswig-Holstein parliament (the Landtag) invited the deputy speaker of the Danish parliament as the first non-member of the parliament to address the members of the Landtag on the declarations.8 Several other events took place in both countries during , including meetings, innumerable lectures and a popular festival.9 Thus, the Bonn–Copenhagen Declarations triggered significant interest not only in Denmark and Germany but also abroad. For instance, several foreign ambassadors and representatives from embassies attended the conference held in the Danish parliament in Copenhagen. The declarations have often been described as the symbol of the Danish–German minority model because they, at least retrospectively, demarcate the decisive event in the resolution of the majority–minority conflict found in the Danish– German border region.10 This was not the general view back in , when the minorities were still sceptical and even somewhat dissatisfied with the immediate outcome of the implementation process of the declarations. Consequently, the significance of the declarations only became evident when viewed in a long-term perspective. Actually, the positive interpretation and the narrative of the Bonn–Copenhagen Declarations  





  



See . See, for example, Kühl and Weller, op.cit. note ; Jørgen Kühl and Robert Bohn (eds.), Ein europäisches Modell? Nationale Minderheiten im deutsch-dänischen Grenzland - (Verlag für Regionalgeschichte, Bielefeld, ); Jørgen Kühl (ed.), København-Bonn Erklæringerne –. De dansk-tyske mindretalserklæringers baggrund, tilblivelse og virkning (Institut for Grænseregionsforskning/Syddansk Universitet, Aabenraa, ). Numerous articles and chapters have been published as well, for instance, in German, Jørgen Kühl, “Die Bonn-Kopenhagener Erklärungen zu den Rechten der nationalen Minderheiten im deutsch-dänischen Grenzland –”, – Europa Ethnica (), –; Wilfried Lagler, “Vom ‘Grenzkampf ’ zum friedlichen Miteinander: Nationale Minderheiten und regionale Kooperation im deutsch-dänischen Grenzraum Sønderjylland/Schleswig”, Jahrbuch des Föderalismus (Nomos, Baden-Baden, ), –. (in German only); (in Danish, German and English). The event was covered extensively by the media in Denmark and Germany. The speeches of Denmark’s Prime Minister Anders Fogh Rasmussen and Germany’s Federal Chancellor Gerhard Schröder are printed in German in  Jahre Bonn-Kopenhagener Erklärungen, Kennzeichen DK. Mitteilungen aus Dänemark, , April  (Royal Danish Embassy, Berlin, ), –. . Flensborg Avis,  August . See Kühl, op.cit. note , .

The Danish–German Bonn–Copenhagen Declarations – have grown still stronger over the years, in particular over the last two decades. The significance and positive long-term impact of the declarations have become evident to both minorities and majorities rather late. This emphasizes the fact that the Danish– German minority model cannot be reduced simply to the governmental declarations of , even though they did, in fact and despite some inertia, become the pivotal point in the resolution of the Danish–German minority conflict. Viewed from a longterm perspective, the declarations initiated and facilitated a process of reconciliation and rapprochement between the different communities, minorities and majorities and, eventually, even between majorities and majorities and minorities and minorities. To sum up, the Bonn–Copenhagen Declarations certainly were of tremendous importance to the resolution of the minority conflict but they did not have an immediate catalyst impact. The minority declarations only eventually became ‘terms of reference’ as a result of the positive development they initiated and came to symbolize.11 II. The Genesis of the Bonn–Copenhagen Declarations The Bonn–Copenhagen Declarations derived from a decade of tension, uncertainty and conflict in the Danish–German border region, characterized by the temporary massmobilization and separatist aspirations of the Danish minority in Germany and the process of legal reckoning towards the German minority in Denmark following disloyalty and collaboration during Germany’s occupation of Denmark during World War II.12 The relationships between majorities and minorities was severely strained, with discrimination and friction on both sides, culminating in autumn , when the Danish minority party lost its political representation in the state legislature of SchleswigHolstein due to a general % threshold in elections, in spite of , votes being cast for the Danish candidates.13 Combined with the fact that the German minority won a seat in the Danish national parliament the previous year with only , votes, the events in Schleswig-Holstein caused a heated public debate and fostered criticism within Denmark over the lack of political rights of the Danish minority. However, in the months that followed shortly thereafter, a set of initially unrelated geopolitical circumstances opened an unexpected window of opportunity for addressing and eventually solving the minority problems. In , the Federal Republic of Germany applied for NATO membership, which was to be discussed and agreed upon at the Council of Ministers’ meeting in Paris on  October. Then, three days beforehand, the Danish parliament approved Denmark’s acceptance of the Federal Republic of Germany’s membership. The Danish parliament also and simultaneously requested that the minister of foreign affairs address the situation regarding the Danish-minded South Schleswigers at the same meeting to be held  



See Kühl, op.cit. note  at . See Hans Schultz Hansen and Henrik Skov Kristensen, “Mindretal og flertal i Nordslesvig –”, in Kühl, op.cit. note , –; Martin Klatt, “Sydslesvig og grænsen –”, in ibid., –; and Jørgen Witte, “København-Bonn Erklæringerne: den statspolitiske baggrund”, in ibid., –. See Lars N. Henningsen, Martin Klatt and Jørgen Kühl, SSW – Dansksindet politik i Sydslesvig (Studieafdelingen ved Dansk Centralbibliotek for Sydslesvig, Flensburg, ), .



Jørgen Kühl in Paris. The Danish minister addressed the issue at the NATO meeting in Paris, stating that the way a minority is treated can become a symbol for the future cooperation desired. He pointed out the discrepancy in the fact that the German minority held a seat in the Danish parliament, whereas the Danish minority, numbering four to five times as many persons, had no representation in the state parliament of Schleswig-Holstein. He underlined the importance of a liberal policy regarding all matters relating to minorities for maintaining good relations. He expressed the hope that the Federal German government and the Schleswig-Holstein government would be able to reach a suitable solution to the problem.14 German Chancellor Adenauer immediately responded to H.C. Hansen, expressing his interest in the issue, and soon contacted the SchleswigHolstein government. Several allies, including the US, approached the Danish government in January  to ensure that the minority issue would not hinder Denmark from ratifying the Federal Republic of Germany’s membership. The Danish government assured them that there “is no indication, however, that the parties supporting the Government’s NATO policy will make the ratification dependent upon a settlement of the minority problem, but it is obvious that the prospect of a satisfactory solution of this question would create a better atmosphere for the ratification debate”.15 On  February , the West German government officially suggested negotiations on the problems of both national minorities in the border region. On  February, the Danish government agreed to begin negotiations. In a meeting that day with Germany’s chargé d’affaires, the Danish prime minister emphasized that Denmark refused to discuss a minority treaty and a declaration on the state border.16 The two governments eventually began month-long negotiations in February , leading to the adoption of the declarations. Although initial Danish interest pointed to parliamentary representation of the Danish minority, the negotiations addressed the issue of the rights and status of both national minorities. The outcome of the negotiations was the so-called Bonn–Copenhagen Declarations.17 In these separate but parallel and synchronized notifications, Denmark guarantees the rights of the German minority and the Federal Republic of Germany guarantees the rights of the Danish minority. These unilateral (but in structure and contents parallel and almost identical) declarations of  March  have become a kind 

  



Extract from the minister of foreign affairs’ speech, quoted in Troels Fink, Forhandlingerne mellem Danmark og Tyskland i  om de slesvigske mindretal (Selskabet for Udgivelse af Kilder til Dansk Historie, Copenhagen, ), at . See Hanns-Jürgen Küsters (ed.), Dokumente zur Deutschlandpolitik, II. Reihe/Band . Die Außenminister-Konferenzen von Brüssel, London und Paris . August bis . Oktober  (Oldenbourg, Munich, ), at –. Fink, op.cit. note , at . Ibid., . Johan Peter Noack, Det danske mindretal i Sydslesvig – (Institut for grænseregionsforskning, Aabenraa, ), – offers the most comprehensive analysis of the process leading up to the declarations. See also Lorenz Rerup, “National Minorities in South Jutland/Schleswig”, in Sven Tägil (ed.), Ethnicity and Nation Building in the Nordic World (South Illinois University Press, Carbonsdale, ), –, at . Kühl, op.cit. note , examines the background and impact of the declarations.

The Danish–German Bonn–Copenhagen Declarations – of ‘Bill of Rights’ for both minorities, with strong political value for both states as well.18 Perhaps the most crucial sentence in these declarations is the acceptance of the principle that “[a]ffiliation to Danish/German nationality and Danish/German culture is a free choice and may not be disputed or questioned by the authorities”, thus acknowledging and reaffirming the individual’s right to unrestricted and free identification with his/her national preference.19 Implicitly, the declarations also acknowledged that identification with or affiliation to a majority or minority group is subject to changes in the level of intensity of national identification, which is usually contextual and influenced by cycles. Thus, membership of, affiliation with or affinity to a national minority is based on individual self-identification, which may be neither challenged nor verified by the authorities. On the other hand, no one may be forced to accept or be designated the status of belonging to a minority against his/her will. The outcome of the negotiations and the declarations had an immediate impact on the situation of both minorities: their schools were granted the right to offer official examinations in accordance with legal provisions and the Danish political party was exempted from the voting barrier in state elections, enabling it to participate actively in politics at the state level in Schleswig-Holstein. These were the short-term and concrete consequences of the declarations. The preambles in both declarations are almost identical, stating that both states desire “to promote peaceful relations between the population on both sides of the Danish–German/German–Danish border and thus also the development of friendly relations”,20 considering the obligations under Article  of the European Convention on Human Rights, which both states have ratified, and referring to and confirming the principles laid down in the Kiel Declaration and the Copenhagen Note of  regarding the status of the minorities.21 Part I of the Bonn Declaration states that all members of the Danish minority—like all citizens—shall enjoy the rights guaranteed in the German Constitution. The Copenhagen Declaration states that “every citizen and thus also every member of





 

On  July , on the occasion of the th anniversary of North Schleswig’s reunification with Denmark, the chairman of the Bund deutscher Nordschleswiger said that the Bonn–Copenhagen Declarations have become a kind of “constitution of the border region”. See Sønderjyske årbøger (), . In the official English translation, the wording is somewhat different: “It shall be possible freely to profess one’s loyalty to the German/Danish people and German/Danish culture and such a profession of loyalty shall not be contested or verified by an official authority”. Forty Years of Cooperation in the Border Region. The Copenhagen-Bonn Declarations concerning the Rights of the Danish and German Minorities in the Border Region (Ministry of Foreign Affairs of Denmark, Copenhagen, ), . This excerpt is from the speech by German Foreign Minister Klaus Kinkel in Schleswig on  March  on the occasion of the th Anniversary of the Bonn–Copenhagen Declarations, printed in the same booklet, –. This and the following extracts of the declarations are quoted from the documentation in Kühl and Weller, op.cit. note . See Kühl and Bohn, op.cit. note , –.



Jørgen Kühl the German minority regardless of the language which he uses enjoys the rights and freedoms under the Danish constitution”.22 Both declarations list  “rights in particular”,23 confirming civic rights and liberties, such as the right to inviolability of the liberty of the individual, equality, freedom of conscience, faith, expression, assembly, choice of occupation, the inviolability of the home, the right to freely establish political parties, equal eligibility for public offices, elections, recourse in courts, and the right to equal treatment. In execution of these rights, the Copenhagen Declaration states: It shall be possible to profess one’s loyalty to the German people and German culture freely and such a profession of loyalty shall not be contested or verified by an official authority. Members of the German minority and their organizations may not be hindered from speaking and writing the language of their choice. The use of the German language in courts and administrative agencies shall be governed by the relevant legal provisions. General schools and (also specialist) adult education centres as well as kindergartens may, in line with the relevant legal provisions, be set up by the German minority pursuant to the principle of the freedom of teaching in force in Denmark. Since, under local legislation, the committees of local representative bodies are set up on the basis of proportional representation, representatives of the German minority shall be involved in committee work in proportion to their numbers. The Danish Government recommends that the German minority be duly taken into consideration within the framework of the rules in force on the use of radio. In respect of assistance and other benefits from public funds on which a discretionary decision is taken, the members of the German minority shall not be treated differently from other citizens. In respect of public notifications the newspapers of the German minority should be duly taken into consideration. The special interest of the German minority in fostering contacts with Germany in religious and cultural as well as in specialist fields shall be acknowledged.24

The Bonn Declaration is worded in another way, due to the special federal structure, dividing competences between the central federal and the state level. Therefore, the German notification is subdivided. The federal government first declares that: It shall be possible to profess one’s loyalty to the Danish people and Danish Culture freely and such a profession of loyalty shall not be contested or verified by an official authority. Members of the Danish minority and their organizations may not be hindered from speaking and writing the language of their choice. The use of the Danish language in courts and administrative agencies shall be governed by the relevant legal provisions.

  



Kühl and Weller, op.cit. note . Ibid. Ibid.

The Danish–German Bonn–Copenhagen Declarations – In respect of financial assistance and other benefits from public funds on which a discretionary decision is taken, members of the Danish minority may not be treated differently from other citizens. The special interest of the Danish minority in fostering contacts with Denmark in religious and cultural as well as in specialist fields shall be acknowledged.25

Then it notes that the Schleswig-Holstein state government has informed it of the following: Since, under local legislation, the committees of local representative bodies are set up on the basis of proportional representation, representatives of the Danish minority shall be involved in committee work in proportion to their numbers. The Government of Schleswig-Holstein recommends that the Danish minority be duly taken into consideration within the framework of the rules in force on the use of radio. In respect of public notifications the newspapers of the Danish minority should be duly taken into consideration. In Schleswig-Holstein general schools and (also specialist) adult education centres as well as kindergartens may be set up by the Danish minority in line with the relevant legal provisions. At schools where teaching is in Danish, adequate teaching shall be given in the German language. Parents and persons legally responsible for a child’s education may decide freely whether their children are to attend schools where teaching is in Danish.26

Although unilateral, both declarations were the outcome of bilateral negotiations, which were concluded on  March . The result of the Danish–German negotiations was fixed in a separate document, which is a very important background paper to the declarations.27 This summary of the outcome of the bilateral negotiations, which was signed by the heads of both delegations, adds a number of concrete steps to be implemented for improving the situation of both minorities. It includes measures to be undertaken especially regarding political rights, which are not addressed in the declarations but nevertheless were perceived as the main positive impact of the declarations. Whereas the declarations are unilateral in their format, the written and signed summary of the negotiations have a deeper bilateral significance. The exemption from the threshold in state and federal elections is embedded in this paper. This act of positive discrimination towards the Danish minority was agreed upon by the delegations but was eventually executed by the Schleswig-Holstein and Federal German governments through state and federal election law. Thus, it might be argued that this document sets the diplomatic and reciprocally obligating framework for the unilateral declarations.

  

Ibid. Ibid. The Danish version is printed in Fink, op.cit. note , –. The German version is printed in ibid., – and in Minderheiten im deutsch-dänischen Grenzbereich (Landeszentrale für politische Bildung, Kiel, ), -.



Jørgen Kühl The negotiation agreement is divided into two sections. In the first section, the German delegation confirms these political undertakings: – That the government will request the federal parliament to approve the declaration on the general rights of the Danish minority. – Further, the government will strive to include the special provision of the federal election law in favour of national minorities in future legislation concerning federal elections. – It then notes that the state government of Schleswig-Holstein has informed the federal government that it will work to include a special provision in the state election law exempting the Danish minority from the obligatory % voting barrier in state elections, support the schools of the Danish minority with % of the cost per pupil in public schools28 and give approval, upon request from the Danish minority, for the establishment of secondary schools with the right to offer recognized exams, provided they are aligned to the German school system. – Finally, the federal government, in accordance with the Schleswig-Holstein state government, expresses the expectation that all relevant authorities will respect and protect the rights of the Danish minority, in accordance with the Bonn Declaration. In the second section, the Danish delegation states that: – The Danish government will ask the Danish parliament to approve the declaration on the general rights of the German minority. – The Danish government will then revise the provisions of the school act prohibiting German minority schools from offering authorized exams. – The Danish government is prepared, upon request from the German minority, to establish secondary schools with the right to offer recognized exams, provided they are aligned to the Danish school system. – Finally, the Danish government expresses the expectation that all relevant authorities will respect and protect the rights of the German minority, in accordance with the Copenhagen Declaration. The Bonn–Copenhagen Declarations are not a bilateral treaty, although they are the result of bilateral negotiations and each side notified the other of the approval of the declaration by their parliaments and of the adoption of the necessary legal acts.29 The  



 years after the Bonn Declaration, the Kiel government, effective as of  January , raised the financial support to % of the actual cost in public schools. On  June , the Danish embassy in Bonn notified the Federal German ministry of foreign affairs of the approval of the Danish Declaration and the adoption of the revision of the school act. On  June , the Federal German ministry of foreign affairs informed the Danish embassy in Bonn that the German Declaration would be submitted for approval by the federal parliament soon and that the Schleswig-Holstein state parliament had approved the German Declaration unanimously on  March . On  May , the state election law was revised, exempting the Danish minority from the % voting barrier. On  July , the Federal German ministry of foreign affairs informed the Danish embassy that eight days earlier the federal parliament had unanimously approved the declaration on the

The Danish–German Bonn–Copenhagen Declarations – method of unilateral declarations was agreed upon because Denmark refused to negotiate or sign any bilateral agreement with the Federal Republic of Germany on minority issues.30 This was explained by the fact that Denmark wanted to prevent Germany using a bilateral agreement to justify interference in Danish domestic issues. This justification was probably based on the events leading up to the Danish–German war of  and the observation of the League of Nations’ minority protection system in the inter-war period, enabling states to file complaints about other states’ policies towards minorities. This fundamental principle formed the basis of Denmark’s minority policy. When the Danish–German border was redrawn in , Denmark declined Germany’s offer of a bilateral minority treaty, sticking firmly to its principles.31 This continued and was emphasized after World War II and became the conditio sine qua non of Danish foreign policy towards Germany. This led to the conclusion of the negotiations and the parallel but unilateral declarations creating, in fact, contingent reciprocity. III. The Impact and Significance of the Bonn–Copenhagen Declarations The Bonn–Copenhagen Declarations might serve as a model case of how two states in an act of cooperation based on goodwill and the commitment to reach sustainable and long-term resolutions to an acute and inflamed problem eventually achieved the development of effective and robust minority regimes. By agreeing on the terms of minority policy, Denmark and Germany also assured that ‘their’ minorities had no free scope for creating conflict, as this might have jeopardized the support of the kin-state. As a result, the impact and effect of the declarations have led to détente and peaceful coexistence in the Danish–German border region. This was no linear process. It has been accompanied by both the positive development and enhancement of the frameworks, as well as occasional and temporary setbacks, followed by friction, irritation and even frustrations in the coexistence between minority and majority. Nevertheless, the general development has been significantly positive. Therefore, all in all, the declarations of  can be assessed as a story of success. The declarations were primarily minority declarations. They solved a number of concrete and acute problems, which were of key concern to both the German minority in Denmark and the Danish community in Germany. Further, the states notified and confirmed the civic rights that should be enjoyed by all citizens regardless of ethnic affiliation and defined a number of fundamental principles within the field of minority policy. At the same time, however, the declarations also explicitly demonstrate the ambition to create good bilateral relations between Denmark and Germany. Therefore, the preface to both unilateral declarations emphasizes the context: “Desiring to promote peaceful relations between the population on both sides of the Danish–German border and thus also the development of friendly relations between the Kingdom of Denmark and the Federal Republic of Germany.”32 In other words, the unilateral minority dec-

  

general rights of the Danish minority. The documents are printed in Fink, op.cit. note , –. Ibid., . Noack, op.cit. note , . Quoted from Kühl and Weller, op.cit. note , .



Jørgen Kühl larations are embedded in the ambition to promote general positive bilateral relations between the two states concerned. Indirectly, by mentioning the international border, the territorial integrity of both states was acknowledged. This replaces a formal declaration on the border, which was not included, although initially desired by the German delegation. Consequently, the minority policy, which is unilateral and a matter of interior politics, simultaneously became significant to the general Danish–German relationship and cooperation as well. Finally, the Bonn–Copenhagen Declarations have to be read and understood in a wider European context. They are themselves an expression of a value-based community. Both states commit themselves to the principle of open societies respecting human rights. Therefore, the preface also refers to the European Convention on Human Rights of . Even the very genesis of the declarations (i.e., the question of the Federal Republic of Germany’s membership of NATO) must be viewed in the context of both parties acknowledging that the protection of minorities and democracy are seen as interconnected vessels. Consequently, the Bonn–Copenhagen Declarations are important documents. Although almost minimalist in their wording, they have nevertheless had a far-reaching moral and political obligating significance. Key Principles The declarations operate on the basis of three interconnected key principles, which are utilized in concrete measures and guarantees, and which can be summarized in terms of equal civic rights and responsibilities, equality and non-discrimination. The principle of subjective identification with a national minority, i.e., the right to affiliate or not to affiliate with a minority group, and the right to maintain special relations between the minority and its kin-state are recognized. Rules regarding minority schooling, political participation and representation are included in the declarations as well. The principle of equal treatment is stressed in several places: in relation to civic rights, equality before the law and equal access to public offices. The principle of equality also implies that, under certain circumstances, it might be necessary to introduce special measures and positive discrimination to achieve equality. Thus, the exemption of the Danish minority party from the % threshold in state and federal elections in Germany is an example of positive discrimination, which favours the minority with the purpose of offering the possibility of equal and effective participation in politics. In this case, the positive discrimination aims to produce equal opportunities. Whereas equality can be an ambition, the prohibition of discrimination is more concrete: discrimination may not take place. This principle is guaranteed in several parts of the declarations. Thus, in the case of civil servants, employees and workers in the public service, no distinction may be made between members of the minority and other citizens. Moreover, no one may be disadvantaged or favoured because of his/her parentage, language, origin or political opinions. The crucial principle is the acceptance and guarantee of subjective identification with a minority: it is possible to profess one’s loyalty to the Danish/German people and the Danish/German culture and such a profession of loyalty shall not be contested or verified by an official authority. This is the only criterion for membership of a minority 

The Danish–German Bonn–Copenhagen Declarations – included in the declarations, as no fulfilment of any objective criteria is required. Even language is only mentioned implicitly. Thus, it is stressed that members of the minorities and their organizations may not be hindered from using the language they prefer. Still, it is implicitly assumed that the language of the German minority is German, whereas the Danish minority prefers Danish; however, this does not represent a requirement or precondition for belonging to the minority concerned. Consequently, in the Bonn–Copenhagen Declarations, the minorities are not defined by origin or traditional affiliation to the border region itself. Although the minorities are limited to the border region, this does not presume that the same applies to the individual members of the minority. This is indeed a very liberal concept of minorities, which is based on the assumption that a minority is a question of fact rather than an issue of definition. Still, citizenship of the state that the minority lives in is required, although in everyday life no authority discriminates between German, Danish or even other nationals identifying themselves as members of the Danish minority in Germany or vice versa in the case of the German minority in Denmark. Nevertheless, in legal terms, the distinction is important.33 In the preface to both declarations, it is stated that the minorities concerned are national minorities, which are linked to a kin-state on the other side of the international border. The governments recognize the special interest of the minorities to establish and maintain religious, cultural and professional relations and contacts with their kinstate.34 This includes contacts with both governments and non-governmental actors in an individual and group context. Not least, it is also recognized that the kin-state is entitled to offer material and ideal support to its minority across the border. The financial aspect of this support is crucial to both minority groups: every year the Danish–German minority model requires funding of some EUR  million, of which Denmark provides % and Germany %.35 The permanent and institutionalized contacts between the minorities and their kin-states consist of a web of relations at the highest levels of government, parliament and political parties. This ensures and contributes to the fact that, in both states, general political consent regarding the financial and moral support for the minority in the neighbouring state is forthcoming. This constitutes yet another key element in the Danish–German minority model: minority policy is placed in an arena beyond party politics. At the non-governmental level, both minorities interact with, for example, border associations, NGOs, etc. Members of the minorities also hold individual membership in associations and membership of boards in their kin-states. In addition, so-called ‘foster-sponsorships’ are found, where municipalities or associations in the kin-state offer continuous support and contact with the minority. For instance, every summer, several hundred pupils from the Danish minority spend three weeks with so-called ‘foster families’ in Denmark, improving their language skills and personal knowledge of the kin-state. In many respects, this programme attaches concrete individual relations  



Kühl, op.cit. note , –. I examine this issue in Jørgen Kühl, “Minderheiten und ihr ‘Mutterland’. Nationale Identifikation über die Grenzen”, in Martin Rheinheimer (ed.), Grenzen in der Geschichte Schleswig-Holsteins und Dänemarks, (Wachholtz Verlag, Neumünster, ), -.. See Kühl and Bohn, op.cit. note , –.



Jørgen Kühl and emotional bonds to what is, in many cases, a rather abstract and imagined kinship. In addition, substantial numbers of individuals from the kin-state even take up professional positions in organizations and especially schools and kindergartens of the minority in the neighbouring state. This, in some cases, also leads to marriages, establishing ‘true’ family ties between the minority and its kin-state population as well. Governmental and non-governmental, official and private, and community and individual relations benefit from the fact that both minorities live in the vicinity of their kin-state, i.e., their state of ethnonational identification. The geographical distance to the kin-state is no more than  km or less than an hour by car. Therefore, many members of the minorities do regularly cross the border in their professional or private capacities and quite a few are even cross-border commuters, working in their kin-state.36 Due to the fact that the physical crossing of the international border has been made substantially easier since —from a once highly restrictive and limited crossing, for which a visa was required prior to the implementation of the Schengen Agreement on  March  but which now allows free passage without border or passport inspection—there is no administrative barrier restricting the minorities from making free and easy physical contact with their kin-states. Finally, essentially all members of the minorities are able to benefit from the electronic media of their kin-state, since broadcasting can be received in the entire border region. Thus, the minorities are able to maintain close relations with their kin-states. Beyond these key principles, the Bonn–Copenhagen Declarations also include a number of concrete measures regarding minority schooling and political participation and representation. Primarily, this applies to the right of minorities to establish schools with the right to offer officially recognized final exams. This was not the case in the immediate period following the end of World War II. In the case of the German minority, it was even prohibited by law up until . Only the declarations made this possible. In the Bonn Declaration regarding the Danish minority, it is also emphasized that parents and guardians have the right to determine whether their children attend a minority school or not. This provision is not found in the Copenhagen Declaration regarding the German minority, because the principle had already been implemented in Denmark. The provision is a consequence of the subjective minority concept: provided that the individuals decide their ethnonational affiliation without interference from the authorities, it is also a private decision to place children in a minority school, without restrictions or interference by the authorities. Political rights are safeguarded in the declarations primarily in respect of the exemption of the Danish minority party from the % threshold in state and federal elections.37 This affirmative measure is aimed at providing the framework for effective political participation. Still, there was no guaranteed political mandate. The Danish minority has to gain at least one seat in the state legislature in general elections. If it fails to do so, it will lose its political representation. In the remit of the Bonn–Copenhagen 





Compare for the issue of cross-border commuting, Christian L. Hansen and Birgit Nahrstedt, “Cross-border Commuting: Research Issues, and a Case Study for the DanishGerman Border Region”, in Martin van der Velde and Henk van Houtum (eds.), Borders, Regions, and People (PION, London, ), –. Kühl, op.cit. note , .

The Danish–German Bonn–Copenhagen Declarations – Declarations, there is no implicit political limitation to the exercise of the mandates. Consequently, elected minority representatives have the same rights and obligations as all other elected members of the legislature. This includes the right to join the government or to cast the deciding vote in parliamentary affairs. Effective political participation in local government is also addressed by the provision that elected representatives of the minorities have to be represented in committees and subcommittees on the basis of proportionality. This was necessary because, in both states, prior to (and sometimes even after) the declarations there had been examples of majority parties hindering the minority from gaining representation on committees. This provision stresses the principle that the political rights of minority representatives in elected bodies may not be subject to discrimination. IV. Experiences and Lessons from the Danish–German Case in a European Perspective Viewed from a European perspective, the Bonn–Copenhagen Declarations are rather unique. There are no similar examples of synchronized, albeit unilateral, minority regulations. In addition, the Danish–German regulations are based on a symmetrical constellation of minorities and majorities: in this border region, there are national minorities on both sides of the international border that identify with the neighbouring state. Both minorities are the outcome of a redrawing of the border based on plebiscites in . The Danish–German regulation is a system based on reciprocity. The symmetry is linked to the concept of a balance regarding the rights and the status of the minorities. However, there is not even one other border region in Western Europe with a similar constellation. Consequently, the Danish–German constellation is not only special but unique in Western Europe. In Eastern Europe, several border regions show similar symmetrical minority constellations along the international border, for instance, along Hungary’s border. Nevertheless, none of the states with an analogue constellation have drawn concrete inspiration from the format of the Bonn–Copenhagen Declarations with unilateral notifications based on bilateral negotiations. On the contrary, all of the minority regulations across these borders have been based on bilateral agreements. This does not only apply to strict border regions but also to the relationship between the Federal Republic of Germany and a number of states in Eastern Europe.38 In a number of cases, bilateral commissions on minority issues, similar to the body that was proposed by the German government during the negotiations in February , have been appointed. In formal terms, the Bonn–Copenhagen Declarations have had no explicit European significance: they never became a blueprint or template for other minority conflicts. In Western Europe, there are no analogous constellations; in Eastern Europe, the governments preferred the classic instrument of bilateral treaties. Thus, the special format does not have any European significance. However, the content and the principles of minority policy included in the Danish–German Declarations have indeed had an impact. The guarantees, rights and principles that are embedded in the Bonn– 

See Jørgen Kühl, “Minorities, Identity, Germany, and the Germans”, in Harald Runblom (ed.), Migrants and the Homeland, (Uppsala University Press, Uppsala, ), –.



Jørgen Kühl Copenhagen Declarations can be found in more recent international instruments on the protection of minorities as well. This includes, inter alia, the right to affiliate or not with a minority group and to be treated as such or the right to establish and maintain cross-border relations with a kin-state as well. These and other rights safeguarded in the Danish–German Declarations can also be found in, for instance, the Framework Convention on National Minorities (FCNM).39 In this respect, the Bonn–Copenhagen Declarations, in spite or maybe because of their almost minimalist format, were ahead of their time and even visionary in their liberal approach to minority rights. Therefore, neither the FCNM nor the European Charter for Regional or Minority Languages (EChRML) has added any substantial new aspects to the Danish–German minority regulations. Still, both these instruments are important also to the minorities in the Danish–German border regions, particularly because of the monitoring mechanism focusing on issues hitherto not addressed extensively in the Danish–German minority model. This includes the public use of the minority languages and broadcasting in these languages.40 On the other hand, the circumstances leading up to the Bonn–Copenhagen Declarations can in some ways be compared to the implementation of minority regulations in Europe after the upheavals of , in particular with regard to Denmark’s position towards the Federal Republic of Germany’s application for membership of NATO. When the states of Central and Eastern Europe applied for membership of NATO, the Council of Europe and the European Union, these organizations also emphasized respect for and protection of minorities as one of several accession criteria. Here, there is an evident analogy connecting similar events five decades ago: the international context, human rights and a value-based community of states. Consequently, the wider European significance of the Bonn–Copenhagen Declarations has to be found in the principles and the ‘spirit of ’. Finally, the Danish–German Declarations were elastic and open to a progressive, dynamic enhancement of the minority regulations. Some elements in the present-day Danish–German model could not be implemented back in , out of fear of possible negative reactions, especially in Denmark, where the memory of the German occupation that had ended only ten years earlier was still very vivid and where public opinion was opposed to Germany’s membership of NATO. It was only in  that the so-called ‘liaison committees’ were set up for both the German minority in Denmark and the Danish minority in Germany. The same circumstances led to the fact that the liaison office of the German minority was established in Copenhagen only in . In these and other respects, time and the gradual relaxation of tension have contributed in a positive way to enhancing the minority regulations. These, in return, have also contributed to the sustainability of the minority model itself. Still, the ethnic peace in the Danish–German border region is not a self-evident fact. In spite of all the positive developments taking place since , there is still a  



Jørgen Kühl and Marc Weller, “Conclusion”, in Kühl and Weller, op.cit. note , –. Compare Jørgen Kühl and Karen Margrethe Pedersen, “The German Minority in Denmark”, in Sia Spiliopoulou Åkermark, Leena Huss, Stefan Oeter and Alistair Walker (eds.), International Obligations and National Debates: Minorities around the Baltic Sea (Åland Islands Peace Institute Mariehamn, ), –.

The Danish–German Bonn–Copenhagen Declarations – certain degree of tension between the communities in the border region, which, sometimes in extreme situations triggered by political issues or by choice of words, seems almost antagonistic. This was the case in -, when the cross-border region of Sønderjylland-Schleswig was initiated and, in -, when Danish ratification of the EChRML caused a heated discussion in the Danish media on the relevance and implications of the guarantees of the EChRML.41 However, in general, the relationship between the different communities is peaceful and without evident antagonism, even though members of the minority groups might, from time to time at the individual level in daily life, experience prejudice on the part of their neighbours or, more often, ignorance and indifference towards their situation as minorities. Relations between the authorities and the minorities are—and this is confirmed by both minorities— very favourable and positive, in spite of the fact that the authorities don’t fulfil all the demands and wishes put forward by the minority organizations. V. New Frameworks for Political Participation of the German Minority in Denmark In the very same year that the celebrations for the th anniversary took place, the frameworks guaranteeing the status of both national minorities affected by the Bonn– Copenhagen Declarations were challenged. In Denmark, a reform of local and regional government, which was initiated in , was finally adopted in , creating a new administrative framework for the German minority and an opportunity for its effective political participation at the local level. In Schleswig-Holstein, the relevance and justification of affirmative action in the field of political representation became the subject of public debate and political polemics following the outcome of the state elections of February . Thus, political participation and representation, i.e., the political essence of the Bonn–Copenhagen Declarations, was challenged as well, both highlighting and casting a dark shadow over the official celebrations of the declarations. In  and , the German minority in Denmark actively pursued its key political interest at the national and regional levels of securing a structural reform aimed at reorganizing local and regional governments in Denmark so as not to affect the German minority’s chances of participating in elected political bodies in a future Denmark with larger municipalities and regions. The German minority argued that the county of Sønderjylland should be preserved because it is an important factor contributing to the identity of the German community and because a merger of Sønderjylland into a larger southern Danish region would prevent the German minority from gaining representation in a future elected body in such a region.42 Politicians from SchleswigHolstein and German government representatives made statements supporting the interests of the German minority on the issue.43 In June , political agreement on the future organization of local and regional government in Denmark was reached: as of , the regional government will be made   

Jørgen Kühl, Den dansk-tyske mindretalsmodel og Europa (Institut for grænseregionsforskning, Aabenraa, ), –. Ibid., . Der Nordschleswiger,  November ; Flensburger Tageblatt,  November .



Jørgen Kühl up of five regions, replacing the amter created in .44 The regions will be governed by assemblies numbering  elected members. The county of Sønderjylland will become part of the region of Southern Denmark, Region Syddanmark, together with Ribe Amt, the southern parts of Vejle Amt and Fyns Amt. The administrative centre will be the city of Vejle. Further, the number of municipalities will be reduced so that the population will be at least , inhabitants. The municipalities will take over a number of responsibilities from the amter. The regions will primarily be responsible for hospitals but also for regional development planning. The number of municipalities in Northern Schleswig will be reduced by merger from the present  to  by . The government acknowledges the German minority’s status as a national minority in Denmark requiring special attention. The present levels of financial support will continue after the reform and the government intends to discuss possible ways of ensuring the participation of the German minority in local politics, for instance, by creating special committees in the future region of Southern Denmark and the municipalities where the minority lives.45 Cross-border cooperation, another concern of the German minority, will be reallocated to the future region and the national level, not delegated to the future larger municipalities.46 In mid-August , the German minority met with the Danish prime minister, who restated the minority policy of the government, emphasizing that the structural reform would not jeopardize the current financial support for the German minority. Regarding political representation at the local and regional levels, the Danish government intends to reach sustainable solutions that will not impinge on minority policy in the border region.47 Still, the German minority was concerned about the consequences of the structural reform and expects special regulations for its political representation. The Danish minority, meeting the prime minister earlier that day, supported the position of the German minority on safeguarding the cultural and political influence of the German community after the structural reform.48 The possible negative consequences of the reform were also addressed by the Advisory Committee to the FCNM. In its second opinion on Denmark, adopted  December , it presented its findings on this issue, addressing the concerns of the German minority and the response of the Danish government and recommending, inter alia, that Denmark should ensure that the reforms “do not have an adverse impact on the effective participation of the German minority at the municipal and regional levels and also at the level of the region South-Jutland Schleswig”.49 On  December , the Danish government presented its draft law regarding the reform of local and regional government. Regarding the interests of the German minority, the government proposes that if candidates of the German minority do not      



See the detailed analysis of the reform in Kühl, op.cit. note , –. Aftale om strukturreform (Government of Denmark, Copenhagen, ), . Ibid., . Der Nordschleswiger,  August . Flensborg Avis,  August . Advisory Committee of the Framework Convention for the Protection of National Minorities, second opinion on Denmark, adopted on  December , Strasbourg,  May , .

The Danish–German Bonn–Copenhagen Declarations – gain a seat in the future municipal assemblies, special rules will apply to the German minority: if the party of the German minority reaches at least % of the votes required for one seat in the municipal assembly, the minority can appoint one representative without voting rights to represent the interests of the German population in the assembly. In municipalities where the number of votes for the German party amounts to more than % but less than % of the required votes, the municipal assembly is obligated to establish a special liaison committee for issues relevant to the German minority.50 The German minority welcomed the acknowledgement of its special situation but requested that the % mandate should be a ‘full’ mandate with full voting rights as well.51 This, however, was not granted by the government. Instead, the number of seats in the municipal councils in Southern Jutland was increased to  in all municipalities, which would support the German minority’s attempt to gain seats in the upcoming local elections. The German minority was satisfied with the new provisions. The new frameworks for the political participation of the German minority implied a fundamental revision of Danish policy. Traditionally, Denmark had been in favour of promoting the possibility that both the German and Danish minority should gain political representation, i.e., by exempting the Danish minority from the % threshold in Germany or by increasing the number of seats to be competed for in elections; however, it had not previously shown support for the idea of appointing members of elected bodies without the right to vote. The new legal provisions proposed by the Danish government essentially created a mechanism whereby special minority representatives with full rights but no voting rights would be recognized if the minority fails to win ‘normal’ representation at the local level. Indeed, this fulfilled a request of the German (and also the Danish) minority that had already been voiced in the s regarding representation in the national parliament but back then had been flatly refused by the authorities.52 The new provisions were commended by the Federal German Commissioner on National Minorities, Hans-Peter Kemper, who, during a visit to the German minority in December , made a very positive statement on the new Danish legislation, adding that similar measures probably not would have been realistic in the same manner in Germany.53 Public opinion in Denmark did not react to the special legal frameworks for the German minority at all. This might be interpreted as a sign of general consent in regard to affirmative action towards the German minority or it might simply have indicated a general lack of interest in the issues regarding the German minority. Nevertheless, the new provisions were accepted and implemented without any objections or criticism from other groups, which might have had an interest in achieving similar special accommodating measures aimed at effective political participation. In spring , the legislation was approved by the Danish parliament. The local elections took place on  November .54 Here, the German Slesvigsk Parti/     

Forslag til lov om revision af den kommunale inddeling, Indenrigs- og Sundhedsministeriet,  December . Der Nordschleswiger,  January . See Kühl, op.cit.note , –. Der Nordschleswiger,  December . The election results are documented in the journal  Pluk fra forskning i Sønderjylland (Institut for Grænseregionsforskning/Syddansk Universitet, Aabenraa ), at –.



Jørgen Kühl Schleswigsche Partei, campaigning with a regional appeal as the ‘Southern Jutish Party’,55 reached a total of , votes, up some  votes from the previous local elections in . The German party gained five seats in three municipalities: Tønder, Aabenraa and Sønderborg. The seat in the new municipality of Sønderborg was significant because the German minority had been unable to gain a seat in this region since . Due to the special legislation, the German minority also gained a consultative representation in Haderslev municipality because it received more than % of the required number of votes for a seat in the council.56 The special measures regarding the German minority also included the right to appoint an observer to the new so-called ‘growth forum’ in the new Region Syddanmark and the right to initiate the creation of and be represented in a new body for cross-border cooperation in the border region.57 The German minority was very satisfied with both the outcome of the local elections and the new frameworks for the minority, which had been agreed on in the course of the reform of local and regional government.58 Thus, the anniversary of and the political focus on the Bonn–Copenhagen Declarations in general had a positive outcome for the German minority, even introducing new legal provisions in support of political participation. It might be argued that, without the declarations and the upcoming governmental celebrations, it would have been far more complicated to reach such special provisions for the political participation of the German minority. Thus, this development has to be viewed within the context of the declarations and might be interpreted as yet another long-term effect of . VI. Challenging the Minority Model in Germany? One month before the official celebration of the Bonn–Copenhagen Declarations, state elections took place in Schleswig-Holstein on  February . The outcome of the elections created a highly difficult and controversial situation for the political party of the Danish minority.59 Even though it lost one of three seats in the state legislature, the Sydslesvigsk Vælgerforening/Südschleswigscher Wählerverband (SSN), due to coalition politics, was placed in the decisive position of having to choose between two equally strong political formations: the Social Democrats (SPD) and Greens, which was the incumbent grouping, had gained a total of  out of  seats in the state parliament; the opposition group of the conservative Christian Democratic Union (CDU) party and the liberal Free Democratic Party (FDP) gained a total of  seats, one short of the required majority. Thus, the SSW, with its two seats, was placed in a difficult position. Ahead of the elections, the SSW had announced its intention not to join any government but to negotiate on tolerating/supporting a government if neither group of parties could win the required majority. This ‘ultimate option’ surprisingly became     



. Der Nordschleswiger,  and  November . Der Nordschleswiger,  February . Der Nordschleswiger,  October  and  December . Statistisches Amt für Hamburg und Schleswig-Holstein, “Landtagswahl in SchleswigHolstein am . Februar , Vorläufiges Ergebnis”, Statistischer Bericht B VII  – / S, . Februar .

The Danish–German Bonn–Copenhagen Declarations – relevant on  February. In the following weeks, a rather aggressive public debate took place in the German media, especially by protagonists of the conservative and liberal parties, demanding that the SSW as a minority party benefiting from special terms and frameworks in the electoral law should abstain from supporting a government and maintain a neutral position.60 This would have led either to reelections, due to the deadlock in parliament, or to the formation of a so-called grand coalition between the SPD and CDU. It was even argued that, due to the ‘spirit’ and ambitions of the Bonn–Copenhagen Declarations, the SSW had no legitimate right to exercise the full powers of its elected representatives. The political debate was prominent in the newspapers as well, with both pro-minority and a significant number of highly critical, quite often polemic, letters to the editors in local, regional and national papers in Germany. The question of the position of the Danish minority and especially the SSW’s exemption from the % threshold in state (and also federal) elections was discussed extensively in the media. Numerous Internet forums took up the discussion as well, voicing opinions both in favour and opposing the special rights of the SSW. The SSW and other Danish minority organizations received numerous highly negative e-mails, phone calls and letters, etc. Some threatened to boycott Denmark when planning their next vacation because of the political course of the minority or to refuse to hire any member of the Danish minority in the future. At the local level, a few SSW representatives were even threatened with cuts in funding to Danish institutions from local municipalities if the SSW supported a minority government.61 Some members of the minority experienced negative reactions from their fellow citizens, which they even described in terms of “hatred against Danes”.62 This led to some uncertainty amongst members of the minority, who felt ambiguousness about incidental hostility. The head of the SSW in the Kiel parliament even received a death threat, causing special protection by police over the following weeks.63 On the other hand, support was also voiced for the Danish minority and politicians both from the centre-left and even members of the conservative party publicly defended the political rights of the SSW. In the county of North Friesland, the county assembly unanimously condemned the threats against the SSW and confirmed the positive relationship and coexistence between majority and minority.64 Thus, the general picture could not be divided into simple black and white. Antagonistic opinions were challenged by supportive voices in the public debate. The German minority in Denmark actively supported the rights of the Danish minority, urging politicians in Germany to display moderation in the ongoing public debate.65 

    

See the documentation printed in the journal  Grenzfriedenshefte (Grenzfriedensbund, Flensburg, ), –; and Wolfgang Börnsen, “ Jahre Bonn-Kopenhagener Erklärungen – Legende und Vision”,  Grenzfriedenshefte (Grenzfriedensbund, Flensburg, ), –. Information,  March . Flensborg Avis,  March . Flensborg Avis,  February . Flensborg Avis,  March . Flensborg Avis,  February ; Der Nordschleswiger,  March .



Jørgen Kühl Eventually, the SSW decided to support a minority government formed by the SPD and the Green party. However, the SSW abstained from joining a formal coalition government. Instead, it negotiated an agreement of cooperation, tolerating the agreed SPD–Green government, which by itself did not have a majority of seats in the state parliament.66 Thus, the SPD–Green government would have to be elected by the state parliament, the Landtag, with the two votes of the SSW. Initially, this did not seem to cause any serious concerns, although the new government’s majority would be by a margin of only one seat. Moreover, every single member of the SPD and Green factions had to vote in favour of the new coalition. When the prime minister of this new ‘minority government’ was up for election by the Landtag on  March , the fragile construction of a “minority government tolerated by a minority party” collapsed even before it ever became a fact.67 In four consecutive rounds of balloting, the designated head of government Heide Simonis failed to reach the majority of votes. In every single election round she fell short by one vote. The concept of forming a SPD–Green government supported by the SSW was abandoned. Instead, negotiations between the SPD and the CDU took place, eventually, on  April , leading to the election by  votes of the CDU’s Peter Harry Carstensen as the new head of the CDU–SPD government, based on  of the  seats in the parliament in Kiel.68 In his inaugural address of  May , Carstensen underlined the necessity of an active minority policy based on mutual trust.69 When the failure of a tolerated minority government became obvious, conservative politicians immediately tried to calm the still tense situation caused by the public debate over the status of the seats of the SSW. Leading members of the CDU affirmed the equal status of the SSW and urged the region to move on and leave these irritations behind. This was reaffirmed on several occasions throughout the remaining months of . However, within the Danish minority there was (and even one year later there still is) scepticism. A few strong voices have pointed out that because of the dispute and polemics, the Bonn–Copenhagen Declarations have essentially become devaluated. This opinion was already voiced in March, leading to the decision of the former key politician of the Danish minority Karl Otto Meyer to cancel his participation in the official celebration in Sønderborg on  March .70 Nevertheless, all the active leading figures of the minority did participate in the event and several other meetings celebrating the anniversary. The media in Denmark followed the discourse and polemics in Germany, although it did not reach the cover pages of all newspapers. Danish politicians and commentators underlined that minority mandates are equal mandates, even if a minority decides to  

  



Flensborg Avis,  March . See Martin Klatt and Jørgen Kühl, SSW – Minderheiten- und Regionalpartei in SchleswigHolstein - (Studieafdelingen ved Dansk Centralbibliotek for Sydslesvig, Flensburg, ), . Plenarprotokoll, . Sitzung, Kiel, Mittwoch, . April . Schleswig-Holsteinischer Landtag, . Wahlperiode, Plenarprotokoll /. --, . Plenarprotokoll, . Sitzung, Kiel, Mittwoch, . Mai . Schleswig-Holsteinischer Landtag, . Wahlperiode, Plenarprotokoll /. --, . Flensborg Avis,  February .

The Danish–German Bonn–Copenhagen Declarations – use their mandate in a way that might annoy some.71 However, the government itself officially considered the issue to be only relevant to domestic politics in Germany and abstained from any public comment. Still, there was some excitement ahead of the official celebrations in Sønderborg, combined with speculation about whether and how the heads of government would comment on the ongoing events in Germany and especially Schleswig-Holstein, where the formation of the SPD–Green minority government had just failed but the CDU– SPD government was still the subject of negotiations. The Danish Prime Minister Fogh Rasmussen mentioned the situation in his speech, abstaining from commenting on it but emphasizing that the strong emotions triggered by the situation evidently show that mutual relations in the border region have to be treated with caution.72 Germany’s Chancellor Schröder set his predistributed text aside in his address, underlining the fact that the Danish minority has the right to use the same rights as the majority, based on their own decision to do so.73 All in all, the events caused by the outcome of the state elections did not have any obvious negative impact on the general positive bilateral relations between the two states or on the general commitment to facilitation of continuous frameworks and funding for the minorities concerned. The minority model itself was not damaged. Yet the debate that took place in February and March did have a negative impact on the relationship between the Danish minority and some segments of the majority. By mid , the issue had changed. The legitimacy of the mandates of the SSW was no longer disputed or challenged—probably, because the mandates had become insignificant to the formation of the new government. Instead, the political dispute focused on the issue of equal funding for the activities of the Danish minority. In the agreement that might have led to an SPD–Green government, the coalition partners and the SSW had agreed, inter alia, on equal funding for pupils attending the Danish schools in Schleswig-Holstein as of .74 The new government postponed equal funding to . Authorities at the county and municipal level in Schleswig-Holstein also announced severe reductions in funding for Danish minority activities, caused by the imminent fiscal crisis in Germany. This caused severe distress to the Danish minority because lack of funds by late  had led to discussions on whether to close down two Danish kindergartens and three Danish schools.75 In February , the Danish school association decided to close two kindergartens and merge one school, hoping for increased funding by Schleswig-Holstein to maintain the remaining  schools and  kindergartens.76 Thus, what has been a long-term situation of fiscal hardship in Germany has had a substantially negative impact on the situation of the Danish minor-

     

Berliner Morgenpost,  March ; Vejle Amts Folkeblad,  March ; Sjællands Tidende,  March .  Jahre Bonn-Kopenhagener Erklärungen, op.cit. note , . Ibid., . Flensborg Avis,  March . Flensborg Avis,  October . Flensborg Avis,  January ; Flensborg Avis,  February .



Jørgen Kühl ity as well, leading to frustration and irritation within the minority.77 The main cultural organization of the minority pointed out the discrepancy between the official positive attitude and goodwill demonstrated in all the events celebrating the Bonn–Copenhagen anniversary and the political behaviour regarding reductions in the funding of minority activities.78 The chairman of the German minority also stated in late September  that the “minority party is over” and the minorities are now facing the realities of a lack of funding.79 VII. Moving Beyond the Minorities At the Danish–German summit in Sønderborg on  March , the two heads of government adopted a joint Danish–German declaration on the occasion of the anniversary of the minority declarations. This Sønderborg declaration, in some respects, moves beyond the narrow scope of the minority issue, although it acknowledges and emphasizes the significance and importance of the minorities.80 The first four points of the declaration address minority issues: . The Danish Prime Minister Fogh Rasmussen and Federal German Chancellor Schröder stated that the Bonn–Copenhagen Declarations have promoted and safeguarded peaceful coexistence between minorities on both sides of the international border and have cleared the way to friendly and close relations between both countries. . They were also convinced that this can serve as a source of inspiration regarding the resolution of minority issues in Europe and even in other parts of the world as well. . They expressed their highest appreciation of the two minorities concerned, the county of Sønderjylland and the state of Schleswig-Holstein for their substantial contribution to this positive development. The heads of government also affirmed that their future attention would be given to the issues of the minorities. They support the work of the European Centre for Minority Issues and the contribution of the Danish and German minorities to the work of the Federal Union of European Nationalities.81 . Finally, they stated that the rights of minorities are part of universal values, human rights and the foundations of Europe. They stated that, drawing on inspiration from, among other things, the Bonn–Copenhagen Declarations, the rights of minorities have explicitly been included in the Treaty on a Constitution for Europe and the political Copenhagen Criteria on enlargement of the European Union.

    



See for instance, Flensborg Avis,  November . Flensborg Avis,  September . Flensborg Avis,  September . The declaration is printed in  Jahre Bonn-Kopenhagener Erklärungen, op.cit. note , –. Compare Jørgen Kühl, The Federal Union of European Nationalities. An Outline History – (Danish Institute of Border Region Studies, Aabenraa, ).

The Danish–German Bonn–Copenhagen Declarations – The last six points of the joint declaration move beyond minority issues and address the political consent and joint interests of the two states: cooperation within the European Union, the United Nations (Denmark affirmed its support of Germany’s endeavours to gain a permanent seat in a reformed Security Council) and NATO, including the strategic partnership with the United States. Next, economic and trade ties between the two states are mentioned, followed by a political emphasis on furthering ecologically sustainable energy resources, a general positive attitude towards the construction of a fixed link between the two states across the Fehmarn Belt and the ambition to include citizens from third countries into their labour markets. Finally, they promise to support all public and private initiatives aimed at strengthening cross-border cooperation in the Danish–German border region. Therefore, they plan to appoint a working group to examine and propose solutions to barriers to cross-border commuting in the region. The latter expert group, headed by personal representatives of each head of government, presented the results of their work in February , suggesting a number of concrete measures to further cross-border mobility.82 Although this expert group addressed issues that are relevant to all citizens in the Danish–German border region and are not limited to the concerns of the minorities, both the Danish and German minority were nevertheless included in the formal work of the Danish–German experts. The launch seminar was arranged by the Danish minority in Flensburg,83 whereas the presentation and official handover of the final report was organized by the German minority in Aabenraa.84 Thus, there was at least a symbolic linkage between the focus on promoting cross-border mobility and the minority issue, stressing the relationship between the Bonn–Copenhagen Declarations and the general focus on the positive development of the border region, which also is in the key interest of both minorities. VIII. Conclusions The Bonn–Copenhagen Declarations have become the symbol of sustainable minority regulations and peaceful cooperation in the Danish–German border region. Both states regularly refer to the declarations and both sides are aware of the necessity of maintaining a balance regarding minority policy by stressing the intentions and achievements of the declarations. Thus, when Denmark in / was preparing to ratify the EChRML—which the Danish parliament eventually agreed to unanimously—parliamentarians from both parties in government and opposition stressed that ratification was required to maintain the symmetry and balance in the border region established in .85 The declarations have even become a standard phrase that Danish and German officials use to describe the positive relationship between the two states. The narrative



  

Abschlussbericht Dänisch-Deutsche Arbeitsgruppe zur Förderung der grenzüberschreitenden Mobilität. Vorgelegt durch die Persönlichen Beauftragten von Ministerpräsident Anders Fogh Rasmussen und Bundeskanzler Gerhard Schröder, København, Berlin, . Der Nordschleswiger,  February . Flensborg Avis,  June . Der Nordschleswiger,  February . Kühl, op.cit. note , –.



Jørgen Kühl of the declarations has itself become a key element in the Danish–German minority model.86 Although the ‘spirit’ and positive intentions of the Bonn–Copenhagen Declarations were challenged in , the symbolic and actual importance of the declarations did not suffer harm. Indeed, the declarations served as terms of reference, even a code of conduct, when both minorities and national governments, in spite of the sometimes heated public discourse, underlined the status and equal rights of the national minorities. In this respect, the declarations of  were strengthened by the public discourse, not least because the national media in both Denmark and Germany but also abroad actually discovered the Bonn–Copenhagen Declarations and the virtues of sustainable minority regulations. On the other hand, it became evident that minority regulations and sustainable minority regimes have to be constantly maintained. At the very least, the frameworks require constant funding, enabling the maintenance of separate facilities and cultural autonomy for both minorities.





Kühl, op.cit. note , –.

B SPECIAL FOCUS: THE CONCEPT OF ‘NATION’

Joseph Marko*

The Concept of ‘Nation’

Some Introductory Remarks The Parliamentary Assembly of the Council of Europe, with its Recommendation  () on “The Concept of ‘Nation’”, has indeed undertaken a remarkable attempt to clarify the underlying notions of key concepts used in all of the last decade’s internal and external political processes and debates since the fall of communism in Central and Eastern Europe, followed by a revival of the ‘nationality question’ and the proliferation of terminology in constitutions and legislation relating to ‘nation’ and/or ‘national’ or ‘ethnic minorities’. Already in Resolution  (), the Assembly had noted, in connection with the Hungarian Status Law defining the concept of ‘nation’ in its preamble, that there was “no common European legal definition of the concept of ‘nation’” to date. This is no wonder, if one considers historical developments and academic literature. The political processes of modern state- and ‘nation’-building have had different institutional-structural prerequisites in different parts of Europe, and as a result (as has been convincingly demonstrated by Theodor Schieder and Rogers Brubaker1), these processes have had different causes and effects in different phases of history and different parts of Europe. Academic literature has thus produced—in the tradition of the normative-ontological approach in social sciences—either a myriad of terminological combinations to describe the relationship between ‘state’ and ‘nation’ without, however, getting to any clear-cut, scientifically accepted ‘definition’2 or—in the tradition of Aristotle’s classification of political * 



Joseph Marko is currently Professor of Public Law and International Protection of Human Rights at the University of Graz, Austria, and Director of the Minority Rights Institute at the European Academy Bozen-Bolzano, Italy. Theodor Schieder, Nationalismus und Nationalstaat. Studien zum nationalen Problem im modernen Europa (Vandenhoeck u. Ruprecht, Göttingen, ); Rogers Brubaker, Citizenship and Nationhood in France and Germany (Harvard University Press, Cambridge Mass., ). See my critique of all of these efforts in particular in the so-called German ‘Staatsrechtslehre’, in Joseph Marko, Autonomie und Integration. Rechtsinstitute des Nationalitätenrechts im funktionalen Vergleich (Böhlau, Wien, Köln, Graz, ), -.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 143-146. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Joseph Marko regimes and Max Weber’s ‘ideal-types’—binary codes such as ‘ethnos’ v. ‘demos’, ‘civic’ v. ‘ethnic’ or ‘French model’ v. ‘German model’, often combined with value judgments of ‘good’ patriotism v. ‘bad’ nationalism. No one could ever tell, however, where the borderline between patriotism and nationalism was to be drawn. In conclusion, it is no wonder that nor could the Parliamentary Assembly—according to the results of a questionnaire which aimed at gathering information from different European countries—find either a linguistic or a political consensus in Europe on the concept of ‘nation’. Nevertheless, the Assembly has come to some remarkable observations and normative statements. First, it observes a “general trend of the nation-states evolution … from a purely ethnic or ethnocentric state into a civic state and from a purely civic state into a multicultural state where specific rights are recognized with regard not only to physical persons but also to cultural or national communities” (para. ). This observation is followed by the recommendation for the Committee of Ministers to “take appropriate measures in order to make sure that the member states reject any attempt to promote the ethnic purity of the state or to organise the territory and the administration of the state on an ethnic basis, with the exception of affirmative measures which aim to achieve a fair representation of the national minorities in their country’s administration, at central and local level” (para. .) and “invite the member states to bring into line their constitutions with contemporary democratic European standards which call on each state to integrate all its citizens, irrespective of their ethno-cultural background, within a civic and multicultural entity and to stop defining and organizing themselves as exclusively ethnic or exclusively civic states” (para. .). Of course, it is no wonder—due to the political and scientific discourse of the last decades—that the Parliamentary Assembly nor can provide any generally acceptable ‘definition’ of the concept of ‘nation’ or ‘national minority’ and that the findings and recommendations of the Parliamentary Assembly will not be applauded by all politicians and scientists. In particular, dogmatic legal studies have—until this very day—tried unsuccessfully to give ‘definitions’ under the notion that you can only punish or protect something you know. Echoing a US Supreme Court Justice’s refusal to define ‘hardcore pornography’ with the infamous statement “I know it when I see it”, the OSCE High Commissioner on National Minorities has declined to provide a definition of national minorities.3 Accordingly, legal protection that does not include a legal definition of the ‘object’ of protection does not necessarily require a ‘definition’—as can also be seen in the work of the Advisory Committee under the Framework Convention for the Protection of National Minorities—but only a decision on who has legal standing before a court and what sort of claim is possible. In this respect, the binary code and dichotomy created between individual and group rights, in particular in the scientific discourse in public international law, must also be deconstructed. As I have already shown elsewhere in more detail, this dichotomy is false and based only on ideological assumptions. A structural analysis of legal instruments will reveal that there are at





Keynote Address of Mr Max van der Stoel, CSCE High Commissioner on National Minorities, at the CSCE Human Dimension Seminar on “Case Studies on National Minority Issues: Positive Results”, Warsaw,  May , available at .

The Concept of ‘Nation’ least “three levels of group reference” as I call them:4 first, legal provisions couched in ‘individualistic language’ which require the de facto existence of a group for any meaningful use of individual rights, which is self-evident with regard to all language rights. Second, provisions which ‘make’ the group itself the ‘object’ of protection without, however, giving individual members of the group or the group itself legal standing before courts with the—from the perspective of liberalism—absurd consequence that you have a ‘right’ which cannot, however, be enforced against the state authorities as the recent jurisprudence of the Austrian Constitutional Court demonstrates.5 Third, there are then provisions which ‘make’ the group itself a legal ‘subject’ by giving it legal personality, including the right to bring claims before a court. ‘Group rights’ of the second and third type—including the concept of territorial autonomy—can be found far more often in various European constitutions than the public international law discourse might reflect. Legal and social science discourse on nationalism, the question of nationality, ethnic conflict resolution and minority protection therefore need fresh ideas which—I believe—must come from a methodological shift of our paradigms under discussion. All efforts based on the traditional normative-ontological approach end up in ‘essentialisms’ as the basis of primordial theories. In contrast, all behaviorist and formal-mathematical reductionism come to the conclusion that ethnicity, nationalism and ensuing violent conflicts are simply ‘irrational’, which reminds me of the Marxist verdict of ‘false consciousness’. Hence, only a deconstructive and neoinstitutionalist approach can bring us forward: we must deconstruct the underlying ideological assumptions of our legal categories by shifting the focus of analysis from legal ‘fictions’ to political ‘functions’. This will then enable us to ‘deconstruct’ false dichotomies based on binary codes and thereby ‘detect’ triadic structures: instead of the conclusion that the binary codes of identity/difference and equality/inequality necessarily lead to a pattern of cooperation versus conflict whereby inevitably people with the same characteristics flock together and ‘difference’ automatically leads to conflict, a deconstructive and neoinstitutional approach will demonstrate that this is in no way ‘natural’ as all primordialists would like us to believe when they tell us that all notions of ‘multiculturalism’ are utopian. In stark contrast to binary codes and dichotomies which, by definition, exclude the possibility of reconciling equality with difference—except for the processes of assimilation and segregation as I have shown elsewhere in detail6—there is a triadic structure of identity–equality–difference, which allows the legal institutionalisation of ‘equality’ with ‘difference’ with the effect of political ‘integration’ on the basis of legal recognition 

 

See Joseph Marko, “‘United in Diversity?’ Problems of State- and Nation-Building in Post-Conflict Situations: The Case of Bosnia and Herzegovina”,  Vermont Law Review (). Constitutional Court decision of  December , V /- concerning topographical indications in Carinthia. See Marko, op.cit. note , -. An abridged English version can be found in Joseph Marko, “Equality and Difference: Political and Legal Aspects of Ethnic Group Relations”, in Franz Matscher (ed.), Vienna International Encounter on Some Current Issues Regarding the Situation of National Minorities (Austrian Human Rights Institute, Kehl, ), -, available at .



Joseph Marko of cultural ‘differences’ as the precondition for multi- or intercultural societal patterns. The same approach is also used by Tove Malloy in the following article, where she convincingly demonstrates that the ‘identification’ of ‘cultural’ and ‘ethnic’ is a false conclusion from the dichotomy of ‘ethnic’ v. ‘civic’. In contrast, she reexamines the basis of a triadic structure in which ‘civic’ and ‘ethnic’ can be found in all ‘culture’, which is ‘fluid’ based on ever-changing values, attitudes and the ensuing processes of socialization and internalization with the political ‘function’ of ethnicity to ‘fix’ boundaries between ‘me’, ‘us’ and ‘them’, and which does not necessarily lead to a situation of (violent) conflict between ‘us’ and ‘them’, but allows for the only seemingly ‘paradoxical’ notion of a ‘cosmopolitan nation’. The following articles by Bogdan Aurescu and Tove Malloy should therefore be seen as a starting point offered by the Yearbook, bringing fresh food for thought into the perennial discussion on the relationship of the modern state and nation without already heralding a new ‘end of history’.



Bogdan Aurescu*

Cultural Nation versus Civic Nation: Which Concept for the Future Europe? A Critical Analysis of the Parliamentary Assembly’s Recommendation 1735 (2006) on “The Concept of ‘Nation’”

I.

Introduction

On  January , the Parliamentary Assembly of the Council of Europe (PACE) adopted Recommendation  () on “The Concept of ‘Nation’” (hereinafter “Recommendation ”).1 This reopened the debate regarding the ‘best concept’ of a nation in Europe, starting from an analysis of the ‘classic’ concepts: the cultural and the civic. Formally, the adoption of this document was proposed by another PACE text: Resolution  () on “Preferential treatment of national minorities by the kin-state: the case of the Hungarian Law on Hungarians living in neighbouring countries (“Magyars”)” of  June , adopted by PACE on  June .2 In substance, it was one effect of the European dispute regarding the Law on Hungarians living in neighbouring countries, adopted in June  by the Hungarian parliament,3 a piece of legislation which raised a number of legal and political concerns, in particular with regard to its potential discriminatory and extraterritorial consequences, but also to the risk of creating a ‘political bond’ between the kin-state and its kin-minorities living in the home-state. *

  

Bogdan Aurescu teaches Public International Law at the University of Bucharest. He is substitute member of the Venice Commission and president of the International Law Section of the Romanian Association for International Law and International Relations (the Romanian Branch of the International Law Association from London). Former Secretary of State for European Affairs in the Romanian MFA. The opinions expressed in this article are solely the author’s. For the text of the Recommendation, see . For the text of the Resolution, see . Act LXII of  June  on Hungarians Living in Neighbouring Countries, amended on  June  (hereinafter “the Hungarian Law”). For the text of the law and related documents, see .

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 147-159. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Bogdan Aurescu But before presenting the particular context of this debate, I will first point out a few synthetic elements regarding the two understandings of the concept of nation (also in ‘dispute’), as Recommendation  deals specifically with them, and with the connection between them. The ‘dispute’ between cultural or ethnic nation and civic nation is quite old and therefore it has a history of its own. It is well-known that the concept of civic nation was a product of the late th century and of the French Revolution, on the basis of the “social contract” theory of Rousseau, Abbot Gregoire and Abbot Sieyes.4 According to Abbot Gregoire, the whole corpus of citizens forms a single and indivisible nation.5 In turn, Sieyes defined “nation” as the people living under the same law and being represented by the same legislative assembly; in his view, the quintessence of the nation-state is the following: voluntary association (because it is a contractual one), fusion by integration within a homogenous nation, in the mathematical sense, of its individualities, and manifesting its will in a representative way.6 He considered the nation as a legal/moral person exercising sovereignty, which gathered into one entity all citizens of the state without any distinction on the basis of ethnicity. The concept would be later consecrated in Article  of the Declaration on Human and Citizens’ Rights of  August .7 According to this concept, the people-nation of the French Revolution is characterized not by language, territory or a common ethnicity, but by the fact that it represents the general interest and common well-being against all forms of privileges and particular interests;8 it is a “convened nation”, founded on the “political choice of its potential citizens”9 as well as on the assimilation of nationality with citizenship.10 The concept was crystallized by the famous Ernest Renan in his well-known conference “What is a nation?” held on  March : A nation is a soul, a spiritual principle. Two things which in reality are only one constitute this soul, this spiritual principle. The first one is the possession of a rich heritage of memories, the other one is the commitment, the will to live together. […] The existence of a nation is a […] plebiscite of every day […] The man is not the slave of his race, or

  

   



Adrian Năstase et al., Protecting Minorities in the Future Europe—Between Political Interest and International Law (RAMO, Bucharest, ), . Josepha Laroche, Politique internationale (LGDJ, Paris, ), . Stephane Pierré-Caps, Les figures constitutionnelles de l’État-nation, paper presented at the UniDem seminar organized by the Venice Commission on “Les mutations de l’État-nation en Europe à l’aube du XXIe siècle”, Nancy, France, - November , -. “Le principe de toute souveraineté réside essentiellement dans la Nation.” Brigitte Krulic, La Nation. Une idée moderne (Ellipses, Paris, ), . Pierre Nora, Les lieux de mémoire. La Nation (Gallimard, Paris, ), . Eric Hobsbawn, Nations et nationalismes depuis  (Gallimard, Paris, ), . That is why, in , the French Legislative Assembly granted the title of “honorary citizens” to Friedrich Schiller, Thomas Paine, George Washington, etc., by virtue of their free acceptance of the universal values of the Revolution. In , Tallien stated that “the only foreigners in France are the bad citizens”. See Krulic, op.cit. note , .

Cultural Nation versus Civic Nation of his language, or of his religion, or of the flow of the rivers, or of the direction of the chain of the mountains.11

In his view, the nation has no natural basis; it is the result of a collective will, of a social consensus, of a contractual link. The French concept of nation is at the basis of the right of self-determination in international law: “a nation exists only when it succeeds in throwing off the yoke of oppression, despotism and absolute monarchy, when it becomes an independent State based on the common political will of the people.”12 The concept of ethnic/cultural nation was, in turn, the result of two political movements. On one hand, the critical reaction of the French counter-revolutionary doctrine, concerned with the civic concept of nation and its probability of being “exported” along with the other “dangerous” ideas of the Revolution. For instance, Joseph de Maistre considered the nation as being characterized by “an organic peculiarity of the individual people, cemented by its language and a mythical history”; for him, nations have a soul and a real moral unity, “in particular announced by language.”13 At the same time, on the other hand, it resulted from German political doctrine, motivated by a patriotic reaction to French domination.14 Johann Gottfried Herder and Heinrich von Treitschke imagined an organic, biological and romantic vision of the nation, based on culture, language, religion and Volksgeist (the soul of the people)— a vision founded on ius sanguinis.15 Another important contribution was brought by Johann Gottlieb Fichte in his famous fourteen “Discourses to the German Nation” (-): the state, in his view, is hierarchically subordinated to the nation, seen as the “superior, last and independent forum”;16 the nation is inborn and eternal. In turn, the German sociologist Ferdinand Tönnies wrote that the community acts towards individual and particular groups like the body towards its organs.17 So, in this view, the nation was not a sum of individuals, the result of a social contract, but a collective entity with a specific language and culture and specific historical traditions.18 Both concepts of nation influenced together the historical development and different moments of state-building in Europe. An interesting example of such mixed influ 

     

Ernest Renan, Qu’est-ce qu’une nation? (Presses Poquet, Paris, ), -. See para.  of the Explanatory memorandum by Mr. Frunda, rapporteur, to Recommendation . For the text of the Explanatory memorandum, see . See also Denis Alland, Droit international public (PUF, Paris, ), -; Antonio Cassese, International Law (Oxford University Press, Oxford, ), ; Nguyen Quoc Dinh, Patrick Daillier and Alain Pellet, Droit international public (LGDJ, Paris, ), ; Pierre-Marie Dupuy, Droit international public (Dalloz, Paris, ), . Pierré-Caps, op.cit. note , . See para.  of the Explanatory memorandum by Mr. Frunda, op.cit. note . Pierre de Senarclens, Mondialisation, souveraineté et théories des relations internationales (Dalloz, Armand Collin, Paris, ), . Krulic, op.cit. note , . Laroche, op.cit. note , . See para.  of the Explanatory memorandum by Mr. Frunda, op.cit. note .



Bogdan Aurescu ence in Central and Eastern Europe is the shaping of the modern Romanian state. The  Romanian revolutionaries were clearly influenced by the French concept of state and nation in their proclamations and programmes, as the most prominent leaders of the  Romanian Revolution (an important step in the creation of modern Romania) studied at the Collège de France in the s with professors like Edgar Quinet and Jules Michelet (as, for instance, Nicolae Bălcescu and the Brătianu brothers). Michelet’s famous work “The People” had a considerable influence both in Romania and in the Romanian community of Paris. Thus, one of the first proclamations of the Romanian Revolution (Islaz, June ) stated as objectives of the movement, inter alia, “equality of political rights”, “equal and full education for all Romanians”, “emancipation of Jews and political rights for all compatriots having another religion”. At the same time, the political theses of Nicolae Bălcescu, the most prominent leader of the Romanian Revolution (who wrote in  a text titled “The March of the Revolution in the History of Romanians”) were inspired by the stream of cultural historicism, as they referred to a cultural and linguistic continuity of the nation since the times of the Dacians and Romans, the ancestors of the Romanians: “The  Romanian Revolution was not an accidental phenomenon […]. Its origin is lost in the centuries of the centuries […]. There are eighteen centuries of evil, of sufferance, and of work of the Romanian people over itself.” This reference expresses, in fact, the influence of Herder, a promoter of the cultural concept of nation, matched with the specificity of the region.19 The Romanian case can serve as an example of how the civic concept of nation integrated the cultural approach in Central and Eastern Europe.20 But why is this theoretical/doctrinal ‘dispute’ regarding the two concepts, never won by one or the other camp, reemerging now?21 As previously mentioned, in January  the Parliamentary Assembly of the Council of Europe adopted Recommendation  on “The Concept of ‘Nation’”. Thus, the debate was reopened. In order to understand the implications of this renewed debate, it is important to learn about the context that generated the PACE initiative. As mentioned in the beginning, it was, in fact, the ‘secondary’ or ‘collateral’ effect of a much larger (and involving a lot of passion) debate at European level: the dispute regarding the Law on Hungarians living in neighbouring countries. This dispute22 lasted for three years (-), and was finalized with both concrete results (the modification of said piece of legislation by the Hungarian Parliament and the conclusion of agreements between Hungary and Romania23 (and Slovakia) aimed at ‘filtering’ the non-Euro conform provisions of the   

 



Năstase, op.cit. note , . Krulic, op.cit. note , -. It is, probably, worth mentioning at this point, that the Treaty establishing a Constitution for Europe set forth in article I- that “[t]he Union shall respect […] their national identities [of member states].” Emphasis added. This wording, already existent in the Maastricht Treaty, might be seen by some as a certain confirmation of the civic concept, if not necessarily in its ‘pure’ form. But the Constitution is far from coming into force, for the time being. In which I was involved in my former capacity of director general for legal affairs in the Romanian Ministry of Foreign Affairs. For details and for the full texts of these agreements, see Bogdan Aurescu, “Bilateral Agreements as a Means of Solving Minority Issues: The Case of the Hungarian Status Law”,  EYMI (/), -.

Cultural Nation versus Civic Nation Law) and with the outline of rules of international law that serve as parameters for the involvement of the ‘kin-state’ (a concept that definitively replaced that of the ‘motherstate’ in legal terminology) in protecting its kin-minority living in another state. In other words, the mentioned debate ended with ‘codifying’ what is allowed in the conduct of the kin-state towards its kin-minority and what is not. The conclusion of this ‘codification’ was that, on the basis of the interest (and not of a right) of this state, it is allowed to maintain cultural links with the kin-minority and to provide for assistance in the cultural field, while several principles and rules are to be observed: the primary responsibility for minority protection belongs to the home-state; the respect of the territorial sovereignty of the home-state; the respect of the pacta sunt servanda principle; the respect of friendly relations among states (including, of course, the good neighbourly relations); preferential treatment may be granted by the kin-state in the educational and cultural fields, and with the condition of the existence of the legitimate aim of fostering cultural links and respect of the principle of proportionality.24 These rules were included in the famous “Report on the preferential treatment of national minorities by their kin-state”, adopted by the Venice Commission (- October ).25 As a substitute member of the Venice Commission since , I witnessed many times the memorable impression of this debate—which was not only a bilateral, but also a European one—regarding the regime of the involvement of the kinstate in minority protection, upon the members of the Commission.26 II. ‘Cultural Nation’ and ‘Civic Nation’ during the Debate Regarding the Hungarian Law One important aspect must be noted. The  Venice Commission’s report, despite its quite detailed character, carefully avoided any reference to the classic dichotomy ethnic/cultural nation versus civic/political nation—in spite of the fact that the abundant argumentation sent to the Commission by Hungary before the adoption of the report included substantial reference to the ideology of the ‘larger’ ethnic/cultural nation, considered by Hungary as the basis for the ‘right’ of the ‘mother-state’ to grant protection to its kin-minority living in another state. Anyway, the conclusion of the report was quite clear, in spite of its indirect manner: the cultural nation cannot be considered the foundation of the kin-state actions. On the contrary, the conditions set forth by the report show concern for preserving the sovereignty of the (home-)state and the already known parameters of the civic state.



 

See Chapter E, Conclusions, of “Report on the preferential treatment of national minorities by their kin-state”, adopted by the Venice Commission at its th session (Venice, - October ), CDL-INF () . For the text of the Report, see . Hereinafter “the Venice Commission’s report”. See, for a broader picture of the context and implications, Bogdan Aurescu (ed.), Kin-State Involvement in Minority Protection. Lessons Learned, edited by the International Law Section of the Romanian Association for International Law and International Relations, and the Venice Commission (RAMO, Bucharest, ).



Bogdan Aurescu All documents and positions subsequently adopted by other international organizations involved in the debate regarding the Hungarian Law (OSCE,27 the European Commission, especially in ,28 the Council of Europe, through PACE, in ) follow carefully the same line of the Venice Commission’s report. The Jürgens Report—which constituted the basis of PACE Resolution No.  () on “Preferential treatment of national minorities by the kin-state: the case of the Hungarian Law on Hungarians living in neighbouring countries (“Magyars”) of  June ”—is of the same opinion. Moreover, it criticized the reference of the preamble of the Hungarian Law to the “Hungarian nation as a whole”, which was supposed to also include the Hungarians living in neighbouring countries. The Jürgens Report notes that this wording may carry the suggestion of non-acceptation of those State borders which in fact divide the members of the ‘nation’. This suggestion can have a negative effect if it causes unrest in the States in which the kin-minority live, negative also for the position in the State of the kin-minority concerned. […] This works clearly to the detriment of that minority and to harmonious relations within the State.29

The rapporteur considered this part of the preamble to be in contradiction with other paragraphs of the same preamble, which mentioned the conformity of the law with international law and European integration. In its turn, the European Commission also criticized the same formula (“Hungarian nation as a whole”) in December : it “could be understood in such a way that Hungary is striving for establishing special political links (with the kin-minorities from neighbouring countries), an aim which conflicts with the sovereignty and jurisdiction of the neighbouring States.”30 Starting from the findings of the Jürgens Report, Resolution No.  made the said proposal for the PACE to draft and adopt a document with the purpose of clarifying the concept of nation. This document is Recommendation  () on “The concept of ‘nation’”. It is clear that this Recommendation cannot be separated from the context that stimulated its birth (the very complex debate regarding the kin-state and the limits of its actions). 

 





Statements of the OSCE High Commissioner on National Minorities of  October , at ; and of  June , at . See below. See para.  of the Explanatory memorandum by Mr. Jürgens, rapporteur, to Resolution No.  () on “Preferential treatment of national minorities by the kin-state: the case of the Hungarian Law on Hungarians living in neighbouring countries (“Magyars”) of  June ”. See section  “The risk to create a political bond”, Non-Paper “Assessment of the compatibility of the revised draft ‘Law on Hungarians living in neighbouring States’ with European standards and with the norms and principles of international law (the findings of the Council of Europe’s Venice Commission) and with EU law”, reproduced in Aurescu, op.cit. note , -.

Cultural Nation versus Civic Nation III. A Critical Analysis of Recommendation 1735 (2006) Recommendation  was, of course, the fruit of the compromise in the Parliamentary Assembly. So, it succeeded in clarifying some aspects of the debate on nation, confused others and included some (not few) contradictions. According to the Council of Europe’s procedures, all these aspects will receive a motivated answer from the Committee of Ministers. In the first category of aspects, one may notice the correct wording in paragraph : “[a] nation in its cultural understanding becomes a subject of law (see international law) only if it organises itself as a state which is internationally recognised”. At the same time, paragraph  of the Recommendation rightfully acknowledges the historical-political sequence of the two concepts of nation: “[…] the general trend of the nation-state’s evolution is towards its transformation depending on the case, from a purely ethnic or ethnocentric state into a civic state and from a purely civic state into a multicultural state […]”. Paragraph  provides that “[…] since national minorities as such do not have legal personality they cannot be legal subjects and therefore they cannot be parties to contracts or covenants.” and that “[…] the cultural rights […] are not territorial or connected to territory and their recognition and protection must be legally organized both at the level of each nation-state concerned and at transnational (international) level.” The text also reiterates and reinforces the thesis of the Venice Commission regarding the primary role of the state of citizenship in minority protection (paragraph ), the obligation to respect the principles set forth by the report of October  (territorial sovereignty, pacta sunt servanda, friendly relations amongst states and respect for human rights and fundamental freedoms—in particular the prohibition of discrimination), and the imperative obligation of the kin-state to observe the home-state legislation, as well as to negotiate beforehand any unilateral action (paragraph ). The second and third categories of aspects—controversies and contradictions—can be analyzed together. Obviously, one shortcoming of the Recommendation on the concept of nation is the fact that it was not able to provide for a (generally accepted) definition of the European concept of nation.31 Paragraph  of the “Conclusions” of the Explanatory Memorandum by Mr. Frunda, rapporteur to Recommendation , clearly states: “I do not think it is important to formulate a new concept of nation. The real issue behind this debate about a possible ‘st century concept of nation’ is not the definition itself […]”. Thus, the Recommendation did not manage to find such a definition. This is not surprising: the document tried to define nation by indirectly defining the national minority. Or, because of connecting the two aspects, the well-known failure to define, 

It is to note that both PACE Resolution No.  and its Explanatory memorandum by Mr. Jürgens, rapporteur, dealt to a large extent with the different interpretations of the concept of nation. The Explanatory memorandum devotes to this issue paras. -, - and - and mentions at least twice (in paras.  and ) that this calls for a further report of the PACE. The Resolution mentions in para.  that “[t]he Assembly notes that up until now there is no common European legal definition of the concept of ‘nation’.” That is why PACE Recommendation  on “The Concept of ‘Nation’” (as ‘effect’ of Resolution No. ) was expected to provide for such a common definition.



Bogdan Aurescu at the international and European levels, the concept of national minority ensured the failure to find a unique acceptable definition of the nation. One problem of this Recommendation is the residual persistence of a certain wording implying the idea of collective rights for minorities, while the intention of the PACE was clearly not to accept such formulations: the text excluded from its previous versions the express mentions in this regard. For instance, the text still kept (in paras.  and ) the expressions “specific rights […] recognised with regard not only to physical persons but also to cultural or national communities” and the recommendation that “they must be the object of collective protection”.32 Another problem is the way the Recommendation sees the national minority as a “constitutive part and a co-founding entity of the nation-state of which their members are subjects as citizens” (para. ). This idea is not entirely correct or accurate as it mixes in the same equation terms belonging to different categories: the corresponding term for national minority is ‘nation’ (civic nation, in the sense of the text just quoted), and not ‘the state’, which is an institution based on that of the nation (itself the fundament of the state). Persons belonging to national minorities, as citizens of the state where they live, belong to the civic nation, which is the foundation of the (nation-) state. Another controversial issue is related to the recommendation (see para. ()) for the member states of the Council of Europe to promote in their domestic legislation the recognition of the cultural rights of national minorities “inter alia, on the basis of Recommendation  () on territorial autonomy and national minorities and Recommendation  () on local law/special status of the Congress of Local and Regional Authorities of the Council of Europe”. The question is: does this text intend to stimulate a certain consolidated practice for states to promote the various forms of autonomy (cultural, territorial) for minorities in their national legislation based on a legal obligation in this regard? From the legal point of view of the existing standards, the answer is that it cannot. First, because no form of autonomy is currently included in the recognized standards for national minorities, and consequently, nor is one included in the category of minority cultural rights.33 In its Opinion on the Romanian draft law on national minorities, issued in October , the Venice Commission clearly stated that “there is no internationally accepted model of cultural autonomy for national minorities” and that “international standards and principles are somewhat missing in this matter”; “the main feature of a system of cultural autonomy is that it goes beyond the mere recognition of rights to persons belonging to national minorities”.34 That is why the references to vari-

 





Emphasis added. Of course, certain soft law documents, such as the  OSCE Lund Recommendations on the Effective Participation of National Minorities in Public Life, recommend different forms of autonomy (including territorial ones) for national minorities. But they do not belong to the legal domain of the cultural rights of national minorities. See paras.  and  of Opinion No. / on the draft law on the statute of national minorities living in Romania, adopted by the Venice Commission at its th Plenary Session (Venice, - October ), CDL-AD(). For the text of this opinion, see .

Cultural Nation versus Civic Nation ous forms of autonomy, present in previous versions of the draft Recommendation, were no longer included in the adopted text. Furthermore, the mentions regarding the two Recommendations of the Congress of Local and Regional Authorities are surprising in themselves, not to mention their total lack of normative effectiveness: Recommendation  () on territorial autonomy and national minorities was entirely rejected by the Committee of Ministers of the Council of Europe in , on the ground that “territorial autonomy” is not defined by international law;35 Recommendation  () on local law/special status received an answer by the same Committee of Ministers of the Council of Europe, also in ,36 according to which the suggestions of the Congress of Local and Regional Authorities contained in the said document are to be applied in accordance with the existing principles and methods provided for in Council of Europe’s instruments, and to be circumscribed to the domestic normative frame of each member state. Moreover, the recommendation of paragraph () regarding the territorial form of autonomy at national level is contradicted by the very next paragraph (()), which recommends that member states “reject any attempt to promote the ethnic purity of the state or to organise the territory and the administration of the state on an ethnic basis”, which is equivalent to a prohibition of territorial autonomy on an ethnic basis. The exception provided for by the same paragraph (“affirmative measures which aim to achieve a fair representation of the national minorities in their country’s administration, at central and local level”) is a natural measure already implemented by many European states; in my view, it cannot be interpreted as permitting territorial autonomy on an ethnic basis. A further problem with the Recommendation is the fact that it considers the ethnic/cultural nation as the very basis of the kin-state’s actions in favour of the kinminority. The assertion of the PACE text is based on a contradictory approach: on one hand, it (correctly) mentions in paragraph  that “the general trend of the nation-state’s evolution is towards its transformation depending on the case, from a purely ethnic or ethnocentric state into a civic state and from a purely civic state into a multicultural state”; on the other, in the same paragraph, it states that “the modern European states founded their legitimacy either on the civic meaning of the concept of ‘nation’ or on the cultural meaning of the concept”, thus placing the two concepts on the same level of timing and legitimacy. Continuing this line of thinking, paragraph  of the Recommendation shows that “on the territories of almost all the Council of Europe member states there live various groups of people who are at the same time citizens 



Territorial autonomy and national minorities. Reply to Recommendation  () of the Congress of Local and Regional Authorities of Europe (CLRAE Rec  (), GRH() revised, CM/Del/Dec()/. and /.), th meeting,  May . For the text of this reply, see . Local law/Special status. Reply to Recommendation  () of the Congress of Local and Regional Authorities of Europe, th meeting,  May , (CM/Del/Dec()/., /., /. and /., CLRAE Rec  (), PA REC_ ()). For the text of this reply, see .



Bogdan Aurescu of the same state or civic nation, but who belong to and are part of different cultural nations”. In a sort of a conclusive contention, paragraph  provides that it is necessary to allow any individual to define himself as a member of a cultural ‘nation’ irrespective of his country of citizenship or the civic nation to which he belongs as a citizen, and, more specifically, to satisfy the growing aspirations of minorities which have a heightened sense of belonging to a certain cultural nation,

this becoming the basis of relations between the state and national minorities, culminating in genuine acceptance of the right of all individuals to belong to the nation which they feel they belong to, whether in terms of citizenship or in terms of language, culture and traditions.

While fully accepting the legitimate interest of the kin-state to “play a role in the protection and preservation of (its) kin-minorities, aiming at ensuring that their genuine linguistic and cultural links remain strong”,37 such a foundation—proposed above—of the relationship kin-state/kin-minority comes in contradiction with the standards created as a result of, and with the lessons learned following the debate on, the Hungarian Law, as well as with the very context which generated and mandated (by PACE Resolution  ()) the study of the concept of nation in Recommendation . Indeed, all these standards and lessons learned indicated as a basis of the kin-state’s actions and of its relationship with the kin-minority exactly this natural interest of preserving cultural and linguistic links, with the observance, of course, of the principles already mentioned above: the primary responsibility of the home-state, of its sovereignty, of good-neighbourliness, of avoiding the creation of political links that might affect these principles and undermine the citizenship liaison of the person belonging to a national minority with his or her home-state. Anyway, I believe it would be too simplistic an approach to imagine that a person can (only!) legally belong to a certain state, in terms of citizenship, and therefore to its civic nation, but from a cultural point of view (only) to another, cultural, nation. The reality is more complex: sometimes a person belonging to a national minority might be culturally more connected to the society of the home-state. Perhaps, by exception, the only relation that might be founded on the close relationship of two components of the previous cultural/ethnic nation could be conceived in a situation that does not cover the liaison between a kin-state and a kin-minority: the exceptional situation of the link between a ‘kin-majority’ and another ‘kin-majority’, between a kin-state and another kin-state, such as the situation of West Germany and





See Chapter E, Conclusions, Venice Commission’s report, .

Cultural Nation versus Civic Nation the “Democratic” Republic of Germany before , the relationship between Turkey and Azerbaijan,38 or the current situation of Romania and the Republic of Moldova.39 IV. The Contemporary European State—from Multiculturalism to Interculturalism. Conclusions The last but most interesting question that I would like to tackle is related to one of the conclusions of the Recommendation: paragraph () “invite(s) the member states to bring into line their constitutions with the contemporary democratic European standards which call on each State to integrate all its citizens, irrespective of their ethno-cultural background, within a civic and multicultural entity and to stop defining and organising themselves as exclusively ethnic or exclusively civic states”.40 Thus, the PACE defines the ultimate goal of the European state’s evolution—the multicultural state society. The statement is correct, but incomplete. The following arguments will show why. Indeed, historical reality shows that the formation of the modern European nation-states took place starting from a certain ethnic/cultural nation, which—by exercising what later on will be defined as the right to self-determination—transformed itself into a state, thus becoming, by a process of instant but natural transformation, a civic nation. Once the modern theories regarding minority protection appeared, along with the trend of consolidation of the culture of respect and social, ethnic and cultural tolerance for each other, these civic nations become (naturally) multicultural. Of course, multiculturalism is a positive tendency. It allows the coexistence of identities—the identity of majority with the identities of the minorities and the identities of the minorities amongst themselves. It also allows for the preservation of these identities; it works against their dilution, assimilation or disappearance. In comparison with the initial ‘pure’ civism of nation-states, multiculturalism is certainly progress. But it can in no way constitute the final goal or point of progress, the terminal point of the contemporary state’s evolution. The simple coexistence of various identities cannot be satisfactory in and of itself. I think the true finality is interculturalism, the result of complex interac





In a speech delivered on  July  in Istanbul, the President of Azerbaijan, Ilham Aliyev, mentioned, that the “[…] saying ‘Turkey and Azerbaijan are one nation, two states’ is very dear to all of us. This expression, this saying comes from the heart. At the same time, these words have great sense, they have historical value, great value for strengthening, development of the Turkey-Azerbaijan unity, and today both in Turkey, and in Azerbaijan these words live in hearts of people. We try and we shall try to achieve henceforth the further progress, greater strengthening of these remarkable fraternal relations, enrich it with new forms. Much depends on our unity.” Emphasis added. For the full text of this speech, see . The Romanian “National Security Strategy” (), , states: “On the basis of the special relations between Romania and the Republic of Moldova, and in consensus with the natural responsibilities stemming out of the community of history, language and culture, with the principle ‘one nation, two states’ and the spirit of the European Neighbourhood Policy, we will pay particular attention to the cooperation with the Republic of Moldova.” (unofficial translation from the original text in Romanian). Emphasis added. For the original text in Romanian, see . Emphasis added.



Bogdan Aurescu tion between the culture of the majority and that of the minority, which enrich each other. The separate cultural diversity may be an interesting theoretical concept, but is practically impossible and socially undesirable. Those cultures that isolate themselves cannot progress at all. On the other hand, interculturalism does not require the loss of specificity, and a minority’s integration into the society of its home-state does not imply its assimilation. The idea that cultural diversity is a source of enrichment for the society where minorities live and the necessity of encouraging intercultural dialogue have already been addressed in many international instruments on the matter. Take for instance Article () of the Framework Convention for the Protection of National Minorities: “The Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of education, culture and the media”.41 The Explanatory Report of this Convention is even clearer: “In order to strengthen social cohesion, the aim of this paragraph is, inter alia, to promote tolerance and intercultural dialogue, by eliminating barriers between persons belonging to ethnic, cultural, linguistic and religious groups through the encouragement of intercultural organisations and movements which seek to promote mutual respect and understanding and to integrate these persons into society whilst preserving their identity”.42 Another example (of many) is the Central European Initiative Instrument for the Protection of Minority Rights: “[The Member States of the Central European Initiative signatory hereto are] convinced that national minorities form an integral part of the society of the States in which they live and that they are a factor of enrichment of each respective State and society, […]” (Preamble).43 The OSCE High Commissioner on National Minorities shares the same approach: “The principle of integration with respect for diversity, which I consider a cornerstone of the OSCE approach to international security, should be the basis for any proposed solution. As I have pointed out already, integration does not mean involuntary assimilation. It means living together, with tolerance and mutual respect for difference as regards culture, religion, language and historic perceptions. Integration in a multiethnic society of such differences is difficult and challenging. But is a necessity if the forces for separation and conflict are not to win out”.44 I will now invoke, for the sake of clarity, a model: the model of the can. The can could be perfectly beneficial for preserving a certain product, for instance a certain identity. But in order to value the taste of that specific identity, it is necessary to open it. If you want to cook food according to a recipe, it is not enough to boil vegetables and an unopened can preserving inside, in perfect condition, a juicy piece of the best meat.    



Emphasis added. Emphasis added. Emphasis added. Statement of the OSCE High Commissioner on National Minorities, “Effective Participation of National Minorities in Public Life—Developing and Concretizing Practical Forms of Participation Drawing on the Lund Recommendations”, HDIM Working Session on Tolerance and Non-Discrimination II, Warsaw,  September , at . Emphasis added.

Cultural Nation versus Civic Nation The final taste of the recipe will be reached and valued only by the true interaction of all its ingredients. “While maintaining their identity, a minority should be integrated in harmony with others within a state as part of society at large.”45 My proposal is to complete the evolutionary sequence of: ethnic nation (before the exercise of self-determination and creation of the state)—pure civic nation (in the next period to state creation)—multicultural civic nation, with its natural finality: the intercultural civic nation (after the multicultural phase). That is, the “new cultural nation” of the home-state. Therefore, the contemporary European states should aim to get over the multicultural goal to the intercultural one, which is able to determine the true progress of the societies of the respective states. To do so is normal and natural. In fact, the minorities and majority of a certain state build together, through cultural interaction, a real cultural nation in the civic nation-state, where they live together—of course, without the possibility for these minorities to lose their own identity or to exclude the links with their kin-states. It is a sole common space—social, economic, political and cultural—to which both majority and minority belong and which belongs to both majority and minority, equally and with equal legitimacy. The vision shared above is, I think, the only one able to reconcile this old dispute of “cultural nation versus civic nation”. Whether this assertion is correct or not is up to the future to decide.



Statement of the OSCE High Commissioner on National Minorities ( October ), “Sovereignty, Responsibility, and National Minorities”, at . Emphasis added.



Tove H. Malloy*

Deconstructing the ‘Nation’ for the 21st Century through a Critical Reading of the Parliamentary Assembly’s Recommendation 1735 (2006)

Each human society is an infinitely complex and dynamic structure of ideas. The health of a society, its degree of well being, is determined by the ideas which take actual effect in the process of its day-to-day self-constituting as a society. To reform or redeem a society is to change those determining ideas. Our quality of life is a function of the quality of our ideas. Philip Allott 1

I.

Introduction

To define a concept is a precarious matter, and the concept of a nation is no exception. A definition refers to a finite, precise delineation of a phenomenon, and a concept is an idea, a representation of a phenomenon, or a creative thought. Moreover, a definition requires distinctiveness, interpretation, explanation and clarity, whereas conceptualization involves imagination. To define the idea of a nation is therefore like aiming at a moving target: even with a combination of vision, skills, judgement, control and a good deal of experience fully synchronised, there is little likelihood that your focus will provide a successful result. However, the idea of the nation has been a powerful socio-political tool throughout modern times, and perhaps earlier, and our knowledge of the many functions of the nation over time is extensive. In the fifteenth century, the first contours of the nation were formed through the matrimonial union of Ferdinand II of Aragon and Isabella I of Castile. In the seventeenth century, the Peace of Westphalia facilitated the beginning of the transformation of the principle cujus regio ejus religio, which in the eighteenth and nineteenth centuries, after the Congress of Vienna, gave way to the principle cujus regio ejus natio, a principle used to unite large populations around sociopolitico goals. In the twentieth century, the nation came to be idealized first as a unit of self-determination * 

Senior Researcher, Institute for Minority Rights, European Academy, Bolzano, Italy. Philip Allott, The Health of Nations (Cambridge University Press, Cambridge, ), at x.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 161-177. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Tove H. Malloy and later as an excuse for genetic purity. Although the latter concept was considered destroyed by bellicose means, the former was but a dormant ideal under the cold winds of the bipolar structure of global balance.2 With the end of the Cold War, nations which had not found ideological satisfaction at Versailles reawoke only to be met by a new ideology of firm territorial borders respecting universal human rights. This was an ideology devised over forty years of intergovernmental cooperation, and which has found its own ways of domesticating national feelings3 and settling border disputes in a rational manner. The idea which had been used as an instrumental means both to achieve nationhood (in the hands of the French and German intellectuals) and as an ideological end (in the minds of Wilson and Lenin), metamorphosed into a post-World War II view of liberal ideology of democratisation based on universal human rights and self-determination for some but not all nations. In this supposedly global view, the nation became coterminous with the state. With the meeting in  between the new global view and the dormant ideal, a sense of reawakening and revision in a climate of conservative state-building was created. The dormant ideal, unaware of forty years of change, was ready to pick up again and address the unsettled post-World War I border disputes, while the global view was eager to democratize after forty years of waiting. The venue is somewhat the same as after World War I: inter-governmental cooperation ruling the territories of Europe, but with the Council of Europe rather than the League of Nations. The players are much the same: the strong powers and the weakened powers of Europe. This time, the weakened powers are not to be punished for siding with the losers. Rather, they are to be guided out of years of restraint under Communism and educated on the new rules of Europe. The reawakened nations are asked to adapt to a vision of the nation that has found its function through centuries of redefinition and reapplication under circumstances and conditions that do not necessarily have relevance for them. To expect that they will accept these conditions without debate is naïve. Societies constitute themselves in the form of ideas;4 we construct and reconstruct our world as we go along, and debating contested concepts is very much part of this process. To neglect the opportunity to redefine a living idea such as the nation is dangerous—this was attempted for forty years without success, and we should not commit the same mistake again. Needless to say, the  scenario would sooner or later be faced with the question of why the nation is a daily plebiscite. The discussion of the idea of nation should be seen in the context of an ongoing debate on the rights of national minorities within the Council of Europe’s space. The topic of defining a nation is recent to this debate, which has addressed various topics contingent to national minority protection since the adoption and entering into effect of the Framework Convention on the Protection of National Minorities, includ-

  



Walker Connor, Ethnonationalism. The Quest for Understanding (Princeton University Press, Princeton, ). Margaret Canovan, “Sleeping Dogs, Prowling Cats and Soaring Doves: Three Paradoxes in the Political Theory of Nationhood” () Political Studies (), -, at . Allott, op.cit. note , x.

Deconstructing the ‘Nation’ for the st Century ing autonomy as an inspiration for conflict resolution,5 territorial autonomy,6 special status laws7 and kin-state support laws.8 During the drafting and prior to the adoption of the Framework Convention, the main topic under discussion was the definition of a national minority.9 This discussion did not, however, result in the instrument including a definition of a national minority, and ignited a number of declarations logged by signature states.10 Together, the pre- and post-Framework Convention documents constitute a chain of texts which, while not exhaustive, represents the thinking in Europe on the protection of national minorities. This chain of texts did not, however, address the problem of defining the concept of the nation, and only the most recent text, Resolution  () on kin-state support for national minorities submitted by the Parliamentary Assembly (PACE), acknowledges the problem of defining the nation by noting that there is no common European legal definition and that the concept is used differently in different parts of Europe and in different languages.11 Hence, the relation between the idea of a nation and a national minority has been present in the post- discourse on national minority protection without being addressed in conceptual and linguistic terms.12 Taking as a starting point the lack of a legal definition of the concept of a nation, the PACE therefore set out to clarify the use of the word ‘nation’ and its relation to the rights of national minorities in the twenty-first century. In the following I will interrogate the organic and natural notions of the nation presented by Recommendation  () on “The Concept of ‘Nation’” (hereinafter

   



  

PACE Recommendation  () on the “Positive Experiences of Autonomous Regions as a Source of Inspiration for Conflict Resolution in Europe”. CLRAE Recommendation  () on “Territorial Autonomy and National Minorities” of  May . CLRAE Recommendation  () on “Special status/local law” of  November . Venice Commission Report on “The Preferential Treatment of National Minorities by Their Kin-State” CDL-INF () of  October ; PACE Resolution  () on “Preferential treatment of national minorities by the kin-state: the case of the Hungarian Law on Hungarians Living in Neighbouring Countries (“Magyars”)” of  June . See the Editor’s note to “European Commission for Democracy through Law: Proposal for a European Convention for the Protection of Minorities”,  Human Rights Law Journal (); Giorgio Malinverni, “The Draft Convention for the Protection of Minorities. The Proposal of the European Commission for Democracy through Law”,  Human Rights Law Journal (), -; Eero J. Aarnio, “Minority Rights in the Council of Europe: Current developments”, in Alan Phillips and Allan Rosas (eds.), Universal Minority Rights (Åbo University Institute for Human Rights and Minority Rights Group (International), Turku/Åbo and London, ), -, at ; Heinrich Klebes, “The Council of Europe’s Framework Convention for the Protection of National Minorities”, (-) Human Rights Law Journal (), -; PACE Recommendation  () on the Additional Protocol on the Rights of National Minorities to the ECHR. See the declarations of member states at . Resolution  (), op.cit. note , Section . See however, Tove H. Malloy, National Minority Rights in Europe (Oxford University Press, Oxford, ), Part I.



Tove H. Malloy “Recommendation ”)13 through a brief recapitulation and double reading of its main arguments in order to expose the philosophical assumptions behind these notions.14 Next follows a functional analysis of how the two notions developed as instrumental tools of state-building and why the modern instrumentality of the nation is a fundamental part of our late modern collective and individual self-identification. This will not include a critical engagement with the politics of Recommendation , but will rather examine the political aspect of defining a nation in the meaning of the antagonism inherent in human relations, which can take many forms and emerge in different types of social relations.15 In doing so, I will suggest that the late modern nation is an ever-changing functional intersubjective concept based on multilayered identities of a cosmopolitan notion. In concluding, I will question therefore whether seeking to adopt a new concept of the nation is not but wishful thinking. II. Recommendation 1735 (2006) Recommendation  () argues that there is a need to excavate dimensions of the idea of a nation, including the political dimension. In order to expose these dimensions, the PACE examined constitutional and legislative texts of  member states, not only in terms of the use of the word ‘nation’, but also the word ‘people’ and the concept of a national minority. The aim of the PACE’s clarification study was to determine whether, and to what extent, the idea of the nation can help address the question of national minorities, given that the concept of the nation comprises both a political and a legal dimension. Noting that especially the political dimension has been overlooked in the discourse on national minority protection, the specific purpose of the study was to ascertain whether there is an overall common definition, more than one definition, or an agreed definition that can support the theorizing of the recognition of the rights of national minorities, and whether a new definition should be adopted. Finally, the study questions how the enlargement of both the Council of Europe and the European Union may affect relations between kin-states and kin-minorities. After studying the legal texts of the  member states, and after hearing academic experts in the field, the PACE concluded that it is virtually impossible to arrive at a common definition of the concept of a nation.16 In explaining how the PACE arrived at this conclusion, it addresses the usage of the word, the problems of its translation, and its theoretical and philosophical composition.

  





PACE Recommendation  () on the concept of ‘nation’ of  January . This follows the deconstructionist methodology. See Jacques Derrida, Of Grammotology (tr. Gayatri C. Spivak, Johns Hopkins University Press, Baltimore, ). Chantal Mouffe contrasts politics as the ensemble of practices, discourses and institutions seeking to establish a certain order to establish a certain order and organize human coexistence in conditions that are always potentially conflictual with the political, meaning the different types of social relations. See Chantal Mouffe, “For an agonistic model of democracy”, in Noël O’Sullivan (ed.), Political Theory in Transition (Routledge, London, ), -, at . Recommendation  (), op.cit. note , Section .

Deconstructing the ‘Nation’ for the st Century In terms of usage, Recommendation  notes that ‘nation’ refers to citizenship in the legal sense in some member states, while in other member states it refers to the organic view of a community. Moreover, it connotes both meanings in some member states, thus possessing a double meaning. In other member states’ languages it is untranslatable. Indeed, in certain languages the civic and cultural notion of the nation is not understood while in others, the terms used for ‘nation’ are not translatable into French and English, the two official languages of the Council of Europe. This, according to the Recommendation, renders the use of the term very relative. Theoretically, Recommendation  argues that the nation is deeply rooted in peoples’ culture and history, and is informed by the identities of the people who populate it. In the process of nation-building, the existence of nations has come to legitimise statehood either in terms of a civic notion of liberal democracy based on self-determination or in terms of a linguistic notion of patriotic community. The former notion is represented in the American and French revolutions, while the latter inspired what became the German nation. The German language was thus the cultural force that legitimised statehood, and hence the cultural nation of Germany emerged simultaneously with the French civic nation. Eventually, the civic nation became synonymous with the state, and what the PACE terms the two traditional definitions of the concept of the nation, the French and the German, or the civic and the cultural, existed side by side for two centuries.17 Today these two conceptions of the nation are seen as developing from a purely ethnic or ethnocentric state transforming into a civic state which develops into a purely civic state in order to transform eventually into a multicultural state in which specific rights are recognised for individuals and groups. The civic notion of the nation is, furthermore, a legal concept because it is the social basis for the state, and it is given rather than constructed, because the state is given. Philosophically, Recommendation  argues that the concept of the nation is closely linked to political ideologies that have exploited and adulterated the original meaning of the concept. How its exploitation and adulteration have happened is not explained in the Recommendation, but the idea that the French notion of the civic nation was founded on the Enlightenment philosophy of equal political rights is offered in the Explanatory Memorandum to the Recommendation. Moreover, the Explanatory Memorandum states that the civic nation led to the recognition of the right of selfdetermination, and that ‘a nation only exists if it succeeds in throwing off the yoke of oppression, despotism and absolute monarchy and becomes an independent state based on the common political will of the people.’18 As for the German notion of the cultural nation, it was based on the philosophy of Johann Gottfried Herder, an antiEnlightenment philosopher who advocated language as the binding force behind political unity. The inception of the cultural nation was furthermore a reaction to French domination implying throwing off the yoke of oppression, despotism and absolute monarchy.





PACE Report “The Concept of ‘Nation’”, Committee on Legal Affairs and Human Rights, Doc.  of  December , Part II “Explanatory Memorandum”, Sections  and . PACE Report, op.cit. note , Section .



Tove H. Malloy Historically, Recommendation  holds that the concept derives from the meaning of natio in the Latin of the Middle Ages, and became politicized in the fourteenth century, when it was used to refer to the nobles who shared political power with the king.19 Modern history has furthermore rendered the territories of the member states of the Council of Europe diverse in terms of nations as a result of both state-building and the changing of borders after major conflicts. The nations that have found themselves in the minority in the building of these states have for the most part been co-founding nations. Even though co-founding nations do not have legal personality, Recommendation  argues that their identity and culture must be protected, and they must enjoy political participation rights. Whether and how the individual wishes to belong to such minorities or not is a question of free choice. Finally, if kinstates decide to support those who wish to belong to kin-minorities, these states must respect the core principles of international law, i.e. territorial sovereignty, pacta sunt servanda, friendly relations amongst states and respect for human rights. To this effect, the Recommendation proposes that the Committee of Ministers urges member states to sign and ratify the Framework Convention and the European Charter on Regional and Minority Languages, to provide cultural rights to national minorities, to refrain from policies based on ethnic hegemony, to incorporate minority rights into constitutional frameworks, and to adopt guidelines for kin-state support. Needless to say, the Recommendation did not fulfil its purpose of ascertaining whether an agreed definition exists that can further the theorising of the recognition of the rights of national minorities, nor did it determine whether a new definition should be adopted. It did, however, establish that there is no overall common definition, and that there is therefore more than one definition. The historical approach taken by the Recommendation to unpacking the concept of the nation was indeed helpful, as it puts the concept in a perspective of human action in modernity and thus provides us with some purposes of the concept. However, in explaining the functions, the Recommendation followed a subjectivist approach that sought to delineate the essence of the concept, such as citizens and communities, assuming that the nation is purposefully granted as a natural vision for society. It did not offer any insight into its practices in terms of nationhood-building as a political vision and nationness20 as a social force that happens. If we lift the debate about the nation out of the subjectivist approach of asking what is a nation and instead position it within the functional approach of asking what does it do, we will be able to understand the nation as an institution rather than an essence, as a practical category rather than a collectivity, as a contingent event rather than an entity, and so on.21 In other words, we will be able to understand how nationhood is institutionalised in the system of states not as a given but as a construct. Moreover, we will be afforded an opportunity to peek into the minds of the people who populate the nation, and thus perhaps to draw conclusions that may be helpful to the aim of theorising recognition of the rights of national minorities. In so doing, we will eventually reposition the excavation of the nation in a subjectivist view   



Ibid., Sections  and . I borrow this term from Rogers Brubaker, Nationalism Reframed. Nationhood and the National Question in the New Europe (Cambridge University Press, Cambridge, ). Ibid., for this approach.

Deconstructing the ‘Nation’ for the st Century as “the subjectivity of the nation means that there is a permanent flow of consciousness between individual consciousness and social consciousness.”22 But by first going through the functional analysis, we may discover the assumptions that lie behind the inter-subjectivity of human beings. III. A False Dichotomy The two main notions of the nation offered in Recommendation , the civic and the cultural, are, notwithstanding problems of translation, well-known concepts to most students of European history and the formation of states in the modern era. The problem for most students of nations and nationalism is that the civic and the cultural nations are usually presented as dichotomous, and the cultural nation is moreover conflated with the notion of an ethnic nation. This appears also to be the view of the Recommendation. In reality, however, these three notions of human relationships are not mutually exclusive and certainly not distinguishable as three different historical events. Nor are they found operating independently or geographically, but rather more often closely intertwined in the functionings of our societies. The civic nation became liberal and democratic in outlook because it was the outcome of an historical process of a people’s liberation from the yoke of an absolute monarchy conducting total mismanagement of economic and statal affairs. This emancipatory process came to include the nation not because of the nation but because it required the votes of the people of a certain societal status to legitimize the French Revolution. The emancipatory aspects of the Revolution were clearly socio-economic and political, and only when it became clear to the deputies of the tennis court that they would need the Third Estate in order to convince the monarch was the idea of the nation brought in through the intermediary of certain French intellectuals. This nation was a group of propertied commoners who became the first Europeans to enjoy popular sovereignty, not because they were considered eligible for inalienable rights and fundamental freedoms, but because their votes were needed to reach a majority in what came to be known as the National Assembly. Eventually, their rights were legally codified in the Declaration of the Rights of Man and Citizens as equal individual rights and popular sovereignty. Philosophically, the ideas of the Declaration sprang out of the Enlightenment vision that tolerance is a virtue and consent is a necessity for construction of political institution building. However, this was not the initial view of the Jacobin nation, which was rather more politically strategic. It represented one indivisible republic based on the abolition of internal customs, of barriers and regional institutions as well as of non-French cultures.23 The republican nation that reemerged through the creation of a centralized economic and political territory and a single public culture was the Jacobin political goal. But imbuing the French citizens with a sense of the nation through territorial unity and social and cultural unification also involved the necessity for citizens to learn and conduct affairs in the French language, to learn and recite the majority history and literature, to observe French customs, to recognize French symbols and institutions,  

Allott, op.cit. note , . Anthony D. Smith, Nationalism. Theory, Ideology, History (Polity, Cambridge, ), .



Tove H. Malloy and so on.24 Hence, the nationhood that was required to realize this goal of internal consolidation was not entirely liberal and democratic. It saw regional national minority movements as affronts to the universalistic ideas of liberalism and justice ignoring the fact that this liberalism itself was parochial and at times chauvinistic. This was because the Jacobins “could recognise no intermediate institutions between the citizen and the nation-state, nor could [they] recognise that the content of citizenship could differ from one part of the state to another.”25 So there was a tendency to relate to any disturbing elements as ethnic nationalism, even though these drew on the same civic premises on which the Jacobins themselves purported to draw. The function of the Jacobin nation was therefore an inward nationalising of existing political institutions and the unifying of different ethnic groups in a population with diverse traditions and languages residing in different regions. Indeed, it was an instrumental function of an ‘unrealised’ nation destined to become a nation-state.26 This was the logical coherence of the civic nationhood that the Jacobins were seeking, not the lofty ideals of the Enlightenment. They needed the help of the Third Estate to throw off the yoke of oppression which existed within a defined and sovereign territory. The identity of the nation which had been largely territorial became civic only as they realized that the support of the Third Estate had to be paid for with the granting of popular sovereignty. The reformulation and consolidation of the nation was therefore as much an instrumental necessity to maintain the sovereignty of the state as it was a beautiful ideal of emancipation. The cultural nation, on the contrary, followed a different path towards a similar logical coherence in its efforts toward nation-building. Unlike the civic nation, the cultural nation did not have a group of citizens living within a defined and sovereign territory who could be recruited to cast a vote for emancipation. But the German nation was consolidating into a confederation of different sovereign territories seeking statehood. The Confederation was consolidating and modernising through the Zollverein in the somewhat same manner as the Jacobins had modernised with a view to consolidating the French territory. Moreover, the Kulturkampf restrained the power of the Catholic Church, albeit in a different manner than the Jacobins had separated church and state in the Declaration of the Rights of Man and Citizens. Indeed, the building of a German industrial complex in opposition to the industrial revolution in Britain was very successful. The goals of the German Kulturnation were therefore not social and economic emancipation as the grounds for nation building, but rather a consolidation of territories in search for a modern industrial capitalist state. Consolidating people and consolidating territory are two different forces. One requires enticement to the people in terms of rights and entitlements; the other offers them the promise of a homeland. The civic nation nationalised inward, subsuming the nation within the state until it replaced the state within a sovereign territory, whereas the cultural nation worked outward, cross-cutting and seeking sovereign territory by   



Ibid., ; Jennifer Jackson Preece, Minority Rights. Between Diversity and Community (Polity, Cambridge, ), -. Michael Keating, States and Regional Nationalism. Territorial Politics and the European State (Harvester Weatsheaf, New York, ), . Brubaker, op.cit. note , .

Deconstructing the ‘Nation’ for the st Century superimposing the nation over the new state.27 However, up until the end of the eighteenth century, the linguistic and cultural understanding of the German nation was apolitical, even anti-political.28 In fact, it was the Prussian defeats to Napoleon’s armies that ignited the political strand of cultural nation-building, rather than the Romantic writings of poets and philosophers arguing against the individualism of the philosophy of the French Revolution. Hence, the melding of the nation and the state that became the focus of both German intellectual and political life in the first half of the nineteenth century was largely driven by the desire for statehood and modernisation. The instrumentality of the nation as a means to consolidate a state is therefore obvious in both the French and the German cases. However, the statehood so long desired on the basis of German language and culture did not actually unite all the Germans as the Romantics had called for. The seeds were laid therefore for two conceptions of the German Kulturnation. The traditional view of the Kulturnation is the outward nationalisation seeking to continue the unification of all German-speaking people based on their common culture. But as stated above, the earlier Kulturnation also involved inward nationalisation seeking to consolidate the nation and the state on sovereign territory—in other words, similar in function to the civic nation. While the inward nationalisation lasted basically from Jena to Versailles, the traditional view of outward nationalisation crystallised between the two world wars in the cross-border policies of the Weimar republic and, subsequently, in the Third Reich’s policies towards German-speaking peoples living outside German territory. It is the post-WWI version of the German Kulturnation that today erroneously contributes to the picture of the cultural nation as a negative notion, with the notion of culture based on ethnicity rather than civic values. Some scholars see the ethnic/cultural nation as the paradigm for the reawakened nations of the former Soviet bloc of states in Europe. IV. Filling the Nation with Meaning The problem is that there is ethnicity in every culture, and culture and ethnicity in every civic nation. Culture and ethnicity are intrinsic parts of public life. First of all, cultural relations cannot be separated from other social relations and treated in isolation. Culture is a way of relating to others, a way of following or challenging a social rule, i.e., a dimension in any social relation.29 In other words, social practices sustain our cultural values, and we would not be the bearers of cultural values without the social practices. Or put another way, we are dependent on our social environment for reinforcing our cultural values, norms and conventions.30 On this view, culture refers to systems of meaning, negotiated agreements about norms and conventions, ways of organizing society, myths and distinct features and techniques of the group carrying the culture. Put in a more simple way, culture is about what people think, what they do and what    

Ibid., . Ibid., . James Tully, Strange Multiplicity. Constitutionalism in an Age of Diversity (Cambridge University Press, Cambridge, ), . Joseph Raz, The Practice of Value (Clarendon Press, Oxford, ), .



Tove H. Malloy they produce. Moreover, culture is compared to our use and understanding of language: specifically, it is learned and transmitted through behaviour. Because culture is transmitted through learning, we as individuals are ‘coded’ to carry certain cultural values just as we are coded to speak certain languages. Hence, we can learn to act in multiple cultures. Culture is therefore a social phenomenon, which means that it is fundamentally constructed by human beings and thus is constantly changing.31 Second, ethnicity is present in every culture as a component competing with other notions of human interrelations. Ethnicity remains one of the most elusive and mysterious aspects of human existence, and yet one of the most important. The political definition derives from the Greek term ethnos, and can mean either tribe or nation. Hence, ethnicity is closely related to nationalism and the discourse on national identity and nation-building, and has been described as a theory of ‘ethnie-to-nation’.32 However there are psychological aspects of ethnicity that create boundaries in society.33 When ethnicity refers to common shared characteristics that differentiate a group from other collectivities in a society, and from which the group develops distinctive cultural behaviour, ethnicity is totally fictive.34 This distinctive cultural behaviour becomes ethnicised only when circumstances create a situation of competition for hegemonic positions in either politics, access to resources or in terms of ideological views. This argument thus draws on the psychology of boundaries drawn by identity and difference and the creation of the other within each individual. When cultural boundaries are drawn due to competition, a group that is already differentiated becomes even more differentiated and a polarization between the several groups occurs. The function of boundaries is, however, due to the process of ethnic mobilization, because ethnicity represents fixed boundaries. While culture binds us in a fluid and changing process that is ongoing, with ever-changing boundaries determined by influences from a variety of sources, ethnicity is the glue that binds with the aim of consolidating against a common enemy and making the boundaries fixed. Ethnic mobilization is therefore a cultural articulation based on ethnicity. The most important aspect of this process towards ethnic consolidation, or closure, is that it happens in all cultural landscapes. The majority as well as a minority can seek ethnic closure in an attempt to outdo the other groups in the competition for hegemonic positions. In this sense, ethnicity is a construction of a collectively self-interested social solidarity, achieved through the articulation of a specific set of cultural symbols.35 We may speak of ethnic pluralism rather than cultural pluralism precisely because culture is adaptable and changeable—and therefore outward-looking—whereas ethnicity is selfinterested and inward looking. From this perspective, the first German Kulturnation was actually more democratic, as it operated on the basis of culture, while the French     



Roger Ballard, “Race, Ethnicity and Culture”, in Martin Holborn (ed.), New Developments in Sociology (The Causeway Press, Ormskirk, ), . Anthony D. Smith, The Ethnic Origins of Nations (Blackwell, Oxford, ). Frederik Barth (ed.), Ethnic Groups and Boundaries: the Social Organization of Cultural Difference (George Allen and Unwin, London, ), Introduction. Etienne Balibar and Immanuel Wallerstein, Race, Nation, Class: Ambiguous Identities (Verso, London, ). Ballard, op.cit. note , .

Deconstructing the ‘Nation’ for the st Century civic nation, as illustrated above, operated on the basis of ethnicity. It was only when the Weimar politicians realized that the cultural space of the Kulturnation had been violated that they put ethnicity to use. The inward-outward explanation is also useful in explaining social exclusion within a society. Social exclusion happens when ethnic mobilization draws ethnic boundaries, resulting in ethnic closure. And if a majority culture seeks a hegemonic position in society through ethnic closure, we have ethnic exclusionism and cultural hegemony, or ultimately ethnic struggle for cultural hegemony.36 Our knowledge of the faulty dichotomy of civic and ethnic/cultural dominance is not new. It has been explained instructively by the nineteenth-century German sociologist Ferdinand Tönnies’ theory of the ideal types of society, Gemeinschaft and Gesellschaft, neither of which he argued was an absolute ideal. According to Tönnies, the ideal type of Gemeinschaft morality denotes a strong, traditional and closed pre-industrial community in which human relationships are intimate and face-to-face, whereas the ideal type of Gesellschaft morality describes a modern, industrialized, complex, open and pluralistic society in which instrumental relationships prevail.37 Consequently, the Gemeinschaft community is highly homogeneous, whereas the Gesellschaft society is heterogeneous. Moreover, the morality of the Gemeinschaft is based primarily on a natural will, meaning action which is direct and emotional, while the morality of Gesellschaft is based mostly on a rational will, meaning action based on consciousness.38 While Tönnies argued that modernity was predominantly Gesellschaft, he did not hold that there was any historical progress from Gemeinschaft to Gesellschaft. Rather, he argued that most nineteenth-century societies were likely to contain elements of both moralities. Nation-building thus is a hybrid of not only civic and cultural nationhood, but also of ethnic strategies. Moreover, it is a mosaic of rational and emotional/subjective actions based on instrumental as well as symbolic interests. Indeed, it may signify both voluntary and organic allegiances. As Isaiah Berlin has argued, nation building is the conviction […] that men belong to a particular human group, and that the way of life of the group differs from that of others; that the characters of the individuals who compose the group are shaped by, and cannot be understood apart from, those of the group, defined in terms of common territory, customs, laws, memories, beliefs, language, artistic and religious expression, social institutions, ways of life, to which some add heredity, kinship, racial characteristics; and that it is these factors which shape human beings, their purposes and their values.39

Thus, according to Berlin the nation shapes human beings and human beings shape the nation.

   

See also article by Coenders, Lubbers and Scheepers in this volume. Ferdinand Tönnies, Community and Association (Gemeinschaft und Gesellschaft), tr. Loomis (Routledge & Paul, London, ), Book I and II. Ibid., Introductory Article, . Isaiah Berlin, “Nationalism”, in id., Henry Hardy and Roger Hausheer (eds.), Berlin, The proper Study of Mankind. An Anthology of Essays (Farrar Straus Giroux, New York, ), - at .



Tove H. Malloy In psychological terms, this has been described as a three-step process. The individual projects her self-process onto the collectivity, which in turn ‘introjects’ its selfprocess into the individual. The result is the forming of an intersubjective totality that could be identified as the nation.40 From this perspective, the nation is generated by the interacting of many individuals who enter and leave as they are born and die. The nation is a human reality made by the human mind which we must conceptualize and maintain, and which in turn informs our identities. By lifting the nation out of the subjectivist approach and analyzing it as a functional entity that binds human beings together in an instrumental process, it is therefore possible to reposition it within an intersubjective function. V. A Cosmopolitan Nation? Finally, having established that both cultural and ethnic notions exist in every civic nation, and that there are both civic and ethnic notions in every cultural nation, we must ask whether positioning the nation in a continuum beginning with a purely ethnic or ethnocentric state that transforms into a civic state, which in turn develops into a purely civic state in order to eventually transform into a multicultural state is indeed a viable scenario for the late modern state in Europe. This argument is highly problematic, because it presupposes a teleological explanation of the nation as progressing historically from a less-developed and highly divided exclusionary unit towards a highly developed and inclusive unit. This is simply not the case. The nation, as we have seen, is contextual, constructed in our minds, functional and contingent, adapting to circumstances and both inward- and outward-looking. What was civic about the French nation in June of  was ethnic in October of . What was cultural about the first Kulturnation was ethnic in the Weimar Republic and in Hitler’s Germany. What is multicultural today is intercultural tomorrow. For decades we have theorized about multicultural societies; now we speak of retiring multiculturalism and applying interculturalism. If this were to mean that national minorities would be recognized as co-nationals because now cultures were prepared to relate to each other at the intergroup level, perhaps we are progressing. However, both of these terms are highly ambiguous instrumental concepts of diversity. Where multiculturalism refers to the goal of good diversity in terms of educational benefits, aesthetic pluralism, value pluralism, exchange of methods and exchange of ideas, interculturalism refers to the goal of conflict management, or ‘bad diversity’ if you wish, in terms of understanding and mitigating conflicts.41 Since we may have admitted that multiculturalism is not easily attainable in Europe—and constant conflict management bodes for a bleak future—we are therefore poorly helped if we try to describe the state of affairs of ethnically and culturally mixed societies in Europe as ‘culturalisms’. The important observation here is that multiculturalism is not a justice concept; it is meant to facilitate cultural exchange, not to protect cultures.42 Multiculturalism is not a rights-argument; in fact, it conflicts with most claims of national and ethnic   



Allott, op.cit. note , . Will Kymlicka, Multicultural Citizens (Clarendon Press, Oxford, ), . Ibid., .

Deconstructing the ‘Nation’ for the st Century minorities who wish to preserve and protect their native cultures. Certainly, it conflicts with those national minorities that claim a right to political autonomy, because political autonomy usually results in segregation. If a minority is not interested in integrating into mainstream society, then it does not support multiculturalism. This is why we have problems with multiculturalism, because it cannot support ‘good diversity’ if there are groups that wish to remain separate. Moreover, interculturalism is a methodological approach describing inter-group relations in those societies where minority groups live together but do not wish to integrate. Perhaps conceptualising interculturalism is the way forward for many ethnically divided countries and societies, but it entails accepting modus vivendi approaches43 and strong value pluralism in order to avoid the clash of civilizations.44 Interculturalism may therefore be feasible as a model for those countries where relations to national minorities are conducted entirely at the group level. Another way of looking at late modern societies, if we are to learn from the difficulties of defining the nation, is to describe modern states in terms of what the people who populate them really are: namely multilayered identities adapting to civic, cultural or ethnic circumstances as needs arise. Just as the nation is a ‘multitasker’ in applying civic, cultural and ethnic strategies, so is the individual. We are all perfectly capable of being civic when we need to be civic, of being cultural when we wish to be cultural and ethnic when we are around ethnics, as long as we are respected for our individual identity. In fact, positive measures are only needed when our identities are not respected. A horizontal view of the individual rather than the outdated vertical one is what is needed in the late modern societies of globalization, the information superhighway and mass people movements. Moreover, if we take it that nations are constructed by the carriers of multilayered identities, we may actually argue that the nation is multilayered. This is possible from the perspective of the nation as a permanent flow of consciousness between individual consciousness and social consciousness, or the idea that the individual self is mirrored in the selfhood of society, and the self of society is mirrored in the identity of the individual.45 If we see the nation as multilayered, we can adopt different types of policy for each layer. Arguably, the civic layer would require different approaches from the cultural layer. The key issue to remember is that layers are connected and dependent on each other; they do not exist in a vacuum. Hence, we must not compartmentalize, as we did with vertical multiculturalism. Separating the public from the private sphere is not realistic. The horizontal view of the individual and the horizontal view of the nation are, furthermore, cosmopolitan because they require the individual to be cosmopolitan. A cosmopolitan individual, in this sense, is a person who is not only able to multitask between layers of identity, but who also sees it as an instrumental tool to well-being in a better society. So, why not speak of a cosmopolitan nation …?

  

John Gray, Two Faces of Liberalism (Polity, Cambridge, ). Samuel Huntington, The Clash of Civilizations and the Remaking of World Order (Simon & Schuster, New York, ). Allott, op.cit. note , .



Tove H. Malloy VI. An Ethical Model for National Minorities? Having established that the nation is an agenda-setting instrument rather than a natural phenomenon given to us by some unidentified force, we may ask ourselves, as Recommendation  does, where does this position national minorities in this picture. First of all, we must establish whether national minorities construct nationhood in a similar manner to people who construct nations in support of political and strategic goals of statehood. The answer to this is that only those national minorities who are faced with a requirement of abandoning their ethnic identity will demand statehood, as was the case of the Albanians in Milosevic’s Yugoslavia. Had Milosevic allowed for a broader cultural space within which the various ethnic groups could compete for positions and power, there may not have been a need to split up Yugoslavia. The identity of the nation is created not as a result of consolidating identities, but as a result of the oppositional forces that it identifies against. The identity of the French nation came to include the Third Estate because that created the critical mass against the absolute power identity of the King, whereas the identity of the German nation came to include the German Hochkultur because that created oppositional views to French liberal culture. However, Recommendation  claims that national minorities are not nations because they are not states. This only reinforces the argument above, that when forced to make a choice, national minorities will opt for statehood. Moreover, if national minorities were not nations, we would not have to worry about special rights for national minorities, because there would be no conflict with the nation of the state in which national minorities reside. But arguably, minority nations do exist. They are created in contrast to other nations, even when there is no drive toward statehood. This is a force with which we will always have to reckon. National minorities will draw on ethnicity to draw boundaries within the culture in which they live. As noted above, this is a function of culture, to compete for space. These boundaries will always exist. But if the cultural space allows for ethnic identity boundaries to be seen as fictive and non-territorial, boundaries need not create conflicts. It follows that it is our view of territory that gives us trouble. The problem of territory is precisely boundaries, boundaries of territory as well as boundaries of identity.46 In one way, territory may be understood to derive from terra, meaning land, earth, soil, nourishment and sustenance. From this perspective, terra is somewhat indefinite, and people’s relationship to it is defined by the claim that terra has on them. This view does not pose major problems, and may actually have a positive effect on our responsiveness to the value of territory. Another understanding of territory derives from terrere, which means to frighten, to terrorize, to exclude. It is from this interpretation that the term territorium derives, meaning ‘a place from which people are warned.’47 Territorium thus implies power, and seems to suppress the sustaining relation to the land described above. But inasmuch as we operate with both meanings, to occupy territory means both to receive sustenance and to exercise power. Thus, to become ter 



William E. Connolly, The Ethos of Pluralization (University of Minnesota Press, Minneapolis, ), xxii-xxiii. See also Malloy, op.cit. note , Chapter . Connolly, op.cit. note , xxii.

Deconstructing the ‘Nation’ for the st Century ritorialized means to be occupied by a particular identity, such as a national identity. But more importantly, it also includes strains of power that seek to exclude other identities. Hence, the effect of our understanding of territory is somewhat ambiguous, as it both gives sustenance to our identity and violates the being of other identities within the territory. We must therefore see identity boundaries as fictive rather than territorial, and as fluid competing for cultural space, rather than ethnically fixed, creating conflicts. To mitigate conflicts based on fictive and non-territorial boundaries and to turn minority nation energy into a positive societal force, states can decide to have liberal policies towards national minorities. And depending on the socioeconomic and political circumstances of the statehood where national minorities reside, the nationalizing state can elect to adopt policies of substantive equality not only at the individual level, but also at the group level. In Recommendation , equality at the group level is alluded to in the argument that national minorities are often cofounders, and therefore constitutive entities, of European states. This argument rests on the assumption that national minorities should have equal ethical standing with all other groups in society, and certainly with the rest of the population. To be cofounders thus, in a sense, renders national minorities “conations”.48 This term is, of course, controversial, since the numbers seldom justify such a redefinition, except perhaps for the Flemish and Walloons in Belgium and the large national minorities, such as the Scots, the Catalonians, and the Hungarians in Romania, to name a few. Moreover, although it would seem logical to call the Swiss cantons conations, there is arguably a sense of one Swiss nationality. In the case of such federal units, it should also be noted that many of these decided to join the national majority, thus resembling rather “union states.” On the other hand, one may argue that union states are conations in a stronger sense. There are, of course different normative implications when we refer to union states versus national minorities. Union states are usually self-contained, while national minorities are not. And secession by a union state would create a new state, as we have seen with Montenegro, whereas secession by a national minority may be the result of irredentism. Union state relationships imply greater obligations on the other states in the union, and national minorities cannot always demand such obligations. However, if one wishes to seek equality for national minorities, at least ethically if not in terms of practical power, the question arises of how to distinguish smaller national groups from larger ones within the same state. Surely, the use of dominant and non-dominant terminology begs the question and gets us nowhere. At best, we could speak of ruling conations and non-ruling conations.49 If equality by definition is at least an ethical way forward, perhaps the union state relationship sets good guidelines. Certainly, the obligations embedded in a union state relationship could help mitigate some of the problems faced by national minorities in their relationship to the rest of the population. While the union-terminology would initially place us in the interculturalism camp, loading it with ethical notions would perhaps help us redefine the tool of interculturalism and turn it into an ethical concept. Indeed, it may make national minorities feel rather more equal.

 

See Malloy, op.cit. note , Chapter . Ibid.



Tove H. Malloy Other terminology has been put forth, and terms such as kin-minorities and ethnic minorities are being used interchangeably with national minorities. For instance, the phrase ‘sub-state national groups’ has been used, but this seems no better than national minority.50 Unlike these various terms, conation takes into account the moral value of group equality that national minorities claim is important, as they are cofounders. Moreover, in the case of both a union state and a national minority, the major purpose of an ethical relationship with the rest of the population is to achieve ethical standing in terms of moral and social recognition. Granted, the argument for giving ethical standing to national minorities in terms of recognition naturally implies a linkage to the concept of the “nation-state”. Such linkage is natural and cannot be avoided, precisely because the “nation-state” holds hegemonic privilege over the idea of nationhood. In other words, if the concept of the state did not imply nationhood, as it does in prevailing theory, national minorities and their agenda-setting would constitute a problem neither in theory nor in practice. Terminology concerns may be purely academic, but moral worth in terms of ethical group standing is vital to members of national minorities. Although the term conation will be very hard for most European governments to accept, ethically speaking, it seems the more correct one to use. VII. Conclusions To argue that the idea of the nation is in a state of flux would not be right; nor is it helpful to maintain that the nation is a myth. Rather, we must accept that the notion of the nation is like an amenable substance; it becomes what fits the circumstances; it represents whatever we allow it to represent, and it helps us attain goals. Genealogically, it includes both the medieval universitas and the late modern universitas of the European Union.51 Archaeologically, it has existed both in the Gallic and Welsh valleys and in the larger modernising and industrialising states of both France and Germany. Theoretically, it has referred both to the function of elite power and to the social and political unity of mass populations. Philosophically, it holds both an instrumental and an intrinsic value. Ideologically, it refers to both liberal ideals as well as non-liberal ideals. Psychologically, it is every bit as exclusionary as inclusive. Certainly, it is an essentially contested concept. Thus, to elucidate the question of the concept of the nation, the functional approach has proved helpful for explicating the instrumental power of the nation. This is a view that contrasts sharply with the perennial and primordial views of the nation. The perennial view sees the nation as a natural given because some nations existed before modern times. From this perspective, nations such as England, Scotland, Spain and Sweden are natural because they are pre-modern. The primordial view holds that nations are organic in that they exist in a natural cosmos also populated by human beings, and human beings are natural and organic. The primordial view has been used to describe the French and the German nations. To deconstruct both views of the nation has therefore involved discussing the false dichotomy of the two most prominent conceptions  



Kimberley Hutchings, International Political Theory. Rethinking Ethics in a Global Era (Sage, London, ), . Jackson Preece, op.cit. note .

Deconstructing the ‘Nation’ for the st Century of the modern nation (the civic and the cultural) and interrogating the political of the functions of these notions. In showing that neither of these notions is organic or natural, but rather represents a function that is decidedly instrumental, centred in the industrial, commercial and economic development of Europe in a certain era, I deconstructed the concept by placing it in the constructive minds of all humankind. In placing it as a tool of the human mind, I discussed the psychological dynamics of ethnicity and culture and how these relate to the idea of nationness—nationness thus becomes the substance with which the nation is constructed, not individuals and communities. In showing how nationness is constructed, we were able to see the intersubjectivity of the nation and how it may relate to the late modern realities of the tweny-first century. A late modern conception of the nation is therefore a dramatically different notion from the modernist one, and may perhaps be seen as a post-modern notion of multiplicity of identities moulded through the instrumentalisation of the intersubjective nation. The argument, in Recommendation , that the concept has been corrupted and manipulated is perhaps too strong, unless we consider all humankind corrupt and manipulative because we have established that all humankind contributes to the intersubjective construction of the nation. It would be unpleasant to think that in our self-identification with the construction of the nation we are corrupting and being manipulative. Furthermore, the argument that a nation only exists if it succeeds in throwing off the yoke of oppression, despotism and absolute monarchy, I argued, is to reinforce the view that statehood follows nationhood. Moreover, seeing the civic nation as a legal concept is the epidemy of this view. This implies that civic nations are ‘good’ nations while ethnic nations are ‘bad’ nations. In contrast to the state, which is a unit of the law of states, nations are ideas of the “law of peoples”.52 We should rather see the nation as an instrumental tool in the ongoing redefinition of our societies, not only our states, and not in terms of territorial boundaries, but in terms of fictive and non-territorial boundaries which allow everyone to create their own nation. Because a multiplicity of nations is not a catastrophe as long as identity carriers are seen as “kingdoms of ends,” and are constructed on the basis of cosmopolitan ideas, the fact that nations are different and varied simply means that we will have to learn to live with difference. So, can we adopt a new concept of the nation? In this article, I have tried to show that this is not only an illusion but also a poor strategy for the twenty-first century.



See John Rawls, The Law of Peoples (Harvard University Press, Cambridge, MA, ).



C SPECIAL FOCUS: THE BALKAN REGION

Dmitriy I. Polyvyannyy*

The Balkan Minorities: Divided States, Peoples and Societies

I. Introduction Contemporary Balkan ethnic politics, still turbulent and stirred up, but no longer bloody as they were in the s, now attract the attention mainly of scholars specializing in legal and political studies. At least at first sight, the potential for history to explain contemporary Balkan events looks exhausted (if not compromised) by the attempt to construct models of different levels of plausibility based upon a simplistic conception of the present being merely a continuation of the past, of a deeply rooted tradition of conflict, by all the participants as well as by the observers of the settled, partially settled and still ongoing Balkan ethnic conflicts.1 When now a historian tries to intervene into the traditionally taboo fields of current political changes and uncompleted developments, the main objection he or she meets concerns the impossibility of making any practical conclusions on the basis of historical observations. Any historical argument looks useless and improper when compared with solid political or juridical research dealing with the contemporary situation and the perspectives of the southeastern periphery of the enlarging European Union. The opinion expressed above is neither a lamentation nor an appeal for justice. Historical discourse as the main source for the construction of modern national identities has evidently demonstrated both its numerous weak points as well as its practical significance to research. Often papering over alternative explanations, it usually intends to represent contemporary developments as being inevitably predicted by ‘eternal’, mostly geopolitical, realities, by some ‘objective’ long-time process, by ‘age-old’ contradictions or by ‘traditional’ rivalry and ‘inherited’ hatred, etc. Moreover, some historians try to forecast (if not to prophesy) rather than carefully collecting, classifying and inter* 

Ivanovo State University, Russian Federation. See Sergey Romanenko. Istoriya i istoriki v mezhetnicheskix konfliktax v konce XX veka. Pochemu vozrozhdaetsya soznanie “zakrytogo obshchestva”? [History and Historians in the Ethnic Conflicts in the End of the th c. Why Does the Conscience of the Closed Society Revive?] (Open Society Institute, Moscow, ).

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 181-193. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Dmitriy I. Polyvyannyy preting the factual evidence. In such cases, their weakness is that they know too much and are inclined to see any change or alternative as a repetition of the past. To my mind, the main significance of a professional and non-engaged historical research for complex (or interdisciplinary) applied studies of the current ethnopolitical developments in the Balkans is to furnish contemporary analysts and decision makers with clear visions based upon authentic historical sources regarding what the participants of the Balkan conflicts know or think they know about their history and what conclusions and constructions based upon this knowledge could influence contemporary situations. On the other hand, the professional vision of a historian, built upon an indepth monitoring of long-lasting processes, is able to make clear distinctions between more permanent and rapidly changing objects and between repeating and unique particularities. Such observations are possible only when the objects are not removed from their multidimensional context, which usually includes, together with a chronological dimension, close and distant environments of different essence and origin. I do not think that many historians would really be concerned about another distinction—that between the ‘real’ and the ‘imagined’—for too many times they have seen how a myth can turn into a design or mass belief and how one of them or both can become a political programme and then reality. Being itself to a great extent a myth continuously created by the European historians of the last two centuries,2 the idea of the Balkan region as the potential ‘powder keg’ of Europe itself has undergone changes. At first, this conception referred to almost the entire territory of the Ottoman possessions in southeast Europe, a conceptualization that applied to the period between the Berlin Treaty of  and the Bucharest Treaty of .3 Presently, the ‘powder-keg’ idea has shrunk to the Central-Western Balkans (often called just Western), with Albania, Bosnia and Herzegovina, Macedonia, Montenegro and Serbia (including, as a formal possession of the latter, Kosovo, but excluding Vojvodina) now being the literal referent of the expression. The reasons for this shrinkage lie not only in the cessation of military clashes and in the strong internationally prescribed frameworks that mark current Balkan developments but also in the decline of the very Balkan identity. Belonging to the Balkans is now strongly rejected not only by the successful ‘EUropean’4 Slovenes but also by the Croats, recalling as they do their Habsburg legacy much more frequently than their 

 



I must mention here the excellent book by my dear Bulgarian colleague Maria Todorova, which became a starting point for an agenda of really profound and more understanding than interpreting research on the contemporary Balkans. See Maria Todorova, Imagining the Balkans (Oxford University Press, Oxford, ); and id. (ed.), Balkan Identities. Nation and Memory (Hurst & Co, London, ). Vladimir Vinogradov and Victor Kosik (eds.), V porokhovom pogrebe Evropy – (Indika, Moscow, ). Not a misprint! The author does not insist on his priority in using this term in the academic discourse but seriously offers it as a distinction between the scholarly tradition and the way of thinking that equates Europe to the European Union. For example, a recently published monograph by a number of EU experts uses the term “EU-ization”, differing it from “Europeanization”. See Bruno Coppetiers et al., Europeanization and Conflict Resolution: Case Studies from the European Periphery (Vrije Universiteit Brussels, Brussels, ). To date, this has been the only attempt to invent an antonym to the term ‘Balkanization’,

The Balkan Minorities: Divided States, Peoples and Societies Yugoslav origins.5 Accession to the European Union looks like the sole alternative to being part of the still unstable and unpredictable Balkan political landscape for the states of the whole of southeastern Europe. Still waiting for their promised EU accession, Bulgarians and Romanians support a historically untenable division of the Balkans into the eastern Balkans (in fact, pro-Western) and the western Balkans. This division is quite different from Theodosius’ border of  and paradoxically turns upside down the East–West paradigm for the Balkans.6 The Greek and the Turkish contemporary ‘Balkanity’ in each case has different meanings, motivations and expressions, but both nations see the Balkans as a zone of their interests and influence, no longer as their ‘common home’. II. Defining the Parameters of the Term ‘Minority’ This introduction adds some notes to the margins of the lasting debates about the current situation and future of Balkan ethnic minorities. For a historian, the term ‘ethnic group’, used from the end of the nineteenth century onwards, looks more independent and more rooted in historical than political discourse.7 It can be connected with a widespread definition of ‘ethnic nationalism’, as of “the sense of national identity and loyalty shared by a group of people united among themselves and distinguished from others by one or more of the following factors: language, religion, culture and, most important, a belief in the common genetic or biological descent of the group”.8 This definition may be illustrated using the conception formulated by Fredrik Barth, who argued that an ethnic group can be considered only in its interaction with others. It is this interaction that forms identities and delineates ethnic boundaries, which are understood more in a cultural than a spatial sense.9 The same interaction defines ‘minority’ or ‘majority’ as

 







which could be, using Todorova’s words, “its complementing and ennobling antiparticle”. See Todorova (), op.cit. note , . See Franjo Tudjman, Istoricheskata sudba na narodite. Izbrani trudove (Akademichno izdatelstvo “Marin Drinov”, Sofia, ). Being the Roman East, the Balkans in the Middle Ages became the Byzantine then the Ottoman West (∆υσις, Rumeli), then the European (South)-East, then the Western periphery of the Soviet Block, to finally be divided into the more or less stable East (Bulgaria) and the stabilizing West (the former Yugoslavia). Incidentally, after Bulgaria’s fall under Ottoman supremacy, Serbia was considered to be the West for Bulgarians, too. See Dmitriy Polyvyannyy, Kul’turnoe svoeobrazie srednevekovoj Bolgarii v kontekste vizantijsko-slavjanskoj obshchnosti IX-XV vekov (Izdatel’stvo Ivanovskogo gosudarstvennogo universiteta, Ivanovo, ). Fredrik Barth (ed.), Ethnic Groups and Boundaries: The Social Organization of Culture Differences. (Little and Brown, Boston, ). Here I am using the Russian translation of this work, which quotes R. Narrol, “On Ethnic Unit Classification”, () Current Anthropology (), –. J. McPherson, Is Blood Thicker than Water? Crisis of Nationalism in the Modern World (Vintage Books, New York, ). Cited in Miodrag Jovanovic, “Territorial Autonomy in Eastern Europe – Legacies of the Past”,  JEMIE (), –, at . Barth, op.cit. note . Barth’s ideas resemble some of the conclusions of the Russian ethnographer P. Kushner, Etnicheskie territorii i etnicheskie granicy. Trudy Instituta Etnografii. Nova



Dmitriy I. Polyvyannyy secondary attributes of the ethnic group. The group may be relatively big in size but restricted in its access to political or civil rights, to certain economic activities, etc. The problem of minorities first appeared with the formation of the first modern Balkan states—Greece and Serbia—in the first half of the nineteenth century and remains a permanent part of Balkan developments. Actualized in the beginning of the twentieth century by the consequences of the two Balkan Wars and the First World War, the problem had by this time also extended into the European context. Despite the fact that historical analysis had concerned itself with a wide range of case studies on ethnic minorities through these two centuries, the subject matter itself had not yet been clearly defined.10 Thus, in taking the floor in these considerations, I find it necessary to explain my understanding of ‘ethnic minority’. With the deepest respect for the juridical stream of the debates, I would therefore underline that both the descriptive and normative attempts to elaborate a comprehensive and clear definition of ethnic minority look external to the subject.11 Such externality leads, for instance, to the quasihistorically founded division of minorities into autochthonous and ‘newly’ formed, such as is found in Slovenian scholarly and political discourse. On the other hand, refugees and internally displaced persons, whose settlement in another state is temporary due to their status, may permeate the respective minorities and impact on their political behaviour. Attempts to define the concept of a minority from the inside are not as prominent. Such an attempt was made by Tomushat, who defined a minority as “groups, which feel their differences to such an extent, that they try to be at least partially responsible for their future”.12 In , the leader of the Bulgarian Movement for Rights and Freedoms (considered to be the party of the Turkish minority in Bulgaria) Ahmed Dogan established a modest award of  Bulgarian levs for anyone who could provide such a definition. The award has never been claimed.13 The idea of the “responsibility for their future” looks fruitful, if not as a definition then as a description of contemporary Balkan ethnic minorities. Looking at the public manifestations of Balkan (and not only Balkan) ethnic minority discourse, it is immediately apparent that slogans in English predominate over those in Albanian, Serbian or Turkish. Thus, addressing their demands to the ‘international community’ rather than to their compatriots, the participants expect to











series. V. XV (Izdatel’stvo Akademii nauk, Moscow, ). See Zlata Ploštajner, “Autochtonous and Newly-Formed Minorities: Two Different Approaches”, in Friedrich Ebert Stiftung (ed.), National Minorities in South-East Europe. Legal and Social Status at Local Level (Friedrich Ebert Stiftung, Zagreb, ), –. On the notion of national minority and related terms see Tim Potier, “Regionally Nondominant Titular Peoples: the Next Phase in Minority Rights?”, JEMIE (), at . Tomuschat C., “Status of Minorities under Article  of the International Covenant on Civil and Political Rights”, in Bernhardt et al. (eds.), Minorities in National and International Laws (Springer, Berlin, ), at . Maria Todorova, “Identity (Trans)formation Among Bulgarian Muslims”, in Beverly Crawford and Ronnie Lipschutz (eds.), The Myth of Ethnic Conflict: Politics, Economics and “Cultural Violence”, University of California International and Area Studies Digital Collection, Research Series # (), at .

The Balkan Minorities: Divided States, Peoples and Societies be heard and recognized as political representatives of their groups more in the international environment than in their direct milieu. The last observation, widely noted in the juridical literature, is that the main part of the definition of “minority” relates to its ethnic features but that these are not the only features that may define minority status, which may also include linguistic, religious (as mentioned in the UN Covenant on Political and Civil Rights), cultural, racial, gender or sexual features.14 In Yugoslav and Russian political discourse from the Communist era, ethnic minorities used to be called ‘nationalities’ (narodnosti in Yugoslavia) if they had appropriate referent nations outside the federative state. As the term ‘minority’ points to some major entity, the term ‘nationality’ is both secondary to and dependent upon the notion of the ‘nation’ (narod according to the Soviet or Yugoslav classification; in Yugoslavia “narody” were defined as “possessing nation-forming functions”).15 So the notion of ‘ethnic minority’ has sense only when defined in relation to the relevant ‘majority’ and within the boundaries of a concrete state. Some such cases examined by Tim Potier led him to arrive at a definition in terms of “regionally non-dominant titular peoples”,16 which may cover two of the Balkan ethnic minorities: the Albanians in Kosovo, Macedonia and Montenegro; and the Serbs in Bosnia and Herzegovina and Kosovo. On the other hand, the Balkan Vlachs (Aromani) can hardly be represented as “regionally non-dominant Romanians”, despite the fact that the Romanian state used this argument to justify its territorial demands in the nineteenth and twentieth centu-







Young Belorussian scholar Natalya Kat’ko offers the following definition of minority “Это группа граждан государства, численно меньшая основной части населения и /или занимающая не доминирующее положение, обладающая устойчивыми этническими, языковыми, религиозными и культурными характеристиками и имеющая желание сохранить свою самобытность [This is the group of state citizens that is less in number than the main part of the population and does not occupy a dominant position, possessing sustainable ethnic, language, religious and cultural characteristics as well as an intention to save its identity]” and notes: “Причем целесообразно под меньшинством понимать как этнические, так и религиозные, языковые и культурные меньшинства и объединить их общим термином ‘меньшинство’ [It is reasonable to understand a minority as ethnic, linguistic, religious or cultural minorities, including them all in the definition of ‘minority’]”. Natalya Kat’ko, “Kriterii opredelenija men’shinstva”, at . Another young scholar, Adina Preda from Manchester University, comes to the controversial conclusion that, in practice, national minorities are those ethnic groups that are suspected to aspire to sovereignty and, thus, to secession. See Adina Preda, “The Principle of Self-Determination and National Minorities”,  (-) Dialectical Anthropology (), –, at . Marina Martynova, Balkanskij krizis: narody i politika (Staryj Sad, Moscow, ), –. Another definition says that a “people is a collectivity conceived as such in virtue of its geographical, religious and linguistic characteristics and its political aspirations”. See Preda, op.cit., . Potier, op.cit. note .



Dmitriy I. Polyvyannyy ries, and the other minorities like Roma 17 or Muslims18 fall outwith the remits of this definition due to their lack of ‘titular’ status. Such ethnic groups, according to Anna Moltchanova, can be treated as “stateless national groups” and even be granted “the modified right to self-determination”.19 III. Divided States, Divided People, Divided Societies A group of EU experts (the Balkan chapter is written by Gergana Noutcheva and Michel Huysseune) in a recently published monograph on conflict settlement in Abkhazia, Cyprus, Serbia-Montenegro and Transdniestria within the context of Europeanization, widely use the notion of “divided states” (razdelyonnye gosudarstva).20 The Balkan example of the “divided state” in the book looks a bit artificial. Being “resta restantum” of the socialist Yugoslav Federation, the Serbia-Montenegro state formation (never acknowledged by the US under the name of the Federal Republic of Yugoslavia and as the successor state of the former Yugoslavia), at least from two viewpoints—that of the ruling Montenegrin elite and of the US government—was just a transitive project aimed at the gradual and peaceful division of the two post-Yugoslav republics, delayed mostly because of the pending Kosovo problem and the persistence of the Milosevic presidency in Serbia. This definition stands next to another notion: that of “divided peoples”. The very word ‘people’ was widely used as an ethnic definition in the nineteenth century and in the interwar period but after the Second World War was more connected to colonial discourse. More often applied by the western literature to the cases of post-war China and Korea, sometimes to the Kurds, recently it has frequently been used by Russian scholars to describe post-Soviet ethnic situations.21 More identity than state-oriented, this notion meanwhile looks rather spacious and flexible in its applicability to the contemporary Balkan situation. Really, a historian, when looking at the diminishing zone of Balkan conflicts, tends to see, first of all, peoples divided by state boundaries and, only then, minorities as a subgroup of these divided peoples, albeit an important subgroup, in that they may be seen to be either helpless and seeking international protection or militant and eager to secede.22 Another term marking the division, “divided societies”, is used, for instance, by a prominent expert on the Balkans, Florian Bieber, in his review of contemporary ethnic



    



Actually, the ethnic name “Roma” appeared in the fifteenth century when part of this population, still new to the Balkans, claimed that they were refugees from the fallen “second Rome”: Constantinople. See Florian Bieber, “Muslim Identity in the Balkans before the Establishment of Nation States”, () Nationalities Papers (), –. Anna Moltchanova, “Stateless National Groups, International Justice and Assymetrical Warfare”, () Journal of Political Philosophy (), –. Coppetiers et al., op.cit. note . See Kamalutdin Gadziev and Eduard Solovjev (eds.), Diaspory i razdelennye narody na postsovetskom prostranstve (IMEMO RAN, Moscow, ). See Coppetiers et al., op.cit. note .

The Balkan Minorities: Divided States, Peoples and Societies policies in Bosnia and Herzegovina, Kosovo and Macedonia.23 Stressing social rather than state-centric values, Bieber underlines an impressive set of effective decisions reached at this level and within this approach and considers the refusal of territorial change to be one of the prerequisites for the successful work of civil institutions within multiethnic societies. There is only one point in this profound analysis that evokes questions: while the author is strongly against the repetition of internationally-enforced institutional reforms such as the Dayton agreement, all the cases that he considered in fact featured changes reinforced from outside or, to be more exact, by the US and the EU. So, minorities in some cases may be the reasons for or the results of the division of the state, the people (understood in the ethnic sense as opposed to the state population) or the society. The division of people, state or society cannot be imagined without certain division lines. Generations of ethnologists and linguists left us hundreds of maps, the only result of the revision of which may be a conclusion as to the impossibility of devising just state borders, which in the Balkans never coincided with linguistic ones. The existing Balkan state boundaries do not differ much from any others in the past of this turbulent region, those drawn up by geopolitical ambitions or resulting from wars of conquests, after which the borders between the newly formed or expanded states almost never followed any historically established ethnic division lines.24 Though contemporary interstate boundaries have been declared untouchable, the same principle seems not to concern the (relatively) new ones. We may currently see how the revived state border between Serbia and Montenegro, voluntarily agreed to between the two governments in , divides the historical region of Sandzak and, with it, the ethnic group of Sandjak Muslims. Despite changes in recent years to the composition of this ethnic group, both in size, due to forced and attracted migration to Bosnia and Herzegovina, and in mind, through a partial readoption of Bosnian identity, this new division may have unexpected consequences.25 The same type border is about to be officially reestablished between Serbia and Kosovo, adding de jure one more Serbian minority to the existing ones. IV. Civic Nationalism Until the new or renewed Balkan borders support in practice the ethnic nationalism widely shared by the populations of the Balkan states (in the ‘narrow’ sense), none of which really reflect the practices of the ‘core’ EUropean states, according to Bieber, Noutzeva, Huysseune and many other experts, the EU should support the emerging of western-style ‘civic nationalism’, usually defined as “the collective identity of a group of   

Florian Bieber, “Institutionalizing Ethnicity in the Western Balkans. Managing Change in Deeply Divided Societies”, ECMI Working Papers No. , ECMI, February , –. See Todorova (), op.cit. note , . In fact, these unexpected things began with the vote of the Muslim minority for a “divorce”. By voting for independence for Montenegro in the recent referendum, this minority divided itself across the “new” (actually renewed from ) state border between Serbia and Montenegro. See David Vujanovic, “Montenegro Independence Vote Splits Old Muslim Region”, Agence France Press,  May .



Dmitriy I. Polyvyannyy people born or living in a specified territory with a shared history, and owing allegiance to a sovereign government whose powers are defined and delimited by laws enacted and enforced through institutions such as parliament or Congress that evoke common loyalty to powerful symbols and myth of nationality”.26 Despite the “myth of nationality” being strongly embedded into the definitions of both types of nationalism, the transition from the first to the second type is considered by many EUropean experts to be the universal way to solve the current ethnic conflicts in the Balkans. The above quoted collective monograph on the “EU-zation” of the Balkan and post-Soviet conflicts using the term “divided states” in fact prioritizes the state as the object of secessionist conflicts. Bieber’s notion of “divided societies” stresses the humanitarian aspects of the problem, especially the active role of human rights protection in the Balkan states. A wide range of normative options considered as possible ways to solve the problem of divided states are offered to demonstrate the possibilities of EUization. There have only been two examples in the contemporary history of the Balkans over the last fifteen years in which the concept of ‘civic nationalism’ has been put into practice. The first example is Croatia, from where the Serbian minority was forced to escape, dispersed and demoralized, as a result of the military conflict between  and ; only then was national legislation adjusted to meet the regulations of the Framework Convention on National Minorities and of other acts built upon ‘civic nationalism’ principles. Paying full respect to the impressive results of this stabilization and taking into account its human costs, I would not expect this experience to be repeated and do hope that the time when this kind of action (which amounts to ethnic cleansing) could take place has already passed. The second way in which this happened entailed the relevant minority being granted the rights of the titular nation within the state territory and having its new status reinforced from outside by an externally imposed constitutional framework, as was achieved in Bosnia and Herzegovina with the Bosniacs and probably may be repeated soon in Kosovo. It is, however, not yet possible to conclude whether the result will be closer to the EUropean model of a democratic multicultural state or a distorted reflection of the late Yugoslav Federation. The EU itself does not possess the necessary institutions, resources and political will to effectively control these explosive processes, nor can the current situation in this divided state with its massive international and internal bureaucracy, as well as helpless economy, really represent a model for further development. 27 The Kosovo example suggests that the EUization process, which is seen as a panacea for the region’s ethnic contradictions, is understood quite differently by some Balkan actors as opposed to Brussels and Strasbourg decision makers. As Albanian President Alfred Moisiu mentioned in his public lecture in the Bulgarian Diplomatic Institute in May : “The Albanians do not see their future in the Greater Albania, but in their and [the] entire region’s integration in[to] the European Union, in the liberalization of the borders, [the] enhancement of trade, cultural and political exchanges and also in the

 



McPherson, op.cit. note , at . See Natalya Lukina, “Bosnija I Gerzegovina posle Dejtona”,  Svobodnaya mysl (), –.

The Balkan Minorities: Divided States, Peoples and Societies promotion of the values of democracy, dialogue and understanding.”28 Unfortunately, by now there is a strong suspicion that if any trade across “liberated” borders between the Albanian-populated areas in Macedonia, Kosovo and Montenegro is enhanced, it will include trafficking in women, drugs and weapons, and if any “common areas” between Albania, Macedonia, Montenegro and Kosovo (the sovereignty of which will be necessary for EUization to take place) are formed, they will hardly have much in common with the appropriate European imaginary constructions but may resemble more closely the appropriate ‘areas’ formed there by Albanian militants in the late s.29 If we compare the historical experience of the ‘greater’ and ‘smaller’ Balkan nations’ manipulation of the European great powers with the experience (especially that which is positive and completed) of the EU in the regulation of the Balkan conflicts, the result would hardly lean in Brussels’ favour. The Serbian elite, busy with the “management of the disintegration consequences” (Madeleine Albright’s definition concerning the former USSR),30 may be some way away from making a reality of the proud ‘Design’ for a Greater Serbia of Ilija Garašanin; however, until the inner borders between the Serbian Republic and the Federation of Bosniacs and Croats in Bosnia and Herzegovina are more evident than those between the Serbian Republic and the Republica Srbska, the ‘common areas’ will be more conducive to the endless search for Karadjic and Mladic than to free and legal trade and other contacts. High-level Albanian or Serbian officials may deny that their states will ever pursue the ‘Greater’ projects of the nineteenth century but these very statements prove that the projects themselves or their updated versions are alive and thus they can successfully compete with the proposed EUropean alternatives, which are still rather problematic or too pale and indefinite to be realistic. It appears that the fear of the Albanian and Serbian ‘Greater Projects’ remains the main obstacle to the international community rendering any real support to these core states so as to move them towards economic development, democracy and effective policies, able to wield ‘soft power’ for the purpose of attracting the appropriate minorities to a gradual and peaceful cultural integration with the titular nations. European integration was originally built by and with stabilized and regular states, not hastily erected state-like constructions. Plans for a “new Berlin Treaty” or a “new London Treaty”31 may be resurrected again if the reality of divided peoples is not taken into account in the current Balkan transformations. However, to my mind, the solution is  

 

See . Ekaterina Stepanova, “Albanskij factor v makedonskom konflikte”, in Elena Gus’kova and Jury Igritsky (eds.), Albanskij factor krizisa na Balkanax (INION RAN, Moscow, ), –, at –. Madeleine Albright, “Zadacha SShA—Upralenie Posledstviyami Raspada Sovetskoj Imperii”, Nezavisimaya Gazeta,  October . John J. Mearsheimer and Stephen Van Evera, “Redraw the Map, Stop the Killing”, The New York Times,  April . Since the arguments for the immobility of the borders are mostly historical, I must state that any configuration or elimination of any border in the above mentioned region can be “historically founded”. Nevertheless the appeal to redraw the maps is highly realistic if the borders have to be reconstructed, not just changed in the same sense of the division lines.



Dmitriy I. Polyvyannyy not in proper ‘mapping’, which is in most cases geographically impossible. The political elites of the Albanians and the Serbs, both in their major titular parts and in their minor ethnic groups, clearly feel the equality of the two peoples in their numbers, historical experience and contemporary significance for the Balkans. What they do not feel is that they both share responsibility for the future of the ‘powder keg’ and will either have to become trustworthy partners in supporting true stability in the Balkans or go on being ‘regulated’ from outside as divided remnants of the “managed disintegration”. If, as may be the case with the Albanian and Serb ‘minorities’, the historical approach indicates that two still forming great Balkan nations are able both to bring stability to the rest of the ‘powder keg’ or to go on producing bad or very bad news for the world media, the situation with the numerous and dispersed Muslim populations of the Balkans looks very different. The majority of the Balkan Muslims are found in Bosnia and Herzegovina and Sandzhak,32 the latter being recently divided between Serbia and Montenegro. Historically, the Muslim minority in Bosna and Sandzak originated from the same Slavic population as the Serbs and Croats and their identities here were originally based upon religious distinctions. Due to the late Ottoman and early Austrian practices in this remote province, Orthodox subjects were considered to be Serbs (in the seventeenth and eighteenth centuries they were more often referred to as Vlachs) and the Catholics to be Croats.33 The Muslims, on the contrary, called themselves Turks (this ethnic nomination was offensive to the genuine Osmanli) and were called Bosnians (Boshniaci) by the Christian population of Bosnia, although they were sometimes also called Turks (Turci). Since , when the Muslims were officially recognized as one of the Yugoslav nations, their identity has mainly been based upon secular, cultural and local foundations.34 With the formation of the state of Bosnia and Herzegovina in the s, an attempt was made to add to this local, cultural and religious identity the linguistic identity of the official Bosnian language, which differs from the Latin alphabet-using Serbian language on account of the inclusion of numerous local words of Turkish origin. The identities of the Islamized minorities all over the Balkans looks rather flexible. Pomaks and Turks in Bulgaria and Macedonia are different by their origin, culture and language, but, at the political level, some Pomak political leaders in Bulgaria will sometimes emphasize their Turkish identity due to the stable and high political positions of the Movement for Rights and Freedoms, the Turkish-minority based parliamentary party, which occupies the so-called ‘pendulum position’, giving its votes to the ruling majority or to the opposition in accordance with its interests. Another contro







See Francine Friedman, “The Muslim Slavs of Bosnia and Herzegovina (with Reference to the Sandjak of Novi Pazar): Islam as National Identity”, () Nationalities Papers (), –. The borders of the contemporary state of Bosnia and Herzegovina are not the same as in , when it was occupied by Austria-Hungary and do not follow the divisions of  and of : some districts of Bosnia are considered “historically Croatian”. The same concerns Montenegro (Boka) and Vojvodina (Northern Bachka). See Tudjman, op.cit. note , –. Friedman, op.cit. note , –.

The Balkan Minorities: Divided States, Peoples and Societies versial decision underlining this flexibility was the attempt in  to reconvert en masse the Bulgarian Pomaks to Christianity. The Boshniak identity shared by the Sandjak Muslims before the Austrian occupation of  could continue to represent a contemporary perspective for them now, too, if the future of the ‘core titular state’ in Bosnia and Herzegovina were more definite and the return of numerous refugees and migrants more or less predictable. Some other Balkan minorities have been known since the Middle Ages and in times of stability are not mentioned much. A full compendium of their attributes is not our task, so I will mention only the main two: the Vlachs (Aromuni, Tsintsari) and Roma (Gypsies, Tsigani), both first mentioned here around a millennium ago, long before the very name of the Balkans appeared on maps. Jean-François Gossiaux quotes in the epigraph to his Poivoirs ethniques dans les Balkans former Yugoslav Minister for National and Ethnic Communities (a Musliman from Sandjak) Rasim Ljažić: “After the democratic elections (of ) some minorities appear, which we had never known before”.35 A Rom from Kosovo in  seems to repeat his former Yugoslav compatriot’s idea: “Now it is all mixed. Some Roma declare as Ashkalies, others as Egyptians. We did not have that before the war. We were all Roma people.” Given the elections as the reason to notice the ‘new’ minorities, our approach should follow the slip of the minister’s tongue and consider the relations of these two minorities with the power-holders of the respective states. Both Vlachs and Roma have nomadic roots, which remain more or less expressed in their current ways of life and identity. Mobile against the background of the similarly mobile Balkan state boundaries, these ‘absolute’ minorities tend to view and treat state boundaries in a different way to other groups in the region. Invisible from a geopolitical perspective or, as the abovementioned example shows, even from a minister’s chair, they have lived their own life through the centuries by building their own models of political behaviour. Traditional historical instruments can hardly help us to investigate these models, which are more objects of ethnography, as we used to say in Russia, or of cultural anthropology. Excellent observations of the “Vlach model” by Gossiaux and his Bulgarian disciple Ekaterina Anastasova show the dimensions of the adaptability of the “invisible” minorities within the Balkan nations.36 By origin, the Vlach model has Byzantine roots: to be ‘half-Vlach’ was considered prestigious and useful in the higher circles of the Byzantine Empire not only because of the mystic qualities ascribed to Vlachs by legend but also because of the real network of Vlach-related Byzantine aristocracy, especially in the eleventh and twelfth centuries and later, after the restoration of the empire in the late thirteenth century. The Vlach presence was evident in the Second Bulgarian Tzardom in the thirteenth to fourteenth centuries.37 In our times, two contemporary Balkan states—Bulgaria in - and 

 

Quoted in Jean-Francois Gossiaux, Pouvoirs Ethniques dans les Balkans (Presses Universitaires de France, Paris, ). Further I quote the Bulgarian translation,Vlast i Etnos na Balkanax (Sofia, ). Gossiaux, op.cit. note , –; and Ekaterina Anastasova, Etnichnost, tradicija, vlast. Etudi za prexoda (Sofia: Akademichno izdatelstvo “Marin Drinov”, ), –. Tom J. Winnifrith, The Vlachs: The History of a Balkan People (Duckworth, London, ), –.



Dmitriy I. Polyvyannyy Macedonia in -—have been headed by ‘half-Vlachs’ by their mothers: Todor Zhivkov and Kiro Gligorov. Vlach community-based networks had always worked and still work at different levels, allowing the whole ethnic group to exist and adapt to the changing environment. The censuses of the second half of the twentieth century in Balkan states clearly reflect the imitative abilities of the Vlach (Arumanian) minority, which was dispersed, having very few definite ethnic areas or centres but able to construct their own model of survival and to follow it for ages. Another trait clearly seen from the historical distance of at least a century and a half is the clear unwillingness of the Vlachs-Arumanians to be connected to the state of Romania and to be considered, as the latter many times has claimed, to be a Romanian national minority. Having in mind the dispersed situation of the Vlach communities in many Balkan states, the advocacy and information networks they have elaborated, together with their ethnic, social and political mimicry, make them an excellent model for arriving at transborder decisions rather than changing border ones. Concerning the Roma problem, a historian will hardly take seriously the idea of their full integration into the democratized Balkan societies, having in mind, first, that the Romany communities in practice are integrated into Balkan realities in a specific way and go on perfecting this integration. Deeply divided into a ruling elite and a majority living in misery, the Romany communities nevertheless bridge these internal divides with a high level of network integration between them. State boundaries have never been problematic for the Roma communication networks and even for migrations, as well as a wide range of transborder activities, including illegal ones. It is enough to compare the palaces of the Bulgarian, Romanian, Moldavian or Macedonian Romany elite in the border regions of the mentioned states with the suburban favellas (including those inherited from the socialist period) in bigger cities or even in the capitals38 to understand that the question of Roma integration cannot be solved without profound consideration of the complicated interrelations between Romany communities, not only in each of the Balkan states but in all of them, as well as the mechanisms supporting the Romany transnational advocacy networks, including those aspects of them that include illegal economic activities and transborder criminality. Giving full respect to the issues of political correctness and having in mind the inhuman practices that have been based upon the thesis of ‘Gypsy-Sinti criminality’, I would nevertheless insist on the high significance of this theme for the current situation in regard to Roma minorities across the Balkans in the wide sense of the word. One task is to withstand the stereotypes of ‘Gypsy criminality’ or the appeals of the nationalists not to allow themselves ‘to be ruled by Gypsies’, another is to engage in scholarly analysis of why such stereotypes appear in the first place. It is one thing to note that Roma origin is ascribed by popular opinion to political leaders (in Bulgaria, for instance, three post-communist Presidents were labelled as Roma), another to take into consideration the real Roma shadow leaders with their political influence and involvement in corruption (a common illness of all the Balkan states) and in transnational criminality. Some years ago, Will Kymlicka formulated “three interrelated assumptions which are now widely accepted by the East-Central Europe countries”: the disloyalty of minorities to “their” states; that relations between the minorities and the appropriate 



Anastasova, op.cit. note , –.

The Balkan Minorities: Divided States, Peoples and Societies states are a “zero-sum” game; and that the treatment of minorities is considered in terms of national security.39 Sharing in general his observations, I will finish these notes with some assumptions that, to my mind, affect the bulk of contemporary, mostly western, literature on the Balkan minorities. First, leaving aside the question of the concrete institutional organization of the post-Yugoslav legacy in the ‘shrinking conflict area’, the problem of the Albanian and Serbian “divided peoples” remains in the shadow of the numerous problems concerning minorities and the minorities are usually represented as more solid and real communities than the ‘big’ nations, which are often considered to be ‘imagined’ or ‘constructed’ (although networking minorities could be no less effective than divided majorities). Second, the principle of the ‘presumption of goodwill’, usually granted by the literature to minorities, is mostly not applied to the ‘big’ nations and the measures of the international community to provide a future for the minorities seem designed in opposition to the presumed will of the ‘big’ nations to swallow them, which does not always respond to reality. Third, the approach to national problems in general is mostly based upon traditional definitions of security, while contemporary approaches stress non-military challenges such as organized criminality, trafficking in drugs, arms and people, illegal migrations, etc. Unfortunately, the shadow organizers of these illegal activities learned to involve some minorities in them much earlier than the legal institutions found ways to prevent it.



Will Kymlicka, “Multiculturalism and Minority Rights”,  JEMIE ().



Dino Abazović*

Bosnia and Herzegovina: Ten Years After Dayton

I. Introduction There is always something paradoxical about Bosnia and Herzegovina, so one would not be wrong to state that the post-conflict period in this country, as time goes by, more closely resembles the pre-war order than some kind of peaceful and prosperous one. The Dayton Peace Agreement (DPA) of  established Bosnia and Herzegovina as a state comprised of two entities, each with a high degree of autonomy: the Republika Srpska and the Federation of Bosnia and Herzegovina. The chief civilian peace implementation agency in Bosnia and Herzegovina is the Office of the High Representative (OHR): the DPA “designated the High Representative to oversee the implementation of the civilian aspects of the Peace Agreement on behalf of the international community”.1 Although it was a compromise that brought the war to an end and established a kind of peace, the DPA has contributed greatly to the creation of a fertile soil for political interventions with an ‘ethnonational’ prefix. In the salmagundi of legal systems in Bosnia and Herzegovina—some legal experts claim that during the past ten years at least six incompatible legal systems have been in force in the country2—the national– ethnic, (pseudo)collective element has acquired complete primacy over the civic one. Constitutional patriotism simply does not exist as a concept. *

 

The author is the Director of the Human Rights Centre of the University of Sarajevo and Teaching Assistant at the Faculty of Political Sciences (Department of Sociology), University of Sarajevo. His research interests include human rights culture, processes of democratization in post-conflict societies, sociology of knowledge and sociology of religion. He has been the first Chairperson of the Steering Board of the Balkan Human Rights Network, as well as the Secretary General of the Atelier for Philosophy, Social Sciences and Psychoanalysis, Sarajevo. He lives and works in Sarajevo, Bosnia and Herzegovina. For further information about the OHR, see . Ahmed Žilić, “Constituent People and/or Minorities in Dayton Bosnia and Herzegovina”, Paper Presented at the Symposium on the Status of Constituent Peoples and Minorities in Bosnia and Herzegovina, September , Sarajevo, Bosnia and Herzegovina.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 195-206. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Dino Abazović The exceptionally high number of mechanisms for the protection of human rights that are built into the system is inversely proportionate to the level of their implementation and the DPA’s efficiency in stopping the war and mass atrocities has been—and still is—inversely proportionate to its efficiency in setting up democratic state institutions. An illuminating indicator in that respect is the fact that the formerly strongest opponents to the DPA are today its greatest protectors and supporters. In this article, I will argue that the current political and social structure tailored by the DPA neither contributes to the establishment of mutual trust and interethnic cooperation nor to fostering reconciliation and the formation of a common state identity but, on the contrary, has prevented effective state reconstruction and nation-building. Special attention will be paid to the so-called international community in Bosnia and Herzegovina and its role in developments in the context of post-conflict society. II. Bosnia and Herzegovina: (Un-) Civil Society The processes of an all-prevailing ethnocentrism, currently in their final (malignant) phase, rapidly rampaged in -, almost immediately after the first free, democratic, multiparty elections in Bosnia and Herzegovina. These processes subjected all developments, social agents, actions, norms and values to the one single ‘highest’ referential category, the category of ethnicity. The result was the emergence of ethnocracy instead of democracy. Three national or, more precisely, nationalistic parties triumphed in the elections in , thanks to their offer of an alternative ideology as a replacement of the previously dominant communist ideology.3 One rigid ideology was thus replaced by an even worse one, a nationalistic, chauvinistic and xenophobic ideology, including elements of fascism. The dissolution of the Socialist Federal Republic of Yugoslavia was accompanied by the independence of the Republic of Bosnia and Herzegovina and its recognition in accordance with international law at the beginning of . Sadly, the developments referred to above led not only to war in Bosnia and Herzegovina but also to crimes against humanity and genocide. Although general elections in the country had been held by —in a way, this was a sign of the establishment of a functioning democracy and viable civil society—the wartime ressentiment played a more significant role than many had expected: Unfortunately the wartime conditions gave access to accentuated authoritarian powers to the nationalistic successors to the communist party. During the armed conflict, the three nationalistic parties in Bosnia … constructed still more authoritarian power structures through their monopoly on violence and control of informal economic activities. A key element to this power was the continuation of the ‘nomenklatura’ system, an all-pervasive infiltration of public institutions by party personnel ensured subordination of the institutions to the parties, eliminating effectively the separation



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It seems that, at least in the case of Bosnia and Herzegovina, Adam Michnik is right when he argues that nationalism is a final phase of communism, kind of a final attempt to provide a social basis for dictatorship. For more, see Adam Michnik, “Nationalism”, () SSR (), –.

Bosnia and Herzegovina: Ten Years After Dayton of powers irrespective of what the constitution may provide and undermining the significance of the electoral process.4

Thus, in the post-conflict period in Bosnia and Herzegovina, as I have argued already elsewhere,5 we are still witnessing the endurance of three key political, administrative, economic and cultural centres that reveal the incompatibility of the current frameworks of institutionalizing ethnic differences. Thus, Sarajevo, Banja Luka and Mostar, the three centres, are decidedly active, independent of one another and aspiring in their own specific way to be the paradigm for the potential evolution of the situation towards a final solution of the so-called ‘Bosnian problem’. However, before entering into a more profound overview of the situation that Bosnia and Herzegovina is faced with today, let me recall the words of Adrian Karatnycky, the Freedom House president, while reviewing his organization’s  Annual Report: “democracy has been significantly more successful in mono-ethnic societies than in ethnically divided and multiethnic societies”.6 Moreover, Donald Horowitz observed that “democracy has progressed furthest in those East European countries that have the fewest serious ethnic cleavages (Hungary, the Czech Republic, and Poland) and progressed more slowly or not at all in those that are deeply divided (Slovakia, Bulgaria, Romania, and of course the former Yugoslavia)”.7 As M. Steven Fish and Robin S. Brooks show, this is not a new approach within contemporary political science, since “a number of eminent political scientists have seen diverse societies as disadvantaged when it comes to democratization”.8 However, it would be an oversimplification to consider present-day Bosnia and Herzegovina simply to be an ethnically divided society. Its very recent history ()—portrayed by one of the most horrible wars and mass atrocities in Europe since World War II—clearly indicates its specific character. Additionally, in post-conflict Bosnia and Herzegovina: [t]he institutionalization of ethnic power-sharing on the state level on the basis of territorial strongholds of nationalist forces in the Entities prevailed over the civic principle so that almost every aspect of state and society became seen through the ethnic lens. This, however, did not contribute to establish mutual trust and interethnic

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The Danish Centre for Human Rights, “Making Justice Work: Scoping for Institutional Support to Ministries of Justice – Bosnia and Herzegovina”, Final report for DFID, October , –. Dino Abazović, “Sarajevo, Banja Luka, Mostar – Case Study”, Final Paper for the Project “Institutionalizing Ethnic Diversity in (Post-) Conflict Situations: The Role of Human Rights and Minority Protection in South-East Europe”, ETC Graz, , at <www.peaceproject.at>. Quoted in M. Steven Fish and Robin S. Brooks, “Does Diversity Hurt Democracy?”, () Journal of Democracy (), –. Ibid., . Ibid.

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Dino Abazović co-operation and foster reconciliation and the formation of a common state identity, but prevented effective state reconstruction and nation-building.9

One thing that has greatly contributed to such an undesirable outcome has been the highly underdeveloped status of civil society in Bosnia and Herzegovina.10 It is more or less acknowledged that a number of attempts have been made to define a civil society and, as is the case with many other contemporary phenomena, all these theories have found their purpose in various reflections or empirical research across the world. It is for this reason that I will start from the standpoint offered by Jeffrey C. Alexander in his binary discourse of a civil society, where a civil society is determined as a society’s subsystem, analytically and, to a certain extent, empirically separated from the spheres of political, economic and religious life. Civil society is a sphere of solidarity in which abstract universalism and particularistic versions of community are tensely intertwined. It is both a normative and real concept … Civil society depends on the resources, or inputs from these other spheres, from political life, from economic institutions, from broad cultural discussions, from territorial organisation, and from primordiality … Civil society is constituted by its own distinctive structure of elites, not only by functional oligarchies that control the legal and communication systems, but by those that exercise power and identity through voluntary organisations (‘dignitaries’ or ‘public servants’) and social movements (‘mouvements intellectuels’).11

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

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Joseph Marko, “Bosnia and Herzegovina—Multi-ethnic or Multinational?”, in Council of Europe (ed.), Societies in Conflict: The Contribution of Law and Democracy to Conflict Resolution (Council of Europe Publishing, Strasbourg, ), –. “Yugoslavian communism had a number of characteristics that enabled the development of emancipatory politics within its single-party state, whose dimensions and levels of influence significantly exceeded those of the remnants of the political poverty of bona fide socialism. On the other hand, local governing groups have accepted the liberal salvage of capitalism, reorganizing themselves so that they can ensure their authority within the new settings of marginal liberal capitalism. They have formed a ruling coalition, which was legitimized through nationalistic ideologies, and the real result was the establishment of identity communities within the states of ethnic majorities. The rest we know—the darkness of the nineties, the bloody post-Yugoslav transition. This is where civil society was really established … Alternative cultures and alternative politics, which were pushed to the edge, institutionally dislodged, financially ruined and ideologically defamed by the new rulers using the new identity consensus, tried to defend themselves with the ideologies and practices of a civil society, in other words using liberal jargon and civil-social self-organization. To a certain extent, they were caught in a trap: they tried to save themselves using exactly the tools that were destroying them.” Translated by the author from Rastko Močnik, “Civilno društvo i alternativne kulture”, ZaMirZINE, March , at . Jeffery C. Alexander, “The Binary Discourse of Civil Society”, in Steven Seidman and Jeffrey C. Alexander (eds.), The New Social Theory Reader (Routledge, London and New York, ), –.

Bosnia and Herzegovina: Ten Years After Dayton This theory is particularly suitable for grasping the Bosnia and Herzegovina context because a binary discourse becomes apparent on three levels: social motives, social relations and social institutions. According to Alexander, there are characteristic symbolic codes and their counter codes on all of these levels. Regarding the level of social motives or urges, democracy depends on self-control and individual initiative, and the individuals within a democratic surrounding recognize each other according to symbolic codes: for example, activism and autonomy, and not passivity and dependence. Other axiomatic qualities fall within a binary discourse, such as rationality, reasonableness, calmness, self-control, realism, etc., while their counter (democratic) codes include irrationality, hysteria, excitement, passion, madness. The level of social relations is an immediate consequence of individual behaviour, where individuals nurturing democratic symbolic codes are able to develop open social relations based on trust, honesty, honour, truthfulness, etc. Individuals who follow counter codes of social motives find themselves in relations characterized by secrecy, suspicion, calculation, greed and conspiracy. Consequently, the discourse structures of social institutions can be characterized by democratic or counter-democratic symbolic codes: on the one hand, there are institutions based on the rule of law, equality, inclusiveness, impersonality and contractual relations while, on the other, there are arbitrary, power-based, hierarchical, personalized and ascription loyalty-based institutions. It should not be a hard task to recognize the appropriate symbolic codes that fit post-Dayton Bosnia and Herzegovina. If we, for example, understand civil society within the reduced prism of non-governmental organizations, which is actually quite common in the case of Bosnia and Herzegovina, it seems that the main function of non-governmental organizations is, almost paradoxically, the maintenance of an already very appalling situation, considering that the state will not or cannot fulfil its own functions. Needless to say, none of the non-governmental organizations work with this goal in mind and the situation they are in reflects the fact that the state hardly functions—individuals are left with no other choice but to organize themselves in this way in order to alleviate the consequences of such a situation. In addition, if we take into account the fact that the majority of the non-governmental sector gets its funding from foreign donors and, as time goes by, the strategies of local actors have become basically donor-driven and have only little to do with real circumstances and needs, the situation becomes even more unpromising. All the while, the so-called ‘international community’12 in Bosnia and Herzegovina keeps insisting that non-governmental organizations



I would like to explain why I am using the prefix ‘so-called’ by making reference to John B. Allcock: “I dislike the term ‘international community’, because the configuration of state and non-state structures to which it normally refers does not possess the attributes that sociologists normally understand by the word ‘community’. Nevertheless, the potential replacements that I have encountered for it are invariably either equally misleading, or far more clumsy. Under protest, therefore, I continue to use it here in the fervent hope that something better might be devised soon.” See John B. Allcock, “Come Back, Dayton: All is Forgiven”, in Christophe Solioz and Tobias K. Vogel (eds.), Dayton and Beyond: Perspectives on the Future of Bosnia and Herzegovina (Nomos, Baden-Baden, ), –, at .

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Dino Abazović are the central segment of civil society regarding ‘non-political’ action aimed at situation change.13 All of the above provides a sufficient basis to make certain assumptions about the findings that one would make if one were to undertake an empirical study documenting Bosnia and Herzegovina on an ‘open society index’.14 Having said ‘assumptions’, I refer also to the fact that we lack such empirical data too, since, unfortunately, I am not aware of the results of any empirical studies of this kind in Bosnia and Herzegovina. Still, for such an index of societal openness, one would need to examine the following dependent variables: (a) the rights of minorities and marginalized groups; (b) the educational system; (c) the rule of law; (d) economic freedoms and entrepreneurship; and (e) the media and the democratic nature of political judgements. Before , there had been no substantial return of refugees and internally displaced persons to their places of origin, particularly not in the areas where they would be factually considered to be a minority (whether ethnic, religious or linguistic, etc.) The results of ethnic cleansing and homogenization at the entity levels remained strong in the post-conflict period while there was not enough ‘political will’ to overcome the hard problems of human insecurity in the wide sense of the term. For those who, despite all the barriers, decided to return (and to become a de facto minority), the problems of everyday life become irresolvable. Consequently, the results of ethnic cleansing have not been reversed to a significant extent. As Nowak rightly argues: [the] systematic policies of discrimination against those ethnic/religious groups who had remained as minorities in their pre-war homes during the armed conflicts or who attempted to return were designed to reinforce the ethnic/religious division of the country. These policies applied to all areas of private and public life, such as job opportunities, the housing market, infrastructure (electricity, water supply etc.), education, social security, pensions etc.15

The education system, to the present day, remains politically influenced in accordance with a segregation principle in schooling structures and, as such, Bosnia and Herzegovina is probably the only country in Europe that does not have a state law on education. The basis for segregation is founded on the right to instruction in the ‘mother-tongue’, as well as on a reluctance to achieve compromise on national standards in education, where problems in regard to education in history have played a pivotal role. All in all: [t]ensions arise because minorities and national groups fear that the promotion of a unified state identity will involve forced assimilation and the subsequent denial 

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



See more in Sevima Sali-Terzić, “Civil Society”, in Žarko Papić (ed.), International Politics of Aid to the Countries of Eastern Europe: Lessons (Not) Learnt in BiH (Muller, Sarajevo, ), –. A basic methodological framework for determining an ‘open society index’ has been developed by the Croatian sociologist Aleksandar Štulhofer, “Indeks društvene otvorenosti: teorijska koncepcija, metodologija i mjerenje”, in Simona Goldstein (ed.), Otvorenost društva: Hrvatska  (Institut Otvoreno Društvo, Zagreb, ), –. Manfred Nowak, “Has Dayton Failed?”, in Solioz and Vogel, op.cit. note , .

Bosnia and Herzegovina: Ten Years After Dayton of their histories, literatures, languages, and cultural practices. Given the close relationship between social identity and culture, the schools can become a battleground in which the possibility of a common civic identity is challenged. While it may be important to establish and protect separate group rights, over-protection resulting in segregated schools and separate languages might lead to hostile separatism that can hinder the development of a common state identity and undermine the legitimacy of shared institutions. … In BiH, where there are three constituent peoples, this tension between state and national group identity challenges efforts to protect the rights of all citizens. … If ethnic group identification is the most important dimension of who a person is, and if stereotyping becomes the modus operandi for defining people, then the future of the country will assuredly exclude tolerance and integration, and a new generation of bigots will emerge.16

According to the International Crisis Group report of : “[t]he law does not yet rule in Bosnia and Herzegovina. What prevails instead are nationally defined politics, inconsistency in the application of law, corrupt and incompetent courts, a fragmented judicial space, half-baked or half-implemented reforms, and sheer negligence. Bosnia is, in short, a land where respect for and confidence in the law and its defenders is weak.”17 Although dated four years ago, the situation remains congruent with this description in all respects, although the level of corruption has been drastically diminished. Despite all of the efforts of a number of domestic and regional entrepreneurs, the economic sphere remains, in many respects, fragmented, the proper legal preconditions for a functional joint economic space have not been fulfilled and there are no major foreign investments. The media still suffer from dubious professional standards (with the exception of a few members of the print media) and are very much influenced by political oligarchies. As in many other fields, divisions along ethnonational lines are clearly visible in the media too. II. The International Community in Bosnia and Herzegovina: A Prologue for Critique Ten years after the DPA, the strategies and involvements of the so-called international community in Bosnia and Herzegovina can be theoretically viewed as artefacts dependent upon and based upon rational choice theory.18 Although quite ‘popular’ in analyzing 

 

Sarah Warshauer Freedman et al., “Public Education and Social Reconstruction in Bosnia and Herzegovina and Croatia”, in Eric Stover and Harvey M. Weinstein (eds.), My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge University Press, Cambridge, ), –, at . ICG, “Courting Disaster: The Misrule of Law in Bosnia & Herzegovina”, Europe Report No. ,  March , at . “Rational choice theory is based on the simple assumption that human beings are rational and self-interest motivated in their everyday actions. The notion that individuals tend to behave as rational and egoistic creatures also includes assumptions that their actions are predominantly intentional as well as that they have a stable and relatively consistent set of

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Dino Abazović different phenomena of collectiveness too, rational choice theory suffers serious limitations if used to explain and understand ethnic relations.19 Indeed, one of the major problems with applying the rational choice theory model to a complex multiethnic setting involves a post hoc type of reasoning: first, one presupposes individual rationality and then explains the results by referring to that rationality. Thus, the strategies for reconstructing Bosnia and Herzegovina have been built without seriously taking into account its historical, cultural and political particulars.20 Moreover, the crucial involvements of the international community can be subsumed under the aegis of paternalism and interventionism, and that is a more or less common attribute to the mandates of all High Representatives.21 Already, in December , in order to accelerate the process of implementation of the DPA, the Peace Implementation Council (PIC)22 decided to emphasize the authority of the OHR. Therefore, the High Representative was encouraged to use his final authority in making binding decisions on removals and suspensions, including actions against persons holding public offices or other officials. Since then, the High Representative has removed from office or suspended more than one hundred persons,23 from local party leaders to a member of the state presidency. Many official positions were affected: among others, mayors, governors, deputy ministers, ministers and prime



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preferences.” Siniša Malešević, “Rational Choice Theory and the Sociology of Ethnic Relations: A Critique”, () ERS (), –. I find Malešević to be correct in pointing out that “although RCT [rational choice theory] is presented as a successful explanatory alternative to post-essentialist criticisms of social science, its sociological and epistemological value is very limited. Since the main postulates of the theory are tautological and explanatory deficient for a serious sociological analysis, it is argued that RCT is not able to provide what promises to be a full explanation of social life. Equally so, rational choice approach has little value for the understanding and explanation of ethnic relations.” Ibid., at . One of the most popular anecdotes among the local population concerns a conversation between two international workers who meet accidentally in Sarajevo. The first, a person who has worked in Bosnia and Herzegovina for many years, asks the second how long he/she has been in the country and what he/she has been doing. The second person replies that he/she has arrived just yesterday and that he/she leaves the country tomorrow, while the reason for the visit is work on his/her book about Bosnia and Herzegovina. Asked about the title of the book, the ‘author’ answers: “Bosnia: Yesterday, Today, Tomorrow”. This statement does not hold true in the case of the present High Representative, Dr. Christian Schwarz-Schilling, for two basic reasons: first, he is still in the early phase of his mandate and, second, so far he has been very hesitant in using his powers. Following the successful negotiation of the Dayton Peace Agreement in November , a Peace Implementation Conference was held in London on - December , to mobilize international support for the agreement. The meeting resulted in the establishment of the Peace Implementation Council (PIC). The PIC comprises  countries and agencies that support the peace process in different ways—by assisting it financially, providing troops for SFOR or directly running operations in Bosnia and Herzegovina. There are also a fluctuating number of observers. For more, see . See .

Bosnia and Herzegovina: Ten Years After Dayton ministers at all levels, the president of an entity, the heads of entities’ secret services, judges, civil servants, company managers, etc. Did these actions of the High Representative include elements of lustration24 and disqualification? The answer obviously has to be affirmative, but in a limited sense; it was a case-by-case approach personally affecting some individuals, but there was no structural process of lustration and disqualification. The institutions, as such, were neither affected nor structurally changed. What can be said about the cathartic effect of these actions? It was equal to none. Any kind of purgatory measure will be interpreted from the narrow, closed-minded position of ethno-politicians and interpreted as intentional, unnecessary and unjustifiable. An additional problem with respect to practices like these is the problem of (the lack of ) transparency. The reform of the judicial sector can be used as an illuminating example. In Bosnia and Herzegovina, alongside the (de)certification processes of police officers25 and the removal practices performed by the High Representative, lustration issues are most visible in the field of the judicial system. The reappointment of judges and prosecutors under the umbrella of reform of the judiciary is the only situation in which the former employment and other records of individuals are examined in order to decide whether to hire or fire them. As a consequence of the decisions of the High Judicial and Prosecutorial Councils of Bosnia and Herzegovina (formerly, the Independent Judicial Commission),26 approximately  former judges and prosecutors will remain jobless. However, the justifications for these decisions are not publicly announced or elaborated. The public is informed only about reappointed candidates, while there is no information about those rejected. Partly due to that kind of practice, there has been more and more speculation about the process of reappointments in the local media and it has become a topic on the agenda of politicians, too. The main feature taken into account in those considerations is the ethnic affiliation of the selected candidates. In a certain way, the lack of transparency in the work of the international community’s representatives in Bosnia and Herzegovina has contributed to that kind of understanding amongst the public. Another reason for uneasiness is the fact that the strategy supported by the interna

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For more about lustration in Bosnia and Herzegovina, see Dino Abazović, “Public Debates on the Past: Effects on Democratic Structures – Lessons from the Case of Bosnia and Herzegovina”, in Magarditsch Hatschikjan, Dušan Reljić and Nenad Šebek (eds.), Disclosing Hidden History: Lustration in the Western Balkans (CDRSEE Thessalonica, CPDD Belgrade, Belgrade, ), –. This was performed by the International Police Task Force (IPTF) within the United Nations Mission in Bosnia and Herzegovina (presently, the European Police Mission (EUPM)). The Independent Judicial Commission (IJC) was the lead agency for judicial reform in Bosnia and Herzegovina; its first mandate was provided by the High Representative at the beginning of . For more, see . Since May , the institution that regulates many of the most important affairs of the judiciary is the High and Judicial and Prosecutorial Councils of Bosnia and Herzegovina. See .

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Dino Abazović tional community continues to address mainly the consequences of the ethnonational division of the country, while its causes are often completely disregarded. Finally, when it comes to the issue of local involvement in all of these interventions, a very illuminating assessment has been provided by a team from the Danish Centre for Human Rights, which was asked to analyze the challenges involved in the reform of the judicial system in Bosnia and Herzegovina. In its final report it stated: Apart from the concrete changes, which have taken place, the entire atmosphere between the domestic agencies and the IC [international community] also tends to change although in a more indefinable manner. It seems as if the IC at previous stages in the post-Dayton support to B-H sought to apply a rather sincere notion of partnership with their domestic counterparts. In the field of legal drafting, for instance, the international advisors spent hundreds of hours of consultation with the legal drafters in the domestic agencies. Today, the worlds are more or less apart. The team is obviously not in a position to unpack the reasons behind this change of mindset. But one can imagine a combination of two variables: disappointment and lack of results. Unfortunately, relations based on powers and authorities have replaced the notion of partnership. A highly unsustainable scenario.27

The activities of the agents of the international community in Bosnia and Herzegovina— be they the representatives of governmental, intergovernmental or non-governmental institutions, specialist agencies, institutions created for particular purposes in conformity with the Dayton-tailored state, military and police organizations or the think-tank mob—are astonishingly poorly coordinated and the most superficial analysis of those activities suggests what one might call the ‘too late’ syndrome. Despite the fact that there were no legal or other formal obstacles, almost every decision of major importance for the stabilization or advancement of the country has been made several years too late (for example, the decision on the constituent status of the peoples of Bosnia and Herzegovina, the decision on the implementation of that decision, the decision to reform the judiciary or the decision to extend the jurisdiction of the Council of Ministers of Bosnia and Herzegovina, the future government of state). Then again, though certain other major decisions were not as long awaited, their enforcement has been put off again and again into some uncertain future (one thinks above all of the arrest and trial of persons suspected of committing war crimes), which is worse. Many different sectors—for example, public administration—provide blatant examples of what I have called ‘passing the buck’.28 Everything that domestic decision makers do not know how to do or do not want to do is ‘proclaimed’ by them to fall within the jurisdiction of the international community in the country. The excuses and pretexts they put forward are generally along the lines of the ‘sensitivity’ and ‘complexity’ of the issue but, in principle, what is at stake is the necessity of taking unpopular steps that would be viewed with hostility within the homogenized electorate that votes for them on the basis of protecting their own monoethnic interests. The international community, too, faced with issues on which there is no broad-based consensus among  

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The Danish Centre for Human Rights, op.cit. note , . Abazović, op.cit. note , .

Bosnia and Herzegovina: Ten Years After Dayton its key actors, ‘delegates’ responsibility to the domestic authorities. Without disputing the fact that responsibility should always ultimately—and increasingly—lie with the domestic authorities, issues of crucial importance for Bosnia and Herzegovina remain unresolved because of this very ‘buck-passing’ and, as a result of this practice, fall somewhere between two stools. As Marko rightly argues: “[o]ne of the lessons to be learned from the example of B-H is that the overemphasis on democratization is wrong. If elections come too early without the necessary preconditions, i.e. free media throughout the country and a reestablished civil society – instead of ethnic pillarisation of the population, the nationalist elites are reinforced and democratically legitimised.”29 III. In Place of a Conclusion What needs to be advocated in Bosnia and Herzegovina is a (re)institutionalization of the public sphere and the justification of public policies. I agree with Jean L. Cohen that: the ability to reconcile identity and difference, universality and particularity, will depend not only on the proper safeguards for the multiplicity of different voices in public space (‘voice’) but very much on ‘bringing the private back in’, even if on this level, too, both universal norms and the defense of particular identities will inevitably reappear. At the very last, some of the fundamental preconditions for building and defending different, unique identities will depend on maintaining the necessary political and legal protection of privacy.”30

Still, as Carol C. Gould has noticed: [i]t has become a commonplace in political theory to criticize liberalism for its abstract universality and its abstract individualism, in which differences other than those of political opinion are ignored or overridden and assigned to the private sphere. But the alternative theoretical framework in which differences would be adequately recognized and effectively taken into account in the public domain remains undeveloped and problematic. Some basic questions arise here: what differences ought to be recognized, and why these rather than others?31

In the case of Bosnia and Herzegovina, according to the DPA, there is no doubt what the answer to the first question should be: ethnic and religious differences, then a couple of blank places and then all other differences!

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Marko, op.cit. note . I borrow this term from Jean L. Cohen, “Equality, Difference, Public Representation”, in Seyla Benhabib (ed.), Democracy and Difference, Contesting the Boundaries of the Political (Princeton University Press, Princeton, ), –, at . Carol C. Gould, “Diversity and Democracy: Representing Differences”, in Benhabib, op.cit. note , –, at .



Dino Abazović Considering the second question, it is not my intention to say that there was no necessity at all for Dayton to recognize these differences but problems arose as a consequence of the uncritical application, as well as poor understanding, of this part of the DPA. The best example I can use is Annex IV of the DPA, generally known as the Constitution of Bosnia and Herzegovina. Before the beginning of  and the landmark decision of the Constitutional Court of Bosnia and Herzegovina, it had been generally accepted that equality of the groups was the same as equality of individuals through non-discrimination. Therefore, the Constitutional Court pointed out that the “[e]quality of the three constituent peoples requires equality of the groups as such whereas the mix of the ethnic principle with the non-ethnic principle of citoyenneté in the compromise formula should avoid that special collective rights violate individual rights by definition. It thus follows that individual non-discrimination does not substitute equality of groups.”32 However, subsequent amendments of the Entity Constitutions during  (imposed by the High Representative) extended the ethnicization of the political system and increased its complexity, as well as increasing the predominance of ethnicity in the political system.33 Lastly, the parliament of Bosnia and Herzegovina failed, by just two votes, in April  to reach the two-thirds majority in the House of Representatives to pass constitutional amendments that would be a first step in the necessary (constitutional) reform process. Be this as it may, one very useful ‘tool’ for moving forward is the European integration process. Statements about the fact that the majority of the country’s population is in favour of EU integration—as well as the fact that this is one of the very few common things that the people of Bosnia and Herzegovina agree upon—have become a kind of mantra in Bosnia and Herzegovina. However, that is without taking into account the lack of empirical support for such a claim or any kind of harder evidence than the nominal statements of politicians in the domestic media. No matter what, the need for change has been clearly recognized; however, a future in Europe is too often regarded as a panacea for all of Bosnia and Herzegovina’s problems. Therefore, it is of vital importance that we work towards a shift of perspective: namely, that the requirements of Brussels be understood as internal necessities and that European values be seen as the values of Bosnia and Herzegovina too.

 



Constitutional Court of Bosnia and Herzegovina, Decision No. U/ III,  July , Para. . For more about this, see Florian Bieber, “Towards Better Governance with More Complexity?”, in Solioz and Vogel, op.cit. note , –.

Joseph Marko*

Constitutional Reform in Bosnia and Herzegovina 2005-06

I. The Dayton Constitutional Framework The Dayton Framework of Peace Agreement (DFPA)1 of December  brought an end to the war in Bosnia and Herzegovina (BiH). Its Annex , as part of the international agreement, contained ‘the’ Constitution for BiH, providing for the institutional mechanisms of the legislative, executive and judicial powers of the state of BiH and a human rights catalogue. Other annexes, in particular Annexes , ,  and , established special institutions such as the Human Rights Commission, the Real Property Claims Commission and the position and Office of the High Representative (OHR) as an “international supervisory body” responsible for the coordination of all civilian mechanisms for the implementation of the DFPA. Moreover, Annex  itself includes an appendix enumerating  international human rights instruments and declaring them directly applicable in BiH. So from the very beginning the question of what legal status the other annexes and these international human rights instruments have in the legal hierarchy of BiH was raised. This was clarified by the Constitutional Court in case U-/2 by attributing “constitutional rank” not only to Annex , but also to the other annexes and the international instruments in the annex to Annex . Interestingly, Article II. of ‘the’ Dayton *





Joseph Marko is currently Professor of Public Law and International Protection of Human Rights at the University of Graz, Austria and Director of the Minority Rights Institute at the European Academy Bozen-Bolzano, Italy. The General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes,  December ,  I.L.M. , available at . This case was published in the official languages in  in four so-called ‘partial decisions’: see Službeni glasnik BiH (Official Journal), No. /,  April ; Službeni glasnik BiH, No. /,  June ; Službeni glasnik BiH, No. /,  September ; Službeni glasnik BiH, No. /,  December . The English versions of the judgments of the Constitutional Court are also available at .

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 207-218. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Joseph Marko Constitution also declares the European Convention on Human Rights (ECHR) and its Protocols directly applicable and, in addition, states that they “shall have priority over all other law”. The meaning of the last sentence of this provision, however, caused a great deal of confusion, since it was literally translated into the domestic languages as “priority over all other laws” or “statutes”, thereby giving the ECHR a rank between the constitution and the statutes of parliament, known in Central European constitutional doctrine as the ‘mezzanine theory’. This question only became decisive in , when then President Sulejman Tihic brought a case before the Constitutional Court to review Article V of the Dayton Constitution in light of the provisions of the ECHR because the membership in the BiH presidency is literally restricted by the Dayton Constitution to persons who declare themselves Bosniak,3 Serb or Croat before the elections. This is, of course, a restriction on the right to stand as candidate in elections for all other citizens who do not ‘belong’ to one of the three so-called ‘constituent peoples’ in BiH. However, in two successive decisions,4 the Constitutional Court declared the case inadmissible, circumventing the decisive question of ‘supremacy’ of the ECHR over the Dayton Constitution by referring to general observations of transposition of international law into the Bosnian legal system. Only the dissenting opinion of Judge Constance Grewe in the second case correctly addresses the decisive legal question. In addition to the constitutional law on state level, composed of ‘the’ Dayton Constitution, i.e. Annex , the other annexes and the international legal instruments transposed into the Bosnian legal system through the annex to Annex , there are also the Constitutions of the two Entities, the Republika Srpska (RS) and the Federation of Bosnia and Herzegovina (FBiH). The Constitution of the RS5 had already been adopted in  after the Serb Democratic Party declared independence from the Republic of Bosnia and Herzegovina, obviously serving the goal of providing the constitutional framework of an independent state. The Constitution of FBiH was part of the Washington Agreement of  after the war between Croats and Muslims was ended through American intervention. Since the FBiH was construed as a federation, the territorial subunits of the FBiH, namely ten ‘cantons’, were also given the right to adopt their own constitutions. In conclusion, the entire constitutional framework in BiH is made up of  constitutions. However, as part of the political compromise in Dayton/Ohio, the state Constitution did not interfere with the constitutional framework of the Entities, thereby leaving the territorial and institutional set-up of the former warring parties unchanged. The entire constitutional framework was therefore written primarily as an instrument to stop the war, and by no means for the creation of a functioning state. The territorial delimitation into Entities and cantons along ethnic lines, the ethnic composition of the state institutions—namely the presidency, the House of Peoples, the council 

 



Muslims were renamed as Bosniaks in the Constitution of the Federation of Bosnia and Herzevovina as part of the Washington Agreement in , published in Službene novine Federacije Bosne i Hercegovine (Official Gazette of FBiH), No. /,  March . Constitutional Court of Bosnia and Herzegowina, Case U-/,  January ; and Case U-/,  May . Constitution of the Serb Republic of Bosnia and Herzegovina, Službeni glasnik Republike Srpske (Offical Gazette of RS), No. /,  March .

Constitutional Reform in Bosnia and Herzegovina - of ministers and, in practice, even the Constitutional Court, with mutual veto powers for “constituent peoples”—as well as the extremely weak position of the state vis-àvis the Entities with regard to the allocation of competencies did follow—to some extent—the theories of consociationalism developed by Arend Lijphart.6 However, this ‘model’ of democracy did not work in practice in BiH.7 Instead of a positive elite consensus for cooperation in order to establish mutual trust through power-sharing, the Bosnian party leaders from all three ethnic communities formed, and still form, an ethnocratic power cartel based on a negative consensus to block each other in the decision-making processes. In order to overcome this ethnically motivated deadlock, the respective High Representatives, based on the so-called ‘Bonn powers’,8 started to intervene more and more in daily politics, with the effect that the Bosnian party leaders could blame the international community for all uncomfortable decisions and give their respective electorate the impression of being staunch defenders of their respective national interests.9 It is therefore not surprising that all efforts of the OSCE to create a multiethnic party system through election engineering completely failed because the ethnonationalist parties had been constantly reelected since . There was no effective return of refugees and internally displaced persons until 10 because of ongoing discrimination against so-called ‘minority returns’, i.e. Bosniaks and Croats who wanted to return onto the territory of RS and Serbs onto the territory of FBiH, the entire educational system from kindergartens to universities remains ethnically segregated until this very day and—due to the strong competencies of the Entities in the field of the economy—BiH is, contrary to provisions in the Dayton Constitution, not a single market. In addition, there is almost no ‘civic’ identity and loyalty to the state of BiH except in the Bosniak population. When I asked (in the context of a research project on minority rights in the western Balkans by the end of )  interlocutors in BiH how they would define the term ‘Bosnian’ as opposed to Bosniak,  of them answered that they consider Bosnians ‘others’, i.e. another ethnic category of people rather than invoking the theoretical distinction of ‘ethnos’ and ‘demos’, so Bosnians would simply be defined as citizens of BiH regardless of their ethnic belonging. It is not surprising,  







See Arend Lijphart, “Consociational Democracy”,  World Politics (), -; and id., Patterns of Democracy (Yale University Press, New Haven, London, ). For a comprehensive review of the political and cultural effects of the implementation of the Dayton Constitution until the end of  see Joseph Marko, “Post-conflict Reconstruction through State- and Nation-building: The Case of Bosnia and Herzegovina”,  European Diversity and Autonomy Papers - EDAP (), at . For more information on the Office of the High Representative see the web page at . On the ‘Bonn powers’ compare recent writings of the current High Representative for BiH, Christian Schwarz-Schilling: “Less Is More”, weekly column in Dnevni Avaz, Nezavisne Novine, Vecernji List,  July , available at . See in general also David Chandler, Bosnia. Faking Democracy after Dayton (Pluto Press, London, ); and Christophe Solioz and Tobias K. Vogel (eds.), Dayton and Beyond: Perspectives on the Future of Bosnia and Herzegovina (Nomos, Baden-Baden, ). UNHCR, Returns Summary to Bosnia and Herzegovina from  January  to  January , available at .



Joseph Marko therefore, that due to the ethnic segregation of the educational system and the lack of a ‘civic’ identity, the formation of multiple identities as an axiomatic requirement for a multiethnic state and democracy seems almost impossible ten years after the end of the war. II. Incremental Constitutional Reform 1996-2005 Against the disintegrative processes stemming from the blockage of the decisionmaking process on the state level and the territorial and institutional segregation on Entity level, there were only two actors trying to stabilize the entire political system: the High Representatives Westendorp, Petritsch, Ashdown and Schwarz-Schilling and the Constitutional Court of BiH, composed not only of six ‘domestic’ judges—two Serbs, two Croats and two Bosniaks—but also including three international judges.11 The landmark decision of the Constitutional Court affecting the entire institutional system was case U-/, adopted in  and already referred to above, which became colloquially known as the “constituent peoples” case. In this case the Constitutional Court tried to counteract the ethnic homogenization of the Entities by ruling that the ‘national interest veto’ has strictly to be restrained to the state level and that each of the three constituent peoples must be represented in the governmental institutions of the Entities. At the same time, the Constitutional Court tried to shift the balance from political representation and veto rights for ethnic groups to a strengthening of individual rights. Secondly, in order to foster political stability and counteract disintegrative forces, the Constitutional Court tried to strengthen the competencies of the state institutions by confirming the category of “framework legislation” for the state parliament, thereby assigning shared competencies to the state and the Entities, particularly in the field of the economy. The new bench of domestic and international judges elected and appointed to the Constitutional Court in the course of  then followed this line of jurisprudence in the decisions U-/,12 adopted in  where the Court renamed all cities on the territory of RS which had got—in the course of ethnic cleansing during the war— Serb names and in U-/13 and U-/14 where the Constitutional Court had to rule for the first time on ‘vital national interests’ blocking the parliamentary legislative process. To the surprise of the parties, the Constitutional Court reversed the argument that university education in the Croatian language only could protect therefore ‘vital national interests’ of Croats into the rule that only multilingual education would be in the best interest of the people. The recent decisions of the Constitutional Court on the 

  



The author of this article has been one of the three international judges from  to . For a detailed overview on the constitutional jurisprudence of post-war Bosnia and Herzegovina until  see Joseph Marko, “Five Years of Constitutional Jurisprudence in Bosnia and Herzegovina: A First Balance”,  European Diversity and Autonomy Papers - EDAP (), at . Constitutional Court of Bosnia and Herzegovina, Case No. U-/,  September , Službeni glasnik BiH, No./. Constitutional Court of Bosnia and Herzegovina, Case No. U-/,  June . Constitutional Court of Bosnia and Herzegovina, Case No. U-/,  June .

Constitutional Reform in Bosnia and Herzegovina - ethnically exclusive composition of the Presidency of BiH mentioned above, represent a major step back in this line of jurisprudence. In addition to the Constitutional Court, many activities of the High Representatives have focused on strengthening the state institutions. However, despite all the time, money and effort invested by the OHR and the international donor community assembled in the Peace Implementation Council (PIC), reforms could be achieved only through strong political pressure—with the High Representatives using their ‘Bonn power’ more and more to dismiss public functionaries from office because of ‘obstruction’—and very slowly, so that necessary reforms lasted for years. Nevertheless, a common State Border Service15 and a State Court16 besides the Constitutional Court were established at the state level, and a VAT17 introduced, again managed on the state level. In , then High Representative Petritsch enforced also through ‘decreed constitutional amendments’18 the implementation of the decision of the Constitutional Court in U-/, thereby guaranteeing the ethnic representation of all of the three constituent peoples on Entity level. Finally, in , the former three armies could be integrated into one command structure through the defence reform19, and a police reform20 is still ongoing. What effect has this approach of ‘incremental’ constitutional reform really had? As far as politics are concerned, the negative elite consensus could not be overcome: neither was mutual trust created nor interethnic cooperation established at an elite level. With regard to the economy, financing the entire administration with  prime ministers, almost a hundred ministers and about  representatives in the parliaments of the state, Entity and cantonal level swallows % of the BiH budget. Given the state of the private economy, which is still aid-dependent rather than (foreign)   







Zakon o Državnoj granicnoj službi Bosne i Hercegovine (Law on the State Border Service of BiH), Službeni glasnik BiH, No. / and /. OHR, Decision establishing the BiH State Court,  November , available at . Zakon o porezu na dodatu vrijednost (Law on the Value Added Tax), Službeni glasnik BiH, No. / and Zakon o izmjenama i dopunama zakona o porezu na dodatu vrijednost (Amendments to the Law on the Value Added Tax), Službeni glasnik BiH, No. /,  June . OHR, Decision on Constitutional Amendments in Republika Srpska,  April , Službeni glasnik RS No. /,  April  available at , and OHR, Decision on Constitutional Amendments in the Federation,  April , Službene Novine FBiH, No. /,  April , available at . OHR, Decision Amending the Constitution of Republika Srpska,  April , Službeni glasnik RS, No. /,  May ; Decision Amending the Constitution of the Federation of Bosnia and Herzegovina,  April , Službene novine FBiH, No. /,  May ; and Zakon o odbrani Bosne i Hercegovine (BiH Defence Law), Službeni glasnik BiH, No. /,  December . Narodna skupstina Republike Srpske, “Odluka o prihvatanju Sporazuma o restruktuiranju policijskih struktura u Bosni i Hercegovini” (Parliament of RS, “Decision on the Adoption of the Agreement on the Reform of Police Structures in BiH”), Službeni glasnik RS, No. / and “Sporazum o restruktuiranju policijskih struktura u Bosni i Hercegovini” (“Agreement on the Reform of Police Structures in BiH”), at .



Joseph Marko investment-driven, BiH cannot afford such an exaggerated institutional system based on the territorial delimitation and ethnic division which is, moreover, largely ineffective in rendering necessary public services. In the field of culture, the system of strict ethnic representation and participation for the three constituent peoples excluding ‘others’ from any “effective participation” which would be required according to Article  of the Framework Convention for the Protection of National Minorities21 seems even to reenforce the country’s ethnic division.22 Power-sharing mechanisms—rather than tools to create mutual trust to overcome the ethnic divide also within the population—seem to become permanent mechanisms, thereby reenforcing the ethnic divide and preventing the formation of multiple identities (and hence loyalty to the state). In conclusion, the ‘basic problems’ of BiH have not been resolved using an approach of incremental reform: this includes the still-ongoing identification of ethnicity with territory, the unresolved problem of how to reconcile the need for a functioning state with a strict ethnic quota system in the institutional set-up, the lack of sustainable economic development due to the ethnic fragmentation of the market and, finally, the strict ethnonational identities that prevent the formation of multiple identities as a prerequisite for loyalty towards the state. III. Total Revision of the Dayton Constitution? With the beginning of , more and more voices started to raise the concern that any meaningful political, economic and cultural reform had to tackle the entire Dayton Constitution. Experts both from BiH itself23 and of the international community24 ‘identified’ the Dayton Constitution as the main barrier to be overcome so that the ground was laid for the public perception that only a total revision or Dayton II could











For more information on the Council of Europe’s Secretariat of the Framework Convention for the Protection of National Minorities, see the webpage . A comprehensive review of the legal situation of minorities and constituent peoples is given in Danica Railic and Joseph Marko, Minderheitenschutz im östlichen Europa. Bosnien und Herzegovina (Cologne, Graz, ), at . For the respective Serb and Croat positions see the recently published volumes: Bozo Zepic, Pat pozicija u Bosni i Hercegovini (Stalemate position in BiH), (Mostar, ); and Akademija Nauka i Umjetnosti Republike Srpske, Republika Srpska – Deset godina dajtonskog mirovnog sporazuma (Academy of Sciences of RS, RS – Ten years of the Dayton Peace Agreement), (Banja Luka, ). See also the study prepared on behalf of the Konrad-Adenauer-Stiftung by Kasim Trnka, Mato Tadic and Mile Dimcic, Zehn Jahre Implementierung von Dayton. Der Weg Bosnien und Herzegowinas in die Zukunft (Sarajevo, Banja Luka, ). See in particular the opinions of the European Commission for Democracy through Law (Venice Commission), Opinion on the Constitutional Situation of Bosnia and Herzegovina and the Powers of the High Representative, CDL-AD (),  March ; Parliamentary Assembly of the Council of Europe, Resolution  (); Markus Bickel, Studien zur Länderbezogenen Konfliktanalyse. Bosnien und Herzegowina (Friedrich-EbertStiftung, Bonn, November ); Otto Luchterhandt, “Die Verfassungsdebatte. Zwischenbilanz und Herausforderungen für Bosnien-Herzegowina” (unpublished manuscript).

Constitutional Reform in Bosnia and Herzegovina - help to resolve the problems of BiH as a ‘weak’ or even ‘failing state’ in the heart of Europe. Again it was left to the Americans to take the lead in a reform initiative when the former Deputy High Representative Donald Hayes established the “Dayton project” and started (with the support of the American embassy) to broker a reform package with the leaders of the six major parties in the Bosnian parliament. After strong pressure was exerted on the party leaders behind closed doors, not only by the US but also by representatives from EU institutions, a package of amendments to the Dayton Constitution25 was finally brought into parliament in April  as a ‘first phase’ of overall constitutional reform, but failed by two votes to meet the necessary two-thirds majority requirement for constitutional amendments. Could these proposed amendments have been a first step toward overcoming the ‘basic problems’ of BiH elaborated above? The answer to this question demands a careful analysis of the package of amendments brought into parliament. Article III of the Dayton Constitution refers to the allocation of competences between the state and the Entities whereby all competencies of the state institutions were enumerated, and Article III..a left those not enumerated in the form of a general subsidiary clause to the Entities. Unlike other federative countries, where most of the powers necessary for the functioning of the state are assigned to the federal level, many of those powers (such as defence, police and economic regulation) were left to the Entities, thereby making BiH the weakest federal system in the world. As can be seen from the new competencies proposed in Amendment I of the April package for the state institutions, mainly those competencies that had already been transferred to the state level through the incremental reform process by ordinary legislation before , should now be ‘confirmed’ by elevation to constitutional rank. These are defence and security, the establishment and function of the BiH Court and Prosecutor’s Office, or the tax system. Interestingly and necessary, Amendment I also introduces the category of ‘shared competencies’ between the institutions and BiH and enumerates the tax system, the electoral process, the judiciary, agriculture, science and technology, ecology and local self-government as such shared competencies. The framers of these constitutional amendments thereby followed the jurisprudence of the Constitutional Court in case U-/, which had already (by confirming the category of “framework legislation”) introduced a mechanism of shared competencies in place of mutually exclusive competencies and ruled that the following matters can be regulated by framework legislation of the Parliamentary Assembly of BiH, thereby making them shared competencies. Given that Article II. line  reads that all persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms, the right to property is not only a right which all authorities of BiH must respect, but there is also a positive obligation on the State to provide for the conditions which are 

Parliamentary Assembly of Bosnia and Herzegovina, Amendments to the Constitution of Bosnia and Herzegovina, Sarajevo,  March , available at . See also Venice Commission, Preliminary Opinion on the Draft Amendments to the Constitution of Bosnia and Herzegovina, CDL (),  April .



Joseph Marko necessary to enjoy this right. Article II. therefore grants a general authority to the joint institutions of BiH to regulate all matters enumerated in the catalogue of human rights, which cannot be exclusively left to the Entities because the protection must be guaranteed to all persons within the territory of BiH.26

Unfortunately, this decision of the Court was never used in practice due to the ignorance of all political parties and their constitutional experts who do not read the decisions of the Constitutional Court. A third, important component of Amendment I is the new provision that the state institutions are responsible for negotiating, developing, adopting and implementing, and the functioning of laws necessary for the fulfilment of European standards, as well as political and economic conditions linked with European integration. The State shall ensure compliance with the principles, priorities, and demands set forth by the European Union in the phases before and after accession. The State will establish the necessary bodies by law and undertake the necessary measures and determine the necessary procedures for the fulfilment of the criteria for accession and membership in the European Union, which includes the necessary mechanisms of coordination and cooperation with authorities at lower levels.

This exclusive competence of the state institutions can hardly be underestimated, and gives them full power to do anything “necessary and proper” for EU integration and could (in the future) develop the same power as the respective provision of the US Constitution. Some critics27 of the entire package for constitutional amendments have argued that this Amendment brings nothing new and would only confirm the status quo. I simply do not agree. Both the element of shared competencies and the EU-integration clause have a strong ‘implied power’ of strengthening the necessary integration processes inside BiH and vis-à-vis the EU. It is therefore the inherent power of Amendment I to enable a strong dynamic integration process and thereby overcome also the ethnic dividing lines. Amendment II of the package refers to the composition, competencies and procedures of the bicameral parliamentary assembly. First, the number of representatives in both the House of Representatives and the House of Peoples is raised from  to  and  to  respectively. In addition, provision II..b creates three guaranteed seats for ‘others’, i.e. “those who are not members of the constituent peoples”. Members of the House of Peoples who represent—ex constitutione exclusively—the three constituent peoples shall no longer be elected by the ethnic caucuses of the Entity parliaments, but from the House of Representatives. The parliamentary assembly, having been competent for legislation at the state level so far, had allocated this power to both Houses equally. Now the House of Representatives would become the overall competent legis 



Constitutional Court of Bosnia and Herzegovina, U-/, Partial Decision II,  February , Službeni glasnik BiH, No. /,  June , paras.  and . See in particular Damir Amaut, “Proposed Amendments to the Constitution of Bosnia and Herzegovina. Legal and Constitutional Analysis” (unpublished manuscript).

Constitutional Reform in Bosnia and Herzegovina - lative body and the House of Peoples given only the power to invoke the vital national interests veto. In addition, Amendment II..d identifies and enumerates the fields where the vital national interests veto could be invoked for the first time: the right to ethnic representation and participation; the identity of a constituent people; territorial organization; organization of the bodies of public authority; education; the use of languages and alphabets; national symbols and flags; religious and cultural heritage, identity and traditions; the integrity of BiH; public information systems; amendments to BiH Constitution; and any issue declared to be a vital national interest by two thirds of one of the caucuses in the House of Peoples. A further clarification is brought by the provision of II..e.iii insofar as the Constitutional Court has not only to review whether the vital national interest was invoked properly, i.e. the procedural regularity, but also to decide on the merits as it has done already in the past. Finally, the provision of II. foresees the dissolution of the parliamentary assembly when the House of Representatives fails to elect the prime minister. An assessment of this proposed amendment must be made in light of the problems of a functioning political decision-making process elaborated above. The possibility of blocking this decision-making process by use of the veto powers of the representatives of the constituent peoples foreseen in Article IV. of the Dayton Constitution not only through invoking it actively, but also by a threat to invoke it and create such an anticipatory effect was thereby seen as the main obstacle which caused the High Representatives to intervene more and more into daily politics by decreeing the necessary legislation instead of the competent, but blocked, Parliamentary Assembly. Seen from this perspective, raising the numbers of representatives in both Houses is certainly a necessary step to improve the spectre of political pluralism as is also the case with the three guaranteed seats for ethnic minority representatives. However, as far as veto mechanisms are concerned, nothing would have been changed in reality. The so-called Entity veto could not—due to strong resistance from the RS party leaders—be abolished and the clarification and thereby restriction of the vital national interests veto is not really a restriction since two thirds of each ethnic caucus could invoke the vital national interests in any matter. Hence, the restriction of the House of Peoples as a protection mechanism for vital national interests would not reduce its participation and equal footing in the entire legislative process at all. It also remains questionable whether it is wise to make the Constitutional Court the only body to decide on the invocation of vital national interest vetoes. Moreover, whether it was a bad legislative technique or an intent to abolish any possibility of establishing joint commissions in whatever form and composition to negotiate a political compromise, it would have been in any case both dangerous to overburden the Constitutional Court with obviously political decisions when it has to decide on the merits of a vital national interest as well as false from the perspective of democratic decision-making to abolish any institutional incentive to find a compromise which is the ‘essence’ of democracy. Amendment III of the package was to transform the collective presidency, which is composed, according to Article V of the Dayton Constitution, of one Bosniak, one Serb and one Croat member with a rotating mechanism to chair the collective body and to act as ‘the’ visible president in office. The new proposed provision foresaw a president and two vice-presidents together forming the presidency, again with the rule that they must not be from the same constituent people. In contrast to direct elections of the Serb 

Joseph Marko member from the territory of the RS and the Croat and Bosniak members from the territory of the FBiH, the new provision of III. foresees the indirect election of the three members of the presidency from and by the parliamentary assembly in a complicated system that gives first members of both Houses the right to nominate candidates from their ranks which are then followed by the ‘selection’ of three candidates—one from each of the respective constituent peoples caucuses of the House of Peoples. These three candidates must finally be ‘confirmed’ by the House of Representatives. The slate of candidates again has to keep the balance between the two Entities and three constituent peoples providing for at least one candidate for each Entity and the maximum from one constituent people. At first sight, this provision and procedure seem to be only a cosmetic change or even a tightening of the strict ethnic quota system applied in the Dayton Constitution, which former President Tihic fought against unsuccessfully before the Constitutional Court as elaborated above.28 To review, the main criticism was that the Dayton provision by referring literally to one Bosniak, one Croat and one Serb member ex constitutione excludes all ‘others’ from the right to stand as a candidate in presidential elections, thereby allegedly violating several international and European human rights instruments. A closer look, however, reveals that the new wording would no longer have—in theory—this exclusive effect for ‘others’. The new wording that the three members must not be from the same constituent people would allow, of course, also ‘others’ to become members of the presidency even if this is in reality not very probable if one looks into the complicated election mechanism which gives the ethnic caucuses in the House of Peoples the decisive role in selecting the three candidates from those proposed before by the two Houses. However, it must be stressed again that the letter of these provisions does not exclude that ‘others’ could also be nominated and selected by the constituent peoples’ caucuses. Initially, the Dayton Constitution contained only a relatively short section in Article V. on the council of ministers. Amendment IV tried to give many more details for the composition, election and procedure of the council of ministers. The president of the council is renamed the prime minister and nominated—as under the Dayton Constitution—for confirmation by the House of Representatives. Had the ministers before also been proposed by the presidency, this right is now transferred to the prime minister (obviously) to be based on negotiations of the parties who wish to form a coalition government. If the members of the council are not confirmed by the House, the prime minister loses his mandate and a new prime minister must be elected. If this is not successful, the new provision of Amendment II. foresees the dissolution of the parliamentary assembly with the unwritten, but obvious consequence of providing for new elections. This system has been severely criticized as providing for the breakdown of the entire institutional mechanism at the state level if in particular the representatives of RS want to block a functioning state. But this criticism overlooks the provision of Amendment IV., which provides for a sort of ‘caretaker government’ if a new prime minister and council cannot be elected. From a comparative perspective, the dissolution of parliament if the formation of a new government fails is a logical consequence in any parliamentary system of government, and not a Bosnian-specific instrument. 



Constitutional Court of Bosnia and Herzegovina, see supra note .

Constitutional Reform in Bosnia and Herzegovina - Interestingly, and obviously due to the consultation process with the experts from the Venice Commission, the initial proposal to give any minister from a constituent people veto power in the decision-making process of the Council was dropped from the reform package submitted to parliament. The original draft package contained also a comprehensive catalogue of human rights. Again, this amendment was dropped and not submitted to parliament after strong criticism from international experts for the many flaws and inconsistencies in the draft.29 IV. Assessment of the Attempted Reform and Outlook An overall assessment of the entire reform package must be divided into a legal and a political assessment. A legal assessment shows that the drafters of the amendments worked very hastily, so that many flaws and inconsistencies remained in the text submitted to parliament. It is astonishing that, eleven years after Dayton, there were still no constitutional experts—either in BiH or from the international community—at hand to carefully draft these constitutional amendments, let alone in the context of comparative constitutional law. The overall political assessment must address the ‘basic problems’ of BiH elaborated above. Did this constitutional package try to properly tackle the identification of territory and ethnic identity, the deadlocks resulting from veto mechanisms, and the need to strengthen state institutions let alone the necessity to foster the economy and multiple identities? Taking all the amendments together, it becomes obvious that the political parties were forced by the US and EU institutions to make a first step into this direction, but also that a leopard cannot change its spots. Even if the presidency composition had theoretically been opened to ‘others’, the powers of the House of Representatives and the prime minister strengthened and, most importantly, through the ‘necessary and proper clause’ on behalf of the state institutions for EU integration also the competencies of the state, the territorial delimitation of BiH into Entities and of the FBiH into cantons remained taboo and the abolishment of Entity voting in parliament was strictly denied by the representatives of RS. Already upon conclusion of the political agreement on the constitutional reform package there was a great deal of public speculation30 that this reform phase would be only a first phase of reform that would trigger, after the elections on  October , a second phase. This strategy of ‘phasing’ remained in place after the failure of adoption in parliament as well as after the elections. However, a closer look into party programmes and the public statements of politicians reveals that any constitutional reform after the October elections becomes even more complicated, since the two opposite substantial  

Venice Commission, Preliminary Opinion on the Draft Amendments to the Constitution of Bosnia and Herzegovina, CDL(),  April . For example see the following newspaper articles by O. Vukovic, “Dodik o drugoj fazi ustavnih promjena” (“Dodik about the second phase of constitutional reforms”), in Oslobodjenje,  March ; Ivan Lovrenovic, “Parlament i promjene” (“Parliament and Changes”), in Dani,  March , No. ; and Mirza Cubro, “Promjene” (“Changes”), in Nezavisne,  April .



Joseph Marko positions represented by former RS Prime Minister Milorad Dodik on the one hand and the Party for BiH, headed by Haris Silajdzic, on the other, have won the most votes and therefore feel democratically confirmed by the elections. All the Serb parties in RS pursue the position of ‘hands off ’ from RS, i.e. its name, territory and competencies, and the power-sharing mechanisms at the state level, whereas the Party for BiH, under Silajdzic, strictly advocates a ‘civic’ and ‘unitarian’ state. Political analysts, referred to above, have therefore already spoken of a stalemate position in BiH. It thus remains to be seen how this stalemate position can be overcome in any future constitutional reform process. At the time of writing this article, there are two schools of thought: in particular, economists from the World Bank and the Economic Department of OHR prefer to go on with the incremental reform process, arguing that the establishment of a single market or the reform of public administration—in particular of the ‘middlelayer’ of government, which is by far too expensive—would not need a ‘big-bang’ constitutional reform, but only a budget restraint for the Entities and minor constitutional adjustments. Political analysts and many Bosnian experts, however, do not share this view and prefer (from a contextual analysis) a total revision of the entire Dayton framework with the argument that the necessary stability of political institutions as a prerequisite for economic reform cannot be achieved if there is a constant, ongoing political quarrel on the allocation of competencies to the state, regional or local level. Any comprehensive decision on the allocation of competencies also requires the political decision of which institutions one needs at which level for the exercise of the respective competencies. In addition, it is again obvious that neither politicians nor experts in BiH have a recipe for overcoming this deadlock. It will therefore require strong support again, both political and technical, from both the US and EU to pursue the reform process in BiH in order to establish a functioning state by a consolidated democracy based on rule of law and to trigger the necessary economic development.



Joseph Marko*

Independence without Standards? Kosovo’s Interethnic Relations Since 1999

I. Introduction: The Political Context With UN Security Council Resolution  and the establishment of the United Nations interim Mission in Kosovo (UNMIK) in , interethnic relations in Kosovo between Kosovo Albanians and Kosovo Serbs have—also historically—shifted to a totally new and different political basis. After Kosovo was occupied by Serb troops on the eve of the first Balkan war in ,1 Kosovo remained (with the exception of the period of the two World Wars) part of the general “Yugoslav” state constructions, and up to now, it has been perceived by all governments in Belgrade as part of Serbian territory. The pendulum in interethnic relations between Serb-dominated governments and the Kosovo Albanian majority population swung between outright suppression and discrimination for most of this period combined with attempts on one hand to reverse the ethnic composition through settlement of Serb colonists in the s and again from  to , and to guarantee the strong status of territorial autonomy within the Socialist Republic of Serbia under the federal Constitution of the Socialist Federal Republic of Yugoslavia (SFRY) of  on the other. Politically, this constitutional status meant not only self-governance of the autonomous province with a fully-fledged legal and institutional system including its own constitution, parliament with legislative power, executive and judiciary with a constitutional court of its own, but also integration into the institutional structures at the republican and federal levels through the delegation system. In addition, in the late s and early s, the educational system, from the primary through secondary and *



Joseph Marko is currently Professor of Public Law and International Protection of Human Rights at the University of Graz, Austria, and Director of the Minority Rights Institute at the European Academy Bozen/Bolzano, Italy. A short, but concise history of legal and political events from  to  is elaborated by Joseph Marko, “Kosovo/a – A Gordian Knot?”, in id., Gordischer Knoten Kosovo/a: Durchschlagen oder Entwirren? (Nomos, Baden-Baden, ), -.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 219-241. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Joseph Marko university levels, was dramatically improved on the basis of mother-tongue education. In economic terms, Kosovo was seen as a notorious ‘poorhouse’, and according to the perception of ‘underdevelopment’, all communist governments pursued ‘development plans’ by pouring money into the region in order to ‘industrialize’ and ‘urbanize’ the region as a way out of the poverty trap. However, after Tito’s death in  and the mass demonstrations of  claiming to ‘upgrade’ Kosovo to a seventh republic of the federation, and which had been brutally suppressed by the police forces, this period of support of the political, educational and economic needs of the Kosovo Albanian population and its leadership came to an end again. Due to the outright suppression and discrimination of the Kosovo Albanian population and in particular its intellectual elite (who were perceived by the Serb communist governments of the time only as ‘terrorists’) as well as the demands of Kosovo Serb community leaders to protect them against alleged discrimination and forced expulsion from Kosovo, interethnic relations between Kosovo Albanians and Kosovo Serbs dramatically deteriorated again. The spiral of mass mobilization and transformation of political and economic claims into ‘ethnic conflict’ culminated after Slobodan Milosević came into power in Serbia and used the tensions in Kosovo for his power plays. This led to the de facto abolishment of the autonomy status by the new Serb Republican Constitution of  and the ‘special legislation’ of the Serb parliament between  and  thereby dissolving all Kosovo self-government institutions and installing direct Serb rule.2 In addition, all Kosovo Albanians not signing a loyalty declaration to the Milosević regime were released from public offices and services, including the educational system and health services. In particular, in public enterprises Roma often had to replace Kosovo Albanian workers. In response, under the leadership of ‘President’ Ibrahim Rugova, who had been elected by Kosovo Albanians despite the efforts of Serb police forces, Kosovo Albanians resorted to ‘passive resistance’ and established private schools and health services, parallel institutional structures through a government in exile, the president staying in Kosovo. After the demands of Kosovo Albanians were completely neglected in the negotations leading to the Dayton-Paris Accord for Bosnia and Herzegovina in , this policy of ‘passive resistance’ was seen by many among the Kosovo Albanian youth as having failed so that they themselves resorted to violence with the establishment of what later became known as the Kosovo Liberation Army (or UÇK in the Albanian acronym). With the intensification of violent conflict between Serb government forces and the UÇK in , the international mediation under the leadership of the US (which finally failed in Rambouillet) and NATO’s bombing of targets all over Serbia and Kosovo in spring  in order to prevent a ‘humanitarian catastrophy’, about one million Kosovo Albanians fled when faced with the attempts of the ‘Yugoslav’ army and ‘special’ police forces of the Serb Ministry of the Interior and paramilitary forces (known already from the Bosnian war for their massacres under the civilian population) to ethnically cleanse Kosovo. Interethnic relations had reached a low point. 



A detailed constitutional and legal analysis of these years was elaborated on behalf of the ICTY Prosecutor’s Office by Joseph Marko, “Expert Witness Report On Constitutional and Legal Issues in the MOS case”, , now available at .

Independence without Standards? Kosovo’s Interethnic Relations Since  The retreat of all ‘Yugoslav’ military and police forces, together with all the civilian administration from Kosovo south of the river Ibar after the ceasefire, left Kosovo in a political and institutional vacuum. The UNMIK administration3 established by Security Council Resolution  had, therefore, to start from scratch in terms of reconstruction of governmental institutions and the economy. Due to the political compromise to avoid a veto in the UN Security Council, Resolution  on the one hand confirmed the “territorial integrity” of the Federal Republic of Yugoslavia, which had been founded by Milosević in  after his claim to internationally recognize ‘rump-Yugoslavia’ had failed. On the other hand, the Resolution refers several times to “substantial autonomy and meaningful self-administration, pending a final settlement”4 for Kosovo. This has until now been interpreted by all of the Serb governments from Milosević to Koštunica as a ‘confirmation’ of an ‘eternal’ sovereignty of Serbia over Kosovo territory, whereas all Kosovo Albanian parties to this very day claim that the status of ‘substantial autonomy’ refers only to the interim period under UNMIK administration ‘pending a final settlement’. Hence, the decision of Security Council Resolution  not to decide on the ‘final status’ in terms of public international law left Kosovo in a limbo. Since the international military presence of Kosovo Force (KFOR) and UNMIK was established immediately after the war in  to provide for security on the ground, the return of refugees and to tackle the humanitarian catastrophy through humanitarian aid, not much time was left for “facilitating a political process designed to determine Kosovo’s future status.”5 In April , after the so-called ‘Constitutional Framework for Provisional Self-Government in Kosovo’6 (CF) of May  had already established the legal basis for the establishment of Provisional Institutions of Self-Government (PISG) and the transfer of powers from UNMIK to PISG, then Special Representative of the UN Secretary General (SRSG) Michael Steiner (as head of the UNMIK administration) coined the phrase “standards before status” in order to win time. These standards were then specified in the form of “benchmarks” in order to monitor “progress”.



  

A comprehensive assessment of the UNMIK administration until the end of  is given by Helmut Kramer and Vedran Džihić, Die Kosovo Bilanz. Scheitert die internationale Gemeinschaft? (LIT Verlag, Münster, ). See Preamble, last paragraph and paragraph (a) and (c). UN Security Council Res. , para. (e). Published as UNMIK Regulation No. /.



Joseph Marko Standards before Status Standards Functioning democratic institutions

Benchmarks – Effective, representative and functioning institutions of government authority in all Kosovo – Promotion of civil society structures, human rights and full participation of women – Lead role by PISG in policy setting – Transparency in the allocation of resources – Meaningful participation by minority civil servants in government – Responsible and professional media

Rule of law (police/judiciary)

– – – –

Extremism not tolerated by mainstream International judges and police enabled to take supportive function Increased reliability of and prosecution of crime by Kosovo judiciary Customs services and KPS participate in anti-organized crime strategy

– –

KPS recognized as reliable partner internationally

– –

Conditions for safe and sustainable returns and reintegration created

Freedom of movement Returns and reintegration

– –

Unrestricted movement by minorities without reliance on military or police All IDPs and refugees to have necessary information for decisions on returns Returns to urban areas to have started Adequate allocation of budget resources by PISG for returns and reintegration

Economy

– – –

Minimal legal and regulatory framework to secure investment Improved tax and revenue collection Adequate allocation of budget resources by PISG for returns and reintegration

Property rights

– – – – – – –

Significant progress in repossession in properties

Dialogue with Belgrade

Kosovo Protection Corps

Practical issues addressed through direct contacts Problems solved through dialogue and coorespondence Business relations restarted Appropriately reduced contingent Unqualified compliance with KPC mandate Relations established with all communities and proportionate minority protection

Source: Kramer and Džihić, op.cit. note , 

While these benchmarks had been established without the participation of any Kosovar parties, the amended “Standards for Kosovo” adopted in  were elaborated with the participation of PISG. Kosovo Serb politicians, however, declined to participate—probably on instruction from the Belgrade government—since they saw all of the measures



Independence without Standards? Kosovo’s Interethnic Relations Since  of UNMIK and PISG as precedent of the “final status” in preparing an independent Kosovo. In contrast, all the Kosovo Albanian parties and their leaders were dissatisfied with the ‘slow progress’ of transfer of powers to PISG, the bad economic situation with almost % overall unemployment, the barriers for privatization through the notion of ‘socially owned property’ preventing any meaningful domestic or foreign investment, and the unsuccessful efforts to integrate the so-called Kosovo Serb ‘parallel institutions’ which are maintained north of the river Ibar in the three majority Serb inhabited municipalities and Serb ‘enclaves’ scattered throughout the south of Kosovo effectively establishing a fully fledged segregated institutional system of politics (local self-government and informal ‘association’ of Serb municipalities linked with almost total refusal to participate in PISG) and culture (education including a ‘university’ in North-Mitrovica) financed by the Serbian government in Belgrade. Thus, in a situation of “stagnation” with regard to democratization and the establishment of rule of law and effective public services, in March  this state of affairs literally ‘exploded’ in events which became known as the ‘March riots’. Following an incident among children which had been reported by the media as interethnic violence, over three days of looting and burning, Serb Orthodox monasteries, churches and houses as well as those of the Ashkali community were destroyed by a mob. KFOR, the UNMIK Police and Kosovo Police Services were taken by surprise and could not fulfill their task of protecting the minority communities against this outburst of ethnically motivated violence.7 With the March riots, it finally became obvious that the policy of ‘standards before status’ had failed. The new SRSG Søren Jessen-Petersen proclaimed in August , when he was installed in his position, that “there is a limit to how long you can keep a place in limbo”8 and he set the focus on six priority areas9 from the “Standards for Kosovo” document where PISG was supposed to achieve significant progress until mid- in order to be able to start negotiations on the future status. The real ‘shift’ of the paradigm from ‘standards before status’ to ‘standards and status’ came finally with the report of the UN Secretary General Special Envoy, Ambassador Kai Eide, in October .10 This report proved the starting point for serious negotiations on the future status of Kosovo, although Eide’s diagnosis of the situation on the ground had identified serious deficits in the implementation of standards, particularly the situation of minority communities, which will be analyzed in detail below. In addition, UNMIK also concluded a treaty with the Council of Europe in order to provide the necessary ‘state report’ on Kosovo for monitoring, through the Advisory Committee 

  

There is, of course, an alternative interpretation or, maybe, conspiracy theory which alleges that these riots had been carefully planned by Kosovo Albanian parties and the international community standing at least passively by. However, since these events have—to the shame of UNMIK—never been properly clarified by the criminal courts in Kosovo, it is difficult to establish the facts. See ICG Report, “Kosovo: Toward Final Status”,  January , . These were security, rule of law, decentralization, freedom of movement, return of refugees and functioning democratic institutions. Kai Eide, “A Comprehensive Review of the Situation in Kosovo”,  October , at .



Joseph Marko and the Council of Ministers, whether the obligations following the ratification of the Framework Convention for the Protection of National Minorities (FCNM) by Serbia and Montenegro had been fulfilled. After a delegation had visited Kosovo also in October , the Advisory Committee presented its opinion on the Implementation of the FCNM in November .11 Based on the Eide Report, the UN Secretary General appointed former Finnish President Matti Athisaari as Special Envoy for the Future Status Process for Kosovo in late , and a United Nations Office of the Special Envoy (UNOSEK) was established in Vienna. UNOSEK divided the status talks into two phases in early . The first phase, called ‘talks on the technical level’ (covering subjects related to decentralization, cultural heritage, economy and community rights) was seen as a confidence-building measure to figure out possible solutions on the ground, whereas the second phase (with ‘direct talks’ between Belgrade and Prishtine) was regarded as ‘political’ in order to draft a settlement agreement which could then be endorsed by a new UN Security Council resolution. The substantial issues with regard to the situation of minority communities in these ‘status talks’ will be elaborated in the last chapter. II. The Situation of Minority Communities After 1999 A. Law in the Books Despite the fact that the entire conflict in Kosovo has to be seen as an ethnic conflict in which the Serb governments in Belgrade more or less instrumentalise the Kosovo Serb population for their internal power politics on the one hand, and the majority of the Kosovo-Albanian population having been discriminated against for decades, with hundreds of thousands of refugees from all ethnic communities fleeing Kosovo before and during the NATO bombing in  on the other, Security Council Resolution  addressed the rights and needs of ethnic communities only in terms of a “humanitarian” problem by establishing the necessity to “protect and promote human rights”, “to assure safe and unimpeded return of all refugees”12 or “to ensure the protection of freedom of movement” as tasks of the “international security presence”, i.e. KFOR to be deployed, and the “international civilian presence”, i.e. UNMIK. The Constitutional Framework, however, made explicit reference also to the ethnic communities and their rights. Chapter , instead of providing a substantive list of human rights, enumerates a list of international human rights instruments, inter alia the Convention on the Elimination of All Forms of Racial Discrimination, the European Charter for Regional and Minority Languages and the Framework Convention for the Protection of National Minorities, which are declared “directly applicable” in Kosovo. Chapter  then enumerates “specific” rights of communities and their members. These include the traditional ‘liberal’ human rights, such as freedom of association and freedom of information including to maintain media. They are drafted, however, as language rights by guaranteeing the use 





Avisory Committee opinion on the Implementation of the Framework Convention for the Protection of National Minorities in Kosovo, ACFC/OP/I() at . See paras. (h) and (j) and (k).

Independence without Standards? Kosovo’s Interethnic Relations Since  of the minority languages in private and public, in particular before courts and administrative bodies or to be guaranteed access to, and representation in, public broadcast media with minority language programmes. Moreover, such cultural rights are foreseen as the use and display of community symbols, the preservation of religious, historical and culturally important sites and the operation of religious institutions. In terms of socioeconomic rights, these provisions prescribe “equal opportunity” with respect to employment in public bodies and public services at all levels, non-discriminatory public health and social services and the right to education in their own language, in particular in the public educational system. The provisions from the Constitutional Framework were then specified in laws of the Assembly, which will be referred to in more detail below. All of these rights of communities and their members more or less follow the provisions of the FCNM, and do not introduce any new substantial rights with one exception: with regard to the provision on “effective participation” under Article  FCNM, the institutional mechanisms of the Kosovo bodies go far beyond this vague language of the FCNM by introducing proportional representation and participation of “nonmajority communities” in the legislative, executive and judicial branches. Chapter ..(b) provides for twenty “reserved seats” in the -member Assembly. Ten seats are thereby reserved for representatives of the Kosovo Serb community, whereas the other ten seats must be allocated to the Roma, Ashkali and Egyptian communities (), Bosniak community (), Turkish community () and Gorani community (). This system guarantees the de facto over-representation of at least the Serb community, since members of all communities can be elected also on the party lists in the ‘general’ elections for the  seats. The Serb community and the other communities are also guaranteed one member each in the presidency of the Assembly and in all committees. In addition, a Committee on Rights and Interests of Communities is established with advisory function for all bills. With regard to decision-making procedures Chapter .. through .. provides also for a “national interest veto” which can be submitted by any member of the Assembly with the support of five other members. If political negotiations fail to reach a compromise, the simple majority of the Assembly has the final say on whether to amend the bill or reject the motion. This is in contrast to similar mechanisms in Bosnia and Herzegovina or Macedonia where either the Constitutional Court of BiH has the final say or the veto can be overruled only by a double majority requirement. As far as language requirements are concerned, Albanian and Serbian are “official languages” in the parliament for all working procedures. All promulgated laws must also be published in the Bosniak, English and Turkish languages.13 With regard to the executive power, the CF14 provides for at least two ministers from the non-Albanian community, at least one of them, again, from the Serb community. The official languages of government proceedings are again Albanian and Serbian, whereas a minister from other communities may use his language. As far as public administration is concerned, chapter . of the CF prescribes that the provisional institutions shall “ensure fair representation of Communities in employment in public

 

CF, Chapter .. through ... CF, Section , .. and ...



Joseph Marko bodies at all levels”, whereas the judiciary “[…] shall reflect the diversity of the people of Kosovo.”15 Chapter , finally, provides for an ombudsperson who shall, in his or her investigative and advisory function, give priority to allegations of discrimination and violation of rights of communities and their members. Many of these provisions of the CF concerning the institutional setting are also regulated in greater detail by the laws of the Assembly and Administrative Directives. With regard to representation in the entire civil service, UNMIK Reg. / clarifies in section . that “the non-majority community representation in the composition of the Civil Service at all levels shall be closely proportionate to the representation of nonmajority communities in the Assembly”—which as indicated above, implies an overrepresentation—and Administrative Directive / then sets the numerical target of % of offices in the civil service which have to be reserved for the “non-majority communities”, i.e. non-Albanian communities. UNMIK Regulation /, amending Regulation / by introducing new ministries and a deputy prime minister and deputy ministers, provides for the latter also the rule to ensure “equitable representation of Kosovo Serb and other non-majority Communities.” As far as the private labour market is concerned, the regulation of employment through contractual relationships was covered by UNMIK Regulation / on the Essential Labour Law in Kosovo. Section  of this law, however, contained only a poorly drafted “prohibition of all kinds of discrimination” which in no way reflected the much more detailed and precise rules of the respective EC Directives.16 In particular, the very imprecise language of paragraph ., that “any distinction, exclusion or preference in respect of a particular job based on the inherent requirement thereof shall not be deemed to be discrimination” without at least requiring public advertisements and the application of the proportionality principle by judges in conflicts before courts, was much more an open invitation to discrimination than allowing—what was meant, but not spelled out—measures of ‘affirmative action’, let alone to prescribe them in favour of vulnerable groups. With UNMIK Regulation / providing for “the Anti-Discrimination Law”, the legislative standards were, however, definitely improved in line with the respective EC Directives. Already Article  clearly provides for a change of “philosophy” from purely formal to a more substantive equality insofar as the purpose of this law is seen now in “the promotion of effective equality.” Article  then—as guiding principles—prohibits both direct and indirect discrimination, inter alia, based on ethnic origin, nationality or religion and provides for “fair representation” to employment in the frame of public bodies at all levels. Articles  and  then give detailed definitions of indirect discrimination, harassment and segregation and describe the areas where the provisions of this law must be applied, inter alia, in access to employment, working conditions, public services, social advantages, education and access to housing and all other forms of property. Article  provides for positive  



CF, Section , ... Council Directive //EC of  June  Implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin, OJ L  ( July ); and Council Directive //EC of  November  Establishing a General Framework for Equal Treatment in Employment and Occupation, OJ L  ( December ).

Independence without Standards? Kosovo’s Interethnic Relations Since  action, and Articles  and  prescribe procedural requirements including, as the most important measure, a shift in the burden of proof to those accused of discrimination. In the field of education, there is UNMIK Regulation / on the Promulgation of a Law Adopted by the Assembly of Kosovo on Primary and Secondary Education in Kosovo, and Regulation / on the Promulgation of a Law Adopted by the Assembly of Kosovo on Higher Education in Kosovo. Both laws simply repeat the right to education in the mother tongue and prohibit discrimination on any ground, inter alia ethnic or social origin and association with a national community. It is on obvious lack of legislative regulation that the law on primary and secondary education provides for the use of “sign language” but makes no such provisions for the implementation of the right to education in the mother tongue. In conclusion, the entire legal framework with regard to the protection of ethnic communities is sharply divided. As far as political representation and participation are concerned, the ethnic communities are given group rights through proportional or ‘equitable’ representation in the legislative and executive powers on the one hand, and the judiciary on the other. All other sectors, however, contained only vague anti-discrimination provisions on an individual basis until the general Anti-Discrimination Law was adopted in , which shifts the priority to ‘effective equality’ and allows for positive actions in order not only to protect against discrimination, but also to foster the ‘identities’ and preservation of culture of ethnic communities. However, against the spirit of the FCNM, positive actions in favour of vulnerable groups, in particular ethnic communities, are not defined as a legal must. Only in  did the Assembly adopt Laws on Institutions of Culture, on Freedom of Religion, and a Cultural Heritage Law,17 which start to give the principles of the CF more substance by providing for equality and autonomy of religious denominations and both organisational and financial support in the field of culture. B. Law in Practice: Ongoing Ethnic Cleansing, Segregation, and Discrimination or What? 1. ‘Who’ are Non-Majority Communities? The last census with participation of Kosovo Albanians was carried out in Kosovo in . The census of , carried out by the communist regime all over Yugoslavia, was already boycotted by the Kosovo Albanian population. If one takes into account the legacy of the Milosević regime and the war in  with hundreds of thousands of refugees, it is no wonder that no reliable data are available. All figures given must therefore be considered estimates. The overall population is estimated to be approximately two million, of whom around % are Kosovo Albanians, with Kosovo Serbs accounting for roughly % and other ethnic communities around %.18 Allegations based mostly on figures given by Belgrade government sources claim that more than , Serbs left Kosovo in ,  

See UNMIK Reg. / on Institutions of Culture; Reg. / on Freedom of Religion in Kosovo; Reg. / Cultural Heritage Law. See Statistical Office of Kosovo, “Kosovo and Its Population”, revised version, available at .



Joseph Marko whereas the international think-tank European Stability Initiative based on figures from primary school enrollments calculates that the number of Serb refugees was about ,, so that two thirds of the Serb population (which was , according to the census of ) remained.19 The UNHCR estimates that only , people have returned from outside Kosovo since , among them , Serbs, , Ashkali and Egyptians,  Roma and  Bosniaks.20 The differentiation into Roma, Ashkali and Egyptians, which are nevertheless summarized again very often in reports as RAE communities, is a recent development which was not in use before Milosević came into power. However that may be,21 today the terms ‘Ashkalia’ and ‘Egyptian’ are mostly used as self-identification and ascription for those who do not speak a Romani language, but Albanian. Their official numbers were , in the  census. Even the term ‘Bosniak’ for the designation of ‘Slavic Muslims’ in Kosovo (who had sometimes been identified themselves as ‘Torbeshi’) came into being only after . They claim that there had been at least , of them in , and their number is approximately , today.22 Gorani are also Muslim and Slavic, but distinct from ‘Bosniaks’ and named after the mountain region of Gora in the southwest where they traditionally lived. Their numbers are estimated at , today. The ethnic Turks, descendants of the Ottoman Empire, settled mostly in the region of Prizren with smaller communities elsewhere and are estimated between , and ,. In addition, there are two small communities of Croats in the villages of Janjevo and Letnica. As for the geographical distribution of the remaining Kosovo Serb community, there is a sharp divide cumulating territorial division and the urban/rural divide. As already outlined above under the political context, the municipalities north of the river Ibar (Zvecan, Zubin Potok, Leposavic and the now-divided town of North Mitrovica) have a Serb majority population which refused to integrate into UNMIK and PISG structures and maintains—with financial and logistical support from Belgrade—socalled ‘parallel structures’ including a hospital and university with instruction in Serb language only in a territorially sharply divided ‘region’. However, they make up only one third of the remaining Kosovo Serb population. Two thirds are scattered throughout the ‘south’ of Kosovo with a majority Kosovo Albanian population in what became known after  as ‘enclaves’ ‘guarded’ by KFOR. There are concentrations of Serbs in municipalities of Gjilan, Novo Brdo, Viti and Kamenica in the south-east, in Serb-majority Strpce in the south, and in the settlements around Gracanica near Prishtine. In these mostly rural areas people lived in small communities, often on farm lands which their families had operated for generations. In contrast, urban Serbs in Prishtine and larger   





See European Stability Initiative, “The Lausanne Principle. Multiethnicity, Territory and the Future of Kosovo’s Serbs”, Berlin-Prishtine,  June , . See UNHCR Kosovo, Minority returns from internal and external displacement by region, figures, percentages, May . The Advisory Committee strongly criticizes that “the international community” refers to Roma, Egyptians and Ashkalia only as RAE thereby not respecting the specific identities of the groups concerned. Advisory Committee opinion on Kosovo, para. . Shadow Report, Framework Convention for the Protection of National Minorities in Kosovo, Prishtine , .

Independence without Standards? Kosovo’s Interethnic Relations Since  towns held positions in the administration and public enterprises enjoying all privileges of close affiliation with the political regime, particularly after  when all Kosovo Albanians where purged from this sector. Thus, the effect of the  war in short was that almost all urban Serbs left, with North Mitrovica remaining as the last ‘urban outpost’, whereas the vast majority of rural Serbs stayed.23 2.

Reconstruction of Institutions and Economy and the General Effects on NonMajority Communities As has already been outlined above with regard to the political context, Kosovo society was institutionally segregrated by the Milosević regime through exclusion of Kosovo Albanians from political participation, the labour market, education, health and other social services. With the change in power relations through the war in  and the establishment of UNMIK administration, the relationship between the Kosovo Albanian and Kosovo Serb communities has basically simply turned upside down. Kosovo territory, institutions and society remain largely territorially divided and institutionally segregated through the refusal of most of the political leaders of the Serb community, instrumentalized by the Belgrade governments, to participate in PISG institutions24 and the maintanence of so-called parallel structures.25 On the other hand, neither KFOR nor UNMIK police or Kosovo Police could effectively establish personal security or guarantee freedom of movement for non-majority communities, in particular Kosovo Serbs, Ashkali and Roma, as the March riots of  drastically proved. Against all “progress reports” of UNMIK on institution-building, but very easily identifiable from the reports of the Ombudsperson, the reasons for this inability can be seen in a mix of KFOR very restrictively interpreting their mandate so that in fact KFOR units even fostered separation,26 the lack of capacity of both UNMIK and Kosovo police,27 and the unwillingness of the Kosovo Albanian political and intellectual elites28 publicly to     



ESI, Lausanne Principle, . On the background of the election boycott  see Kramer and Džihić, op.cit. note , . ESI, Lausanne Principle, however, convincingly argues that this is the only option for the Kosovo Serb population to remain in Kosovo for the moment. See the example of German KFOR given by Clive Baldwin, “Minority Rights in Kosovo under International Rule”, Minority Rights International Group Report , . In particular UNMIK police are ridiculed by the population as Coca-Cola police due to the colour of their cars which are omnipresent in Prishtine. But most UNMIK police personnel seem to spend their time in cafés as I could observe myself through various visits over the last few years. In addition to this ‘anecdotal evidence’ see Joseph Marko et al., “Re-enforcement of Rule of Law in the Western Balkans, Report commissioned by EuropeAID”, , available at . See Advisory Committee opinion on Kosovo, para. , where the opinion states that the Advisory Committee is aware “that the implementation legislation, policies and practices are unlikely to succeed as long as the latter are perceived as being ìmposed from outside […]” In interviews carried out in the framework of the research-project “European Integration and its Effects on Minority Protection on Southeast Europe”, financed under the research programme “New Orientations for Democracy in Europe” (NODE) of the Austrian Ministry of Sciences, in mid- in Kosovo, many interlocutors from university



Joseph Marko speak out for the protection or even promotion of the Kosovo Serb community, which is perceived in general as a collaborator to the Milosević regime.29 Moreover, UNMIK and PISG have failed to effectively establish rule of law. The March riots were described by the UN Secretary General as an “organised, widespread and targeted campaign” with officially  people left dead,  wounded, , persons displaced,  homes destroyed and  Orthodox churches and monasteries burned. Two years later, many houses have been rebuilt, but very few people have been convicted for the crimes that took place, and those who have, have been largely at a low level.30 In general terms, the Eide Report states that with regard to the rule of law “the main challenge today is the lack of ability and readiness to enforce legislation at all levels. Respect for rule of law is inadequately entrenched and the mechanisms to enforce it are not sufficiently developed.” 31 In particular, the justice system must—according to the Eide Report—be regarded as the weakest of Kosovo’s institutions with, for instance, a huge backlog in property rights cases, many of them affecting claims of minorities. “For serious interethnic crime, the law enforcement record is also weak. Far too few perpetrators of serious crimes are ever brought to justice. Other crimes—such as theft of livestock and agricultural equipment belonging to minorities and illegal use of agricultural land—are rarely prosecuted. This reinforces the sense that criminals can operate with impunity.”32 It is breathtaking that the Advisory Committee reports that “there are no comprehensive data on the status of investigation and prosecution of ethnically biased incidents since ” and describes this in rather euphemistic language as “a major shortcoming, especially in a society such as Kosovo, where it is vital to show, in a transparent manner, how public institutions deal with inter-ethnic incidents […]”.33 With regard to the economy, Kosovo was the poorest region of the former SFRY, and probably one of the poorest regions in Europe, despite its wealth of mineral resources and water. This has not changed under UNMIK, despite the fact that the offical unemployment rate, ranging from  to % in some regions must—due to lack of serious statistical data beginning with the lack of data on the overall population—be taken very cautiously.34 These figures must be put into a ‘structural’ context: due to discrimination



    



institutions and NGOs with a Kosovo Albanian background stressed again and again that all individuals must be equal before the law and that there is no need for preferential treatment, in particular for the members of the Kosovo Serb community. In the words of the Eide Report: “Today, the Kosovo Albanians demonstrate a stronger self-confidence and assertiveness. They are—understandably—shaping their identity as a ruling majority population. This identity is—to a large extent—built on controversial events, personalities and symbols and often is in opposition to the identities of Kosovo Serbs and other communities. […] They see the Kosovo Serbs as instruments of Belgrade and therefore as part of a remaining threat to their future.” (para. ). See Baldwin, op.cit. note , . Ibid.,  Ibid.,  and . See also Advisory Committee opinion on Kosovo, para. . Advisory Committee opinion on Kosovo, para. . My description on the state of affairs and respective figures for the economy follows Arben Hajrullahu, “Country Report Kosovo”, carried out for the project “Access to Education, Training and Employment of Ethnic Minorities in the Western Balkans”, January ,

Independence without Standards? Kosovo’s Interethnic Relations Since  over decades with no equal or fair opportunities in the public sector, many Kosovo Albanians sent two or three children abroad as ‘migrant workers’ so that they would not only become much more experienced in private business, access to foreign countries and establishing ‘networks’, but would also send money back home to support their families’ economic survival.35 It goes without saying that Rugova’s approach of ‘passive resistance’ and the establishment of Kosovo Albanian parallel structures during the Milosević regime would not have been possible without these ‘diaspora transfers’. Moreover, this is—for me—the only serious explanation why no social revolt has occurred, since the age structure is also very different, with % of the population under the age of . Every year, , high school graduates theoretically enter into the formal labour market. Another factor is the understanding of ‘work’: working on farmland or in private businesses belonging to one’s own family is not considered ‘work’, so such people do not actively look for jobs, and are registered as ‘unemployed’. In contrast, Kosovo Serbs have, as already outlined above, been employed in the public sector, apart from their share in subsistence agriculture. But neither rural nor urban Kosovo Serbs were used to work as migrant workers abroad, so the Milosević legacy affected them much more. Nevertheless, the unemployment rate in Kosovo seems to be twice as high as in the neighbouring transformation countries. Most affected by unemployment are young people aged between  and  (with an estimated rate of .%), women (with around %) and minority communities who live mostly in rural areas which have a general unemployment rate of about .%. Moreover, it took UNMIK quite some time against the resistance of the Belgrade governments and its own New York based headquarters to resolve the problem of transformation of property rights from the Titoist notion of ‘socially owned’ property of public enterprises and land to either state or private property and thereby trigger a privatisation process as the essential precondition for any foreign investment. Despite a plethora of institutional structures for minority issues set up by UNMIK, these efforts seem to have been ineffective due to the total lack of coordination36 and even an unwillingness to foster minority protection. Hence the Advisory Committee insists in its report that “return requires not only security, but employment opportunities as well” and with regard to the forceful returns of Ashkalia and other minority communities from western Europe, it criticizes that “neither UNMIK nor the PISG have introduced systematic assistance or other measures to facilitate the integration of individuals that have been forceably returned.”37 Moreover, most of the attention of the international community is fixed on the Kosovo Albanian and Serb relationship, so that



 

which was commissioned by the European Training Foundation/Torino, available at . However, as the report by ESI, “Cutting the Lifeline. Migration, Families and the Future of Kosovo”, September , convincingly argues, remittances did not at all trigger sustainable economic development. This must be the conclusion from Baldwin, op.cit. note , -. Advisory Committee opinion on Kosovo, paras. -.



Joseph Marko “the situation of other minority communities in Kosovo is not given adequate attention by UNMIK, the PISG and others concerned”, as the Advisory Committee states.38 In conclusion, the Eide Report stated that there is “a need to speed up work with regard to property rights, strengthen return policies, improve human rights instruments, enhance law enforcement efforts in general and ensure that privatisation does not affect minorities in a discriminatory way.”39 3. Education The total institutional segregation of the entire educational system in the relationship between Kosovo Albanian and Serb students as a legacy of the Milosević regime has in no way been changed by UNMIK. There are  primary and secondary schools with instruction in the Albanian language,  schools with instruction in Serbian,  with instruction in Bosnian, two with instruction in Turkish and  (%) with bilingual education.40 There are two universities: the University of Prishtine and the University of North-Mitrovica which is, however, part of the ‘parallel structures’ under the control of the Belgrade government. In , a Faculty of Economics was established in Peja/Pec with instruction in Bosnian language and the Faculty of Pedagogy in Prizren offers lectures in Bosnian and Turkish. Due to a system of quotas for minority communities in the University of Prishtine since ,  places are offered for Bosnians,  for Roma, Ashkalia and Egyptians and  for Turkish students. In addition, the Ministry for Education, Science and Technology has also tried to include teachers from all communities in training programmes. Roma pupils, however, have to attend schools with instruction in either Albanian or Serbian. They together with the Ashkalia and Egyptians have, in practice, almost no access to secondary and higher education, as can be seen from the drop-out rate of more than % of their pupils from primary education until the age of . Despite catch-up classes organized for them, they remain caught in a vicious circle: due to their extreme poverty, they have no access to education, which reinforces their poverty and exclusion from the labour market, so that Roma children tend to be excluded even from the illegal child labour market. Statistical data on school enrollment show that the average of pupils from smaller minority communities is disproportionate to their overall percentage in the population and that Turks, Bosniaks or Croats often attend upper and higher education institutions in their respective ‘kin-states’. In conclusion, the lack of freedom of movement and security41 for non-majority communities is still a major obstacle te establishing an efficient educational and training system. Numerous initiatives have addressed the needs of minority communities, but a comprehensive, Kosovo-wide strategy has not been developed for them. In addition, the system of higher education is highly politicized and under the control of competing

   



See also ibid., para. . Eide Report, op.cit. note , . Again my description of the state of affairs in the educational sector follows Hajrullahu, op.cit. note . See Advisory Committee opinion on Kosovo, para. .

Independence without Standards? Kosovo’s Interethnic Relations Since  political parties, seriously affecting any meaningful academic freedom or institutional autonomy. The still highly institutionally segregated educational system is, of course, a crossviolation of the Anti-Discrimination Law, which seems to be of little concern to the international community. On the other hand, it is in full conformity with the perceptions and expectations of a large part of both the Kosovo Albanian and Kosovo Serb population: mixed schools for Kosovo Albanians and Kosovo Serbs are unacceptable to % of Kosovo Albanians, and even for % of Kosovo Serbs. University education in both languages is unacceptable to % of Kosovo Albanians, whereas only % of Kosovo Serbs share this opinion.42 4. Labour Market With regard to the labour market a sharp distinction must be made between the public and the private sector. Since the public sector will be treated below within the framework of participation in public life, I will focus here on the private sector. As already outlined above, the overall unemployment situation is a severe problem for all communities in Kosovo. Nevertheless—against the excuses of Kosovo Albanian politicians based on this fact—minority communities are more severely affected. According to the Employment and Skills Observatory of Kosovo, the problem of unemployment is largely linked to the lack of skills of job-seekers. Hence, the Ministry of Labour and Social Welfare started an extensive training programme in its regional and local offices. Whereas all other minority communities have a fair chance of being included, there is an obvious lack of training projects involving Kosovo Serb participants. Moreover, the training is mostly provided in ethnically separate groups. In addition, the Advisory Committee stresses that “there is now a pressing need to start tackling agricultural and commercial property claims through a process that is non-discriminatory and ensures effective re-possession” and to ensure that minority communities have “fair and equal access” to the privatisation process.43 5. Participation in Public Life The institutional mechanism of reserved seats with overrepresentation of the Kosovo Serb community in the Kosovo Assembly is of no avail, since the Kosovo Serb parties boycotted the elections in  and do not participate in the work of the Assembly. While on the one hand this is the result of their instrumentalization by successive Belgrade governments in their power play at home (and vis-à-vis the international community in regard to the ‘final status’ of Kosovo so that their ‘representativeness’ with regard to the needs of their electorate can seriously be questioned), on the other hand, they convincingly described44 their growing frustration when they were every time ‘overruled’ in the Assembly decesion-making processes in more than  submissions before  by the ethnic ‘block-voting’ of the Albanian parties. This also holds 

 

See Colin Irwin, “Kosovo-Kosova. Coming to Terms with the Problem of Kosovo: The Peoples’ Views from Kosovo and Serbia”, Center for Democracy and Reconciliation in Southeast Europe, , . See Advisory Committee opinion on Kosovo, paras. - and Eide Report, para. . In interviews carried out by me in the framework of the NODE-project, see supra note .



Joseph Marko true for the government, as the Eide Report states that they could have influenced even the government formation had they returned to the Assembly. However, how difficult it is for ‘ordinary people’ to assess the situation becomes clear when one takes into account that the Serb representative who ‘violated’ the boycott and was appointed minister for returns and refugees in  is labelled a traitor by the Serb Orthodox Bishop Artemije of the monastery of Gracanica in obvious racist language.45 The Advisory Committee, moreover, also criticizes the effectiveness of the Committee on Rights and Interests of Communities of the Assembly, since the government ministers have not shown adequate interest in taking part in the meetings of the Committee nor in entering in direct dialogue with its members on the matters falling within the Committee’s mandate. Nor have the Ministers given adequate attention to the recommendations of the Committee.46 With regard to proportional representation in the civil service, only the Kosovo Police Service was developed into a multiethnic police service according to the normative conditions outlined above. In all other ministries and also in local self-government, the normative goals could not be achieved, despite the fact that at the beginning of  the Kosovo government had initiated a special recruitment campaign that reserved and advertised  central PISG positions for non-majority communities following the Kosovo Government Programme -. According to the Ombudsman report, all of the members of minority groups, in particular Serb and RAE communities, continue to be underrepresented.47 As far as the local self-government institutions are concerned, the Advisory Committee criticizes that in areas with compact minority settlement, certain minority communities have achieved a high level of influence, but in other areas, however, and for numerically smaller minorities, the situation is rather different. In particular there seem to be no Roma represented in municipal assemblies. Also the capacity, effectiveness and representativeness of communities’ committees of local assemblies have been questioned by minority communities.48 The failure to achieve the normative goals in the judiciary is seen as even more problematic by the Advisory Committee, which uses strong language, when the opinion stresses that “the Advisory Committee would like to highlight in particular the need to make further progress in relation to the judiciary, where the number of persons belonging to non-majority communities is remarkably low, despite improved efforts made to address the issue”. The Advisory Committee stresses that this makes it difficult to build confidence in the judicial system among minority communities. On the other hand, the Advisory Committee also notes that the AntiDiscrimination Law has rarely been invoked by persons belonging to minorities before 

  



In the interview with Bishop Artemije by me on  July , he outlined that Milosević was right to resolve the Kosovo problem with violence since every democratic state has a right to persecute ‘terrorists’. When I asked him about the participation of Mr. Petković as minister in the PISG government, he literally declared that Mr. Petković would “biologically be a Serb, but a traitor so that he is no longer a real Serb.” Advisory Committee opinion on Kosovo, para. . See Ombudsperson Institution in Kosovo, “Fifth Annual Report -”, addressed to the SRSG,  July , . Advisory Committee opinion on Kosovo, para..

Independence without Standards? Kosovo’s Interethnic Relations Since  the judiciary. This may partly be due to a lack of awareness, but it also seems to be linked to the significant problems that negatively affect access to justice in Kosovo, including, inter alia, shortcomings in the availability of legal aid and heavy backlogs. It is therefore no wonder that the Ombudsperson’s Office under the international leadership of Marek Nowicki became the most accessible and trusted institution for minority communities.49 In conclusion, neither proportional representation for the public sector nor antidiscrimination provisions for the private sector have proven successful. This can be seen as a result of the wrong ‘mix’ of normative guidelines. The Eide Report stresses that the recruitment of minorities in the public sector has too often been seen as a question of filling a quota rather than providing meaningful participation.50 Moreover, even the strictest ethnic quota systems providing for overrepresentation in the political decisionmaking process cannot help against the boycott of Kosovo Serb party leaders either instrumentalized by external factors or ‘overruled’ in each initiative they submit by the strict block-voting behaviour of the parties of the ethnic majority population. On the other hand, affirmative action measures in the private sector, in particular for smaller minority communities, are not even required by law, which—against the background of the still predominantly partriarchical family clan structures51 in rural areas where more than % of the Kosovo population live—is already a serious shortcoming in the legislative framework. 6. Ethnic Distances When it comes finally to ethnic distances, common sense would suggest that Kosovo Serbs and Kosovo Albanians are conceived to be at the extreme poles on a scale with the other minority communities inbetween. In particular, the March riots should have brought the improvement of interethnic relations to a standstill. There are several indicators to measure the perceptions of ethnic distance such as readiness for intermarriage, to live on the same street or quarter with members of other ethnic groups, or to cooperate on the workplace. 52 With regard to the readiness of marital relationships, there is an obvious mutual ethnic gap between Kosovo Serbs on the one hand and Kosovo Albanians and nonSerb communities on the other: whereas in  only .% of Kosovo Serbs and % of Kosovo Albanians could conceive of intermarriage between these two communities, the readiness only marginally increased until  to .% for Kosovo Serbs, whereas the readiness of Kosovo Albanians remained the same. Whereas .% of other minority communities could conceive of a marital relationship with Kosovo Albanians in , only .% of them could conceive of such relations with Kosovo Serbs. These figures declined to .% with regard to Kosovo Albanians and increased to .% regarding Kosovo Serbs in .    

See ibid., paras.  and -. Eide Report, para. . A very good description and empirical analysis of this structure is given by ESI, op.cit. note , throughout the entire report. All figures and timeseries are quoted from UNDP, “Early Warning System, Kosovo”, Report No. , October-December , -.



Joseph Marko As regards the readiness of Kosovo Serb and non-Serb minority communities to agree to share a workplace with Albanians, the readiness of Serbs increased from .% in  to .% in , whereas the readiness of non-Serb minority communities was already very high, with .% in  and even slightly increased to .% in . Respondents’ readiness to live in the same street or district with members of other ethnic groups has also seen an upswing. Whereas in , only .% of Kosovo Albanians agreed to live in the same street with Kosovo Serbs, this percentage increased in  to %. The readiness of Kosovo Serbs to live in the same street with Kosovo Albanians also increased, but to a much lesser extent—from .% in  to .% in . In conclusion, contrary to all myths as to the unwillingness of Kosovo Serbs and Kosovo Albanians to live peacefully together because of their ‘ancient hatreds’, so that only territorial separation could preserve peace in the region, the continous improvement in perceptions of interethnic distance—despite the March riots of  against Kosovo Serbs and other non-majority communities—shows a growing readiness to overcome the legacies of the past and increasingly to live and work together, as long as preservation of their ethnic identities is guaranteed through virtually no intermarriage and a separate educational system, as seen in the opinion poll outlined above. C. Final Status Talks, Conclusions and Outlook Kai Eide’s report in October , despite putting the finger on many shortcomings in the process of reconstruction of institutions, the economy and minority protection, triggered a dramatic shift in policy of the international community. He reported that there was a growing sense of frustration and stagnation with the “standards before status” approach, so that the “risks that would follow from a continued ‘wait and see’ policy […] could soon be far greater than the risks related to a future status process.”53 Thus, in his assessment it was unlikely that postponing the future status process would lead to further results in the implementation of standards without a political perspective. Only ‘clarity’ would stimulate regional political and economic cooperation. With regard to the status talks started under the auspices of UNOSEK in Vienna in , the discussions on ‘decentralization’ and the respective programmes of the parties on community relations in particular are, of course, also of high importance for any future status of Kosovo. As regards the question of ‘decentralization’, SRSG Michael Steiner had already asked the Council of Europe to develop a proposal for decentralization based on the European Charter for Local Self-Government. The Council of Europe Decentralisation Mission in Kosovo then produced a document under the title “Reform of the Local SelfGovernment and Public Administration in Kosovo”54 in November . Immediately after the March  riots, the UN Security Council called for “more effective local government through devolution of the central non-reserved responsibilities to local

 



Eide Report, para. . See .

Independence without Standards? Kosovo’s Interethnic Relations Since  authorities and communities in Kosovo.”55 Almost immediately afterward, in April , the Belgrade government devised its decentralization plan,56 colloquially referred to as the ‘Belgrade plan’, and an UNMIK-PISG working group developed a “Framework Document for the Reform of Local Self-Government” by July , which became known as the ‘Prishtina plan’.57 The Council of Europe plan for decentralization was not based on ethnic, but on functional criteria in order to improve public administration and services, but was institutionally much too complex, ultimately foreseeing six tiers of administration in Kosovo with villages, submunicipal units, submunicipal units with special delegated powers, municipalities, municipalities with special delegated powers as functional equivalents for ‘regional autonomy’ and the central ministries. The ‘Prishtina plan’ basically followed the functional approach without, however, resorting to the institutional complexity of the Council of Europe proposal. The plan recommended maintaining the existing system of municipalities, but leaving open the possibility to also establish submunicipal units. Moreover, associations of municipalities and intermunicipal cooperation were to be encouraged, while the issue of cooperation with municipalities outside Kosovo would have been subject to coordination with the SRSG. As far as the protection of communities is concerned, the plan recommended decreasing the number of members of the majority community in the Community Committee, but not giving minority communities veto power. The Belgrade plan was based on the idea of creating a Serb autonomous region within Kosovo as a political and legal equivalent for ‘substantial autonomy’ of Kosovo within Serbia. Even if the autonomy status of South Tyrol was frequently invoked by Serb politicians and even by representatives of the international community, a territorial autonomy for the members of the majority population in Italy which are de facto in a minority position in the autonomous province of Bozen/Bolzano does not exist, so any comparison with South Tyrol was simply flawed from the very beginning.58 According to the plan, the territorial autonomy would consist not only of the municipalities and settlements where Serbs had represented a majority before , but also of farmland and other territory owned by Serbs before the  war as a ‘just compensation’ for the fact that no Serbs had returned to the cities south of the river Ibar. In addition, Serbs not settling in any of these territories were to be granted personal or cultural autonomy. Within the ‘Serb autonomous region’ a legislative Assembly, an Executive Council and    

UN Security Council, “Statement by the President of the Security Council”,  April , at . Government of Serbia, “A Plan for the Political Solution to the Situation in Kosovo and Metohija”,  April . Working Group on the Local Government, “Framework on the Reform of Local Self-Government in Kosovo”,  July , Prishtine. On South Tyrol as a possible ‘model’ for conflict-resolution see in general Joseph Marko, “Südtirol: Zur Frage des Exports einer Konfliktlösung”, in ibid. et al. (eds.), Die Verfassung der Südtiroler Autonomie (Nomos, Baden-Baden ), -; and with regard to decentralization Gresa Caka, Decentralization in Kosovo: A Key to Status Settlement. Lessons From South Tyrol, Thesis in the framework of the Master Programme in European Integration and Regionalism, Graz, .



Joseph Marko the judiciary had to exercise all powers. All these provisions clearly indicated that the entire plan was based on ethnic criteria with the intention of establishing ethnic homogeneity within as much of the Kosovo territory as possible.59 In February , with a newly established Ministry of Local Self-Government and under immense pressure from the international community, this ministry adopted a working programme with a proposal to establish five ‘pilot communities’ with the goal of testing the establishment of new units of local self-government and thereby to dismantle the parallel structures. However, Serb political leaders did not accept anything but fully autonomous municipalities, including power over the police and the judiciary and the application of laws of the Republic of Serbia. After extended negotiations, Kosovo Serbs finally withdrew from the process so that only those three of the five municipalities with Kosovo Albanian majority were established. Interestingly, the Eide Report also devotes its most specific proposals to decentralization, suggesting that a new legal framework could include a number of new municipalities where in particular the Kosovo Serbs would have a comfortable majority. It could envisage enhanced competences in areas such as police, justice, education, culture, media and the economy, including the appointment of key officials. It could allow for horizontal links between Kosovo Serb majority municipalities. Arrangements could also be considered for special ties to Belgrade […] furthermore it would also facilitate the absorption of parallel structures into legitimate entities.60

These proposals went very far in recognizing the aspirations of the Belgrade plan without, however, openly describing ‘horizontal links of Serb majority areas’ as what they would have been in effect, namely ‘territorial autonomy’ on the basis of ethnic criteria. Eide’s comparison with the decentralization of Macedonia in the process of implementation of the Ohrid Agreement as a means to “give the local Albanian populations the breathing space required to protect their interests and maintain their identity in a multi-ethnic environment” is also flawed, since in many cases local Albanian communities were only put in the position to achieve the % threshold required to practise their right to use Albanian as a second offical language before public authorities, but not to create “ethnic homogeneity”.61 In late , then-President Rugova established the so-called ‘Unity Team’ for the status talks which then outlined “The Basic Principles of Local Government Reform in Kosovo”.62 It is based on the principles of effectiveness, functionality and stability, leaving ethnic criteria aside. Contrary to the Belgrade plan, the judiciary and police were 

  



This runs totally contrary to the normative guidelines in the recommendation of the Parliamentary Assembly on the concept of ‘nation’ as can be seen from the contributions on this volume. Eide Report, para. . See in particular Joseph Marko, “The Referendum on Decentralization in Macedonia in : A Litmus Test for Macedonia’s Interethnic Relations”,  EYMI (/), -. Unity Team, “Basic Principles of the Local Government Reform in Kosovo”,  February , Prishtine.

Independence without Standards? Kosovo’s Interethnic Relations Since  not mentioned as municipality competences, and the dissolution of parallel structures was required. However, for the first time a ‘vital interest clause’ was also introduced as a mechanism to give veto power to the minority communities. The Belgrade plan was also revised and the idea of joining Serb settled areas through land corridors was dropped. Instead, the Serb majority municipalities would have functional ties and direct links with Belgrade. In , six meetings on decentralization were held in the framework of the ‘technical talks’ without, however, reaching a compromise despite both sides giving in. There was no compromise on the proposal of the former mayor of Mitrovica and former Prime Minister Bajram Rexhepi with ‘one city–two municipalities’ since the Serb delegation would only accept ‘full municipality within the Serb autonomous region and responsible to Belgrade’. Moreover, the Serb government delegation had initially requested  new municipalities with a Serb majority population to be created. In the end, the Kosova delegation agreed to establish + Kosovo Serb majority municipalities, whereas the Serb delegation insisted on  new such municipalities. Also, the issues of competencies with regard to education, justice, crossborder cooperation and relationship among Serb majority municipalities remained unresolved. In spring , a Consultative Council on Communities (CCC) was established under the leadership of Veton Surroi and produced the “Framework for the Protection of Community Rights in Kosovo”.63 This document appears to be a mix of a special constitutional law on the protection of minority communities and a draft Constitution by guaranteeing minority rights in all areas of interest for the protection, preservation and support of their identities, and regulating in principle all state institutions at the central and local levels in combination with special rights for minority communities concerning their representation and participation in all of these institutions. The document was further discussed at an international conference in Thessaloniki in June  with the participation of representatives of all communities and international organisations with the intention of producing recommendations which might be of relevance in the context of the Vienna ‘technical talks’, the eventual status settlement and Kosovo’s new Constitution.64 In principle it was agreed at the conference that the long list of liberal, cultural and socioeconomic human rights not only applies to individuals, but that there are also rights which must be enjoyed collectively, such as use of language or education. As regards participation in public life and representation in public services, the system of proportional representation was not in question, but rather the problem of whether minority communities need not only proportional repesentation, but even over-representation for ‘effective participation’. In addition, with regard to veto power, mechanisms through a vital interest protection mechanism at a central level raised more problems

 

Consultative Council on Communities, “Framework for the Protection of Rights of Communities in Kosovo”, Prishtine, August . See the Preface of Marc Weller in Workshop on the Framework for the Protection of Rights of Communities in Kosovo, Final Report, June . The conference had been organized by the European Centre for Minority Issues with the support of the Ministry of Foreign Affairs of Norway and the Kosovo Delegation.



Joseph Marko than they offered solutions.65 As far as representation in the government is concerned, the Framework document more or less repeats the status quo. With regard to linguistic rights, Albanian and Serbian shall be official languages in Kosovo, with other languages of minority communities also in official use on a local level, in particular Turkish, Bosnian and Romani. In addition, the Framework document provides for equal access to all levels of education in each community language, without addressing again the difficult question of how to achieve this goal without keeping the already existing institutional segregation in place. It is therefore—in light of the abovementioned opinion polls—no more than a fig-leaf when the conference proceedings declare that Kosovo’s universities ‘shall cultivate’ multilingualism and multiculturalism and the University of Mitrovica shall follow the role model of the South East European University in Tetovo. The entire chapter on economic matters is a list of abstract principles, such as the mantra referring to “economic opportunities” and, unfortunately, not more detailed proposals for policy measures are made when “promotion of market economy” or “sustainability of the economy” are enumerated. Only when “special measures for communities which face exclusion” or the “promotion of private enterprises” are referred to, the philosophical and jurisprudential devil will lie in the question whether measures of affirmative action including set-asides for minority enterprises, and quotas in private businesses will be seen as necessary and justified. An extensive set of new institutions, such as an Economic Opportunities Council, an Equal Treatment Commission or a Parliamentary Commissioner for Community issues, to be created for minority protection, was (with regard to the failure of coordination of UNMIK and PISG outlined above) clearly rightly criticized at the conference as a “risk of proliferation of institutions for the monitoring, implementation and enforcement of community rights”, and it was instead proposed to concentrate the relevant functions in the Community Consultative Council and the Ombudsperson institution. By the end of  the technical status talks came to an end due to the lack of compromise, and within weeks the Koštunica government presented a new Serbian Constitution to the Serb parliament without any prior political consultation. It was adopted without discussion in parliament and finally enacted after a referendum a week later brought the necessary participation rate of .% and a majority for the new Constitution.66 In the preamble of the new Constitution, “Kosovo and Metohija” is declared an integral part of Serbia which enjoys “substantial autonomy” within the framework of the sovereign state Serbia and that following “this position”, all state authorities have to protect the state interests of Serbia on Kosovo and Metohija in all internal and external political relationships. It goes without saying that this unilateral approach binds the hands of all Serbian politicians against any settlement on the future status of Kosovo, which deviates from the position that Kosovo must remain part of Serbia. This is, of course, in sharp contrast not only to the position of all Kosovo Albanian parties, but also the Kosovo Albanian population at large. “Full integration  



Compare also my article on constitutional reform in Bosnia and Herzegovina in this volume concerning the issue of national vital interest vetos. For an overall first assessment see International Crisis Group, “Serbia’s New Constitution: Democracy Going Backwards”, Europe Briefing No. ,  November .

Independence without Standards? Kosovo’s Interethnic Relations Since  of Kosovo into Serbia” is unacceptable to % of the Kosovo Albanian respondents in an opinion poll conducted by the CRDSEE.67 Also, partition is unacceptable to % when respondents were asked about a “state as part of the EU but North Kosovo joins Serbia”. Interestingly, this opinion poll also contradicts allegations that all Serbs would leave Kosovo in the event of independence, suggesting that not only % of the Kosovo Albanians, together with % of Kosovo Serbs, would accept Kosovo as an EU protectorate. Even % of Kosovo Albanians would be willing to grant Serbs regional autonomy if Kosovo were to become a member of the EU. As all opinion polls make clear, conditional independence with clear regulation and strong enforcement of group rights for minority communities could find much more acceptance among all communities than is acknowledged by politicians from either side, and is anxiously overlooked by some agents in the international community. It is therefore of the utmost importance that the European Union, and in particular the Commission, are prepared to take much greater administrative responsibility in the precarious nation-building process in a severely divided society such as Kosovo, where the ‘civic’ concept of nation is almost alien not only to the population, but also to the political elite of the two communities, and with the entire economy still in shambles. The concept of ‘standards before status’ was an obvious failure, but ‘independence without standards’ and thus a ‘failed state’ in the centre of Europe would be even more dangerous for democracy, the rule of law and stability in the region.



See Irwin, op.cit. note .



Florian Bieber*

Serbia: Minorities in a Reluctant State

I. Introduction Over the past few years, Serbia’s quest for greater stability has been largely unsuccessful. As an unconsolidated democracy with a large anti-democratic and anti-reform opposition and a number of open status and territorial issues, reforms and majority–minority relations have been rocky. The assassination of Prime Minister Zoran Djindjić is often viewed as a watershed between the more optimistic and reformist Serbia of the first post-Milošević years and the cautious and conservative Serbia since, epitomized by Vojislav Koštunica, who was elected prime minister in early . While such a dichotomy might oversimplify the complexities of the transition process in Serbia, recent years have been shaped by a high level of support for the Serb Radical Party (Srpska radikalna stranka, SRS), a rise of attacks by extremist groups against minorities and political opponents and the dominance of the Kosovo issue on the political agenda. Minorities in Serbia today find themselves in a ‘reluctant state’. Although the authorities have engaged in state-building in recent years, from symbolic acts such as adopting a new flag and hymn to the new constitution, the key open status questions for Serbia appear to be imposed from outside, be it the referendum on independence for Montenegro or the status of Kosovo. The Serbia that is emerging from this process, without a union with Montenegro and probably without Kosovo, is not the Serbia that the ‘state-builders’ had aimed for. The status of minorities in Serbia over recent years has thus been characterized by three parallel trends. First, minorities have been suffering from general political neglect since the end of the Milošević era. In spite of some symbolic steps, such as the passing of a Federal Minority Law in  and the selection of József Kasza, head of the Alliance of Vojvodina Hungarians (Savez Vojvodjanskih madjara, SVM/Vajdasági Magyar Szövetség, VMS), as deputy prime minister (-), substantial improvement of the status of minorities has not been a priority of any Serbian government since . Whereas the post*

The author is Lecturer of East European Politics at the University of Kent.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 243-250. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Florian Bieber Milošević governments generally took a more positive view of minorities than before, this has either failed to be translated into policy or the policies have been largely ad hoc and reactive. Thus, there has been little implementation of the framework set out by both the Federal Minority Law and the Framework Convention on National Minorities (FCNM) of the Council of Europe (CoE), to which the Federal Republic of Yugoslavia has committed itself. An example of the reactive nature of minority politics in Serbia has been the lifting of the % threshold for minority parties and coalitions after no minority party managed to enter parliament independently in the December  elections. Second, minorities have suffered from the strong nationalist and isolationist social climate that continues to shape Serbia to a large extent. Consequently, minorities have become frequent targets of organized and individual attacks by extremists in Serbia. As will be discussed below, some of the attacks were aimed at Roma, generally the most vulnerable minority throughout central, eastern and southeastern Europe, whereas others chose Muslims and Albanians, linked to the larger political questions in Serbia. Finally, other minorities, such as Hungarians and Slovaks, have become targets, a reflection of the legacy of the Milošević era and the continued instrumentalization of nationalism by parts of the political elite. Third, European integration processes have promoted minority policies in Serbia, although in an unsystematic and often superficial way. The OSCE, the CoE and the EU have actively promoted a variety of activities to advance the status of minorities in Serbia, ranging from legal reform initiatives, direct assistance to minorities and the use of conditionality to induce Serbian authorities to advance the treatment of minorities. The status of minorities in Serbia today can thus not be assessed in simple terms but is to be understood in light of these three, sometimes reinforcing, sometimes contradictory, trends. In this chapter, the status of minorities in Serbia will be discussed in three respects. First, the chapter will explore the reasons for and impact of anti-minority violence in recent years. Subsequently, the chapter will examine the consequence of the dissolution of the State Union of Serbia and Montenegro on minority rights and, finally, it will turn to the new Serbian constitution as a mechanism of minority protection. Minorities in Serbia today amount officially to approximately .% of the population (excluding Kosovo).1 Of the  minorities in Serbia, only Roma (.%), Hungarians (.%), Bosniaks/Muslims (./.%), Croats (.%), Montenegrins (.%) and Albanians (.%) account for around % or more of the population. With the exception of Roma, ethnic diversity is a regional, not a state-wide, phenomenon in Serbia. These regions are primarily at Serbia’s border and link minorities to kin or neighbouring states (Bulgarians in southeastern Serbia, Albanians in southern Serbia, Bosniaks/Muslims in the Sandžak region and Hungarians in northern Vojvodina). Minority–majority relations in Serbia are thus only characteristic in these regions, whereas large parts of Serbia are relatively homogenous and many members of the majority will have little to no experience of minorities, except for Roma. The largest minority in Serbia are Roma, 



Republički zavod za statistiku, “Konaćni resultati popisa  [Final Results of the Census ]”, () Saopštenje (),  December. As the number of Roma is considerably higher than official numbers suggest, the total share of the minority population is likely to be close to %.

Serbia: Minorities in a Reluctant State who live throughout the country but particularly in the poorer south, accounting for approximately , people, more than three times the official figure.2 Considering the differences between the various minorities, the problems and challenges that the communities and its members are confronted with vary greatly. Whereas some communities, such as Hungarians, enjoy advanced protection in Vojvodina, combined with relative prosperity and the strong support of a kin state, Roma lack support and economic prospects. Despite these variations, minorities share the experience of antiminority violence, as well as various mechanisms of minority protection to be discussed subsequently. II. Violence against Minorities The s saw the drastic worsening of interethnic relations in Serbia. The nationalist mobilization of the majority and hostility towards minorities was met among some minorities by self-isolation and increased nationalism. As a consequence, not only did the political and social space for cooperation decrease, the interpersonal ties between majority and minority citizens also worsened.3 Although interethnic relations improved after —a consequence of the end of the wars, a more supportive set of authorities and the general political environment—these improvements have not been steady, suggesting that ethnic distance is not exclusively a function of the Milošević era.4 Among many Serbs, distance towards other nations remains high, in particular towards Albanians and Muslims/Bosniaks.5 The fact that this distance is not decreasing among younger population groups suggests the risk that interethnic tensions might be more enduring than often hoped for. This social distance has expressed itself repeatedly in violence over recent years. The most notable outbreak of anti-minority violence took place in response to the widespread anti-Serb riots in Kosovo in March . In attacks throughout Serbia, two mosques were set on fire and numerous shops and homes of Albanians, Muslims and, most frequently, Ashkali (Albanian-speaking Roma refugees from Kosovo) were targeted in mob violence. A more enduring and low-key set of anti-minority attacks took place in Vojvodina, mostly throughout . Targeting religious minorities, as well as Hungarians, Slovaks and other established minorities, these attacks were largely confined to damage to buildings and cemeteries and a number of pub brawls.6 Finally, throughout the post-Milošević era there have been numerous incidents involving extremist groups. These have manifested themselves in attacks against either minorities 

   

Number based on research by the Ministry of Human and Minority Rights, Centre for Ethnicity Research, “Romany Settlements, Living Conditions and Possibilities of Integration of the Roma in Serbia”, Report of the Centre for Ethnicity Research, Belgrade . Bora Kuzmanović, “Social Distance Towards Individual Nations”, in Mladen Lazić et al. (eds), Society in Crisis (Filip Višnjić, Belgrade, ), –. UNDP, The Strength of Diversity, Human Development Report (UNDP, Belgrade, ), . Ibid., . See Florian Bieber and Jenni Winterhagen, “Ethnic Violence in Vojvodina: Glitch or Harbinger of Conflicts to Come?”, ECMI Working Paper , April , at .



Florian Bieber (Roma, gays and lesbians) or political opponents. Such incidents reflect regional trends of similar incidents, although, in light of the legacy of the wars of the s, these incidents often held a more problematic edge than elsewhere.7 The key concerns for minority–majority relations in light of these different forms of anti-minority violence have been twofold. First, the passivity of the state authorities in condemning these incidents and, in particular, of the police in arresting perpetrators has appeared to deprive minorities of necessary protection by the state. However, since late , there have been arrests of members of extremist groups, resulting not only in a decline in such attacks but also in increased public condemnation. The second level of significance is the fact that most perpetrators are young. Socialization in Milošević’s Serbia might explain the profile of the attackers but the continuing intolerance in the political climate in parts of the political spectrum and in the media elevates the risk that the social environment that enabled the anti-minority attacks may be perpetuated. III. The End of the State Union Far removed from the everyday tensions of minority–majority relations, the State Union of Serbia and Montenegro briefly appeared to offer an exemplary degree of minority rights. Since its creation in , the State Union of Serbia and Montenegro was seen as a temporary solution to accommodate Montenegro’s quest for independence and Serbia’s desire to maintain a joint state. The State Union was formed on the basis of the “Proceeding Points for the Restructuring of Relations Between Serbia and Montenegro”, negotiated in March  between the Yugoslav authorities, represented by Federal President Vojislav Koštunica, and the Serbian and Montenegrin governments under the auspices of the EU High Representative for Foreign and Security Policy Javier Solana. Only a year later, the state itself was formed on the eve of the assassination of Serbian Prime Minister Zoran Djindjić. The State Union was a minimalist state, which had few competences besides foreign affairs and defence, whereby even here Montenegro maintained its Foreign Ministry and conducted an often divergent foreign policy from Serbia and the State Union.8 The State Union had three discreet functions: a) to act as a single partner for the EU and other international organizations; b) to not force the final status of Kosovo onto the agenda, as the relevant UN Security Council Resolution  linked Kosovo to the Federal Republic of Yugoslavia, not Serbia; and c) to prevent any crisis in Montenegro or between the two republics over future status. It can hardly be claimed that in its three years of existence the State Union performed any of these functions. The constitutional charter that defined the joint state was broken repeatedly by both member states, the status of Kosovo came onto the agenda in /, irrespective of the State Union, and, in , the EU established the twin-track approach that







During a number of football games, for example, fans of Serbian clubs glorified the Srebrenica massacre and indicted war criminals Ratko Mladić and Radovan Karadžić. See Igor Jovanovic, “Racist Incidents Rattle Serbia”, Southeast European Times,  November . On this, see Florian Bieber, “Serbien und Montenegro: Provisorium oder Modell des minimalistischen Föderalismus?”, in Europäisches Zentrum für Föderalismus-Forschung Tübingen (ed.), Jahrbuch des Föderalismus  (Nomos, Baden-Baden, ), –.

Serbia: Minorities in a Reluctant State instituted separate negotiations with Serbia and Montenegro in regard to key aspects of relations with the EU. In regard to minority rights, however, the State Union appeared to establish high standards of protection. The former Federal Ministry of National and Ethnic Communities was transformed into the Ministry for Human and Minority Rights with a broad mandate to both monitor the implementation of these rights within Serbia and Montenegro and communicate on these matters with all relevant international organizations. As one of only five ministries at the State Union level, the very existence of the ministry appeared to give human rights great weight. In addition, the creation of the State Union gave rise to the Charter on Human and Minority Rights and Civil Liberties, also know as the ‘small charter’. This charter provided for a set of very advanced human and minority rights and outlined the mechanism to safeguard these rights. As a consequence, the CoE’s Venice Commission commended the charter, noting that “[i]t is not only fully in line with international standards but goes beyond them in certain respects ... [V]ery few Council of Europe member states will be able to claim that they have a text of the same quality.”9 The reality of the state, the ministry and the charter was, however, different from the apparent exemplary attention given to human rights. The State Union never functioned effectively in Montenegro, where neither the Ministry for Human and Minority Rights nor the Constitutional Charter had much effect. As Montenegro maintained and developed its parallel legal and institutional infrastructure, the State Union appeared highly provisional. Nor could the State Union develop its own profile in Serbia. The Ministry for Human and Minority Rights had few direct competences in regard to the protection of minority rights and lacked the means and regulatory framework to substantially advance these rights. The fact that all minority rights protection appeared to be concentrated at the level of the least political power prevented major advances in the field of minority rights while the State Union lasted. With the success of the referendum for independence in Montenegro in May , the joint state rapidly disappeared. The transition to two separate states turned out to be a rapid, hasty and slightly chaotic process in which many former State Union institutions were left in the dark over their fate for weeks. Of the five ministries at the Union level, only two were fully transferred to the Serbian level: the Ministry of Foreign Affairs and the Ministry of Defence. The Ministry of Human and Minority Rights suffered the same fate as the Ministry for International Economic Relations and the Ministry for Internal Economic Relations, namely its dissolution. The ministry had been dysfunctional in some aspects, largely due to an unruly mixture of eclectic competences inherited from ministries that had been abolished when Serbia and Montenegro replaced the Federal Republic of Yugoslavia, as well as a lack of commitment from the member states in terms of personnel and budget. The ministry was eventually replaced by the Human and Minority Rights Service of the Serbian government, which took over key competences in the field of minority rights. The Human Rights Charter of the State Union left even less of a trace, disappearing entirely with the state dissolution. The 

European Commission for Democracy Through Law, “Comments on the Draft Charter on Human and Minority Rights and Civil Liberties of Serbia and Montenegro”, Opinion No. /, CDL () fin,  April .



Florian Bieber status of the only minority law, namely the  Federal Law on National Minorities, was also left open in the dissolution of the State Union. The creation of the service for human and minority rights, as well as the new constitution, filled the gaps that had been left as a result of the state dissolution. Nevertheless, uncertainties remain that suggest that the dissolution of the State Union did lead to a worsening of minority rights in Serbia. At the same time, the simplification of responsibility might provide for better minority protection in the long term, wherein only one government holds full responsibility, rather than two competing authorities, as was the case in the Federal Republic of Yugoslavia and the State Union. IV. The New Constitution The adoption of a new constitution by the Serbian parliament on  September  and the subsequent two-day referendum on - October  that secured the necessary majority for the new constitution to come into effect fulfilled a key election promise of the Democratic Opposition of Serbia from . The  constitution has not only been closely identified with the semi-authoritarian rule of Slobodan Milošević but contained deficiencies beyond the symbolic level. In addition to attributing considerable power to the president and a high degree of decentralization, the constitution was vague in its commitments to human rights and dated by its references to the faded Yugoslav and self-management framework. The post- period has seen an apparently broad political commitment to replacing the constitution and a series of draft constitutions.10 Nevertheless, these tentative constitutional debates have led nowhere. Key political actors appeared insufficiently committed to constitutional change, possibly benefiting from the status quo and distracted by more pressing issues. Both the government and the president had issued draft constitutions in / but a constitutional debate never took place in the proper sense before the new constitution was adopted by parliament in September . Constitutional talks had taken place throughout  between key party officials but minority representatives repeatedly noted their exclusion during these talks. After the final draft was negotiated between the key parliamentary parties, it was almost immediately submitted to parliament for vote and adopted the same day—only the heads of parliament groups were allowed to comment and, by their own admission, even key members of government had not seen the final draft before it was voted upon. The haste with which the constitution was adopted raised concerns over the procedure and the lack of both public consultation and consultation with key stakeholders. In the absence of a formal consultation process during the drafting of the constitution, minority representatives were not included either during the drafting stage or in consultations before a vote took place.11 The only degree of involvement of minority representatives was the presentation of the final draft the day before parliamentary 





A book edited by the Friedrich Ebert Foundation contains these drafts, the most relevant proposals having come from the Democratic Party and the Democratic Party of Serbia, as well as the Belgrade Centre for Human Rights. Zoran Lutovac (ed.), Prilozi za novi ustav Srbije (Friedrich Ebert Stiftung, Belgrade, ). “Manjine nisu pitane za Ustav”, B Vesti,  September .

Serbia: Minorities in a Reluctant State adoption to the Republican Council for National Minorities. At this stage, there was apparently no room for changes; the meeting was rather there to present the draft to minority representatives.12 The exclusion of minority representatives from key decisions is not a new phenomenon and does not allow conclusions on the substance, as even the Constitutional Charter and the Charter for Human and Minority Rights of the State Union failed sufficiently to incorporate minority voices. In fact, the exclusion of minorities reflects the broader deficiencies of public debate and deliberation on a key document such as the constitution, rather than the deliberate exclusion of minorities. The substantive level of minority rights protection in the constitution, however, appears to confirm the neglect and insufficient consultation of minorities in the drafting process. Whereas the legal framework of the State Union had lived up to high international standards, the new Serbian constitution was neither drafted in consultation with the Venice Commission nor were other key international organizations involved. The protection of human and minority rights in the constitution, while having advanced substantially since the previous constitution in , was a step back from the protection offered by the State Union. In general terms, the preamble and the first article of the constitution define Serbia as the state “of the Serbian nation and all citizens who live in it”.13 In fact, the preamble specifically mentions the equality of all ethnic groups (etničke zajednice), a term not used later in the constitution. The fact that the preamble contains only two paragraphs, one exclusively devoted to Kosovo, suggests the political expediency of the document.14 The Human and Minority Rights section of the constitution contains greater detail than the  constitution but remains often declaratory. In addition to standard minority rights, such as a ban on discrimination and assimilation, the constitution clearly emphasizes the fact that minority rights can be enjoyed individually and collectively (Article ). In particular, the constitution acknowledges the right to selfgovernment of minorities in the fields of education, culture, media and the use of language, mentioning in particular the national minority councils (Article ). However, the national minority councils find themselves in legal limbo. Established under the Federal Minority Law, they lack any anchor in Serbian legislation today besides the passing mention in the constitution. Their election procedure was merely a decree of the now defunct Federal Ministry for Human and Minority Rights, throwing the nature of selecting new councils into doubt at a time when the mandate of some councils are due to expire.15 The constitution furthermore mentions the need for participation of minorities in public life and consideration of the national composition for employment at all levels of the public administration (Article ). This commitment extends beyond   



“Manjine upoznate sa nacrtom ustava”, Fonet,  September . Article , Constitution of the Republic of Serbia, at . It might be argued that while the  Constitutional Charter was driven by the desire to satisfy the EU and other international actors, the constitution was designed to satisfy the domestic audience over the issue of Kosovo. Minority Rights in Practice in South Eastern Europe, “The Situation of Minority Rights in Serbia”, Memo to the European Commission,  October . A new law on the national councils, which would also address some of the other current legal gaps, is in preparation.



Florian Bieber earlier minority protection and sets a clear signal to overcome the underrepresentation of minorities in numerous government and local institutions.16 The substantive rights in the classic domains of minority rights, such as education and the use of language, however, are not discussed in much detail and are confined to only one article (Article ). As a result, the constitution offers little protection to minorities without adequate legislation to specify the rights of minorities. It is exactly these rights that have been lacking in Serbia. Despite or because of the  Federal “Law on the Protection of the Rights and Freedoms of National Minorities”,17 there has been little movement towards a comprehensive legal protection of minorities in Serbia. Many of the current mechanisms derive either from regulations of the Autonomous Province of Vojvodina or from other scattered legal references. Due to the fact that the new constitution was not passed as part of a clear commitment to a general legal overhaul, there is little reason to believe that new laws will soon specify the ambiguities of the constitution. Thus, the weaknesses in the procedural aspects of the constitution are reflected in the text itself. V. Conclusions The status of minorities has improved dramatically since the s when the general state of human and minority rights weighed heavily both on minorities and on many citizens from the majority. Despite the change, the transformation has been incomplete. Minority rights remain insufficiently legally defined and many ambitious institutions, such as the minority councils, lack clear competences and firm legal foundations for their work. Similarly, the political inclusion of minorities remains tentative and minority communities tend to be insufficiently consulted in key matters. As no single minority is sufficiently numerous to easily play the role of kingmaker, as has been the case in Slovakia, Bulgaria, Romania and Croatia, minorities have had less weight in parliament and government. As Serbia has been battling with status questions, often placed on the public agenda for self-serving purposes by political elites, less space has been available for constructive minority policies. Furthermore, tensions over large, state-defining issues, such as relations with Montenegro and Kosovo, have largely had a detrimental impact on minorities.







See Humanitarian Law Centre, “Shadow Report on the Implementation of the Framework Convention for the Protection of National Minorities in Serbia, Montenegro, and Kosovo”, Belgrade, , at . See .

Part II Reports

A INTERNATIONAL DEVELOPMENTS

Antti Korkeakivi *

Frameworking: Review of the Monitoring Process of the Council of Europe Framework Convention or the Protection of National Minorities

I.

Introduction

After a number of quiet years on the ratification front, the geographic reach of the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention”) has begun to expand noticeably as of . The Convention came into force in the Netherlands in June , in Latvia in October  and in Georgia in April . In June , the newly independent Republic of Montenegro became the th state party.1 In concert with this expansion, the Parliamentary Assembly of the Council of Europe has continued its efforts to promote ratification of the Framework Convention in those eight Council of Europe member states that still remain outside the Convention’s reach.2 The new parties to the Convention will provide interesting new work for the monitoring organs of the Framework Convention, including examination of new declarations and, in the case of Latvia, reservations. While in respect of the new state parties the initial state reports have yet to be submitted and the first opinions of the Advisory Committee and resolutions of the Committee of Ministers to be formulated, the monitoring work has already reached its second cycle in most European countries.

* 



Executive Secretary of the Framework Convention for the Protection of National Minorities. The views expressed are those of the author. According to the decision taken at the Ministers’ Deputies’ th meeting on  June , the Republic of Montenegro is to be considered a party to the Framework Convention (and a number of other ‘open’ conventions previously ratified by Serbia and Montenegro) with effect from  June , the date of Montenegro’s declaration of succession to the Council of Europe conventions, of which Serbia and Montenegro was a signatory or party. The Republic of Serbia continues the treaty obligations of Serbia and Montenegro. See Boriss Cilevičs (Rapporteur), “Ratification of the Framework Convention for the Protection of National Minorities by the member states of the Council of Europe”, the Committee on Legal Affairs and Human Rights,  June , Doc. .

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 255-272. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Antti Korkeakivi Bearing in mind that the basic functioning of the Framework Convention’s monitoring process has already been explained in previous contributions to the Yearbook,3 this paper focuses on the changes introduced since mid-. The Advisory Committee has still further streamlined its procedures, radically reducing the average delay between the submission of state reports and the adoption of the corresponding opinions by the Advisory Committee. But it has also put in place new procedures, such as ‘ad hoc contacts’, which, while not yet tested in practice, deserve to be introduced here as a potentially important supplementary tool in the Advisory Committee’s future work. In  and , there were also significant sui generis monitoring tasks that occupied the Advisory Committee and the Committee of Ministers, in particular their precedent-setting examination of the implementation of the Framework Convention in the UNMIK-governed Kosovo, which merits being highlighted in this paper. The Advisory Committee has, since the adoption of its first opinions in , produced a substantial amount of ‘jurisprudence’. The content of this jurisprudence is not always easy to digest, however, as it is dispersed through no less than  specific opinions adopted by the Committee. (By October , the Committee had adopted first-cycle opinions on  states and second cycle opinions on  states as well as a specific opinion concerning Kosovo.) There is now important academic writing available on these monitoring results,4 but the Advisory Committee itself has not, up until recently, been able to meet the increasing demand for more thematic papers to explain its approach in relation to various articles of the Framework Convention. The Advisory Committee’s longstanding desire to issue thematic comments5 finally bore its first fruit in March , as the Committee issued a commentary on the Framework Convention’s provisions relating to education. The commentary provides insight into the Advisory Committee’s thinking in this key domain, and the Advisory Committee intends to produce further documents on selected topics in the coming years. The commentary on education is introduced in section III of the present paper. In addition, this paper contains updates on certain other areas where the Advisory Committee’s views (or those of others involved in the monitoring process) have recently been developed further or refined. As the second-cycle opinions contain extensive information on the follow-up given to the first-cycle recommendations, these opinions enable observers to examine the extent to which the recommendations resulting from the Framework Convention’s 







For a review of earlier developments, see Rainer Hofmann, “Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities”,  EYMI (/), -; Catrin Pekari, “Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities”,  EYMI (/), -; Alain Chablais, “Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities”,  EYMI (/), -. See in particular Marc Weller (ed.), The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford University Press, Oxford, ). The Advisory Committee already recognized at its first meetings in  the need to launch thematic work. See the Advisory Committee’s First Activity Report covering the period from  June  to  May , para. .

Review of the Monitoring Process of the Council of Europe Framework Convention monitoring process have been implemented in practice and, thereby, to reach some preliminary conclusions regarding the effectiveness of the monitoring process. This paper will contain some comments in this respect, without attempting to provide an exhaustive analysis. Finally, as the monitoring process cannot be fully examined in isolation from the general position of the Framework Convention in the European human rights landscape, the present paper also refers to interaction between the Advisory Committee and other players in the minority rights arena, in an attempt to sketch out the role played by the Framework Convention and its Advisory Committee in the European system of minority protection. II. Procedural Aspects of the Monitoring Process Although the main normative rules that govern the monitoring mechanism—Articles  to  of the Framework Convention and the Committee of Ministers’ resolution ()—and the basic elements of the monitoring process have remained intact,6 the Advisory Committee and, to a lesser extent, the Committee of Ministers, have continued to introduce changes in their working methods and procedures in an attempt to tackle shortcomings of the process, while maintaining the recognized strengths of the monitoring mechanism. A. Practice of the Advisory Committee The Advisory Committee has continued its monitoring practices, which involved country visits with extensive NGO consultation, and the basic features of the monitoring process remained unchanged. 1. Prompting Quality State Reporting The new outline for state reports, described in the previous overviews in the present Yearbook, yielded more streamlined and targeted reports. In particular, the questions submitted in advance by the Advisory Committee have in some cases prompted state reports that are more closely related with issues of current concern to minorities than was the case in the first cycle, when the Advisory Committee, often faced with abstract reports containing little information on actual challenges, had to call repeatedly for more tangible information in order to obtain a taste of the actual practice.



In short, the monitoring process functions as follows: the state party submits, every five years, a report, after the reception of which the Advisory Committee, composed of independent experts, seeks additional information from NGOs and other sources, conducts a country-visit and then adopts an opinion on the way in which the Framework Convention has been implemented. The opinion is then examined by the Committee of Ministers, which adopts conclusions and recommendations for the state to implement. After that, the Advisory Committee pursues seminars and other follow-up activities to ensure continuous dialogue and to facilitate the implementation of the monitoring findings before the beginning of the subsequent cycle.



Antti Korkeakivi The Advisory Committee has also improved the reporting process by insisting on more inclusive drafting practices. Whereas in the first cycle consultation with national minorities in preparing the state reports was an exception rather than the rule, in the second cycle most state parties have reported that such consultation has been introduced. Although the Advisory Committee has in many cases had critical comments to make on the depth and the scope of such consultation, it is clear that inclusiveness of the drafting process has generally improved, in accordance with the principles of the Framework Convention itself, in particular its Article . At the same time, the content of the states’ reports is still not always fully in line with the outline for the reports. There is, for example, a tendency in some cases to describe the follow-up given to the recommendations of the first cycle in a somewhat selective manner, and some reports focus on rather general findings of the Committee of Ministers without addressing all the critical points contained in the corresponding first-cycle opinion of the Advisory Committee. But even an imperfect state report is better than no report at all. The Advisory Committee has been disappointed to note that the problem of persistent reporting delays has continued in the second cycle. As the Advisory Committee states in its Fifth Activity Report, not a single country issued its second state report by the prescribed deadline, and in some cases the delay has been more than two years, which opens the possibility for the Advisory Committee to request a mandate to start monitoring without a state report.7 2. Visits and Drafting The Advisory Committee has continued its practice of country visits, and to date, such visits have been organized in all the countries for which second-cycle opinions have been adopted with the exceptions of Liechtenstein, Malta and San Marino. The Advisory Committee has continued to increase its focus on minority-populated regions, going regularly ‘off the beaten paths’ of the capitals. To illustrate the development, it can be noted that in the preparation of its first-cycle opinion on the Russian Federation, the Advisory Committee visited only Moscow (where it also met various minority representatives invited from regions); the second-cycle visit to the Russian Federation in March  was a ten-day visit, which included visits to Krasnodar and Yekaterinburg in addition to meetings in Moscow. The Advisory Committee has also been able to submit draft opinions for adoption much more rapidly than was the case in the first cycle, and also to reduce delays, which have been a constant concern also for NGOs. In several cases, the delay between the visit and the adoption of the opinion has been less than two months. If this reflects increased experience on the part of the Committee, then it can be considered good news 



In accordance with the decision taken by the Committee of Ministers at its nd meeting on  March , the Advisory Committee is authorized “to submit a proposal regarding the commencement of the monitoring of the Framework Convention without a state report when a state is more than  months behind in submitting a state report”. Pursuant to this decision, the Committee of Ministers authorized, on  September , the Advisory Committee to commence monitoring without a state report in respect of Cyprus and the United Kingdom.

Review of the Monitoring Process of the Council of Europe Framework Convention for the purpose of speeding the process by which the new rotation in membership of the Committee, which took effect on  June , brings in members who were already members in the first composition of the Committee.8 3. Publicity of Opinions The Advisory Committee’s repeated attempts to urge early publication of the opinions appear to be gradually producing results as the second cycle advances. Some countries are now ready to make the opinions public even before providing the government’s comments (including Finland and Romania, and, during the first cycle, Serbia and Montenegro), and in only three out of ten cases (Hungary, Liechtenstein and Slovakia) did the second-cycle opinions remain confidential up until their obligatory publication upon the adoption of the Committee of Ministers’ resolutions. In some cases, the governments have hosted domestic public debates on the opinion even before the Committee of Ministers issued its corresponding resolutions. It is clear that with their speedy publication, the Advisory Committee’s findings are topical and likely to be more useful than in cases where the opinions have remained confidential for a long period after their adoption. Due to the delays in the adoption of the Committee of Ministers’ resolution, the Advisory Committee’s first opinion on Slovenia, for example, remained confidential for more than two years (the delay in the case of Slovenia was reduced to six months in the second cycle) while that on Bulgaria was not made public for almost two years. 4. Follow-up Activities The Advisory Committee has maintained its practice of organizing, together with the states parties, in situ follow-up seminars to discuss the implementation of the findings of the monitoring process. Whereas the country visits in the run-up to the opinions usually involve separate visits with various interlocutors ranging from NGOs to government representatives, the follow-up sessions provide an opportunity to bring all actors together around the same table to express their views on how best to advance the implementation of monitoring findings. In , a record number (eight) of such seminars were organized, all of them focusing on the themes that featured particularly prominently in the opinion on the country at issue. While the follow-up seminars have become a standard feature of the monitoring process, proposals to launch other types of follow-up activities with the Advisory Committee’s involvement have not progressed in a similar manner. For example, the proposal to seek the Advisory Committee’s guidance and assistance in drafting laws relating to national minorities has not yet been pursued in practice9 (although Advisory Committee members, in their individual capacity, have taken part in related Council 



Pursuant to the Committee of Ministers’ resolution (), every two years, nine out of  members of the Committee are subject to rotation, reflecting the fact that there are considerably fewer seats in the Advisory Committee () than there are state parties ( at present), all of which can submit a list of candidates, one of whom is elected by the Committee of Ministers as eligible to serve on the Advisory Committee. See Rainer Hofmann, “The Framework Convention at the End of the First Cycle of Monitoring”, in Filling the Frame: Five Years of Monitoring the Framework Convention for the Pro-



Antti Korkeakivi of Europe assistance activities and the opinions of the Committee include some, usually rather general, comments on pending legislation10). It remains to be seen whether such proposals will lead to concrete results. They would no doubt further underline the Advisory Committee’s originality within the ranks of human rights treaty bodies, but they would probably be accommodated by the Advisory Committee only to the extent that they do not (regarding resources or other important factors) harm the core country-by-country monitoring activities, which, as the Advisory Committee has clearly stated, remain its priority. 5. Ad hoc Contact Procedure The Advisory Committee has constantly emphasized that the monitoring should not be about isolated assessments followed by years of silence, but should involve a continuous dialogue during which various new and emerging developments can also be addressed. The monitoring process provides many opportunities to tackle such new developments. For example, depending on the stage of the monitoring process in the country at issue, new serious developments can be raised by the Advisory Committee through secondcycle questionnaires, country visits, opinions, the introduction of the opinion to the Committee of Ministers, or at the follow-up seminars. However, the Advisory Committee felt that it also needed to find a way to react in a consistent and timely manner when disconcerting information is received and none of the above contacts with the authorities are imminent. In this connection, the Committee noted that it has not yet invoked the possibility, provided under the Committee of Ministers’ resolution (), that the Advisory Committee propose to the Committee of Ministers that the latter requests an ad hoc report from a state party. While the Advisory Committee acknowledged that in a number of cases it may be neither necessary nor advisable to bring a specific issue to the Committee of Ministers, the Advisory Committee concluded that it would need to establish a procedure for the consideration of whether a new development is serious enough to warrant that a proposal for an ad hoc report be made to the Committee of Ministers. Consequently, the Advisory Committee agreed, at its meeting in November , on the following ‘ad hoc contact’ procedure, stressing that it would be particularly relevant for cases in which the development does not coincide with a country-visit or other regular contacts between the Committee and the state in question: An ‘ad hoc contact’ can be considered when the Advisory Committee receives information, from credible sources, suggesting that a particularly disconcerting development, negatively affecting the protection of minorities in a manner that extends beyond individual cases, is taking place in a state party. Should there be no imminent possibility to seek clarification through a follow-up seminar or other stages of the monitoring dialogue, the Bureau of the Advisory





tection of National Minorities (Council of Europe Publishing, Strasbourg, ), -, at . See, for example, the Advisory Committee’s second opinion on Romania (adopted on  November , published on  February ), which includes some general comments relating to the draft law on the status of national minorities, including in paras.  and .

Review of the Monitoring Process of the Council of Europe Framework Convention Committee, after consulting the country working group and the ‘national’ member concerned, takes a decision as to whether the President should send a letter to the State Party, seeking clarification on the issue. At the subsequent plenary meeting of the Advisory Committee, the Bureau informs the Advisory Committee of the ad hoc correspondence and makes a recommendation as to whether, on the basis of the information at its disposal, the Advisory Committee should make a proposal to the Committee of Ministers to request an ad hoc report from the Party concerned. Bearing in mind that such an ad hoc contact would be of preliminary nature and, as such, would involve no findings by the Advisory Committee, the Committee considers that related correspondence should be confidential, unless the country concerned agrees to make the substance of the exchange public.11

It is possible that mere contact of this type would prompt additional attention to a disconcerting development that is taking place, for example, at the local level, and lead to corrective action, even in cases where it does not result in a formal ad hoc report request being placed on the agenda of the Committee of Ministers. At the same time, it is clear that the Advisory Committee does not wish to use this tool to tackle minor issues. In its Fifth Activity Report, the Advisory Committee stressed that the procedure should not be invoked routinely and, to date, it has not been put to use. The impact of the said procedure can therefore only be analysed at a later stage. In this connection, it is interesting to note that the UN Committee on the Elimination of Racial Discrimination had already agreed on its approach concerning ‘Early-Warning Measures and Urgent Procedures’ in , but this has only recently been put to regular use, with the active input of civil society. B. Practice of the Committee of Ministers The Committee of Ministers has pursued its monitoring tasks largely according to the already-established practice, with preparation of its resolutions, based on the concluding remarks of the Advisory Committee, taking place in the Human Rights Rapporteur Group (GR-H) of the Ministers’ Deputies. While the modalities of the process have not changed, there have been at least two significant changes in the course of last year. First, the rate of adopting resolutions seems to be on a clear increase. Since May , the Committee of Ministers has adopted  resolutions, which is significantly more than the average rate.12 At the same time, the Advisory Committee has made proposals for streamlining the process in order to reduce delays further.13  



See the Advisory Committee’s Fifth Activity Report, covering the period from  June  to  May , ACFC/INF(). This figure includes resolutions adopted up until June , including the one on Kosovo, adopted on  June . In contrast, in , the Committee of Ministers adopted only four resolutions under the Framework Convention. The Advisory Committee argues that the states do not necessarily need to be given four months to prepare their comments on the opinion before the discussions on the dossier starts at the GR-H. See the Fifth Activity Report, supra note , para. .



Antti Korkeakivi The second development relates to the structure, length and degree of detail of resolutions. In this regard, the Committee of Ministers has endorsed the proposal of the Advisory Committee to move towards significantly more detailed resolutions in the second cycle, with a structure that clearly distinguishes between positive developments, outstanding issues and recommendations. Whereas the first-cycle resolutions contained only few, rather general, paragraphs, in the second cycle, the Committee of Ministers has adopted considerably more detailed texts, which should add to the usefulness and impact of the resolutions. The second-cycle resolutions adopted so far repeat, by and large, the concluding remarks of the Advisory Committee, in some cases virtually verbatim. But there are also cases where the Committee of Ministers has opted for somewhat ‘decaffeinated’ phrases, echoing the Advisory Committee’s message, but with toned-down terminology.14 At the same time, the second-cycle resolutions ‘invite’ the states to take measures to implement the detailed recommendations of the Advisory Committee, including those that are not explicitly repeated in the resolutions, providing a firm basis to address them in the follow-up dialogue. C. Monitoring in Kosovo The monitoring carried out in Kosovo by the Advisory Committee and the Committee of Ministers as of  is of particular importance, not only because of its content, but also as a matter of principle. The fact that a treaty monitoring mechanism was made operational in an area administered by international organisations sets an important international precedent in terms of enhancing the accountability and legitimacy of such sui generis governing structures. The arrangements are based on the agreement signed between the Council of Europe and UNMIK in , which, without making Kosovo a state party, made the regular monitoring process of the Framework Convention applicable, mutatis mutandis, in Kosovo. The importance of the process was further stressed in the Kosovo Standards Implementation Plan of  July , which includes an explicit commitment to consider and implement the recommendations resulting from the monitoring process of the Framework Convention. Once the UNMIK had submitted its report on the implementation of the Convention on  June , the process advanced relatively rapidly: the Advisory Committee visited Kosovo on - October  and adopted its opinion on  November , and the Committee of Ministers issued its resolution on  June . The opinion recognizes various significant measures, such as the AntiDiscrimination Law, that UNMIK and others have been able to take despite the difficult conditions. But the Advisory Committee at the same time points out that reality in Kosovo remains disconcertingly far from these laudable norms and plans. Hostility between Albanians and Serbs is still very tangible, and this harms also the protection of other communities in Kosovo.





On such differences between the first cycle opinions and resolutions, see Chablais, op.cit. note , -.

Review of the Monitoring Process of the Council of Europe Framework Convention The opinion outlines some of the reasons behind the lack of real progress in the return process, including security concerns, limited employment opportunities, problems with repossession of property and other factors. The Advisory Committee found that international administration has at times been too slow to react to problems involving minorities, including the health emergency in Roma camps in Northern Kosovo. Furthermore, the Committee noted that the fact that neither the UNMIK nor local authorities have assumed clear responsibility on some issues has caused significant difficulties, for example, for Ashkali and Egyptians who have been forcibly returned to Kosovo. The Advisory Committee also stressed the need to tackle problems within the judiciary, where huge backlogs, limited minority representation and other factors undermine efforts to build confidence. Against this background, the Advisory Committee noted that the international Ombudsperson (a post held by Marek A. Nowicki) had been the only trusted and accessible remedy for many persons belonging to minorities, and it stressed that this institution should not be handed over to local leadership prematurely. However, shortly after the adoption of the opinion, but before the Committee of Ministers issued its resolution, the Kosovo’s Ombudsperson institution was transferred to local leadership. This is one of the few issues on which the Committee of Ministers’ resolution differs from the concluding remarks of the Advisory Committee. Whereas the Advisory Committee concluded that the Ombudsperson institution should be kept under international leadership until it can be assessed with confidence that the said institution can “function as a fully local institution without eroding the trust it has built to date amongst various communities”, the Committee of Ministers recommended that the authorities “[e]nsure that the transfer of the Ombudsperson institution into a local institution does not harm the effectiveness of the institution or erode the trust that it has built to date amongst minority communities.”15 Another area where the Committee of Ministers slightly changed the recommendations put forth by the Advisory Committee is the issue of census, where instead of calling for postponement of the population census until a maximum level of participation of various communities can be ensured, the Committee of Ministers referred to the delay of the “enumeration phase” of the census, thereby accommodating various preparatory efforts relating to the eventual census that were already underway in Kosovo. The way in which the census question is addressed in the Kosovo opinion is an illustration of the Advisory Committee’s message, expressed also in virtually all other opinions, that, while data collection is of utmost importance to building effective minority policies and practice, such collection must be carried out so that data protection and other important considerations are fully taken into account. The above is only a sample of the extensive Kosovo opinion and the Committee of Ministers’ resolution (see also related comments on participation below). Now the main challenge is to ensure that this exceptional effort to ensure accountability of an internationally administered entity is pursued in a vigorous manner and that decisive followup to the findings is ensured on the ground, which, as the Advisory Committee has stressed, must be ensured regardless of the results of the on-going status discussions. 

The Committee of Ministers’ resolution on the implementation of the Framework Convention in Kosovo (Republic of Serbia), adopted on  June  (ResCMN ()).



Antti Korkeakivi III. Substantive Aspects of the Monitoring Activities of the Advisory Committee A. Commentary on Education The Advisory Committee has from the outset of its activities considered that the ‘jurisprudence’ resulting from its country-specific activity would eventually need to be reflected in more general comments by the Advisory Committee. Similarly, many commentators have called for such thematic reflections to complement the Committee’s country-specific work. However, the thematic work of the Committee has been continuously delayed over the years. The reasons cited by the Committee include not only resource limitations, but also the fact that the Committee did not wish to ‘run before it could walk’, i.e. the Committee should gain extensive knowledge and experience through its country-specific work before attempting to provide more general thematic findings. The Advisory Committee has also tried to use the thematic work as an element in its work that would involve the direct participation of independent experts and others, and to open the doors of the Committee’s plenary meetings in Strasbourg, which have to a large extent remained closed during the Committee’s consideration of country-specific draft opinions. In , the Committee’s thematic reflections finally resulted in the first published texts issued by the Committee. The commentary on education,16 adopted by the Committee in March , is largely based on the drafts drawn up by Ms Athanasia Spiliopoulou-Åkermark, the Committee’s Vice-President from  to , elected in respect of Sweden. The resulting text is, in its format and content, quite different from the ‘comments’ issued by other human rights treaty bodies, such as the Human Rights Committee under the International Covenant on Civil and Political Rights. The Advisory Committee’s commentary on education is more extensive and its style reflects the title in so far as it is indeed a ‘commentary’ rather than an attempt to put forth a list of more normative recommendations. In the words of the Advisory Committee, the commentary aims to provide “practical guidance to state parties to the Framework Convention and to other actors involved in education-related activities”.17 This, no doubt, is partially due to the Framework Convention’s specific nature and its subject matter, which does not easily lend itself to clear-cut rules that would be applicable in the varied country-situation covered by the Framework Convention. At the same time, it is not excluded that, as the Advisory Committee pursues thematic work on other themes, the presentation and the format of the resulting texts may differ from the one used in the education commentary. As regards the content of the commentary, the Advisory Committee covers a wide range of questions ranging from the pertinence of non-discrimination guarantees in education to the content of history teaching, and the present article does not attempt to provide a full overview of its rich content.

 



The Advisory Committee, “Commentary on Education under the Framework Convention for the Protection of National Minorities”,  March , ACFC/DOC(). Ibid., .

Review of the Monitoring Process of the Council of Europe Framework Convention It is nevertheless worth noting that one key issue highlighted by the Committee in its commentary is the question of how to find a balance between the need to guarantee minority language education and the need to ensure that there is no unnecessary separation along ethnic lines within the educational system. While here again the Advisory Committee acknowledges that there are no magic bullets or one-size-fits-all solutions, it points out several factors that need to be taken into account in the search for an appropriate design. For example, the Committee stresses that the choice of school structures, teaching methods and educational content should be guided by a broad assessment taking into consideration, inter alia, “the aims of education in a specific region and cultural and political context. In particular in countries that have experienced conflict or are experiencing inter-ethnic tension or aggressive nationalism, the need to ensure contact, dialogue and integration is a compelling priority”.18 While the Committee recognizes that in some cases it is appropriate to introduce teaching that is, in whole or in part, separate in order to address the demands and needs of a minority, the Committee also points out the risks that an overemphasis on such teaching entails. The commentary pays particular attention to the problems that separate facilities involve in practice for Roma pupils, stating, inter alia, that the “Advisory Committee has expressed its appreciation of supportive pre-school classes if they are aimed at enabling Roma pupils or others concerned to follow the regular curriculum, but, at the same time, the Committee has indicated that there is a dangerous grey zone between [...] segregating special classes and supportive/remedial classes”.19 While the Advisory Committee drafted its commentary, the country-specific monitoring results continued to point out problems in this respect, including continued isolation of Roma children within the education system 20 and the practice of segregating Roma in education.21 In the commentary on education, the Advisory Committee has not addressed its own work in isolation but has explicitly considered the Framework Convention in the context of other relevant human rights treaties and related texts. The education commentary draws inspiration not only from the related Council of Europe texts, such as the European Charter for Regional or Minority Languages and the European Social Charter, but also from such texts as the Hague Recommendations Regarding the Education Rights of National Minorities, endorsed by the OSCE High Commissioner on National Minorities. Relevant UN treaties are also drawn upon; for example, in its section on the aims of education, the commentary refers directly to the pertinent provisions of the UN Convention on the Rights of the Child. In doing so, the Advisory   



Ibid., . Ibid., . See the Committee of Ministers’ resolution on the implementation of the Framework Convention by the Czech Republic, adopted on  March  (ResCMN()); and resolution on the implementation of the Framework Convention by Bulgaria, adopted on  April  (ResCMN()). See the Committee of Ministers’ resolution on the implementation of the Framework Convention by Hungary, adopted on  December  (ResCMN()); and resolution on the implementation of the Framework Convention by Slovenia, adopted on  June  (ResCMN()).



Antti Korkeakivi Committee clearly interprets the Framework Convention as part of a larger system of human rights protection, and, as is stated in the commentary, makes an effort to situate the work and the views of the Advisory Committee within a broader international discourse. With this in mind, the Committee invited various international actors and experts—including members of the Committee of Experts of the Language Charter and the Office of the OSCE High Commissioner on National Minorities as well as civil society representatives such as the Vojvodina Centre for Human Rights—to take part and provide direct input in the plenary debates leading to the adoption of the commentary. The Advisory Committee is building upon its experience gained in the preparation of the commentary on education as it continues its work on other key themes, including the issue of participation of persons belonging to national minorities (see below). B. Developments in Selected other Themes The present section addresses some of the key questions considered in the second-cycle opinions, focusing on the issue of scope of application. In addition to commenting on the Advisory Committee’s position on the topic, this section examines, in a non-exhaustive manner, the extent to which the Advisory Committee’s findings have been echoed by the Committee of Ministers and endorsed and followed up by the party concerned. It is, relatively speaking, still early in the Framework Convention’s monitoring process, and it is premature to conclude firmly whether, to paraphrase Louis Henkin’s oftenquoted statement, “almost all State Parties observe almost all recommendations of the Advisory Committee almost all of the time” or whether the record is worse or better than that.22 But the structure of the second-cycle opinions, with its focus on follow-up of the first-cycle opinions, enables us to make some preliminary comments. 1. Scope of Application The Advisory Committee’s approach in terms of the personal scope of application has remained unchanged. The approach was detailed in previous Yearbooks and other commentaries,23 but the basic premise of the Advisory Committee is that, rather than a rigid definition of the term of national minorities, defining the scope of application of the Framework Convention requires a nuanced, article-by-article approach. At the same time, the Committee has continued to criticize those aspects of definitions formulated by state parties that it sees as particularly problematic in a given national context. While the Advisory Committee has clung to this approach, there are interesting developments to report regarding the position of the governments concerned and also the Committee of Ministers’ findings.







Henkin has noted that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time”. Louis Henkin, How Nations Behave: Law and Foreign Policy (Columbia University Press, New York, nd edition ), . See e.g. Rianne M. Letschert, The Impact of Minority Rights Mechanisms (T.M.C Asser Press, The Hague, ), -.

Review of the Monitoring Process of the Council of Europe Framework Convention During the last year, the scope of application has come up as an issue in virtually all the second-cycle opinions, and it is clear from them that in most cases the Advisory Committee’s first opinions have not resulted in clear-cut change in the government’s formal position. There have, however, been significant shifts. For example, in the case of Estonia, the definition criticized in its first opinion by the Advisory Committee has now, according to the governments, a largely ‘political-historical’ meaning in today’s Estonia and that “all provisions of the Framework Convention are applicable in practice without any substantive limitations, and the norms of the Convention are equally available for all persons who consider themselves belonging to national minorities”.24 The second opinion of the Advisory Committee welcomes these moves towards a more inclusive approach. But the Committee calls for consolidation of the more inclusive practice in legislation, noting that the declaration continues to carry symbolic significance for persons belonging to minorities and that there are areas where the declaration contributes to the prevailing legal uncertainty.25 The Committee of Ministers’ resolution on Estonia shows that, also in the view of this body, problems faced by non-citizens are relevant in the context of the implementation of the Framework Convention in spite of the declaration made by Estonia. Indeed, in the first recommendation contained in the said resolution, the Committee of Ministers calls for “further positive measures to facilitate and encourage naturalisation, including through increased free-of-charge state language training”.26 Denmark is another state party where the issue of definition has prompted critical comments by the Advisory Committee. In the first cycle, the Advisory Committee’s criticism of the Danish definition (according to which only Germans in Southern Jutland are considered a national minority) was strongly refuted by the government of Denmark, and in the second cycle Denmark maintains its formal position on the matter despite the Advisory Committee’s view. There are, however, noteworthy developments in the substance of the monitoring dialogue, the scope of which clearly goes further than the formal declaration. This is particularly so regarding the Roma, whose concerns have become a central issue in the Framework Convention process in Demark as well, even though Roma remain, formally speaking, outside the Danish declaration. In this respect, it is important to point out that Roma-related issues are not only a key theme for the Advisory Committee, but also in the Committee of Ministers’ resolution on Denmark, in which the Danish authorities are urged to find alternative solutions for the Roma children, who remain in a separate Roma class, in order to guarantee equal education.27 The Advisory Committee’s second opinion on Slovenia also contains extensive comments on the issue of personal scope of application. The Committee notes that    

The second state report submitted by Estonia pursuant to Art. , para.  of the Framework Convention (submitted on  July ), . The Advisory Committee’s second opinion on Estonia (adopted on  February  and published on  July ), paras. -. The Committee of Ministers’ resolution on the implementation of the Framework Convention by Estonia, adopted on  February  (ResCMN ()). The Committee of Ministers’ resolution on the implementation of the Framework Convention by Denmark, adopted on  December  (ResCMN ()).



Antti Korkeakivi “there has been no progress since the first monitoring cycle, nor dialogue opened by competent authorities at the national level, as to the possibility of extending the personal scope of application”.28 At the same time, several passages in the opinion relate to the implementation of substantive provisions of the Convention in relation to groups that formally fall outside the Slovene declaration on the personal scope of application, in particular the non-Slovenes from other parts of the former Yugoslavia residing in Slovenia. It is significant that the Committee of Ministers included several paragraphs relating to these groups in its second resolution on Slovenia, reflecting a proposal by the Advisory Committee that included calls to “look for ways to increase level of state assistance granted” to them, and thereby further increased the relevance of the Framework Convention’s monitoring process to groups that fall outside the scope of the formal declaration.29 In the above cases, the states’ definition is rooted in the ratification bill, which means that a formal change in position would not be a simple task. In those cases where the party has indicated its position only in the state report, it can be easier to adapt the approach on the issue. Finland is one of the state parties where the Advisory Committee has encouraged the authorities to reconsider their approach to the scope of application as explained in the state report, especially regarding the distinction drawn between the so-called ‘old Russians’ (covered by the Convention, according to the government) and other Russians (not covered). In the second cycle, the authorities, while not explicitly stating any change in their formal position in this regard, recognize the criticism that this approach has prompted, including that coming from minority representatives. The distinction is given only little attention by the Advisory Committee in those parts of the second opinion that relate to substantive paragraphs of the Framework Convention, and the inclusive term “Russian-speaking population” is regularly used.30 It will be interesting to see whether the approach is maintained by the Committee of Ministers in its forthcoming resolution on Finland. In its second opinion on Finland, the Advisory Committee also affirms its previous view that the Finnish-speaking population of the Åland Islands is to be taken into account in the context of the implementation of the Framework Convention, as a minority-in-a-minority situation. In the second cycle, the state report addressed their situation, and it is also important to note that the Advisory Committee has succeeded in opening a dialogue also with the authorities of Åland Islands around this question. This again can yield positive practical results, even though the state party has not formally endorsed the Advisory Committee’s position on this matter. The above developments are perhaps not enough to merit revisiting the general assessment that “Governments are generally reluctant to reconsider, let alone amend, their approach to the personal scope of application of the convention”.31 They do,    



The Advisory Committee’s second opinion on Slovenia (adopted on  May , published on  December ), para. . The Committee of Ministers’ resolution on the implementation of the Framework Convention by Slovenia, adopted on  June  (ResCMN ()). See the Advisory Committee’s second opinion on Finland (adopted on  March  and published on  April ), paras. , , -. Hofmann, op.cit. note , .

Review of the Monitoring Process of the Council of Europe Framework Convention however, indicate that a significantly more flexible and nuanced approach has gained ground in the implementation and monitoring practice under the convention, even in those cases where the government’s formal position on the issue has remained intact. It is interesting to note that moves towards a more nuanced approach to the definition issue can be detected not only in the work of the monitoring bodies (including the Committee of Ministers) and governmental practice, but also in the practice of bodies working on minority issues outside the Framework Convention’s formal monitoring process. For example, the European Commission for Democracy Through Law (the Venice Commission), which has in the past supported a citizenship-based definition of the concept of national minority, has in its recent papers moved towards a more flexible approach toward the issue, also drawing on the Advisory Committee’s work.32 Similar tendencies can be detected in the Council of Europe’s Parliamentary Assembly, which in its Recommendation , adopted in , proposed a citizenship-based definition, but which has since developed its approach in this respect. 2. Discrimination and Positive Measures In its comment on the implementation of Articles  and  of the Framework Convention, the Advisory Committee has further developed its cross-referencing to other pertinent bodies, such as ECRI, and to related legal norms, notably the EU Racial Equality Directive (//EC) and the Employment Equality Directive (//EC), the implementation of which has become a key element in building anti-discrimination guarantees in those state parties to the Framework Convention that are also EU members. Indeed, the Advisory Committee has in a number of cases explicitly commented on progress, or shortcomings, in the transposition of the said directives.33 The Framework Convention’s monitoring bodies have encountered some interesting problems in relation to the use of positive measures and interrelations with non-discrimination and other principles contained in the Framework Convention. This issue has received significant attention, for example, in Slovakia, where the government requested that the Constitutional Court review the constitutionality of specific positive measures to address disadvantages linked to racial or ethnic origin envisaged in the new anti-discrimination legislation. At the time of the adoption of the Advisory Committee’s second opinion, the case was still pending before the Constitutional Court, but the Advisory Committee stated that “Article  of the Framework Convention and the related paragraphs of the explanatory report, as well as other international human rights instruments, make it very clear that special measures are not only legitimate but may even be required under certain circumstances in order to promote full and effective equality in favour of persons belonging to national minorities. Provided they are in conformity with the proportionality principle, such measures shall therefore not be considered an act of discrimination.” The Advisory Committee further stressed that without such measures “it is extremely difficult to reach 



For details, see the contribution to the present Yearbook by Alain Chablais and Pierre Garrone, “European Commission for Democracy Through Law: Review of Recent Reports and Opinions Relevant to the Protection of National Minorities”. See, for example, the Advisory Committee’s second opinion on Malta (adopted on  November , published on  May ), paras. -; and the second opinion on Finland, paras. -.



Antti Korkeakivi full and effective equality between persons belonging to vulnerable minorities and those belonging to the majority. Moreover, it is to be noted that a number of institutional arrangements and special measures have already been introduced in Slovakia, such as the post of Plenipotentiary for Roma communities as well as the recruitment of Roma social workers and school assistants. In this context, there is reason for concern that the current constitutional dispute may have a chilling effect or even a negative impact on such laudable initiatives.” The Committee then went on to recommend that care should be taken not to jeopardize positive measures in favour of disadvantaged minorities, and that efforts should be made to ensure adequate recognition of the importance of such measures within the public administration.34 After the adoption of the opinion, the Constitutional Court of Slovakia ruled on  October  that the above-mentioned provision is in contradiction with the Constitution of the Slovak Republic. The decision made no reference to Article  or other provisions of the Framework Convention. In its comment on the opinion, the Slovak government stated that the decision will not threaten the government’s measures designed to help the disadvantaged groups of the population, “since e.g., the government strategy of integration of Roma communities does not provide for temporary equalising measures, which would be linked exclusively or predominantly to race or ethnic origin”.35 As the Constitutional Court’s decision was taken before the Committee of Ministers adopted its resolution, the Committee of Ministers had to decide how to comment on the decision adopted by the Constitutional Court. It agreed on the following formulation: “While the adoption of the Anti-discrimination Act in  significantly strengthened the existing legal framework, an important provision allowing the introduction of positive measures to address disadvantages linked to racial or ethnic origin has not entered into force due to the fact that the Constitutional Court, in its decision of October , found the said provision unconstitutional. It is of utmost importance to secure that this decision will not have a negative impact on special measures in favour of the Roma.” The Committee of Ministers went on to recommend that Slovakia “take steps to ensure that existing or planned special measures in favour of disadvantaged groups like the Roma are further supported and encouraged”.36 The above example shows that the pertinence of the Framework Convention’s provisions, or of related Advisory Committee findings, is not always noted, at least not explicitly, in the domestic case law relating to discrimination, but it also demonstrates that the Committee of Ministers has been ready to recognize the importance of provisions envisaging specific positive measures, even when the same provisions have been found unconstitutional. The follow-up phase will demonstrate whether the authorities in Slovakia will find a way to accommodate the recommendations resulting from the Framework Convention’s monitoring mechanism while simultaneously addressing the constitutional issues that the matter involves.   



See the Advisory Committee’s second opinion on Slovakia (adopted on  May  and published on  June ), paras. -. The comments of the Government on the Advisory Committee’s second opinion on Slovakia (received on  November , published on  June ), para. . The Committee of Ministers’ resolution on the implementation of the Framework Convention by the Slovak Republic, adopted on  June  (ResCMN ()).

Review of the Monitoring Process of the Council of Europe Framework Convention 3. Participation in Decision-Making The question of participation of persons belonging to national minorities has continued to attract significant attention in the Framework Convention’s monitoring process. For example, the Kosovo opinion, introduced in more detail above, includes extensive comments on participation. The Committee stresses that while the Constitutional Framework of Kosovo contains certain commendable provisions on the participation of persons belonging to minority communities in decision-making processes, there are various problems in practice. The Advisory Committee also stresses that participation of communities other than Albanians and Serbs in the Kosovo status talks is an acute concern in this respect, and it is significant that this message is echoed by the Committee of Ministers, which issued its resolution as the status discussions continued in Kosovo. In making this point in Kosovo, the Advisory Committee followed its established practice of expressing concern over the situation of smaller minorities in situations where recent conflicts have involved the main ethnic groups of the area concerned and the subsequent discussions and resulting measures have, naturally, focused on finding a solution acceptable to these groups, without always paying equal attention to the concerns of the smaller minorities of the region. The Committee has, for example, noted that important initiatives taken in the ‘former Yugoslav Republic of Macedonia’ and in Bosnia and Herzegovina need to be developed further so that the concerns of smaller national minorities in these state parties are also fully taken into account. The Advisory Committee’s work on participation has also helped other bodies to build up their work in this area. For example, the Council of Europe’s inter-governmental expert committee on national minorities (DH-MIN), which was relaunched in , selected as one of its first themes the consultation arrangements of national minorities. In pursuing its work on this theme, and in considering good practices that could be identified, DH-MIN has relied heavily on the monitoring findings of the Advisory Committee.37 Given its extensive ‘jurisprudence’ on various aspects of participation, it is only natural that the Committee intends to elaborate a thematic text on the issue, which would cover not only participation in public life but also in social and economic life. The Committee has repeatedly noted that it must ‘practise what it preaches’ so it is to be expected that the work on these themes will be developed in close dialogue with



Similarly, the Advisory Committee’s work on this and other themes was drawn upon extensively in the report on national minorities by the EU Network of Independent Experts on Fundamental Rights, issued in , and the Advisory Committee has stressed that its unique role should also be taken into account in the ongoing discussion on the future mandate of the EU Fundamental Rights Agency. See the Advisory Committee’s Fifth Activity Report, supra note , para. . Note also that the important report on relations between the Council of Europe and the European Union by Prime Minister Juncker mentions the assessment of implementation in practice of the Framework Convention as one of the benchmarks for cooperation between the Council and the EU. See Jean-Claude Juncker, “Council of Europe-European Union: a sole ambition for the European continent”, Report by Jean-Claude Juncker, Prime Minister of the Grand Duchy of Luxembourg, to the attention of the Heads of State or Government of the Member States of the Council of Europe,  April .



Antti Korkeakivi national minorities and other stakeholders, in order to ensure that the resulting findings are pertinent and useful. IV. Concluding Remarks The Framework Convention has strengthened its position as Europe’s key reference on the protection of national minorities thanks to new ratifications and continuous development of its monitoring process. The second monitoring cycle has reached cruising speed, and new initiatives, such as ad hoc contacts, have been developed. At the same time, the Advisory Committee has stressed in its new activity report that the various actors involved in the monitoring and implementation of the Framework Convention must not become complacent. Further progress is still required, both in the implementation of the monitoring findings and in the operation of the monitoring mechanism per se. Indeed, the real test of the ultimate value of the Framework Convention and its monitoring mechanism is their impact on the actual practice. While the second-cycle opinions show that many of the findings of the Advisory Committee have been followed up in the states concerned, the Advisory Committee has also had to repeat a number of critical remarks already made during the first cycle. It is important that such repeated critical remarks are not treated as ‘business as usual’, but rigorously followed up as authoritative findings on the implementation of a legally binding treaty.



Vesna Crnić-Grotić *

The Work of the Committee of Experts of the European Charter for Regional or Minority Languages ( June 2005 and June 2006)

I. Introduction One of the key features of the European Charter for Regional or Minority Languages,1 the treaty signed under the auspices of the Council of Europe and designed for the specific protection of regional or minority languages as a cultural heritage of Europe, is its monitoring mechanism. It consists of the joint effort by the Expert Committee and the Committee of Ministers of the Council of Europe. The former examines the national reports submitted by the ratifying states and sends its own report to the latter with the possibility to make recommendations to every state party whose implementation is not completely satisfactory. The monitoring of the implementation of the European Charter is an important aspect of its effectiveness and the overall improvement of the situation of minority and regional languages in Europe. Today,  states have assumed the obligations under this treaty, the last three being: Luxembourg,2 Serbia and Montenegro3 and Ukraine,4 * 

 



Member of the Committee of Experts in respect of Croatia of the European Charter for Regional or Minority Languages. The opinions expressed are solely those of the author. European Charter for Regional or Minority Languages (hereinafter “Charter”). For a thorough presentation of the Charter, and particularly for the different scope of Parts II and III of the Charter, see Jean-Marie Woehrling, La Charte européenne des langues régionales ou minoritaires (Council of Europe Publishing, Strasbourg, ). Luxembourg signed the Charter on  November , but it ratified it only on  June . The Charter came into force for Luxembourg on  October . Serbia and Montenegro ratified the Charter on  February  and it came into force on  June . However, since Montenegro declared independence on  June , Serbia assumed the identity of the former state. Montenegro requested membership at the Council of Europe on  June , and is entitled to succeed to the Charter. Ukraine signed the Charter in  and ratified it on  September . The Charter became effective in Ukraine on  January . However, the ratification declaration is still not available at the Council of Europe’s website.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 273-291. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Vesna Crnić-Grotić while Bosnia and Herzegovina is a new signatory state, as it signed the Charter on  September .5 Since  and its coming into force, a dialogue has been established between the Committee of Experts of the Charter and the various authorities and minority languages representatives that really made a difference in some states parties.6 The results of this continuing dialogue have been visible, with varying degrees of success, in a number of changes adopted in policies and legislations in states parties, such as: – The Hungarian act on criminal procedure has been amended in order to explicitly allow for the use of regional or minority languages in criminal proceedings. – The status of Romansh and Italian in the Swiss Canton of Graubünden has been upgraded following the adoption of a new cantonal Constitution. – The legislation on the Sami language in Finland has been reformed, and pre-school education has been provided for all three variants of this language. – The Dutch province of Fryslan has adopted an action plan aimed at increasing the number of pre-school institutions offering Frisian or bilingual education. – The Norwegian authorities have adopted a significant policy measure by officially informing public services of their duty to use Sami in dealings with those speakers who so request.7 Between June  and June , the Committee of Experts adopted seven reports, four of which have been made public: the first evaluation reports (concerning the implementation of the Charter in Spain and Armenia) and the second evaluation reports (concerning the implementation of the Charter in Croatia and Germany). The reports that are not yet public are those concerning Cyprus (initial evaluation),8 Slovakia (second report)9 and Sweden (second report).10 II. First Evaluation Reports A. First Evaluation Report Concerning Spain Spain signed the European Charter on  November  and ratified it on  April . The Charter came into force with regard to Spain on  August . The initial periodic report on the application of the Charter in Spain was presented on  September . In addition to the initial report, the Committee of Experts also gathered informa-

 

   



There are now  states whose signatures have not been followed by ratification. Cf. Doc.  Application of the European Charter for Regional or Minority Languages, Communication by the Secretary General of the Council of Europe, rd Biennial report by the Secretary General to the Parliamentary Assembly on the application of the European Charter for Regional or Minority Languages,  September . Ibid. Report adopted by the Committee of Experts on  March . Report adopted by the Committee of Experts on  November . Report adopted by the Committee of Experts on  March .

The Committee of Experts of the European Charter for Regional or Minority Languages tion during its ‘on-the-spot’ visit organized in May ,11 as well as from a number of NGOs and other bodies concerned with language and associations that furnished additional reports and comments to the Committee of Experts. It shows the interest in Spain for the Charter and the language policies. The Committee of Experts adopted the report on the application of the Charter in Spain on  April . Based on the Committee of Experts’ report, in accordance with Article  of the Charter, the Committee of Ministers adopted its Recommendations on  September .12 The Spanish language situation is the result of historic developments, struggles and changes that did not always favour language diversity of the kingdom. In fact, sometimes there was very brutal pressure against minority languages. During Franco’s dictatorship, for example, only a few decades ago, it was forbidden to use regional or minority languages in public, under the threat of severe punishment. However, the restoration of democracy under the  Constitution launched a process that led to the creation of  autonomous communities with their own statutes of autonomy. Most of the regional or minority languages spoken in Spain gained official recognition and legal and practical protection within some of these communities. The Spanish Constitution itself contains a very strong commitment to the protection and promotion of regional or minority languages, stating that “[t]he richness of linguistic variety of Spain is a cultural patrimony which will be the object of special respect and protection” (Art. () of the Constitution). Although the Committee of Experts found a number of deficiencies in the system, it nevertheless praised Spain for this commitment. The declarations contained in the Spanish instrument of ratification deposited on  April  confirmed the desire of the Spanish authorities to give these languages also an international recognition but failed to name the languages protected: Spain declares that, for the purposes of the mentioned articles,13 are considered as regional or minority languages, the languages recognized as official languages in the Statutes of Autonomy of the Autonomous Communities of the Basque Country, Catalonia, Balearic Islands, Galicia, Valencia and Navarra. For the same purposes, Spain also declares that the languages protected by the Statutes of Autonomy in the territories where they are traditionally spoken are also considered as regional or minority languages.







An ‘on-the-spot’ visit to Spain was initially planned for May . However, following several postponements for reasons beyond the control of the Committee of Experts, the visit finally took place in May . The delegation of the Committee of Experts visited Pamplona/Iruña, Vitoria/Gasteiz, Bilbao/Bilbo, Oviedo and Madrid, meeting with representatives of the speakers of Basque, Asturian, Galician, Catalan and Valencian. It also met representatives of the authorities of some autonomous communities as well as the representatives of the central authorities. The complete texts of all the Committee of Experts’ reports, as well as the Committee of Ministers’ recommendations, can be downloaded from the Council of Europe’s web site at . Articles chosen under Part III of the Charter.



Vesna Crnić-Grotić […]14 All the provisions of Part III of the Charter, which can reasonably apply according to the objectives and principles laid down in Article , will apply to the languages mentioned in the second paragraph.

Consequently, this declaration gave rise to uncertainty in the Committee of Experts as to the exact scope of the ratification instrument: what exactly are the languages covered by Part III of the Charter, and what is the territorial scope of Part III obligations? The Committee of Experts had to interpret the first paragraph of the ratification declaration so as to give it the meaning in the light of the Charter’s object and purpose.15 Accordingly, the Committee of Experts interpreted that it was the Spanish government’s wish to give protection, under Part III of the Charter, to those regional or minority languages recognised as official languages in the autonomy statutes of the Basque Country, Catalonia, the Balearic Islands, Galicia, Valencia and Navarra.16 These are the following languages: the Basque language (Euskera), Catalan, Valencian and Galician. However, the second paragraph of the declaration then, using similar language, declares that the languages protected by the Statutes of Autonomy in the territories where they are traditionally spoken are also considered regional or minority languages. These languages are Bable/Asturian, Asturian Galician, Aragonese (“Fabla”), Catalan in Aragon and Aranese. However, reading this paragraph in the context of the third paragraph of the declaration, the Committee of Experts concluded that the languages mentioned in the second paragraph appear to be protected only under Part II of the Charter.17 However, the final clause in that paragraph complicates matters further, stating that all the provisions of Part III of the Charter which can reasonably apply according to the objectives and principles laid down in Article  will apply to the languages mentioned in the second paragraph, i.e. those covered only by Part II of the Charter. However, the Spanish authorities have not indicated a minimum of  paragraphs or sub-paragraphs of Part III, as required by Article () of the Charter, and the Committee of Experts held that these languages remain only covered by Part II. This conclusion is in accordance with the Committee of Experts’ previous practice, for example, in the case of Austria18 or Germany.19 There was one more difficulty in interpreting the Spanish ratification instrument that the Committee of Experts had to tackle as a preliminary issue. It concerned the territorial scope of the protection under Part III. While it seems quite clear that the      



Follows the list of articles and paragraphs chosen by the Spanish government under Part III. Cf. Art.  of the Vienna Convention on the Law of Treaties of . Report of the Committee of Experts on the Application of the Charter in Spain, Initial monitoring cycle, ECRML () , para. . Ibid. Report of the Committee of Experts on the Application of the Charter in Austria, Initial monitoring cycle, ECRML () , paras. -. Report of the Committee of Experts on the Application of the Charter in Germany, Initial monitoring cycle, ECMRL () , para. .

The Committee of Experts of the European Charter for Regional or Minority Languages protection will extend to the entire territory of the autonomous community where the language is spoken and enjoys co-official status, it may not be self-evident when the language enjoys co-official status only within part of the territory of the autonomous community concerned. This is especially the case in Navarra. According to Article  of the State Authorities Act / on the Integration and Improvement of the Special Status of Navarra, “Castilian shall be the official language of Navarra”. However, “Basque shall also have the status of official language in the Basque-speaking areas of Navarra”. The Basque speaking area is identified by Act /, passed by the Parliament of Navarra, as covering the northern part of the community. The central part is defined as “mixed” while the southern part is defined as the “non Basque-speaking area of Navarra”.20 The Committee of Experts’ concern was that there is, in fact, a possible significant presence of the Basque language in the “mixed” zone that does not enjoy the protection of Part III of the Charter. In particular, the Committee was alarmed by the information regarding a rise in interest in schools giving education in Basque in the said zone. It proposed and the Committee of Ministers adopted a recommendation to the Spanish authorities to “consider the possibility of applying an appropriate form of Part III protection to the Basque language within the ‘mixed zone’ as defined by the legislation of Navarra”.21 Another issue that the Committee of Experts wanted to have clarified concerned some languages that existed in Spain but were not mentioned in the ratification instrument.22 In the view of the Spanish authorities, languages that do not have any special status under statutes of autonomous communities do not enjoy protection under the Charter. However, the Committee of Experts’ view is that every language satisfying the definition requirements from Article (a) of the Charter deserves that protection, at least under Part II.23  





First report on Spain, paras. -. It is interesting to note that already in the comments made by the authorities to the Committee of Experts’ report, it was reported that the parliament of Navarra reached the conclusion, with the majority support of the House, that: “In the area of Pamplona, a socio-linguistic study be made in the towns bordering the non-Basque-speaking area in order to determine the situation after  years of the Act on Basque, and according to the results, either include or not some new towns in the area known as the mixed zone.” These languages are: Galician in Castilla y León, Portuguese in the town of Olivenza, Berber in the Autonomous City of Melilla, Arabic in the Autonomous City of Ceuta. The latter two are the Spanish enclaves in Africa. This Article provides as follows: “For the purposes of this Charter: a) ‘regional or minority languages’ means languages that are: i. traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population; and ii. different from the official language(s) of that State; it does not include either dialects of the official language(s) of the State or the languages of migrants”.



Vesna Crnić-Grotić As for Romani, although Roma people have been present in Spain since the beginning of the th century, there seems to be no longer any language in use.24 In examining the particularities of individual languages, the Committee of Experts had to conclude that in some cases there is still a gap between the legislative framework and the practical implementation measures. Although the giving of co-official status to a regional or minority language is the most any such language could wish for, it is nevertheless insufficient. In particular, the Committee of Experts concluded that there is very little attention devoted to linguistic diversity and awareness raising among the Castilian-speaking majority population that Spain is a multilingual country. That should be the task of education and, in particular, media. However, recently there has been a positive development when a by-law was passed in the Senate, and as of  September  the different regional languages may be used in the debates of the Senate’s General Committee for the Autonomous Communities. Subsequently, the debates will be published in the Senate’s Journal of Sessions in the language in which the contribution was made, as well as in Spanish.25 This measure has a symbolic value of recognizing the significance of these languages and making them more visible in public. A specific problem was detected with respect to judicial authorities, which affects all languages. Spain chose a very high level of commitment in the field of justice, starting with the obligation to provide proceedings in regional or minority languages. Due to various legal and practical reasons, Spain is not fulfilling this obligation. One of the most visible reasons is that judges do not master the regional or minority language of the autonomous community in which they are placed. There is, in fact, no mechanism of encouragement or incentive for specific language skills of judges in most regional or minority languages.26 Furthermore, legal education is, as a rule, only in Castilian, which makes it difficult to also develop adequate terminology in regional or minority languages. There is also a significant lack of official texts being published in these languages, thus making it difficult to practise law in regional or minority languages as well. The Committee of Experts found very commendable academic and private efforts by regional or minority language speakers to provide some translations in their respective language. However, this cannot substitute for the needed engagement by the Spanish authorities. These same considerations also refer to the use of regional or minority languages in administration. Here, however, the positive development is registered at the local level where the language is really present, and also used in local administration, but not so much at the state administration level. The situation, not only in this field, is better in those autonomous communities that have a consistent and systematic language policy. Such is the situation with Catalan in Catalonia, but also with Basque in the Basque Country. These communities have managed to increase the use of these languages in   



First report on Spain, para. . In the initial Spanish report, there is mention of some  speakers of Romani. First report on Spain, Comments made by the Spanish government, . As an additional comment, the Committee of Experts noted the problem of rotation of judges through the entire territory of Spain. As a result, the judges are discouraged from putting any time or effort into learning a regional or minority language that they might not be using for long.

The Committee of Experts of the European Charter for Regional or Minority Languages public. Significant improvements have been made in education, and more and more people actually choose those language instruction models that are closer to full immersion models rather than just learning a regional or minority language as a foreign language.27 However, there is still a lack of provision of technical and vocational education in Basque. Education in Catalan in the Balearic Islands, Valencian and Galician is based on a bilingual model that seems to correspond best to the needs and wishes of the speakers of these languages. However, the choice of undertakings made by Spain goes beyond this model, and requests education basically in regional or minority languages. Namely, Spain opted for the same undertakings with respect to all Part III languages notwithstanding their specific circumstances. That seems to be quite common in other states’ parties to the Charter, as well, as if they are afraid to make any distinction between their various regional or minority languages.28 Although this may seem favourable at first sight, it may actually work against the interest of some languages. The Valencian language is facing a specific problem of separate identity from Catalan. The lexical and grammatical characteristics of the Valencian language do not significantly differ from the Catalan language, and the view of Catalan speakers is that they are a single language. However, the Valencian Academy of Language stresses that the different name is but one element of differentiation of the centuries-old Valencian identity. This dispute has some unfavourable consequences, since in Valencia certificates of qualifications in Catalan are not recognized. In a further development, the Spanish Supreme Court recently passed a judgment declaring Valencian and Catalan the same language.29 Media, and specifically electronic media, is another field where the Spanish authorities’ ‘one size fits all’ approach proved inadequate. The undertakings under Article  chosen by Spain refer to the creation of both public and private television and radio stations or channels. While that obligation was met in the case of public radio and 

 

In the Basque Country, three educational models are currently available: – model A: the curriculum is essentially in Castilian; Basque may be used in the context of specific subjects; – model B: the curriculum is partly in Castilian and partly in Basque (bilingual model); – model D: the curriculum is entirely in Basque. Model B is not available in the post-compulsory part of secondary school. In many municipalities the prevailing model is model D. According to the statistics made available to the Committee of Experts (which refer to the school year /), nearly % of the pupils followed model D at pre school level, between  and % at primary school level, and between  and % at secondary school level (Report, para. ). E.g. Croatia, see infra. In a decision dated  March , the Spanish Supreme Court overturned a Valencian High Court decision from  that had rejected an appeal over the cancellation of a preexisting agreement on the mutual recognition of language proficiency certificates between Catalonia, Valencia and Balearic Islands. The Supreme Court recognized the unity of the Catalan language. The court, furthermore, stated that this was an established judicial decision. Eurolang Weekly Newsletter,  April . The decision is available at .



Vesna Crnić-Grotić television, very little seems to exist in case of Article ()(c)(i) and the duty “to encourage and/or facilitate the creation of at least one television channel in the regional or minority languages”. The situation with Basque is even more difficult, since there is no broadcast on private electronic media in that language. The Committee of Experts proposed, and the Committee of Ministers adopted, Recommendation No.  that Spain should “adopt a structured approach, with a view to strengthening the use of Basque in the private electronic media in the Basque Country and in broadcasting in general in Navarra”. As for the languages covered only by Part II (in accordance with the interpretation adopted by the Spanish government), their recognition in the statutes of autonomous communities seems to be the first step to full promotion and protection. Namely, in most cases there are no additional legal acts providing for measures improving their status, protection, respect, teaching, use and safeguard in the areas where they are spoken. It goes to show that formal recognition is an important, but not a final, phase in preserving regional or minority languages. In conclusion, the ratification of the Charter by Spain is an international aspect of the proactive linguistic policy pursued by Spain. It is hampered sometimes with difficult political issues. Although there are still deficiencies in the full implementation of the Charter’s provisions, Spain continues to stand at the forefront of European states where protection and promotion of regional or minority languages is concerned. B. First Evaluation Report Concerning Armenia Armenia signed the European Charter on  May  and ratified it on  January . The Charter came into force with regard to Armenia on  May . The initial periodic report on the application of the Charter in Armenia was presented on  September . In addition to the initial report, the Committee of Experts also gathered information during its ‘on-the-spot’ visit organized in September . The Committee of Experts adopted the report on the application of the Charter in Armenia on  November . Based on the Committee of Experts’ report, in accordance with Article  of the Charter, the Committee of Ministers adopted its Recommendations on  June .30 The presence of different linguistic groups in Armenia is a consequence of many historic movements of populations in different times. According to the latest census in , the majority of the population (more than % of . million) are Armenian language speakers, while about , persons declared that Yezidi is their mother tongue. Russian is spoken by almost , speakers. Some of the Russian speakers were deported from Russia during the th century, as they belonged to ‘sectarian movements’ of the Russian Orthodox Church. Another group came during the Soviet era, and lives mainly in Yerevan and Gyumri, the second largest city. However, Russian is also spoken by people who do not declare themselves Russians, as that was the language of ‘interethnic communication’ during the Soviet era and many members





Report of the Committee of Experts on the Application of the Charter in Armenia, Initial monitoring cycle, ECRML () .

The Committee of Experts of the European Charter for Regional or Minority Languages of various national groups accepted Russian as their only language.31 The additional information provided by the Armenian authorities stated that there are also groups of Assyrian, Kurdish32 and Greek speakers. Apparently, there are also speakers of Byelorussian, Ukrainian, Georgian, Polish and Jewish, as well as some other groups but the Committee of Experts did not receive sufficient information about the numbers or the nature of their presence in Armenia. The Committee of Ministers, therefore, adopted a recommendation that the Armenian authorities should provide information and clarify whether these languages are in fact covered by the Charter.33 Armenia has an elaborate legal framework dedicated to the protection of minority languages. In addition, the “State Programme on Language Policy” has been adopted. That and the fact that Armenia ratified the Charter speak of the desire of Armenia’s authorities to ensure an adequate protection and promotion of the minority and regional languages spoken within its territory. What the authorities seem to have failed to do was to distinguish between various languages according to their specific needs and possibilities, which has resulted in an unsatisfactory situation regarding some languages. This approach shows its negative side already in education. Armenia opted for the same obligations with respect to all languages at all levels of education. However, the Committee of Experts established that there are, for example, no facilities for preschool education in Yezidi and Kurdish. Apparently, these languages are spoken by a rural population with a traditional way of life, where mothers stay at home and raise their small children and there is no custom of kindergarten. Primary and secondary education in these languages and Assyrian is impaired by the lack of qualified teachers and proper teaching materials. In addition, the technical and vocational education in these languages is apparently repudiated by parents who do not see sufficient advantage in it for their children. Another field where the size and strength of a particular minority language may influence the fulfilment of the Charter’s obligations is private electronic media. The Committee of Experts established that regular broadcast on private radio and TV exists only in Russian, while none of the other Part III languages is present. The obligations under Article ()(b) and ()(c) specifically call for measures of encouragement and/or facilitation, and the Armenian authorities failed to provide evidence of any such substantial measures.34 Finally, the Committee of Ministers adopted a recommendation regarding the improvement of the available legal bases for the use of regional or minority languages before the courts. A typical argument was given by the authorities, showing a misunder

  

Some members of these groups face a particular problem since the Armenian authorities do not feel obliged to provide them with education in Russian but only in Armenian or in the language of that ethnic group, e.g. Assyrian. Cf. comments made by the authorities, First report on Armenia, Appendix. Kurdish and Yezidi used to be treated as the same language until . The languages are the same variety of Kurmanji, but the two communities cannot agree on the common name. Recommendation No. : “[C]larify whether there are regional or minority languages used in Armenia other than those mentioned in Armenia’s instrument of ratification.” Recommendation No. : “[T]ake measures to improve the presence of Assyrian and Greek on radio, and of Assyrian, Greek, Yezidi and Kurdish on television.”



Vesna Crnić-Grotić standing of the nature of obligations assumed under Article  of the Charter. Namely, the authorities argue that the right to use a language other than Armenian before courts and administrative bodies belongs mainly to those citizens who do not master the official language. Since, as a rule, most citizens have a sufficient command of Armenian, it would not be beneficial for the proceedings or the parties to ask for an interpreter and use their minority language, even though it is not prohibited. However, the Committee of Experts’ view is that the use of the regional or minority languages before courts and administration should be understood as going beyond the situation where a party does not speak the language of the court: Article ()(a)(ii) guarantees the accused person the right to use his/her regional or minority language even if the person is able to express himself/herself in Armenian (see para.  of the Committee of Experts’ first evaluation report on Croatia (ECRML ())).35

Despite these established deficiencies, the Committee of Experts nevertheless recognized the positive efforts of the Armenian authorities to implement the Charter in spite of a difficult economic situation. After all, together with Ukraine, it remains one of the only two former Soviet republics to have adopted the Charter. III. Second Evaluation Reports The second cycle of monitoring of the application of the Charter is continuing in the first monitoring round. The Committee of Experts therefore examines not only the new developments in the fields covered by the Charter, but also evaluates how the respective country reacted to the recommendations of the Committee of Ministers, as well as to the specific remarks of the Committee of Experts. The second report will therefore, in principle, be shorter and less detailed than the first evaluation report, and it should be read together with the first evaluation report. In collecting the information necessary for the evaluation of application of the Charter in the respective state, the Committee of Experts follows the same pattern used in the first monitoring cycle. The basic information comes from the country’s second report, but the Committee of Experts can ask for additional information in a questionnaire to the authorities, as well as receive communications from the “bodies or associations legally established in a Party”36 and organize an on-the-spot visit to the country. So far, the Committee of Experts has always endeavoured to have an official visit to the monitored states, because it keeps the work of the Committee visible to the speakers and other interested parties and helps maintain contact both with the speakers and the authorities.

 



First report on Armenia, para. . The same view is expressed with respect to the civil proceedings in para. . Art. () of the Charter.

The Committee of Experts of the European Charter for Regional or Minority Languages A. Second Evaluation Report Concerning Croatia Croatia ratified the Charter on  November , and it became effective for Croatia on  March . Croatia submitted its second evaluation report on  January . Based on the Committee of Experts’ report, in accordance with Article  of the Charter, the Committee of Ministers adopted its Recommendations on  September .37 There are several specific features of the linguistic situation in Croatia. Croatia is a country with many regional or minority languages,38 but it chose seven languages as those protected by Part III of the Charter. Croatia also chose not to make any distinction between various languages, regardless of their size or needs.39 In addition, Croatia is still the only state party to the Charter that has made a reservation regarding non-territorial languages, thus excluding Romani and all other languages without a traditional territory from even Part II protection. The census that was carried out in  provided new data on the numbers of minority language speakers, which had been lacking when the Committee of Experts was evaluating the initial Croatian report, as the initial report relied on the census of . The situation changed dramatically after the war of -, and there was a significant decline in the numbers of all linguistic groups. The biggest decline, of course, was of the speakers of Serbian (minus .%),40 but other groups also had a decline of between  and nearly %.41 Similarly to the case of Spain, the Croatian ratification instrument raised some issues that the Committee of Experts had already addressed in the first evaluation report and continued to examine in the second monitoring cycle. The first concerns the territorial scope of the application of the Charter in Croatia. Namely, Croatia appended a declaration to its ratification instrument, defining the term “territory in which the regional or minority language is used” in paragraph b. Article  of the Charter by reference to Articles  and  of the Constitutional Law on Human Rights and the Rights of National and Ethnic Communities. These Articles defined the conditions under which a regional or minority language could become co-official in a designated local commu-

 

 



Report of the Committee of Experts on the Application of the Charter in Croatia, Second monitoring cycle, ECMRL () . According to the latest census, there are  recognized minority groups and their languages. However, some of these groups are so small that one could ask whether they can even be referred to as ‘language groups’. For example, there are four languages spoken by fewer than  people, while only seven persons declared the Vlach language as their mother tongue. The same set of Part III undertakings relate to, for example, Ukrainian that has , and Serbian that has almost , speakers. It must be noted that the Serbian language spoken by the majority of Serbs in Croatia is not the same as the proper Serbian language spoken in Serbia, but is basically the same as standard Croatian (Second report on Croatia, para. ). There are .% fewer Italian speakers; .% fewer Slovak; .% Ukrainian; .% Czech and .% fewer speakers of Hungarian and Ruthenian. The Slovene language has % fewer speakers than in .



Vesna Crnić-Grotić nity.42 The problem is that this law ceased to be enforced, and was replaced by a new set of legislation. The new requirements for co-officiality are now more favourable, and it suffices that a minority makes up one-third of the population. As alternative conditions, equal and official use of regional or minority languages is realized when stipulated by an international agreement,43 or when a municipality or a county so prescribes by its statute. There were several problems with the latter provision. First of all, the Croatian government was not able to give detailed information as to the exact territories where a regional or minority language was co-official, thus making it difficult for the Committee of Experts to monitor the implementation of Part III.44 Furthermore, by letting municipalities decide whether or not a language will have a co-official status, Croatia delegated its responsibility for the proper implementation of the Charter. The Committee of Experts was of the opinion that if states choose to define the territories to which Part III applies in the instrument of ratification, it should be done in unambiguous terms.45 Based on the Committee of Experts’ proposal, the Committee of Ministers adopted Recommendation No.  asking Croatia to specify the territories “which are concerned by the application of Part III of the Charter and review the declaration appended to the instrument of ratification”.46 Croatia has introduced significant changes in the legislative framework concerning minorities when compared to the first monitoring cycle. In , the Law on the Equal Official Use of Language and Script of National Minorities and the Law on the Education in Minority Languages were adopted. In , the new Constitutional Law on the Rights of National Minorities was adopted by the Croatian parliament Sabor. This legislation made it possible to also improve the implementation of the important linguistic rights of members of minorities. However, as we have already seen, the legislation is not sufficient, and the Committee of Experts found significant deficiencies in some fields of public life covered by the Charter. First of all, as in some other states parties, the Committee of Experts had to conclude that there is still not enough awareness among the Croatian-speaking majority of the contribution of minority languages’ culture to the cultural heritage of Croatia. The lack of tolerance was still present, regardless of the significant improvement since the first evaluation report. This was particularly visible vis-à-vis the Serbian language and Cyrillic script, when even other minority languages were held in a hostage-like situ

 

 



These conditions were quite unfavourable: a municipality could be considered bilingual if more than % of the population belonged to the speakers of a regional or minority language or if a municipal council so decides. During the validity of that law no municipality in Croatia made such a decision. This concerns mainly the Italian minority and the treaties succeeded to from former Yugoslavia. The Committee of Experts pointed only to some cases where minority language speakers would make up more than % of the population, but without any special status. Especially problematic are places where such status existed in former Yugoslavia, but was later abolished. Second report on Croatia, para. . Ibid., .

The Committee of Experts of the European Charter for Regional or Minority Languages ation. Namely, some measures of promotion were denied to all languages in a certain territory rather than providing the same measures to the Serbian language, especially concerning media or place names. Significant inadequacies were established in education. Although there is a longtime tradition of providing education in minority languages in Croatia, sometimes measures introduced to the majority language education have a negative reflection on minority language education. A few years ago, Croatia introduced the possibility of offering more textbooks and teaching materials for the same subject, and it was left to individual teachers to choose between them every year. However, in case of minority languages, it meant that translations were running behind the Croatian original, because now it became necessary to translate more books that were often abandoned the following year, making the whole process of providing teaching materials in these languages even more expensive and encumbered. Problems also exist in teacher training, especially for the smaller languages. The Committee of Experts detected this problem in the first monitoring round, and there seems to have been very little improvement in the meantime.47 The use of minority languages before judicial authorities and administration is still only formally fulfilled, at best. Although a satisfactory legal framework exists, authorities must consider measures of encouragement to make use possible in practice.48 An additional problem already identified in the first evaluation round concerned the position of the Slovenian language. The Committee of Experts was addressed by some representatives of this language, claiming that it has a traditional territorial presence in a number of towns and villages in Croatia and that it should accordingly be covered by the Charter. The position of the Croatian authorities, however, remained that Slovenian is a non-territorial language and, as such, is excluded by the reservation. The Committee of Experts, as is typical in such disputes, referred the parties to find a solution together and report it in the next report. B. Second Evaluation Report Concerning Germany The Federal Republic of Germany signed the Charter on  November . The instrument of ratification was deposited with the Council of Europe on  September  and the Charter came into force for Germany on  January . By a second declaration on  March , Germany extended its obligations under Part III with regard to Romani in the Land of Hesse, as well as to the North Frisian and Sater Frisian languages. The German authorities presented their second periodic report on  April . Based on the Committee of Experts’ report, in accordance with Article  of

 

See Recommendations Nos.  and . Italian seems to be the only language actually used before state bodies as it is based on several decades of practical use in Istrian County and the provisions of the London Memorandum of  and the Osimo Agreement of  concluded between Italy and former Yugoslavia. See Recommendation No. . Cf. the comment made by the Croatian authorities that this recommendation is “entirely unnecessary”. Second report on Croatia, .



Vesna Crnić-Grotić the Charter, the Committee of Ministers adopted its Recommendations on  March .49 The legal and linguistic situation in Germany is very complex due to its federal structure and the territorial dispersion of regional or minority languages.50 Although the federation is in charge of international obligations of Germany, the Länder are to a large extent responsible for implementing the Charter. That dichotomy does not always bring satisfactory results, as there is no federal language policy and relatively little inter-Land cooperation. This cooperation seems necessary in particular with respect to the Low German language spoken in a number of Länder.51 Nevertheless, the central authorities provide certain financial assistance to Länder for the promotion and protection of regional or minority languages. In addition, a Federal Government Commissioner for Matters relating to Repatriates and National Minorities has been appointed and he should contribute to the implementation of the Charter at the federal level. The Committee of Experts and the German authorities seem to have different views as to the exact nature of the Charter in the German legal system. According to the German legal system and the principle völkerrechtsfreundliche Auslegung,52 the Charter is regarded as a federal law and it takes precedence over any other federal or subordinate Länder law. While the Committee of Experts insists on the need for additional legislation to implement the Charter obligations, most of the Länder refuse this, and the German authorities insist on the alleged self-executing nature of the Charter. Although that was a recommendation by the Committee of Ministers in the initial monitoring cycle, with the sole exception of a new Frisian language law in SchleswigHollstein there has been no additional language legislation implementing the Charter in other parts of Germany.53 Another disparity established by the Committee of Experts is the lack of longterm structured policies of language promotion in Länder and the shift from institutional- to project-funding of the organizations involved with regional or minority languages promotion. This is a trend also noticed in some other countries when states try to find a way to rationalize public expenses by limiting funding to specific projects.  









Report of the Committee of Experts on the Application of the Charter in Germany, Second monitoring cycle, ECMRL () . According to the ratification instrument  Länder undertook to provide protection of the following languages: Danish, North and Sater Frisian, Upper and Lower Sorbian, Low German and the Romani language of the German Sinti and Roma. The second German report has  pages! Among the eight Länder where Low German is spoken, only the Constitutions of the Länder of Mecklenburg-Vorpommern and Schleswig-Holstein contain provisions devoted to the protection and promotion of this language. This principle is based on interpretation that is friendly to international law since the German Constitution requires that all German laws are in accordance with Germany’s international obligations. See Appendix II to the Second report on Germany, Comments by the German authorities: “[T]he Committee of Experts has reiterated its view on certain issues in response to which the German authorities had already made clear that they could not fully agree.” Interestingly enough, the views expressed by the language groups themselves are supportive of the Committee of Experts’ recommendation.

The Committee of Experts of the European Charter for Regional or Minority Languages This may, however, have adverse effects on such sensible areas as building support for a regional or minority language. Sometimes it is impossible without institutionalized forms of this support. In particular, smaller languages that need the biggest assistance are affected by such measures, as is the case of North and Sater Frisian and the Low German language. The rationalisation of public expenses appears particularly controversial in the case of closing down Upper Sorbian secondary schools. Although education in that language is relatively well developed, the Committee of Experts was alarmed by the fact that the authorities proceeded with the closing of a school in Crostwitz, and that there was no flexibility in the quota required to constitute a class. The requested number of  pupils seemed, in the view of the Committee of Experts, inappropriate. Reductions made in financing university programmes resulted in a deterioration of the provision of study and research especially of the Sater Frisian and Low German languages. This had the further consequence of a shortage of teachers in and of regional or minority languages, a feature that is common to all of these languages spoken in Germany. Lower Sorbian is also affected by economic factors. The traditional Lower Sorbian territories are affected by the lignite mining that requires resettlement of entire villages. The village of Horno was already resettled during the first monitoring round, but new ones are being planned.54 The Committee of Experts found this very disturbing since the Lower Sorbian language was considered a particularly endangered language, as were also North and Sater Frisian. However, there has been no improvement in providing education in Lower Sorbian and Sater Frisian since the first monitoring round. In fact, the situation with the Sater Frisian language seems to be worse.55 The Committee of Experts found it very unfortunate that Germany left out the obligation to provide primary and secondary education in this language, leaving it available only at pre-school level. Without a continuity of language education in the most important years of a child’s life and education, the language heritage is bound to be lost. A common deficiency for all languages is the absence of supervisory bodies provided in Article ()(i) of the Charter: [T]o set up a supervisory body or bodies responsible for monitoring the measures taken and progress achieved in establishing or developing the teaching of regional or minority languages and for drawing up periodic reports of their findings, which will be made public.

There seems to be confusion in most states parties as to the exact nature and tasks of this body. The Committee of Experts insists that it has to be a body specifically entrusted with monitoring the measures taken with regard to regional or minority language education. Furthermore, it has to draw up and publish regular periodic reports. It can be a standard school inspectorate providing this specific task is given to it and the reports are made public. In the German case, however, there are no such bodies with respect  

Cf. the case before the European Court of Human Rights, Appl. No. /, Noack and others v. Germany. It was dismissed as manifestly ill-founded in . Second report on Germany, .



Vesna Crnić-Grotić to any of the languages concerned. The monitoring does not usually concentrate on the specificities of the regional or minority language education and, as a rule, the existing reports, if any, are not made public. The authorities justify this shortage by reference to the serious budgetary restraints that the country is going through.56 There are several more problematic areas remaining concerning the application of the Charter in Germany. The first relates to the use of regional or minority languages before administrative and judicial bodies. It remained ‘marginal’ at best, mostly due to the unwillingness of the authorities to adopt additional legislation and introduce practical and organisational measures to make it possible. At the same time, the speakers should be made aware of the possibility of using their language in official settings, as they are usually bilingual and accustomed to using only German. The reports relating to most other state parties confirm that it is not sufficient to provide for the right on a formal basis only; measures must include hiring staff that speak the language or organize language courses for others, advertizing the option of using a regional or minority language in a visible way, or having interpreters available when necessary, etc. The purpose of these measures must be to break down psychological barriers on both sides and freely use a language other than the official one. In the field of media, the Committee of Experts was confronted with two issues. Firstly, Germany opted for obligations dealing with private electronic media, while providing some commendable results in public broadcasting services.57 The Committee of Experts thought that the authorities should consider the possibility of also ratifying Article ()(a)(iii), but the initiative was refuted quite adamantly by the German authorities. In fact, the authorities blamed the Committee of Experts for a “relatively broad interpretation of the Charter” with the consequence that the state parties are then accused of not fulfilling the Charter. They went further, suggesting that this may be one of the reasons for a low number of parties to the Charter.58 The other issue deals with the attitude insisted upon by the German authorities, that the constitutional principle of the freedom of the media bars the authorities from providing assistance to some media, but not to others, regardless of the reason. On the other hand, the Committee of Experts interprets the text “to encourage and/or facilitate” from Article  as a positive duty on the side of the authorities to provide assistance to media in regional or minority languages in order to help them overcome their relative disadvantage in terms of economic or political grounds (e.g. smaller market, lack of big advertisers, etc.). A positive example, however, was found in the initiatives of the authorities in Schleswig-Holstein59 and Lower Saxony.60    





Second report on Germany, Appendix II. Art. ()(a) speaks of public service mission, while sub-paragraphs b) and c) speak of private electronic media. Second report on Germany, Appendix II. Minister-President of Schleswig-Holstein addressed a letter to heads of various media asking them to support the presence of regional or minority languages (Danish and North Frisian) in TV programmes and newspapers. In addition, a project was started to develop radio and TV programmes in these languages. The Land authorities started a project with a view to starting radio broadcasting in Sater Frisian.

The Committee of Experts of the European Charter for Regional or Minority Languages This is the first time that the Committee of Experts has been confronted with such strong opposition views from a state party, and it will be interesting to see what develops. The Committee of Experts nevertheless proposed, and the Committee of Ministers accepted, Recommendation No.  that Germany should “create incentives to increase the provision for regional or minority languages in private broadcasting”. The last issue highlighted by the Committee of Experts when examining the application of the Charter in Germany dealt with the Romani language of the German Sinti and Roma. This language is present in a number of Länder and it receives protection under Part II of the Charter as a non-territorial language.61 However, the additional declaration extended Part III to Romani in Hesse. This step, commendable as it is, nevertheless created certain problems. The first one that has to be dealt with, in view of the Committee of Experts, was the suitability or even capability of this language of being protected under Part III due to the lack of its standard or codified form. Although there are some other languages in Europe, such as Romansch in Switzerland, that have received official status irrespective of their lack of a uniform standardized form, Romani seems to lack the ability to cover all Part III fields of public life in its present form. Another difficulty stems from the fact that there is still rather significant opposition within the Sinti community to having their language ‘exposed’ to outsiders. As a result, the Committee of Experts found that there was actually very little done in favour of this language in Hesse or in Germany in general, even in such basic fields as education.62 It can be concluded that the ambition behind Hesse’s extension of Part III to Romani of giving Roma and Sinti the same protected status as to other minorities was affirmative and constructive, but its fulfilment will require a significant effort and substantial financial support. IV. Other Matters The Committee of Experts has been active in the period covered. It further developed its links with the Advisory Committee of the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention”), connected with the Language Policy Division of the Council of Europe and it established a relationship with the newly established European Roma and Travellers Forum. The Committee of Experts, together with the Advisory Committee of the Framework Convention had on several occasions confirmed the need and its wish to continue and to expand its cooperation. Despite their different approaches based on the different nature of these two treaties, the two monitoring bodies have a common goal. They will try to use each other’s findings and reports even more than has so far been the case.





The ratification instrument with regard to Romani specifies some provisions of Part III that should be applied throughout either the territory of the Federal Republic of Germany or separate Länder. The Committee of Experts was of the view that it could not evaluate these obligations under Part III because the minimum number of  provisions was not achieved. Education seems to exist only in Hamburg.



Vesna Crnić-Grotić Another interesting development concerned cooperation with the Language Policy Division. The purpose of the meeting held in October  was to hear outside experts’ opinions on various education models in minority language education and assist the Committee of Experts in establishing the best standards that could be used when assessing education in state parties.63 Finally, the meeting with the European Roma and Travellers Forum helped the Committee of Experts better understand the situation of the Roma language. The meeting was also attended by representatives of some other Council of Europe bodies involved with the Roma issues: the Secretariats of the Framework Convention for the Protection of National Minorities, of the Roma and Travellers Division, as well as of the Language Policy Division and the project “Education of Roma/Gypsy children in Europe”. First, the representatives of the Forum, as well as the outside experts, suggested that Committee of Experts use ‘Romani’ as a name for the language spoken by the Roma people, when in fact the Romani language is a single language, with numerous dialects used by different groups of Roma (Sinti, Kale, Lovara, etc.). According to the present experts, it is linguistically very coherent and the level of mutual understanding between dialects is high. However, a clear distinction should be drawn between the Romani language and those languages used by travellers, who generally use the majority language with some words borrowed from Romani or from other sources. Regarding another problematic issue concerning the standardization of the language, the experts proposed using the term ‘codification’ in order to avoid associating it with unification. Finally, the opposition of some Romani speakers to the teaching of Romani, according to the Forum, should be ignored, and teaching provided to those families who so wish. According to experience from Romania, providing teaching in and/or of Romani to young Roma children has a visible effect of overall better results and a lower drop-out rate of children from school. Obviously, the raising of self-esteem affects the ability and willingness of Roma children to integrate into a wider community. V. Conclusion The work of the Committee of Experts is getting more and more intense over time as the number of states parties grows slowly but steadily, as well as the number of initial and subsequent reports that have to be examined. Some countries have already entered into the third monitoring cycle (e.g. Norway and Finland) and it is becoming more and more evident that the monitoring work is bringing results. The Committee of Experts is sometimes exposed to criticism for insisting on the full implementation of the undertakings in accordance with the old legal principle of pacta sunt servanda. It is true that some state parties are undergoing difficult economic 



The Committee of Experts’ interpretation and evaluation practice concerning the implementation of Articles on Education of the European Charter for Regional or Minority Languages: Report of the Hearing with the Council of Europe’s Language Policy Division (Strasbourg,  October ), available at .

The Committee of Experts of the European Charter for Regional or Minority Languages periods, but one may also wonder why the deepest cuts should be made in such a sensitive area as preservation and promotion of regional or minority languages. However, the Committee of Experts is not only criticizing, but also pointing to good practices and possible approaches.64 As for the presented reports, the reviewed countries can be praised for entering into the obligations under the Charter regardless of their difficult legal and economic, but also complex political, circumstances. Nevertheless, we can see that states parties are in general trying to meet their obligations. Some problems persist, however, especially in the field of education, such as the lack of adequate teaching materials or trained teachers or the lack of a supervising body in charge of monitoring the regional or minority languages education. All these issues require careful attention and adequate long-term planning, because results in education are usually visible only after some time. According to linguistic experts, schools are essential for language maintenance, as they provide not only the opportunity to learn but also the opportunity to use the learned language. Another problem appears regarding the choice of obligations with respect to various regional or minority languages. While Germany managed to take a diversified approach for different languages (probably due also to its federal structure), Croatia and Spain, as well as Armenia, failed to do so, risking that some languages will not receive adequate treatment. This is, unfortunately, an approach taken by a number of other state parties.65





The Committee of Experts has a practice of including ‘boxes’ in the body of its reports referring to deficiencies in the implementation of the Charter that do not, at present, require recommendation by the Committee of Ministers. The authorities concerned should take these boxes into account, since the Committee of Experts examines how the authorities met these ‘small recommendations’ in the following report. Cf., for example, the latest declaration made by Serbia.



Viktor Soloveytchik*

Highlights in the Case Law of the European Court of Human Rights Relevant to the Protection of Minorities ( June 2005-June 2006)

I. Introduction This is a brief overview of cases touching upon minority issues and examined by the European Court of Human Rights (hereinafter “the Court”) between June  and June . While the European Convention of Human Rights (hereinafter “the Convention”) does not guarantee as such minority rights, in the sense of rights as those set out in Article  of the International Covenant on Civil and Political Rights, it does provide protection for members of minority groups as it enshrines a number of fundamental rights whose enjoyment is central to their existence and development. The decisions and judgments of the Court are thus highly relevant to minority rights.1 II. Racist Prejudice And Police Operations On  July  the Grand Chamber gave judgment in the case of Nachova and Others v. Bulgaria.2 The judgment paves a novel approach to the examination of complaints about racism in police actions. It defines the nature and scope of states’ positive obligation to investigate a possible racist attitude in cases of suspicious deaths in the hands of state agents (Arts.  and  of the Convention). The case concerns the killing of two -year-old conscripts of Roma origin by a military policeman who was trying to arrest them following their absconding. Both men had been serving short sentences for repeated absences without leave and had previous convictions for theft. They were known to be unarmed and not dangerous. Several days after their escape, a team of four heavily armed military police officers was dispatched to arrest them in a small village where the two men had been seen. At least two of the *  

Senior lawyer at the Registry of the ECHR. The usual disclaimer applies. A full collection of the Court’s decisions and judgments is available at . ECtHR, Appl. Nos. / and /, Nachova and Others v. Bulgaria, judgment of  July .

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 293-303. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Viktor Soloveytchik officers knew one or both of the men. The officers were instructed to use all necessary means to arrest them. When the police arrived and spotted the two men in a house, the conscripts tried to escape. Three of the police officers ran to intercept them. The events took place in daylight, in the Roma neighbourhood of the village. After warning the two men that he would shoot if they did not surrender, the senior officer from the group shot them down using his automatic rifle. They were taken to hospital where they were pronounced dead on arrival. An eyewitness claimed that when he had approached the scene immediately after the shooting occurred, the senior officer had shouted “You damn Gypsies!” while pointing his gun at him. The criminal investigation into the deaths revealed that one of the victims had been shot in the chest and the other in the back. The investigation concluded that the senior officer had followed the relevant regulations that required that a warning and shots in the air be made. The officer had shot the victims only because they had not surrendered, as there had been a danger that they might escape, and he had tried to avoid inflicting fatal injuries. No one else had been hurt. On those grounds the authorities refused to prosecute the military police officers. The applicants, close family of the deceased, appealed unsuccessfully. The Nachova case was first decided by a Chamber of the Strasbourg Court. In its judgment of  February  the Chamber held unanimously that there had been violations of Article  on account of the death of the two men and the authorities’ failure to conduct an effective investigation. It also found violations of Article  taken together with Article , accepting the applicants’ claim that racial prejudice might have played a role in the killings and that the authorities failed to investigate whether the killings had been racially motivated. The Chamber judgment did not become final as the respondent government’s request for rehearing before a Grand Chamber was accepted.3 The Grand Chamber, in its judgment of  July , upheld the Chamber’s conclusions in respect of Article  of the Convention and partially revised the Chamber’s approach under Article  of the Convention. In respect of Article  of the Convention, the Grand Chamber stressed the fact that the relevant legal framework and the instructions given to the officers had been fundamentally defective as they permitted the use of lethal force for the arrest of any petty offender. However, under Article  of the Convention it was not permissible to use lethal force to arrest a fugitive where it was known that the person to be arrested posed no threat to life or limb and was not suspected of having committed a violent offence, even if a failure to use lethal force would result in the opportunity to arrest the fugitive being lost. Under Article , the Grand Chamber first examined the allegation that the killing had been racially motivated, i.e. the ‘substantive’ aspect of Article  taken together with Article . In this regard, the Court’s task was to establish whether or not racism had been a causal factor in the shooting that had led to the deaths of two Roma men. 



Under Art.  of the Convention, a case decided by a Chamber of seven judges may be referred for rehearing to a Grand Chamber of seventeen judges where it concerns “a serious question affecting the interpretation or application of the Convention […] or a serious issue of general importance.”

Case Law of the ECtHR Relevant to the Protection of Minorities ( June -June ) The Court reiterated its approach to proof in cases before it, stressing that it adopted the conclusions that were in its view supported by the free evaluation of all evidence, including concordant inferences or unrebutted presumptions. The level of persuasion necessary for reaching a particular conclusion and the distribution of the burden of proof were linked to the specificity of the case. Analysing the facts of the case, the Court noted that the events could be explained by the defective legal framework and instructions which permitted the use of lethal force in circumstances as those that obtained in the case. The possibility that the police officer involved had simply adhered strictly to the regulations and would have acted in the same way in any similar context, regardless of the ethnicity of the fugitives, could not be excluded. While the information that racial slur had been uttered after the operation by one of the officers was relevant and required investigation by the domestic authorities, it was insufficient for a conclusion that the respondent state was responsible for a racist killing. The Court thus found that it had not been established that the killing had been motivated by racism. The Court then examined separately the question of whether or not the authorities had investigated possible racist motives in the fatal shooting. Such separate examination was a novelty in the Court’s case law. In Nachova, the Court effectively developed the concept of a distinct procedural obligation under Articles  and  of the Convention to investigate racism: it held that in addition to their general obligation under Article  to conduct an effective investigation in cases of deprivation of life, the authorities were under a duty, stemming from both Articles  and , to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Although the Court did not formulate expressly the circumstances in which the distinct obligation arose, it is implicit in its judgment that such a duty comes into play where plausible information exists about possible racist overtones in an act involving use of force by the state. In Nachova, the uncontradicted statement of a witness about racist verbal abuse by a police officer and the fact that grossly excessive force had been used, combined with background general reports about the existence of discriminatory attitudes against Roma could suffice to alert the authorities. Such information would require at least an initial verification and, depending on its outcome, an investigation into possible racist overtones in the events. In Nachova the Court went on to say that contracting states must ensure that in the investigation of incidents involving the use of force a distinction is made both in their legal systems and in practice between cases of excessive use of force and of racist killing. That was so because: […] treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights.4

The Court also emphasized the importance of effective measures against racism as follows:



Nachova and Others v. Bulgaria, para. .



Viktor Soloveytchik Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment.5

The new approach developed in the Nachova case is an important development in the protection against racial discrimination in general and the protection of minorities in particular. In previous cases concerning use of force by the state and the ensuing investigation, the Court examined the effectiveness of the domestic investigation in general, even where a claim of racism had been made. Failure to pursue a specific line of inquiry could lead to a finding of a violation of the respective ‘main’ provision—Article  or —depending on the outcome of the global analysis for effectiveness.6 In Nachova, however, the Court made it clear that henceforth it would scrutinize the effectiveness of the national authorities’ reaction to incidents of state agents’ use of force not only for the investigation’s ability to identify and punish the perpetrators of unlawful violence but also, more specifically, for the investigation’s vigilance to racism and its reaction to information suggesting possible racist motivation. The Nachova approach was followed and refined in several cases decided shortly after the judgment in that case. In Bekos and Koutropoulos v. Greece,7 the applicants, who were Roma, were severely beaten while in police custody. They also alleged that police officers had repeatedly uttered racial slurs at them. The investigation into the events led to an acknowledgment by the relevant ministry that ill treatment had occurred but the police officers responsible were not punished and the applicants did not obtain pecuniary redress. Similarly to Nachova, the Court found substantive and procedural violations of Article  and a separate violation of the authorities’ procedural duty under Article  to investigate a possible racist motive. On the particular facts, the Court could not find it established that the beating had been motivated by racial hatred and, therefore, did not find a substantive violation of Article . As stated in Nachova, depending on the facts of the case and the allegations made, a complaint that the state failed to investigate possible racist motives to a violent act may require a separate examination under Article  of the Convention or may be dealt with under the procedural aspect of Article  (or Art. , as the case may be), as part of the question whether the state discharged their general duty to investigate. Two cases decided in February  illustrate that choice. In Ognyanova and Choban v. Bulgaria,8 which concerned the death of a Roma man as a result of his fall from the third floor of a police building where he had been    



ECtHR, Appl. Nos. / and /, Timishev v. Russia, judgment of  December , para. , referring to Nachova v. Bulgaria, para . See, e.g., ECtHR, Appl. No. /, Menson and Others v. the United Kingdom, decision of  May ; and ECtHR, Appl. No. /, Tanli v. Turkey, judgment of  April . ECtHR, Appl. No./, Bekos and Koutropoulos v. Greece, judgment of  December . ECtHR, Appl. No. /, Ognyanova and Choban v. Bulgaria, judgment of  February .

Case Law of the ECtHR Relevant to the Protection of Minorities ( June -June ) brought for questioning, the Court found that the respondent state was in breach of Article  of the Convention, in both its substantive and procedural limbs. The Court also considered, as in Nachova, that the authorities’ failure to probe into a possible racist explanation of the events fell to be examined separately from the question as towhether the investigation was generally effective, in the sense of being capable of uncovering the facts and leading to the punishment of those responsible. It then concluded, however, that in the absence of any concrete element suggesting that the death could have been the result of racial prejudice, the sole fact that there existed many published accounts of the existence in Bulgaria of prejudice and hostility against Roma was not sufficient to trigger the specific procedural duty under Article . Therefore no violation of that provision was found. The applicants’ Article  complaint was also unsuccessful in Osman v. Bulgaria,9 but in that case the Court did not consider that the complaint about racial prejudice required a separate examination under Article  and dealt with all aspects of the case under Article . In other words, no distinct state duty to investigate into possible racist motives, separate from the authorities’ general procedural obligations, arose in the event. Despite allegations of racial slur having been uttered—the same offensive words as in Nachova—the Osman Court distinguished Nachova on the grounds that the context and the facts differed. Osman concerned a fight and heated verbal exchange that had erupted when representatives of the authorities had come to expel the applicants from a disputed piece of property. The applicants were of Turkish ethnic origin. The general context of reported widespread hostility against Roma noted in Nachova was not relevant in Osman. The question of whether or not the authorities had investigated effectively, including as to the offensive language used by the police, fell under Article  of the Convention. During the period under consideration another case, Timishev v. Russia,10 highlighted an unlawful discriminatory police operation. In that case the applicant was a Russian citizen of Chechen origin, who was born in the Chechen Republic and had moved in  to a neighbouring area, as a forced migrant. In , while travelling to the town of Nalchik, he was denied passage at a police checkpoint on the basis of oral instructions to traffic police officers not to admit ‘Chechens’, which meant in practice that the police officers screened individuals on the basis of their perceived ethnic origin. Referring to the definitions in the United Nations International Convention on the Elimination of All Forms of Racial Discrimination and Policy Recommendation No.  of the European Commission against Racism and Intolerance, the Court stated that discrimination on account of one’s actual or perceived ethnicity was a form of racial discrimination. It went on by holding that no difference in treatment which was based exclusively or to a decisive extent on a person’s ethnic origin was capable of being objectively justified in a contemporary democratic society. Since the prohibited discrimination in the applicant’s case concerned his freedom of movement, the Court found a

 

ECtHR, Appl. No. /, Osman v. Bulgaria, judgment of  February  (available in French only). ECtHR, Appl. Nos. / and /, Timishev v. Russia, judgment of  December .



Viktor Soloveytchik violation of Article  of the Convention in conjunction with Article  of Protocol No. . III. Minorities and the Education System In February  the Second Section of the Court delivered judgment in the case of D.H. and Others v. the Czech Republic.11 Subsequently, the case was accepted for rehearing by the Grand Chamber of the Court. D.H. and the other  applicants, all of Roma origin, aged between  and  at the relevant time, were placed in special schools for children with learning difficulties. By law, the placement decision is made by the head teacher on the basis of the results of tests measuring the child’s intellectual capacity, and requires the consent of the child’s parents or other legal representatives. Tests are carried out in an educational psychology and child guidance centre. In the case of some of the applicants, the placement decisions were upheld upon review by the Ostrava Education Department, which rejected the applicants’ argument that the tests performed had been unreliable and that their parents had not been sufficiently informed of the consequences of giving consent. Some of the applicants appealed to the Constitutional Court. They argued that their placement in special schools amounted to a general practice that created segregation and racial discrimination through the coexistence of two autonomous educational systems, namely special schools for the Roma and ‘normal’ primary schools for the majority of the population. That appeal was dismissed on  October . In Strasbourg the applicants complained under Article  of Protocol No.  to the Convention, taken alone and together with Article , that they had suffered discrimination in the enjoyment of their right to education on account of their Roma origin. In its judgment of February , the Second Section of the Court found, by six votes to one, that there had been no violation of those provisions. In brief, the Chamber’s reasoning was as follows. It noted that, states being free to set up different types of school for children with difficulties, the salient issue in the case was solely whether or not the applicants’ placement in the special schools had been based on their ethnic or racial origin. The experts’ findings concerning the applicants’ learning disabilities had not been refuted. Also, the applicants’ parents had failed to take any action, despite having received a clear written decision informing them of their children’s placement in a special school. Indeed, in some instances it had been the parents who had asked for their children to be placed or to remain in a special school. Some of the applicants had subsequently improved their school performance and transferred to ordinary schools, which proved that the situation was not irreversible. While acknowledging that the statistics disclosed figures that were worrying and that the overall situation in the Czech Republic concerning the education of Roma children was by no means perfect, the Court could not conclude that the applicants’ placement in special schools had been the result of racial prejudice. Judge Costa expressed a concurring opinion and Judge Cabral Barreto expressed a dissenting opinion. The judgment did not become final and will be re-examined by the Grand Chamber. 



ECtHR, Appl. No. /, D.H. and Others v. the Czech Republic, judgment of  February  (not final).

Case Law of the ECtHR Relevant to the Protection of Minorities ( June -June ) The Court recently declared admissible another case of alleged discrimination in the education system—Folgerø v. Norway12—which concerns a legislative reform introduced in school curricula as from , when the subject of Christianity, Other Religions and Philosophy started being taught. Prior to the reform it was possible for children to be exempted in whole from the teaching of Christian faith. After , pupils who adhered to other religions or life stances could only be exempted from parts of the teaching on the submission of a parental note. The applicants brought proceedings in the domestic courts following the administrative refusals for the full exemption of their children from the subject. Their action was rejected at three domestic judicial levels. The Supreme Court found that the teaching did not present one faith as being superior to others. Two evaluation reports on the new system in  concluded that the arrangement of partial exemption did not work as intended and should be thoroughly reviewed. In Strasbourg, the applicants complained that the refusal of the domestic authorities to grant a full exemption violated their rights under Article  of the Convention and Article  of Protocol No. , as well as Articles  and . Another group of parents, who had also been parties to the domestic proceedings, lodged, together with their children, a communication with the United Nations Human Rights Committee under the Protocol to the  International Covenant on Civil and Political Rights. Education rights were also invoked in the case of Timishev v. Russia, mentioned above, which concerned not only a discriminatory prohibition against Chechens passing at a police checkpoint but also the expulsion of the applicant’s children from elementary school. On account of the latter, the Court found a violation of Article  of Protocol No.  to the Convention, as the applicant’s children had been denied admission to the school they had previously attended on the sole ground that their father had surrendered his migrant card and thus forfeited his registration as a resident of the town of Nalchik. However, registration of residence was not a valid condition for the exercise of the right to education under Russian law, nor under Article  of Protocol No.  to the Convention. IV. Alleged Forced Sterilization During the relevant period the Court started the examination of two applications involving grave allegations about forced sterilization of women. The applicants in I.G., M.K. and R.H. v. Slovakia13 are women of Romani origin who allege that they were subjected to sterilization between  and , during the delivery of their respective babies at a particular hospital. All three applicants had already given birth to one or more children. Prior to each case of sterilization the gynaecologist indicated to them that the delivery should take place by caesarean section. During the surgery the applicants were sterilized via tubal ligation. Before or after the operation, two of the applicants signed documents, allegedly without having been informed that this would be tantamount to consenting to their sterilization. The applicants allegedly learned of their sterilization between one and four years later while reviewing their medical files. At the hospital in question, they were allegedly accommodated separately from non-Romani women in so called ‘Gypsy  

ECtHR, Appl. No. /, Folgerø v. Norway, decision of  February . ECtHR, Appl. No. /, I.G., M.K. and R.H. v. Slovakia.



Viktor Soloveytchik rooms’, experienced verbal abuse from health-care personnel and were prevented from using the same bathrooms, toilets and dining room as non-Romani women. In  and , the police and the regional prosecutor closed the investigation into the sterilizations, concluding that the alleged facts had not occurred. In June , the Constitutional Court quashed this decision and ordered a re-examination of the applicants’ complaint. In September , a public prosecutor again dismissed the complaint against the  decision to close the police investigation. In November , the applicants filed a new constitutional complaint, whose examination is still pending. In , the applicants claimed damages from the hospital, arguing that they had been unlawfully sterilized by its staff. These civil proceedings remain pending. Similar events are the object of another pending application against Slovakia, K.H. and Others v. Slovakia,14 in which for a certain period the applicants were refused permission to photocopy their medical files, opened in two hospitals where they had been treated during their pregnancies and deliveries. The applicants had sought access to the files, as they suspected that they had been sterilized without their knowledge. Some of the applicants were given full access following a legislative amendment. V. Indigenous Populations The case of Hingitaq  v. Denmark,15 which was declared inadmissible in January , was brought by individuals and a group that represented the interests of relocated Inughuit (the Thule Tribe) in Greenland. It concerned the following facts. Based on a treaty between Denmark and the USA, in  an American air base was built amidst the applicants’ hunting areas, in the vicinity of their village, Uummannaq (then called Thule). In May , the Thule Tribe was relocated, leaving behind their houses. Most of the families moved to Qaanaaq,  km north of Uummannaq. No compensation was granted to the Thule Tribe for decades, despite their requests. A claim lodged in  eventually led, among other things, to the building of new houses for them and to a reduction of the area of the US base. In , the Minister of Justice set up a committee to establish the facts of the Thule Tribe’s relocation in . In , the government donated a substantial amount for a new airport in Thule. In , the Danish prime minister formally apologized for the forced relocation of the Inughuit in . By judgments of  and  the Danish courts awarded the tribe and its individual members modest pecuniary and non-pecuniary compensation for their eviction and loss of hunting rights but refused their claim for a declaratory judgment that they had the right to live in and use their native settlement in the Thule District. The courts noted, among other things, that the Thule Tribe could not be regarded as a tribal people or indigenous people distinct from the Greenlandic people, as these concepts were defined in the International Labour Organisation’s Convention No.  of  concerning Indigenous and Tribal Peoples in Independent Countries, in force for Denmark since . Before the Strasbourg Court the applicants maintained, relying on Article  and Article  of Protocol No.  to the European Convention of Human Rights, that they  



ECtHR, Appl. No. /, K.H. and Others v. Slovakia. ECtHR, Appl. No. /, Hingitaq  v. Denmark, decision of  January .

Case Law of the ECtHR Relevant to the Protection of Minorities ( June -June ) had, on a continuing basis, been deprived of their homeland and hunting territories and denied the opportunity to use, peacefully enjoy, develop and control their land. The Court considered that it had no jurisdiction ratione temporis to examine whether or not the hunting restrictions imposed on the Thule Tribe in  and their relocation in May  violated their Convention rights as the Convention entered into force for Denmark in September  and its Protocol No.  in May . As regards the civil proceedings that ended in , the Court considered that the Danish courts had delivered reasoned judgments that were not arbitrary. Both the High Court and the Supreme Court had found that the restrictions on hunting and the relocation had been valid legal acts of expropriation in the public interest. They had taken into consideration that the relocation had been decided upon and carried out in such a way and under such circumstances that it had constituted a serious interference and unlawful conduct towards the applicants. On the other hand, in  replacement housing and various other facilities were built for the families. Eventually the Thule Tribe was granted compensation for its eviction and loss of hunting rights and individual applicants had been granted compensation for non-pecuniary damage. Furthermore, some time after  new houses were built in Qaanaaq in the place of the original houses from the s, and in  the Danish government agreed to donate money for a new airport in Thule. Against this background, the Court found that the national authorities had struck a fair balance between the proprietary interests of the persons concerned and the public interest. The complaints were therefore manifestly ill-founded. VI. The Authorities’ Duty to Protect Minority Groups and Promote Tolerance A serious encroachment on the rights of a minority political party was denounced by the Court in its judgment in the case of Ouranio Toxo and Others v. Greece.16 Ouranio Toxo is a lawfully established political party defending the interests of the Macedonian minority in Greece. The case concerns a mob attack in  on the newly opened office of the party in Forina, prompted by an allegedly provocative sign in the Slavic script posted on the building. Considering that the slogan should be removed, the local municipality called upon the population to march “against the enemies of Greece.” The police had removed the slogan but the applicants promptly replaced it. During the following night, the party’s offices were attacked by a mob. Several people were hit, and office furniture was thrown out of the windows and set on fire. The applicants telephoned the police station repeatedly, but received no assistance. The investigation into the events never led to the prosecution of the attackers. The Court found that the municipal authorities had kindled an atmosphere of confrontation instead of seeking to defend and promote tolerance. The failure of the police to intervene and the fact that the attackers had not been prosecuted were also condemned. The Court found a violation of Article  of the Convention.



ECtHR, Appl. No. /, Ouranio Toxo and Others v. Greece, judgment of  October .



Viktor Soloveytchik During the period under examination, the Court delivered judgment in a case that involved particularly grave violence against Roma—Moldovan and Others v. Romania.17 The complaints concerned the authorities’ failure to remedy the consequences of a veritable lynching mounted on  September  by villagers against their Roma neighbours in Hădăreni, a village in the Mureş district. On that day, following the death of a villager allegedly killed by Roma, an enraged crowd, among them members of the local police, murdered three Roma men, set eighteen houses on fire, destroyed other property and forced all Roma inhabitants to leave the area. The ensuing investigations into the events dragged on for years, but led to the conviction and imprisonment of several villagers who had participated in the mob. However, no member of the police force was indicted despite ample evidence implicating them. The authorities released funds to rebuild the applicants’ houses, but six of the destroyed houses were not rebuilt. The victims’ claims for damages were granted ten years after the events, and reduced substantially as the courts refused to award sums in respect of undocumented belongings and found that the victims had provoked the attack and the ensuing damage. The language used in some of the judicial decisions was openly discriminatory and hostile against Roma. The Strasbourg Court could not deal with the complaints concerning the actual destruction of the applicants’ houses and belongings, nor their forceful expulsion from the village, as those events took place before the ratification of the Convention by Romania in June . However, noting that police officers had been involved in the lynching and in attempts—also after June —to cover up the incident, and considering the fact that the applicants, having been hounded from their village and homes, were forced to live in crowded and improper conditions, the Court considered that the government’s responsibility under the Convention was engaged as regards the applicants’ living conditions, and the authorities’ duty to put a stop to the breaches of the applicants’ rights. The Court found in this respect that the facts disclosed a general attitude of the authorities—prosecutors, criminal and civil courts, government and local authorities— that had perpetuated the applicants’ feelings of insecurity. The authorities had failed to bring to an end the breaches of the applicants’ rights. The applicants had also been forced to endure harmful living conditions over lengthy periods. Such treatment could be considered as diminishing their human dignity and arousing feelings of humiliation and debasement. Referring to the former Commission’s decision in the case of East African Asians v. the United Kingdom,18 the Court further noted that the discriminatory remarks made by the domestic courts based on the applicants’ Roma origin could be characterized as degrading treatment within the meaning of Article  of the Convention. On the basis of the facts of the case as a whole, the Court concluded that there had been a violation of Article  of the Convention. The Court also found a violation of Article  of the Convention in conjunction with Articles  and  in that the domestic courts, on the strength of remarks directly

 



ECtHR, Appl. Nos. / and /, Moldovan and Others v. Romania, judgment No.  of  July . Commission Report,  December , DR .

Case Law of the ECtHR Relevant to the Protection of Minorities ( June -June ) related to the applicants’ ethnicity, reduced the awards in damages made to them for the destruction of their houses. VII. Other Cases During the period under examination, the Court started the examination of two Spanish cases, Herri Batasuna v. Spain19 and Batasuna v. Spain,20 which concern the dissolution of two political parties on the grounds that they had links to the Basque separatist organization ETA and had failed to dissociate themselves from its terrorist activities. The Court also started the examination of the case of Polish Orthodox Autocephalic Church v. Poland,21 which concerns, among other issues, the alleged discrimination and lack of legal certainty arising from the manner in which the relevant law regulates the acquisition of property by the applicant Church compared to the regime applicable to the Catholic Church. VIII. Conclusion The one-year period examined here saw a number of interesting decisions and judgments of the Strasbourg Court touching upon minority issues. Some of the complaints were unfounded and rejected by the Court. The gravity of the violations found in several other cases, however, is alarming. Some of the cases mentioned are still pending. In its judgments and decisions, the Court condemned racial discrimination and elaborated on the interpretation of the Convention provisions mandating the effective investigation of incidents that may have involved racially motivated violence. The Court also defended the right to human dignity and found that an inadequate reaction by the authorities to the plight of a group that had suffered a racist attack may in itself constitute degrading treatment prohibited by the Convention. Finally, there were also cases where the Court engaged in the ‘fine tuning’ of the interpretation of the applicable Convention provisions.

  

ECtHR, Appl. No. /, Herri Batasuna v. Spain. ECtHR, Appl. No. /, Batasuna v. Spain. ECtHR, Appl. No. /, Polish Orthodox Autocephalic Church v. Poland.



Alain Chablais* and Pierre Garrone**

European Commission for Democracy through Law: Review of Recent Reports and Opinions Relevant to the Protection of National Minorities

In the course of the period under consideration, the European Commission for Democracy through Law (hereinafter “the Venice Commission”) provided expert assessment on legislation on indigenous peoples in Ukraine1 and national minorities in Romania.2 Furthermore, the Venice Commission addressed the issue of electoral rules and affirmative action for national minorities’ participation in decision-making process in European countries.3 I.

Examination of Draft Legislation on National Minorities and Indigenous Peoples

At the request of the governments concerned and following similar requests by other countries in the past, the Venice Commission has provided its legal expertise on draft legislation dealing with the status of national minorities and indigenous peoples. The *

**







JD, Administrator at the Secretariat of the European Commission for Democracy through Law of the Council of Europe (hereinafter “the Venice Commission”), Strasbourg (France). JD, Head of the Division of Elections and Referendums of the Venice Commission, Strasbourg (France). The views expressed herein are solely those of the authors and cannot be attributed to the Venice Commission. CDL-AD(), Opinion on the Draft Law on the Status of Indigenous Peoples of Ukraine, adopted on - October , at (hereinafter “Opinion on the Ukrainian Draft Law”). CDL-AD(), Opinion on the Draft Law on the Statute of National Minorities Living in Romania, adopted on - October , at (hereinafter “Opinion on the Romanian Draft Law”). CDL-AD(), Report on Electoral Rules and Affirmative Action for National Minorities Participation in Decision-making Process in European Countries, adopted on - March , at (hereinafter “Report on Electoral Rules and Affirmative Action”).

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 305-314. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Alain Chablais and Pierre Garrone purpose of this contribution will not be to repeat the detailed evaluation contained in the corresponding opinions quoted in footnotes  and . It is rather to highlight the main issues of concern the Venice Commission has identified and the principles it has been relying upon to formulate its recommendations so as to improve the draft laws at issue. Three main issues raised by the legislations concerned will therefore be addressed, namely their position in the hierarchy of norms, their personal scope of application and their schemes aimed at reinforcing participation. A. Position of the Legislation Concerned in the Hierarchy of Norms The Venice Commission has continued to pay particular attention to the position of the draft laws it has examined in the domestic legal order, a matter of crucial importance both for their future interpretation and the judicial protection offered to the communities concerned and their members. In Ukraine and in Romania, the form of the constitutional law was not chosen by the authorities. A common feature of the Romanian and Ukrainian draft laws is that they were both conceived as framework laws.4 It follows that they need to be read in conjunction with other sectoral laws—notably in the field of education, languages and media—and complemented by implementing regulations to become fully operational. Failure to properly regulate their interrelation with other sectoral legislation, in particular by properly stressing their specific nature as lex specialis,5 might therefore result in future legal uncertainties and diverging interpretations.6 Against this background, the Venice Commission recommended inter alia to include— in the draft law itself or in an accompanying explanatory report—precise cross-references to the relevant provisions of other laws7 instead of vague, general references each time the drafters did not want to repeat general norms meant to remain applicable in the context of minority groups. B. Personal Scope of Application The scope of application of national legislation governing the protection of national minorities has been addressed in the course of the period under reference, as had been the case in a series of earlier opinions.8 In dealing with this issue, which is often largely     



Opinion on the Romanian Draft Law, paras. - and -; Opinion on the Ukrainian Draft Law, para. . Opinion on the Romanian Draft Law, paras.  and ; Opinion on the Ukrainian Draft Law, para. . Opinion on the Romanian Draft Law, para. . Ibid., paras.  and . CDL-AD(), Opinion on the Draft Law on Amendments to the Law on National Minorities in Lithuania, adopted on  September , at (hereinafter “Opinion on the Lithuanian Draft Law”); CDL-AD(), Opinion on the latest version of the Draft Law amending the Law on National Minorities in Ukraine, adopted on - June , at (hereinafter “Opinion on the latest version of the Ukrainian Draft Law); CDL-AD(), Opinion on the Constitutional

European Commission for Democracy through Law coloured with political considerations, the Venice Commission has been essentially guided by legal arguments, not least of all the need to address minority rights as part and parcel of human rights, in a coherent perspective. While the inclusion of a general definition of the groups protected in the relevant legislation is largely viewed as acceptable, it is not required by international standards. For those states that have chosen to follow this approach, the Venice Commission has stressed that such definitions must not result in arbitrary or unjustified distinctions.9 In doing so, the states concerned should therefore draw on the objective and subjective elements that are commonly reflected in the relevant international instruments, despite the absence of a legally binding definition in international law. As regards the Ukrainian and the Romanian drafts,10 the Venice Commission has expressed concern at the inclusion of certain criteria that were not properly matched by international standards and practice.11 In addition to a general definition, the Romanian and Ukrainian draft laws each set out a list of communities protected. Such lists may raise problems, especially if they are exhaustive and not merely indicative, as the consistency between the definition and the list may be dubious. In the case of Romania, the Venice Commission recommended deletion of the exhaustive list, leaving the interpretation and application of the general definition to the competent authorities and, ultimately, to the competent courts.12 As regards the list contained in the Ukrainian draft, the Venice Commission pointed out the fact that many of the groups mentioned should probably not be regarded as original inhabitants of the Ukrainian territory as they have not lived there from time immemorial and, consequently, may not be considered indigenous peoples according to the existing international law standards.13 As concerns the citizenship requirement that was included in the Romanian draft, the Venice Commission has repeated that the most recent trend consists of not making, in a general way, the enjoyment of the internationally guaranteed minority rights dependent on citizenship, except for those rights whose enjoyment is traditionally restricted to citizens (certain of the political rights, access to certain public functions, right to return to one’s country).14 Consequently, the Venice Commission recommended not to make citizenship an element of the definition of the term ‘national minority’, but rather to

  

  

Law on the Rights of National Minorities in Croatia, adopted on - March , at (hereinafter “Opinion on the Croatian Constitutional Law”); CDL-AD(), Opinion on the revised Draft Law on Exercise of the Rights and Freedoms of National and Ethnic Minorities in Montenegro, adopted on - June , at (hereinafter “Opinion on the Draft Law of Montenegro”). Opinion on the Romanian Draft Law, para. . Opinion on the Ukrainian Draft Law; Opinion on the Romanian Draft Law, para. . Opinion on the Ukrainian Draft Law, para.  for the “numerical inferiority” as regards indigenous people and Opinion on the Romanian Draft Law, paras.  and  concerning the way in which the “time factor” requirement is formulated. Ibid., paras. -. Opinion on the Ukrainian Draft Law, paras.  and . Opinion on the Romanian Draft Law, para. .



Alain Chablais and Pierre Garrone indicate in the relevant provisions of the draft law that the enjoyment of certain rights is restricted to citizens:15 this would avoid the undue restriction of certain cultural and linguistic rights to citizens only.16 In respect of the Ukrainian draft, which also contained a citizenship requirement, the Venice Commission was given the opportunity to stress that such a requirement was clearly at variance with the most widely shared approach concerning the international protection of indigenous peoples. It consequently advised the Ukrainian authorities to omit such a reference not only in the definition,17 but also in most of the substantive rights concerned.18 The issue of whether it is appropriate to rely on a citizenship requirement or, instead, on a combination of other, more relevant criteria to circumscribe the exact scope of the various minority rights, measures and facilities contained in national instruments has been the object of further reflection by the Venice Commission. In  and , preparatory exchanges of views were organized on this topic in consultation with representatives of other international bodies dealing with minority protection in the Council of Europe, the OSCE and the United Nations. A general study on this matter is now in preparation and should be examined by the Venice Commission in one of its forthcoming plenary sessions. C. Schemes Aimed at Reinforcing Participation One of the main added values of general laws on national minorities, and perhaps also of general laws on indigenous peoples, often lies with the enhanced participation they create for the communities and their members. The requirement of effective participation is notably embodied in Article  of the Framework Convention for the Protection of National Minorities (FCNM), which crystallizes in a legally binding instrument a number of converging commitments expressed in soft law, notably under the CSCE/ OSCE auspices. In recent years, a number of states have developed consultation structures and other forms of participation in the decision-making processes, as evidenced inter alia by the country-by-country monitoring work conducted by the supervisory mechanism of the FCNM. Experience suggests that one of the main problems encountered in this context is the lack of coordination—including overlapping of competences—between newly established structures and other institutions and authorities, a problem which may harm their smooth functioning and eventually mar efforts to improve participation. A good example of this risk is offered by the Romanian draft, which introduces a promising, innovative system of cultural autonomies for national minorities likely to constitute a positive and useful step in terms of effective participation.19 Although the Venice Commission emphasized that the proposed system of cultural autonomy would     



Ibid., paras.  and . Ibid., paras. -. Opinion on the Ukrainian Draft Law, paras. ,  and . Ibid., paras. -. Opinion on the Romanian Draft Law, para. .

European Commission for Democracy through Law ensure real decision-making powers to the representatives of national minorities and not mere consultation rights, it drew the attention of the authorities to the numerous difficulties raised by the existing shortcomings in the envisaged relationship between institutions of cultural autonomy and other bodies. For example, it was noted that institutions of cultural autonomy would coexist with several actors partly exercising the same or at least similar competences, which made it essential to clarify in the draft law itself their respective roles in order to avoid unnecessary overlapping of competences. Furthermore, given the extensive competences—through the binding consent system— granted to the institutions of cultural autonomy in sectors where the state authorities hold the decision-making power, the Venice Commission suggested that the draft law be completed with a specific, more detailed section setting out the main principles of cooperation applicable in this regard, as well as a clearer budgetary framework.20 As concerns the situation of indigenous peoples, the needs for an effective participation in public affairs is probably even stronger than for national minorities, at least on issues linked to the use and management of natural resources on their traditional lands. Against this background, the Venice Commission welcomed the proposed creation of an Assembly of Indigenous Peoples in the Ukrainian draft as the existence of a body representing the interests of indigenous peoples is of particular importance for ensuring a channel of communication and coordination between the government and indigenous peoples, and between different indigenous peoples themselves. Notwithstanding this positive assessment, the Venice Commission warned against an overlapping of competences between this assembly and the existing Council of Representatives of Civic Associations of National Minorities since the former was supposed to advise also on issues related to national minorities according to the draft law.21 Another concern identified was the absence of coordination between the Assembly of Indigenous Peoples and the corresponding structures to be established at the local level, which prompted the Venice Commission to call for a clarification of their relationship in the draft law itself.22 III. Electoral Law and National Minorities Further to a request by the Parliamentary Assembly of the Council of Europe, the Venice Commission drafted a Report on Electoral Rules and Affirmative Action for National Minorities’ Participation in Decision-Making Process in European Countries, which was adopted by the Council for Democratic Elections23 and the Venice Commission on - March .24

   



Ibid., paras. - and . Opinion on the Ukrainian Draft Law, para. . Ibid., paras.  and . The Council for Democratic Elections is a tripartite body including members of the Venice Commission, the Parliamentary Assembly and the Congress of Local and Regional Authorities of the Council of Europe, specialised in electoral matters; it includes observers from, inter alia, the OSCE/ODIHR. Report on Electoral Rules and Affirmative Action, supra note .



Alain Chablais and Pierre Garrone A. The Previous Work of the Venice Commission 1. The Study on “Electoral Law and National Minorities” The  report is not the first contribution of the Venice Commission to the question of electoral law and national minorities. Already in  it had adopted a detailed Study on Electoral Law and National Minorities, based on contributions from , mostly European, states.25 This study did not focus on specific rules directed at the representation of national minorities in elected bodies. On the contrary, it underlined that rules specifically providing for the representation of minorities are rather rare (the most important ones exist in Croatia, Romania and Slovenia). Other systems, which facilitate the representation of minority organisations without providing for guaranteed seats, are not very common either, such as the exemption from threshold rules practised in Germany and Poland. There may also be a system establishing a balance between groups (in the case of Belgium, linguistic groups). The study found that representation of minorities is actually mostly ensured through the normal functioning of electoral systems. Therefore, the report had first to address the issue of electoral systems and their effects in general, before dealing with the specific effects on the representation of minorities. It concluded that: –

The impact of an electoral system on the representation of minorities is felt most clearly when national minorities have their own parties.

[…] – Although parties representing national minorities are very widely permitted, their existence is neither the rule nor indispensable to the presence of persons belonging to minorities in elected bodies. – The more an electoral system is proportional, the greater the chances dispersed minorities or those with few members have of being represented in the elected body. The number of seats per constituency is a decisive factor in the proportionality of the system. – When lists are not closed, a voter’s choice may take account of whether or not the candidates belong to national minorities. Whether or not such freedom of choice is favourable or unfavourable to minorities depends on many factors, including the numerical size of the minorities. – Unequal representation may have an influence (positive or negative) on the representation of concentrated minorities, but the replies to the questionnaire do not indicate any concrete instances. – When a territory where a minority is in the majority is recognised as a constituency, this helps the minority to be represented in the elected bodies, especially if a majority system is applied. To sum up, the participation of members of national minorities in public life through elected office results not so much from the application of rules peculiar to the minori-





CDL-INF(), Study on Electoral Law and National Minorities, adopted on  January , at (hereinafter “Study on Electoral Law and National Minorities”).

European Commission for Democracy through Law ties, as from the implementation of general rules of electoral law, adjusted, if need be, to increase the chances of success of candidates from such minorities.26

2. Food for Thought: Proportional Representation as the Less Controversial Aspect of ‘Affirmative Action’ It is a truism that proportional representation is aimed at a fair representation of minorities lato sensu, but it can hardly be said that a proportional system’s essential purpose is to ensure the representation of national minorities. Therefore, it is very seldom considered as the way to ensure national minorities’ representation. It is, however, the simplest way, in theory as well as practice, to ensure the representation of national minorities. From a theoretical point of view, the following comment may actually be made: in electoral law, the distance between mere non-discrimination and equality of results is much shorter than in other fields of law. Non-discrimination implies equality of opportunity, even if the achievement of such equality of opportunity must then be defined in greater detail, for example concerning air time in the public media.27 In education, for example, ensuring equality of opportunity may be regarded as affirmative action, or at least, goes much further than non-discrimination, e.g. through special support to pupils facing difficulties. Equality of results is not just an objective, but the core element of proportional systems—even if it may be pursued with more or less intensity depending on the particulars of the legislation (allocation method or the magnitude of constituencies, threshold). Furthermore, at least as soon as list systems are applied—as in most proportional representation methods—electoral law applies to legally defined groups, such as political parties and their constituencies, as well as to individuals. The much-discussed dichotomy between individual rights and collective rights is therefore meaningless here.28 Bearing that in mind, the study of affirmative action for national minorities in the electoral field is clearly not without interest. It is important, however, to keep in mind that this type of affirmative action is not the main way of ensuring minorities’ participation in public life: that is, not a petitio principii, but a mere fact.

 



Study on Electoral Law and National Minorities, -. On equality of opportunity in the electoral field, see for example the Code of Good Practice in Electoral Matters of the Venice Commission, adopted by the Parliamentary Assembly and the Congress of Local and Regional Authorities of the Council of Europe, and supported by the Committee of Ministers, CDL-AD()rev, I.., at (hereinafter “Code of Good Practice”). It could be objected that equality between political parties is still a form of individual equality, since they are (individual) legal subjects and not ‘groups’ of citizens. However, proportional representation systems, as other norms of electoral law, are focused on the rights of voters much more than on those of parties.



Alain Chablais and Pierre Garrone B. The Report on Electoral Rules and Affirmative Action for National Minorities’ Participation in the Decision-Making Process 1. Scope of the Report The report adopted in  focuses on specific rules, intended to ensure national minorities’ representation in the elected bodies. It starts by stating that “the idea of affirmative action is a very controversial one” and that “affirmative action is sometimes considered as transitional in nature”.29 Interpreting the term ‘affirmative action’ so restrictively would have limited the scope—and the interest—of the research too much. Affirmative action is thus understood as applying to those electoral rules that go beyond the principle of non-discrimination.30 The term ‘minority’ is also interpreted broadly, so that the scope of the study is not limited to minorities as recognized in national or international law, but refers more broadly to ethnic, linguistic or religious communities when they benefit from specific rules of electoral law. According to this study, the most frequently used affirmative action electoral rules are found in the following areas: – the electoral system in general (proportional or mixed system) – the voting right (dual voting right and special voters lists) – the numerical threshold – the electoral districts (their size, form and magnitude) – reserved seats – representation (over-representation) – use of the national minority’s language in the electoral process.31 2. Case Study The report mentions  European countries where affirmative action in favour of minorities as defined above can be identified. They may be classified as follows: (a) The Major (e.g. Ethnic) Groups are Taken into Account in the Repartitioning of Seats. In Bosnia and Herzegovina, seats are divided among ethnic groups at local, entities and national level. In Belgium, a number of provisions deal with the quasi-parity of both codominant (Dutch-speaking and French-speaking) language communities at the federal level, as well as in the region of the capital, Brussels. Other, more specific provisions deal for example with the representation of voters from a district with linguistic facilities. In Switzerland, language groups or regions must be adequately represented in the executive and judicial branches of government. (b) Reserved Seats for Minorities. Croatia and Slovenia provide for a special election to seats reserved to national minorities at national level. In Slovenia, such a rule applies also at local level, whereas in   



Report on Electoral Rules and Affirmative Action, para. . Ibid., para. . Ibid., para. .

European Commission for Democracy through Law Croatia, at local and regional level, specific rules only apply if the application of the general rules of electoral law do not provide for a minimal number of representatives of minorities. In Switzerland, a minimal number of seats is guaranteed to the Frenchspeaking minority in the canton of Berne, and one seat in the executive branch of government of this canton. In Bosnia and Herzegovina, proper national minorities (to be distinguished from the constituent people) are guaranteed at least one seat in municipal councils/assemblies. In Cyprus, a representative of each of the Maronite, Armenian and Latin religious groups is elected to the House of Representatives, albeit with a consultative status. (c) Threshold Exemption. In Germany and Poland, organizations of national minorities are exempted from the % threshold requirement. (d) Other Types of Deviation from the General Rules on Allocation of Seats. In Romania, organizations of citizens belonging to national minorities, which fail to obtain the number of votes for representation in parliament, have the right to a deputy if they have obtained, throughout the country, at least % of the average number of validly expressed votes necessary for the election of a deputy. Special rules apply to candidatures by organizations of national minorities for local elections. In Italy, for European elections, lists of candidates proposed by three national minorities are allowed to join another list of candidates of the same constituency. Every voter has the right to express three individual preferences—including one for a candidate of the minority list. The seats obtained by the joined lists are allocated according to the candidates’ number of preferences. However, when no candidate of the minority list is elected, the one with most preferences is proclaimed elected instead of a candidate of the other list if he or she obtains at least , preferences. In Hungary on the contrary, it is at local level that such exceptional rules apply, allowing minorities not represented in a municipal council to obtain a seat if one of their candidates receives more than half the votes obtained by the elected candidate with fewer votes. (e) Deviation from the Normal Repartitioning of Seats between Constituencies. Provisions of some subjects of the Russian Federation (Carelia, Daghestan) help minorities to be represented in the elected bodies through deviations from the rule of equal representation of the population in the legislative bodies. (f ) Design of Electoral Districts in order to Ensure the Representation of National Minorities. This is the case in ‘the Former Yugoslav Republic of Macedonia’, including through the design of municipalities. III. Conclusions On the basis of this comparative study, the report remarks that specific rules that may be considered as providing an affirmative action mechanism are generally introduced



Alain Chablais and Pierre Garrone as isolated elements, while in a few countries, they are introduced in a more systematic way. In general, the electoral rules that favour affirmative action have limited range. The number of beneficiaries of such electoral rules is clearly and sharply determined either by the Constitution or the Law or by other accompanying legislative acts. For example, the number of parliamentary seats guaranteed to minorities is almost always lower than the number of minorities present in the country. Affirmative action may apply only at national, regional, local or even European level, and/or only in a part of the country. This means that the original inspiration for such electoral rules is not purely legally based, but probably political.32

The study furthermore emphasizes that affirmative action electoral rules are particularly efficient when applied in local elections.33 In conclusion, the study affirms the following principles, which may be found, either explicitly or implicitly, in the Code of Good Practice in Electoral Matters of the Venice Commission,34 which is the reference document of the Council of Europe in the electoral field: a.

b.

c. d. e.

   



Parties representing national minorities must be permitted. Yet the participation of national minorities in political parties is not and shall not be restricted to the so-called ethnic based parties. Special rules guaranteeing national minorities reserved seats or providing for exceptions to the normal seat allocation criteria for parties representing national minorities (for instance, exemption from a quorum requirement) do not in principle run counter to equal suffrage. Neither candidates nor voters must find themselves obliged to reveal their membership of a national minority. Electoral thresholds should not affect the chances of national minorities to be represented. Electoral districts (their number, the size and form, the magnitude) may be designed with the purpose to enhance the minorities’ participation in the decision-making processes.35

Ibid., para. . Ibid., para. . Code of Good Practice, see in particular point I... Report on Electoral Rules and Affirmative Action, para. .

Krzysztof Drzewicki and Vincent de Graaf *

The Activities of the OSCE High Commissioner on National Minorities ( July 2005 June 2006)

I. Introduction This overview of the activities of the OSCE High Commissioner on National Minorities (HCNM) covers the period July  to June .1 The premise on which the conflict prevention mandate of the HCNM rests is that problems concerning the relationship between the majority and minorities are a major source of international conflict as well as of instability within states. Social tensions arising from minority issues exist in many states and, under certain circumstances, failure to deal in a timely manner with such tensions can lead to violent conflict, affecting peace, stability or relations between states. Ethnic tensions should ideally be countered by policies that encourage all groups to consider the state as their common home, where all individuals are able to interact freely and where all have equal opportunities to participate and to benefit. This integration process is particularly important in relatively newly independent states; for example, in South East Europe and Central Asia, as these states face the complex task of strengthening nationhood, often in difficult political and economic conditions. Where the understanding of nationhood is based mainly on that of the largest ethnic or historically dominant group, it is particularly important that persons belonging to national minorities are not marginalized or excluded. *



Prof. Dr Hab. Krzysztof Drzewicki LL.D. (University of Gdańsk) and Vincent de Graaf LL.M. (Cantab.) M.A. (Maastricht University) and Maîtrise en droit (Université Aix-Marseille III) work as, respectively, Senior Legal Adviser and Legal Officer for the OSCE High Commissioner on National Minorities. The views expressed in this article are those of the authors and are not necessarily shared by the HCNM or the OSCE. An account of past activities of the HCNM going back to January  can be found in the four previous publications of the European Yearbook of Minority Issues. For an account of the activities of the first HCNM, Mr. Max van der Stoel, from the founding of the post in  to early , see Walter Kemp (ed.), Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities (Kluwer Law International, The Hague, ).

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 315-337. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Krzysztof Drzewicki and Vincent de Graaf The approach of the HCNM when addressing these situations is normally that of ‘quiet diplomacy’, characterized by a combination of the collection and assessment of information, and visits and direct contact with officials, representatives of both majority and minority groups, civil society and individuals. This diplomacy also comprises concrete and practical recommendations, which assist the OSCE participating states in the formulation and implementation of legislation and policies in accordance with their international commitments. In advising on specific country situations or legislative proposals, the HCNM can draw on a series of guidelines and recommendations on thematic issues, which were drafted on his initiative by groups of independent international experts. These recommendations address issues regarding the role of persons belonging to national minorities in the areas of education, language, participation in public life and the media, which can create tensions between national minorities and other groups.2 During this reporting period, the HCNM presented the fifth set of recommendations elaborated by internationally recognized independent experts under the auspices of the HCNM, namely the Recommendations on Policing in Multi-Ethnic Societies (hereinafter, “Policing Recommendations”).3 It has been the experience of the HCNM that police can be both a contributor and in some instances a threat to stability in states that are home to a plurality of ethnic groups. Police operate at ‘street level’ and often represent the sole agency of the criminal justice system with which various ethnic communities have direct contact. As a result, the police have considerable power to shape the attitudes and public perceptions of persons belonging to national minorities (as well as persons belonging to majorities) about the rule of law in the state and its capacity to act in a just, legitimate and accountable way. When police operate under the rule of law, are representative of the society’s demographic composition and are responsive to the concerns and wishes of all ethnic communities, they have the potential to promote both stability in the state and the state’s legitimacy in the eyes of the multiethnic citizenry. On the other hand, the international community has witnessed how police can sometimes exert a negative influence on interethnic relations by the indiscriminate use 





HCNM, The Hague Recommendations regarding the Education Rights of National Minorities, October ; The Oslo Recommendations regarding the Linguistic Rights of National Minorities, February ; The Lund Recommendations on the Effective Participation in Public Life, September ; and the Guidelines on the Use of Minority Languages in the Broadcast Media, October . The Hague Recommendations are reproduced, together with some scholarly analysis of the related subject matter, in a special issue of the International Journal on Minority and Group Rights, () IJMGR (/), –. The Oslo Recommendations are likewise reproduced in a special issue of the same journal, () IJMGR (), –. For the full text of the Lund Recommendations, see () HM (), –. The Media Guidelines are also reproduced along with an introductory article by John Packer and Sally Holt in () HM (), –. All Recommendations/ Guidelines are also available in a number of different languages from the Office of the HCNM or, in electronic form, on the HCNM’s website, at . Statement by Rolf Ekéus, OSCE High Commissioner on National Minorities to the nd Plenary Meeting of the OSCE Permanent Council, Vienna, Austria,  February , available on the HCNM’s website, at .

The Activities of the OSCE High Commissioner on National Minorities ( July -June ) of force, engagement in summary punishment and ethnically motivated persecution. In such situations, the police service not only fails to serve its main purpose of preventing crime and serving the community but also generates considerable interethnic tension through heavy-handed practices and thus may even become a conflict catalyst. The Policing Recommendations establish a detailed ‘road map’ for building trust and confidence between police services and persons belonging to national minorities, and provide states with practical guidance for policy makers, police, national minority communities and NGOs on how to approach policing and address the issue of police–minority interaction in multiethnic settings across the OSCE region.4 As will be explained below, the Policing Recommendations deal with such key topics as recruitment and representation, training and professional support, engagement with ethnic communities, operational practices and the prevention and management of conflict. During the reporting period, the HCNM also addressed another thematic issue, namely the integration of so-called ‘new minorities’. In light of current debates, the HCNM examined the relevance of his concept of ‘integration respecting diversity’ as well as the possible applicability of the methods that the HCNM has developed over the years in situations involving so-called ‘new minorities’. In response to invitations by the OSCE Parliamentary Assembly, the HCNM commissioned a study on the matter of integration policies in diverse societies from the Brussels-based research institute Migration Policy Group. The HCNM presented this study, which covers the integration policies of seven Western democracies, along with his own analysis at the July  session of the OSCE Parliamentary Assembly in Brussels.5 Although the HCNM is not primarily a project-implementing agency, the HCNM’s preventive diplomacy is frequently backed up by targeted projects in support of education, language and participation in the various dimensions of public life, as well as media access and development, sometimes in cooperation with the UN, UNHCR, CoE and EU. The emphasis of these projects is always on early action and prevention of conflict, and they aim to close gaps that otherwise would not necessarily be filled. Examples of these projects are given in the sections on specific countries and regions. In addition to ongoing activities, projects have been set up or expanded in Georgia, Kyrgyzstan, Latvia, Serbia, Tajikistan, Ukraine and the former Yugoslav Republic of Macedonia. The period under review was particularly interesting for the OSCE and the organization’s HCNM and saw profound political changes throughout the OSCE area. These changes, which included, for example, the start of negotiations on the future status of





See the opening speech of the HCNM at the roundtable on “Modernising Police and Promoting Integration: Challenges for Multi-Ethnic Societies”, Bishkek, Kyrgyzstan,  June , available on the HCNM website, at . See also Krzysztof Drzewicki, “Introducing Recommendations on Policing in Multi-Ethnic Societies – A New Tool for the OSCE High Commissioner on National Minorities”, () HM (), –; and Arie Bloed, “Comments on the New Set of Recommendations on Policing in Multi-Ethnic Societies”, () HM (), –. The study, along with an HCNM cover note and the HCNM speech to the OSCE Parliamentary Assembly, is available at .



Krzysztof Drzewicki and Vincent de Graaf Kosovo and the independence of Montenegro, affected not only the minority policies of OSCE participating states but also relations with neighbouring states. II. Minority Rights International Framework and Practice During the reporting period, the most far-reaching development within the international framework and practice for minority rights has been the initiation and endorsement by the HCNM of the Recommendations on Policing in Multi-Ethnic Societies, which complemented four earlier sets of similar instruments in the field of minority education rights, linguistic rights, effective participation in public life and use of minority languages in the broadcast media. Section A below contains basic information on the background of the concept of multiethnic policing, the drafting process of recommendations, their political and legal bases, content and a possible follow-up. As far as interagency cooperation is concerned, development on this front has continued, notably with the CoE, within the promising framework of ‘enhanced cooperation’ launched in  (see Section B below), while, at the global level, regular cooperation with the United Nations, in particular with the Working Group on Minorities of the Sub-Commission on the Promotion and Protection of Human Rights, has proceeded in the same vein as before. However, any further moves to develop this cooperation further must await the completion of the ongoing reforms of the whole UN human rights sector. Pursuant to General Assembly resolution / of  March  entitled ‘Human Rights Council’, the latter body replaced the Commission on Human Rights and all its mandates, mechanisms, functions and responsibilities were assumed, as of  June , by the new Council.6 Therefore, it remains to be seen what decision is taken on the further fate of the Sub-Commission on the Promotion and Protection of Human Rights and its Working Group on Minorities. An important step had, however, been taken earlier when, in its resolution /, the then Commission on Human Rights requested the High Commissioner for Human Rights to appoint an ‘independent expert’ on minority issues. Accordingly, on  July , the High Commissioner Louise Arbour appointed Ms. Gay McDougall as the first incumbent of the position of Independent Expert for an initial period of two years. The OSCE HCNM has already established contact with Ms. McDougall with a view to identifying possible areas and modes of cooperation.7 A. The Recommendations on Policing on Policing in Multi-Ethnic Societies 8 1. Endorsement and Presentation The reporting period saw Ambassador Rolf Ekéus—the OSCE HCNM—endorsing the fifth set of recommendations of a general thematic character: the Policing   



General Assembly Resolution No. / of  March , “Human Rights Council”, at . . The text of Section II, Subsection A is largely based on the article by Krzysztof Drzewicki, op.cit. note , –.

The Activities of the OSCE High Commissioner on National Minorities ( July -June ) Recommendations.9 The instrument, drawn up by a group of experts gathered together by the HCNM, was officially presented in his address to the nd Plenary Meeting of the OSCE’s Permanent Council (PC) in Vienna on  February . The launch of a body of recommendations on policing in multiethnic contexts has above all been generated by the HCNM’s conflict prevention considerations. In his judgement, the HCNM felt that a closer investigation of a topical issue of such importance for his work in the field was indispensable, namely “the role of the police in de-escalating tensions and promoting harmonious inter-ethnic relations”.10 Such a document reflects not only a conflict prevention philosophy but also the HCNM’s practical demonstration of his understanding of and approach to the concept of ‘comprehensive security’, which defines security and cooperation within a broader formula of three baskets: political and security questions; economic and environmental cooperation; and the ‘human dimension’ (democratic governance, the rule of law, human rights and fundamental freedoms, and humanitarian issues).11 2. Origins and Background The role of policing in the context of ethnic relations has been present in domestic public debates since at least the s, notably in the aftermath of racial tensions, disturbances and riots in the US and Europe. Having identified the roots of the problems, sets of large-scale measures were adopted by a number of countries for gradual implementation.12 A common denominator of all the lessons learned was that any efforts towards the integration of different ethnic communities would eventually fail if, among other things, policing was not substantially improved. In such sensitive matters as relations between ethnic groups and the police it has become imperative to institute practices that would neither amount to ‘over-policing’ nor tolerate ‘under-policing’.13 At the international level, police-related issues appeared quite late. As has been recently pointed out by one scholar, it is somewhat surprising that this topic was only 

  



Published in English by the Office of the OSCE High Commissioner on National Minorities, The Hague, . A Russian version of the Recommendations has also been published by the HCNM and together with all other Recommendations and Guidelines is available at: . The present Yearbook also features an article on the issue by Kristin Henrard. See Statement by Rolf Ekéus, OSCE High Commissioner on National Minorities, op.cit., . For more on the concept of comprehensive security see OSCE Secretariat, OSCE Handbook (OSCE, Vienna ), –. It is instructive to learn how far the conclusions in the well-known reports by Lord Scarman on the Brixton riots, Macpherson Inquiry and the Christopher Commission are still largely valid today. For example, ‘over-policing’ takes place when greater attention is given to crimes allegedly committed by members of the minority community or when powers are used more harshly against such persons. By ‘under-policing’, it is meant that the police may be less willing to help members of minority communities when they are victims of crime. For more details see Robin Oakley, “Police Training Concerning Migrants and National Minorities”, in Council of Europe (ed.), Human Rights and the Police. Seminar Proceedings, Strasbourg, – December  (Council of Europe Publishing, Strasbourg, ), –.



Krzysztof Drzewicki and Vincent de Graaf ‘discovered’ at the end of the s.14 The OSCE Istanbul Summit in  decided to expand the ability of the organization to carry out police-related activities in order to assist in maintaining the primacy of law. Adopted by the Istanbul Summit, the Charter for European Security provided an enhanced OSCE role in police-related activities as an integral part of the organization’s efforts in conflict prevention, crisis management and post-conflict rehabilitation.15 Yet the reinvigorated OSCE approach to police-related activities has a wider applicability than was first thought. Further developments showed the increasing role of ethnic aspects in police activities and prompted the HCNM to reflect upon his possible involvement by launching the project for elaborating a set of recommendations on policing in multiethnic societies. This decision was, above all, the result of his practical field experience, most notably in the Balkans and the Central Asian republics. Moreover, the launching of the Policing Recommendations project was motivated by the absence of appropriate written guidelines on policing and minorities. This is to say that earlier attempts, such as the Rotterdam Charter, though impressive in itself, focused on the situations and problems that are typical for Western Europe and, as such, were not entirely applicable to the challenges faced by the HCNM in his conflictprevention mission.16 In his  February  speech, the HCNM shared with the OSCE Permanent Council his conclusion that the “police can be both a contributor and in some instances a threat to stability in states which are home to a plurality of ethnic groups”.17 The police operate at ‘street level’ and often represent the sole agency of the criminal justice system with which various ethnic communities have direct contact. In other words, placed closest to the population, local police forces are in the best position to address and solve practical problems of local communities relating to security and stability. On the other hand, it is frequently witnessed that the police can sometimes exert a negative influence on interethnic relations.18 This is particularly apparent in situations where police disproportionately subject members of ethnic minorities to searches. Police often display a routine lack of sensitivity, use excessive force or, broadly speaking, engage in ‘hard policing’ and fail to obtain the cooperation of ethnic communities. Such conduct by the police tends to ‘generate’ rather than ‘mitigate’ tensions.19   

  



For more detail, see Arie Bloed, “OSCE Assistance for Police Has to be Strengthened”, () HM (), –, at . See paras.  and – of the Charter. For the text of the Charter, available in several languages, please see . The Rotterdam Charter on ‘Policing for a Multi-Ethnic Society’ () was adopted jointly by representatives of the police, municipal authorities and NGOs, hence in addition it enjoys a less formal status. See Statement by Rolf Ekéus, OSCE High Commissioner on National Minorities, op.cit. note , . See Statement by Rolf Ekéus, OSCE High Commissioner on National Minorities, op.cit. note , . For more detail with reference to the experience of the United Kingdom, see David Feldman, Civil Liberties and Human Rights in England and Wales (Clarendon Press, Oxford, ), –.

The Activities of the OSCE High Commissioner on National Minorities ( July -June ) This is why the potential positive impact of policing, coupled with the inherent risks for maintaining and promoting integration in multiethnic societies, has become a sufficiently strong reason for addressing these complex issues by the HCNM. 3. Legal and Political Bases While it was predominantly a conflict prevention philosophy that lay behind the HCNM’s decision to initiate the whole project on policing in multiethnic societies, he also felt that it was imperative not to overlook its human dimension component. This is a concept that has been well embedded in numerous OSCE political commitments, a good part of which has in addition been accommodated by modern international law. From this perspective, it should first be recalled that good policing requires, among other measures, respect by states of “the right of persons belonging to national minorities to effective participation in public affairs”.20 As a part of the general human rights regime, the right of citizens to “take part in the conduct of public affairs, directly or through freely chosen representatives” is laid down in Article (a) of the International Covenant on Civil and Political Rights. In the more far-reaching provisions of the Framework Convention for the Protection of National Minorities (FCNM), Article  provides that “The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them”. Importantly, within the reporting procedure on the implementation of the FCNM, the Advisory Committee often criticizes governments for the under-representation of minorities in the police service and encourages them to adopt necessary measures in this respect.21 The most elaborate standards on the effective participation of national minorities in public life may be found in the HCNM’s Lund Recommendations. Under Recommendation No. : “States should ensure that opportunities exist for minorities to have an effective voice at the level of the central government, including through special arrangements”, which may include, among other things, “special measures for minority participation in the civil service as well as the provision of public services in the language of national minority”. Likewise, in the context of territorial arrangements, Lund Recommendation No.  recommends that functions over which local, regional or autonomous administrations have assumed primary or significant authority include, among others, “local policing functions”. It may be inferred from the content of the OSCE commitments and legal rules of treaty law that the right to effective participation by persons belonging to national minorities is satisfactorily reflected in the above rules. The need for more specific rules has been successfully satisfied by unequivocal jurisprudence22 and the Policing  



Para.  of the Copenhagen Document of . For more details see A. Verstichel, “Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities: Review of the Opinions of the Advisory Committee Regarding Article  of the Council of Europe Framework Convention for the Protection of National Minorities”,  EYMI (/), –, at −. Some scholars believe that for the Copenhagen Document and the FCNM to ensure the ethnic representativeness of administrative institutions in this context “would require a



Krzysztof Drzewicki and Vincent de Graaf Recommendations may become yet another supplementary instrument for developing a normative and operational reference system for all domestic and international bodies supervising the implementation of minority rights. 4. The Drafting Process and Content The decision to bring together a group of experts with a view to drawing up a set of recommendations on the issue of multiethnic policing was preceded not only by consideration of the different modalities of the whole project but also—bearing in mind the other OSCE activities in this field—by consultations with the Strategic Police Matters Unit (SPMU) in the OSCE Secretariat in Vienna. This allowed for a better coordination of further steps to be taken within the project and resulted in the choice of the project’s independent consultant (Dr Robin Oakley) and other members of the expert group.23 It was decided that the selection of experts should reflect a balance between police officers, academics—including lawyers—officials of relevant international organizations (osce institutions, the coe and the eu), members of competent ngos and other experts from different geographical regions of the OSCE. They were assisted by a number of political and legal advisers from the Office of the HCNM. The group of experts met three times in the course of  and its work was organized in the form of a dialogue between the independent consultant, who assumed a role of rapporteur of sorts, and the group itself. This process ensured regular feedback between the experts’ proposals and amendments to specific recommendations and the formulation of the corresponding explanatory notes. It may be concluded that the work of the experts has brought about a coherent and well-formulated text. Drafted carefully within the framework of existing standards and legal rules, the Policing Recommendations reflect the consensus achieved among the experts, although a number of issues raised some controversy. Eventually, the experts accepted the re-drafting of some particular provisions, while references to certain issues were avoided.24 Perhaps the whole document, comprising  Recommendations and a particularly extensive Explanatory Note, may appear to be somewhat long to some. Nevertheless, for needs such as policy-making and training the document provides useful explanations and guidelines. The  individual recommendations are divided into the following six sections: I. General Principles (Recommendations −); II. Recruitment and Representation (Recommendations −);







rather generous interpretation of the provisions relied upon”. See Kristin Henrard, Devising an Adequate System of Minority Protection (Kluwer Law International, The Hague, Boston, London, ), . The HCNM, in consultation with the Strategic Police Matters Unit in the OSCE Secretariat, appointed Dr Robin Oakley, independent consultant and Honorary Research Fellow at the Centre for Ethnic Minority Studies, Royal Holloway, University of London, to advise him. For an overview of previous publications and activities of Dr. Oakley, please see . Without going into detail, it may be mentioned that the experts differed on aspects such as how detailed the recommendations should be on statistical targets or quotas for ensuring the ethnic representativeness of the police and whether the issue of ethnic data collection (optional or compulsory) should be addressed.

The Activities of the OSCE High Commissioner on National Minorities ( July -June ) III. IV. V. VI.

Training and Professional Development (Recommendations −); Engaging with the Communities (Recommendations –); Operational Practices (Recommendations –); and Prevention and Management of Conflict (Recommendations –).

5. Conclusion The Recommendations on Policing in Multi-Ethnic Societies are intended as yet another set of tools for the HCNM’s conflict-prevention toolkit. They provide not only a list of policy and legal measures that may need to be adopted and pursued by governments but also a set of remedies against the under-representation and under-participation of persons belonging to national minorities in the conduct of public affairs related to policing. The Policing Recommendations constitute a set of problem-oriented standards and, as such, have not been designed for setting new standards or rules but rather for bringing together and developing a consistent catalogue of substantive and procedural forms of professional policing in multiethnic societies. As pointed out by the HCNM in his February speech to the Permanent Council, this document “establishes a detailed roadmap for trust and confidence between the police and persons belonging to national minorities”.25 The overarching goal is to contribute to reducing and managing interethnic tensions as well as preventing such tensions from developing into large-scale disturbances and conflicts. In the context of the strategic concept of the four ‘A’s (adoption, application, assessment and adjustment),26 the Policing Recommendations are merely at a stage that invites their application. In order to achieve this objective as widely as possible, acceptance by governments and the police authorities is vital. No less crucial is the legitimization of the Policing Recommendations by national minorities and their organized groups. Adoption of specific policies by governments for good and professional policing with regard to ethnic communities and the subsequent application of these policies should be accompanied by the well-targeted dissemination of the Policing Recommendations. Police training programmes cannot afford to ignore such a set of recommendations on issues rarely dealt with previously. With their vision on conflict prevention, the Policing Recommendations have the potential to become a viable instrument for the successful achievement of peaceful multiethnic societies in the whole OSCE area, both east and west of Vienna.

 

See the reference to his  February  speech in the Statement by Rolf Ekéus, OSCE High Commissioner on National Minorities, op.cit., note , . See Krzysztof Drzewicki, “The Lund Recommendations on the Effective Participation of National Minorities in Public Life – Five Years After and More Years Ahead”, (–) IJMGR (), –, at –.



Krzysztof Drzewicki and Vincent de Graaf B. The OSCE and CoE: Advancing Cooperation on National Minority Issues 1. Enhanced Cooperation Between the OSCE and CoE The arrangements for the so-called ‘enhanced cooperation between the OSCE and CoE’, as adopted in , have had their first tangible effects.27 The second and third meetings of the OSCE and CoE Coordination Group, held on  September  and  March , respectively, focused on the deliberations in each of the four priority areas that had been selected earlier, including that of protection of the rights of persons belonging to national minorities.28 The idea of appointing so-called ‘focal points’—high officials of both organizations each responsible for a particular priority area (i.e. the HCNM assumed the role of ‘OSCE focal point for issues of national minorities’)—has proved its usefulness. Direct working contacts have been established and this cooperation has meant that separate reporting to the Coordination Group has been replaced by the drawing up of joint reports for each priority area. These joint reports were presented by the ‘focal points’ for the first time at the third meeting of the Coordination Group ( March  in Vienna) and this method of cooperation has been found most fruitful. Further improvement in methods of cooperation has precipitated a shift from the mutual exchange of information and the coordination of numerous endeavours to the organization of joint initiatives (e.g., education, seminars and workshops). In the field of national minority issues, for instance, it was decided to jointly organize a seminar on minority languages and to publish a joint compilation of minority standards and commitments. Cooperation has also continued in a number of other areas and sometimes been further enhanced (see examples below). One may note that the arrangements for enhanced cooperation created a procedural framework conducive to a flexible element of oversight of current and envisaged activities of the OSCE and CoE. As far as the HCNM is concerned, his role has been strengthened both pro foro interno and pro foro externo. In the first sphere, the HCNM’s new role as a focal point extends his position on minority issues within the OSCE, since he has been empowered to seek information from other OSCE institutions and missions for the needs of reporting before the Coordination Group. In the other sphere, his new role strengthens his position in relation to the partner organization, the CoE, due to his recourse to a broader approach to minority issues. Under his original mandate, the HCNM is a conflict prevention instrument, whereas the ‘enhanced cooperation’ has made him responsible for reporting to the Coordination Group not only on preventive aspects but also on the protection and promotion of minority rights. The functional approach of the HCNM has moved on even further and embraces contact on specific minority issues with bodies that remained outside the terms of reference of the enhanced cooperation, notably the Parliamentary Assembly of CoE (PACE).







For the arrangements agreed and put into force in  see Krzysztof Drzewicki and Vincent de Graaf, “The Activities of the OSCE High Commissioner on National Minorities: July –June ”,  EYMI (/), –, at –. The other priority areas are: the fight against terrorism, trafficking in human beings, and tolerance and non-discrimination.

The Activities of the OSCE High Commissioner on National Minorities ( July -June ) 2.

Cooperation With the Minority-Rights Bodies of the CoE

(a) The Committee of Experts on Issues Relating to the Protection of National Minorities (DH-MIN) During the reporting period, DH-MIN—reestablished in November —held its second and third meetings in October  and March , respectively, in Strasbourg and Brasov (Romania). Under its terms of reference, DH-MIN acts as a forum for discussing transversal issues concerning the protection of national minorities and for identifying ways of further enhancing European cooperation in this field. In its initial period, DH-MIN concentrated on the issues of different forms of public participation by persons belonging to national minorities, notably in consultative and advisory bodies, as well as on the impact of international non-discrimination norms relevant to Europe on the protection of national minorities. For the HCNM, the DH-MIN meetings have become an opportunity to present his work on such thematic issues as the use of minority languages in the broadcast media and policing in multiethnic societies. In this way, not only is the CoE informed about the HCNM’s thematic work but government representatives of the CoE’s member states are too. (b) The Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC) The HCNM has continued his good working relationship with the ACFC in a spirit of respect for the independent nature of both bodies. Their cooperation has continued to focus on mutual and regular consultation and the exchange of information on specific minority issues. Two innovations have recently been successfully tested. The first was the participation by the HCNM in the Plenary Session of the Advisory Committee in November  with the aim of exchanging views and discussing the potential for future cooperation, while the second was the participation by the HCNM’s delegate at a follow-up seminar to discuss the conclusions in the report submitted by Poland in September  in Warsaw. Such seminars have proved to be a successful forum for discussion between a particular government and NGOs on the implementation of conclusions arrived at by the ACFC and the Committee of Ministers in the course of the reporting procedure. These positive results have prompted the suggestion of resorting to such methods on a more regular basis. (c)

The Sub-Committee on Rights of Minorities (of the Committee on Legal Affairs and Human Rights of PACE) The HCNM has closely followed the work of the Sub-Committee on Rights of Minorities, established recently by the Committee on Legal Affairs and Human Rights of PACE, and commenced dialogue with the Sub-Committee. The most important development that needs to be noted is the participation of the HCNM at a meeting held by the Sub-Committee in The Hague on  April , at which two agenda items were discussed. One was an exchange of views during which the HCNM outlined his mandate and his country- and thematic-related activities, and the other was devoted to a hearing on the use of minority languages in the broadcast media. The HCNM recalled the vital role played by languages for persons belonging to national minorities 

Krzysztof Drzewicki and Vincent de Graaf in the development of their culture and identity. What is particularly noteworthy is that, for the discussion on minority language issues, the PACE Sub-Committee used the Guidelines on the Use of Minority Languages in the Broadcast Media—endorsed by the OSCE HCNM in —as a source of reference. This case in itself demonstrates how a document adopted within one organization can become an instrument that proves useful within another. 3. Cooperation with Other Bodies of the CoE That Deal with Minority Rights The HCNM has continued to follow the work of the Venice Commission and submitted, among others, his written observations about minority-related draft laws (e.g. Romania) and the thematic studies discussed by the Commission. Pursuing his contacts with the CoE Commissioner for Human Rights, the HCNM invited the newly elected Commissioner Mr. Thomas Hammarberg to a consultation in January  in The Hague. The exchange of information and views has facilitated agreement on a number of arrangements for their future cooperation. In view of the HCNM’s work on the linguistic rights of persons belonging to national minorities (e.g. the Oslo Recommendations of ), a discussion has been initiated on how to enhance cooperation with the Committee of Experts of the European Charter for Regional and Minority Languages and its Secretariat. One of the first results has been the preparations for the organization of a joint seminar on the ratification process of the European Charter. C. Integration Policies in Diverse Societies and the Question of So-called ‘New Minorities’ The mandate of the HCNM, like any other legally or politically binding international instrument, does not contain a definition of what constitutes a ‘national minority’. In light of the current debate in many Western societies on the integration—or the supposed lack of integration—of large groups of more or less recent immigrants, there have been calls for the HCNM to address the issue of so-called ‘new minorities’.29 The OSCE Parliamentary Assembly at its session in Edinburgh in  called upon the HCNM to “initiate a comparative study of the integration policies of established democracies and analyse the effect on the position of new minorities”.30 In responding to these invitations, the HCNM initially emphasized that his mandate is to provide early warning and early action in regard to tensions involving national minority issues that have the potential to develop into a conflict within the OSCE area, affecting peace, stability or relations between participating states. He added that the conflict prevention focus of his mandate generally points to giving greater priority in his work to ‘traditional’ rather than ‘new’ minorities. Nevertheless, the HCNM is of the opinion that his recommendations based on the concept of ‘integration respecting diversity’ can also be 





John Packer, “Confronting the Contemporary Challenges of Europe’s Minorities”, () HM (), –; and Arie Bloed and Minnie Degawan, “Preliminary Report on the Rights of Minorities and Minority Rights”, th Informal ASEM Seminar on Human Rights Series, Budapest, – February , unpublished. Paragraph  of the  Edinburgh Declaration of the OSCE Parliamentary Assembly, at .

The Activities of the OSCE High Commissioner on National Minorities ( July -June ) of relevance in situations concerning so-called new minorities. After careful consideration and reflection upon this request, the HCNM therefore decided to respond to the call from the Assembly by commissioning such a study from the Migration Policy Group, a research institute located in Brussels, which regularly carries out independent research on the issues of migration, integration, diversity and non-discrimination.31 The HCNM presented the study, entitled “Policies on Integration and Diversity in Some OSCE Participating States”, along with his own analysis and comments, at the July  session of the OSCE Parliamentary Assembly in Brussels.32 The study covers the integration policies of seven Western democracies—namely, Canada, Denmark, France, Germany, the Netherlands, Sweden and the United Kingdom—selected on the basis that they all have substantial experience of implementing integration policies, which are well documented and accessible to researchers. The report examines all fundamental aspects of the integration policies of these states, in particular those concerning equality and non-discrimination, political participation, economic and labour market integration and access to services in education, health care and housing. It also examines the increasing diversity of the societies concerned and describes policies that deal with some aspects of cultural and linguistic diversity. These include measures to support the maintenance of culture and language, of which broadcasting is one example. It also describes policies concerning the maintenance of minority language and culture and programmes promoting intercultural awareness across the population as a whole. It should be noted clearly that it was not the purpose of this study to engage in a controversial discussion about establishing a definition of so-called ‘new minorities’, as this term lacks both legal status and agreed definition. Instead, the study has taken the term to refer broadly to those persons and groups that are settled in the country whose presence is a result of more recent immigration. As the study demonstrates, there are many different ways of defining those to whom integration policies can be applied, ranging from persons belonging to national minorities to recently arrived migrants. Therefore, the study uses a generic term ‘immigrants and minorities’ in order to encompass a wide range of persons or groups to whom integration policies in specific states may apply. Given the variety and complexity of definitions used, it was considered more valuable for the study to focus on the ‘how’ of integration rather than the ‘who’ and not restrict it to a narrowly defined group. At the same time, the report seeks to steer clear of the controversies surrounding immigration policy, despite the interrelationship of immigration and integration, which it duly notes. The fundament on which the work of the HCNM rests is the concept of integration respecting diversity and the need to find the right balance between the two elements therein. At the heart of this approach lies the idea that states need to encourage minority participation in the political, social, economic and cultural life of mainstream society with a view to developing a sense of belonging to and having a stake in society at large, while at the same time protecting the rights of minorities to maintain their own identity, including their culture, language and religion.  

See the website of Migration Policy Group, at . The study, along with an HCNM cover note and the HCNM speech to the OSCE Parliamentary Assembly, is available at .



Krzysztof Drzewicki and Vincent de Graaf As expected, the study indicates parallels between the HCNM’s aims and approach and the aims and approaches followed by the countries that are the subject of the study. The HCNM has always considered that this balanced approach and, in particular, the need to focus on participation and the development of inclusive societies, is relevant for all diverse societies regardless of whether this diversity stems from more or less recent immigration or from the long historical multiethnic character of a state. This is not to say, however, that there are simple ‘one size fits all’ solutions or that there are no relevant differences between recent migrants and members of long-established minorities or that their treatment should in all respects be identical. III. The Protection and Promotion of the Rights of Persons Belonging to National Minorities at the National Level On the basis of his mandate, the HCNM is constantly engaged—with varying degrees of intensity and duration—in a variety of situations and countries. While some of these present similar or recurring problems and potential dangers of escalation, all are unique as far as the political and historic background, the actors and the claims of the parties involved are concerned. A key element of the HCNM’s mandate is confidentiality. Quiet diplomacy has several advantages. It makes it easier for governments to accept the involvement of the HCNM in such internal affairs that have developed as a result of interethnic issues. It reduces the risk of his involvement in a particular situation drawing unwelcome attention to what may be sensitive issues. It also helps to encourage the parties concerned to present their views in a moderate rather than an extreme form and thus to build trust and confidence. This, however, also means that the presentation of most of the activities of the HCNM in this report is incomplete, while other engagements of the HCNM, whether general or specific, cannot be reported at all. A. Central Asia As the states of Central Asia face long-term challenges in the area of majority–minority relations, the HCNM has considerably enhanced his involvement in the region. The strategy of his engagement is based upon a coordinated set of initiatives that are intended not only to look at the specific issues in individual countries of the region but also to address regional developments. During the period under review, the HCNM visited Kyrgyzstan twice, in October  and May . On both occasions, he also travelled to the southern region of Osh for discussions with local officials and representatives of national minorities. The economic, political and social pressures unleashed by the developments in Kyrgyzstan in spring  have affected interethnic relations, indicating that deep interethnic divisions still persist in Kyrgyz society. Many persons belonging to the country’s national minority communities have expressed anxiety about their future. The HCNM called on the Kyrgyz leadership to focus attention on interethnic issues by developing a consistent policy of national integration and social cohesion in the country. Furthermore, the HCNM continued his efforts to promote harmonious interethnic relations in Kyrgyzstan through project activities in various fields. Since the issue of 

The Activities of the OSCE High Commissioner on National Minorities ( July -June ) policing in multiethnic societies is a particularly important one, the HCNM deepened and pursued further his involvement in this area in Kyrgyzstan. In February , in the city of Osh, the ‘Training Centre in Management of Inter-ethnic Relations for Police Officers and Cadets’ was opened with the support of the HCNM. The objective of this project is to increase the sensitivity of the police to the multiethnic society in which they live and operate by offering courses in interethnic relations management specifically tailored to police needs. On  June , the HCNM organized, jointly with the Interior Ministry of the Kyrgyz Republic, the roundtable entitled ‘Modernising Police and Promoting Integration: Challenges for Multi-Ethnic Societies’. The roundtable provided the participants with critical knowledge on multiethnic policing issues, including the aims of this form of policing in terms of enhancing stability, improving police community relations and thereby enhancing police intelligence operations and strengthening the conflict prevention capacity of the police service. The roundtable is expected to result in the development of concrete activities aimed at enhancing police minority cooperation in Kyrgyzstan. The issue of the promotion of the harmonious integration of national minorities within their home state, particularly in the areas of education and language, with full respect for their rights remained a priority of the HCNM’s engagement in the countries of Central Asia. To this end, in May  the second HCNM Education Liaison Officer was deployed in Kyrgyzstan. One of the important tasks of this expert will be to support the recently established ‘Sector for Multicultural Education in the Kyrgyz Ministry of Education’ in developing and implementing a programme of priority activities in line with the Recommendations of the Working Group on Integration through Education, previously worked out with the HCNM’s assistance. The HCNM is also supporting the development of a Kyrgyz-language course for civil servants from minority backgrounds in Kyrgyzstan. Based on his experience, one of the conclusions that the HCNM has reached is that one of the most effective means to promote effective integration in multiethnic states is to enable all citizens to enjoy the services provided by the national media. In this context, the HCNM has initiated a project, in cooperation with the newly established Kyrgyz public broadcaster ELTR TV, with the purpose of subtitling Kyrgyz-language news in Uzbek and Russian. In the course of the reporting period, the HCNM visited Turkmenistan (March ) and travelled to the Lebap region in the north of the country, where a sizeable part of the Uzbek minority lives. As before, the HCNM focused on the issues of ensuring the rights of national minorities in the multifaceted process of nation building that is unfolding in Turkmenistan. In October , the HCNM travelled to Kazakhstan. In his discussions with the authorities and the representatives of the national minorities, the HCNM paid particular attention to the issue of language. He encouraged the country’s government to adopt a balanced and gradual approach in the process of strengthening the role of the state language with a special emphasis on education and learning conducted in a supportive way rather than through solely administrative means. Following the request of the Kazakh Committee on Languages, the HCNM sent an external language expert to Kazakhstan in order to provide advice to the Kazakh authorities on the best ways to advance knowledge of the state language, while respecting the linguistic and educational 

Krzysztof Drzewicki and Vincent de Graaf rights of persons belonging to national minorities. During the period under review, the HCNM presented an initiative aimed at supporting and coordinating minority education policies region-wise, covering the whole of Central Asia. In , the HCNM initiated a pilot project promoting multilingual education in the South Kazakhstan Region, intended to raise the state and/or official languages skills of final year pupils in two Uzbek-language schools and continued his support for three academic years. The experiment produced excellent results, being positively assessed by the Kazakh authorities and the representatives of the national minorities. Consequently, the Ministry of Education of Kazakhstan is currently planning to extend this project to other minority schools in the country. The HCNM continued his engagement in Tajikistan, concentrating mostly on helping to promote educational initiatives. In November , in cooperation with the Ministry of Education, the HCNM conducted a workshop for textbook developers and a seminar for teacher trainers at the in-service training institute in Dushanbe. B. The Baltic Region In April , the HCNM visited Latvia for meetings with the president and other officials. The nature of his dialogue with the Latvian authorities was open and constructive. President Vaira Vīķe-Freiberga indicated her support for the HCNM’s engagement in the field of education in Latvia and stressed that the Latvian government will give serious consideration to any recommendations the HCNM may have. Issues surrounding education reform and naturalization processes featured prominently on the agenda during the HCNM’s visit. In order to evaluate the impact of education reform on Russian-language secondary schools, he had a meeting with school principals and teachers from Riga. Although they were relatively positive about the effects of the education reform, some complaints were voiced about the lack of training for teachers and the quality of education. During his meetings with Latvian officials, the HCNM suggested that the Latvian authorities show flexibility with regard to the implementation of the school reform. As he had done during his previous visits, he stressed that the specific situation of the different schools should be taken into account in order not to compromise the quality of education. Furthermore, he underlined the need to make all necessary material and training available, and to carry out sufficient quality checks in the schools in question at regular intervals. The HCNM welcomed the establishment, in October , of the State Agency for Evaluation of General Education Quality and stressed that he would look forward to learning more about its activities and findings. During his visit, the HCNM was pleased to hear that the Latvian government plans to improve its dialogue on education and civic integration with national minorities’ representatives, in particular within the framework of the Consultative Council on Minority Education Issues. The other main topic of discussion during his visit was the naturalization process. The year  was a mixed one regarding citizenship: while on the one hand, naturalization rates remained high (, persons were naturalized in ), on the other hand, opposition to naturalization was openly displayed by nationally oriented politicians from several parties. The HCNM advised the authorities that the planned amendment 

The Activities of the OSCE High Commissioner on National Minorities ( July -June ) of the Citizenship Law should be carried out with the participation of representatives of national minorities in the process. Moreover, he urged the Latvian authorities to accelerate the naturalization process in the country, bearing in mind that the number of ‘non-citizens’ still remains high. He also stressed the need for the government to pay special attention to non-citizens who find it difficult to meet the current naturalization requirements, especially the written language test, due to their age or education, as well as to provide additional resources and funds with a view to strengthening the capabilities of the ‘Naturalization Board’ to handle the growing number of applications in an orderly and timely manner. Once more, the HCNM recommended to the Latvian government that it automatically grant citizenship to all children born in Latvia after  and advised the Latvian authorities to grant non-citizens the right to vote in local elections. The HCNM visited Estonia from  to  October . In Tallinn, he met senior government officials, including the Foreign Minister and the Chairman of the Parliamentary Foreign Affairs Committee. He also visited Ida-Virumaa County, a region populated mainly by persons belonging to the Russian minority, where he met with representatives of local authorities and national minorities. During the visit, the HCNM noticed a positive improvement in interethnic relations in the country, a development confirmed also by the local elections with participation of non-citizens held on  October . According to the election results, the voting behaviour of non-citizens and Russians who took part in elections was determined by the economic programmes of the competing parties and not by their agenda with regard to ethnic and national minorities’ issues. For example, % of ethnic Russian voters in Tallinn voted for the leftist Centre Party led by Mr. Edgar Savisaar, Minister of Economic Affairs and Communications, while less than % of voters voted for the two so-called ‘Russian parties’ (the Civic Initiative  and Spisok Klenskogo list). The HCNM also noticed a significant improvement in the socio-economic situation in the Narva Region, as well as a positive change in the attitude of students, parents and teachers of Russian schools concerning the forthcoming reform of secondary education. He welcomed the healthy debate in society with regard to the preparations for the start of the reform process and its implementation, and he stressed the need for more teacher training, including courses on the Estonian language and teaching methodologies. The HCNM welcomed the legislative and administrative steps taken by the Estonian government in order to facilitate the naturalization process. However, he indicated that further positive measures are needed to speed up this process and to make it more accessible for so-called non-citizens, in particular those who are elderly. C. The Caucasus In November , the HCNM visited Georgia, including the former Autonomous Republic of Abkhazia. In spite of the complex situation Georgia faces, he noticed a strong commitment on the part of the Georgian government to protect the rights of national minorities and to promote their integration into Georgian society. The ratification by Georgia of the FCNM on the eve of his visit to Tbilisi and the establishment of the Zurab Zhvania School of Public Administration, which focuses particularly on 

Krzysztof Drzewicki and Vincent de Graaf the training of persons belonging to national minorities, were given as good examples in this regard. In Tbilisi, all of the HCNM’s interlocutors expressed satisfaction with Georgia’s cooperation with the HCNM and supported his conflict prevention and civil integration activities in the country, in particular in the region of Samtskhe-Javakheti, which is mainly populated by persons belonging to the Armenian minority. Moreover, they requested HCNM involvement in the region of Kvemo-Kartli, which is mainly populated by persons belonging to the Azeri minority. Launched in , the ‘Conflict Prevention Samtskhe-Javakheti Programme’ fosters the integration of the Armenian minority into Georgian political, social and cultural life. The programme aims to increase knowledge of the Georgian language among civil servants in the region and to improve the effectiveness of the teaching of the Georgian language to minority students. It also aims to improve the information flows from minority regions to the centre and vice versa; for example, by increasing access to national television news, etc. The ‘Language Training for Civil Servants Project’, for example, has instructed more than  civil servants in the Georgian language. During his meetings in Sukhumi with the de facto Abkhaz Prime Minister Aleksandr Ankvab and the de facto Foreign Minister Sergey Shamba, the HCNM emphasized, as he had done during his previous visits, that international norms and standards require that any authority controlling territory and people, even if not recognized by the international community, must respect the human and minority rights of all persons, including those of children who wish to study in their mother tongue. The HCNM appealed to the Abkhaz leadership to show flexibility regarding the ‘teaching in the mother tongue’ issue and to ensure that it be resolved in full accordance with international norms. He also requested that the de facto Abkhazian authorities refrain from taking any decision that may increase tensions between Tbilisi and Sukhumi, such as forced recruitment into the Abkhaz Army. In order to evaluate the impact of the education policy of the de facto authorities on schools on the ground, the HCNM visited Secondary School No.  in the town of Gali. He was impressed by the dedication of the teachers to their jobs and by the strong wish of students to receive education in the Georgian language. In April , the HCNM also completed the first phase of his project ‘Teachers for Understanding’, which aims at enhancing the skills of teachers in the Georgian and Abkhaz languages and at building confidence between the two communities, including teachers. The language teaching methodology carried out during the first phase of the project reinforced the teaching skills of approximately  teachers serving in  schools in Abkhazia. D. Central and Eastern Europe In March , the HCNM visited Moldova, where he met with top government officials as well as representatives of local authorities and civil society. The HCNM shared his views on how to promote social integration in Moldova with members of the Moldovan government during his meetings as well as in a follow-up letter containing several recommendations. As part of his visit, the HCNM also travelled to the Autonomous Region of Gagauzia, where he supports the ‘Language Training 

The Activities of the OSCE High Commissioner on National Minorities ( July -June ) Programme for Civil Servants in Southern Moldova’, a language training project for civil servants of Gagauz and Bulgarian origin. He met there with participants and beneficiaries of the project, as well as with members of the local administration and opposition. The HCNM intends to continue his efforts aimed at strengthening the knowledge of the state language in Moldova among persons belonging to national minorities, in order to ensure their effective participation and integration in Moldovan society. During the reporting period, the HCNM continued to work closely with the Romanian authorities on various issues, including the Draft Law on Romanians Living Abroad. Given the HCNM’s extensive experience regarding state relations with kin-minorities abroad, he was requested to review the Romanian Draft carefully and subsequently concluded that it complies with international norms and standards. The HCNM has also sent his legal and political advisers to participate in public debates on the Draft Law organized by the Romanian Foreign Ministry and to highlight international principles guiding and limiting state activities in support of kin minorities in other countries. It is the HCNM’s fundamental belief that protection of minority rights is the obligation of the states where the minority in question resides. Through cooperation with home-states and through supporting efforts in the fields of culture and education, the so-called kin-states can successfully contribute to the preservation and promotion of minority culture and identity. The HCNM has also supported the Romanian–Ukrainian initiative to set up a joint bilateral commission to monitor the situation of the Romanian minority in Ukraine and the Ukrainian minority in Romania. At the request of the two governments, the HCNM designated several experts to participate in the work of the above bilateral commission. He considered it to be a good initiative, which could serve as a positive example for the cooperation of states on matters concerning minority rights protection. Concerning Ukraine, the HCNM continued to follow closely the developments in the area of minority and language policy and intends to prolong his engagement in assisting the country in its efforts to bring minority-related legislation, including language legislation, into line with European standards. Additionally, interethnic relations in Crimea and issues relating to the return and integration of the Crimean Tatars continued to be a priority for the HCNM. He has initiated a new project aimed at the promotion of mutual understanding between and effective cooperation among the communities on the Crimean Peninsula. In preparation for this project, several needs assessment and project planning visits to the region have been conducted by HCNM staff and by two international experts, one of whom is involved in the envisaged HCNM project ‘Management of Inter-ethnic Relations in Kyrgyzstan’. A draft of the Crimea project, planned to be launched in autumn , was discussed at a roundtable with leading Ukrainian experts in February this year in Kiev. E. South East Europe As the former Yugoslav Republic of Macedonia (FYROM) was accepted by leaders of the European Union as a formal candidate for membership in December , the HCNM continued to follow the developments in the implementation of the Ohrid Framework Agreement and has focused particular attention on the issue of equita

Krzysztof Drzewicki and Vincent de Graaf ble representation of all communities in public administration, an area which the EU regards as a key element of the Copenhagen criteria. The HCNM has offered assistance to the Macedonian authorities in the form of a ‘road map’, which can be used as a guide by the authorities in their work towards reform in this area. On  July , a law was adopted on the use of flags of the different communities of the former Yugoslav Republic of Macedonia. The HCNM had been consulted during its drafting phase and his comments were largely taken into account in the finally adopted version of the law. Although the law is not entirely satisfactory to all associations, political parties and communities concerned, it nevertheless conforms to international standards and has the potential to prevent further tensions with regard to the use of flags and other symbols. The HCNM continues to support the private South-East European University in Tetovo, which functions successfully as a multilingual and multicultural institution for higher education. He has also provided the Ministry of Education with expert advice on the establishment of the new state university in Tetovo to ensure that it too becomes a quality institution of higher education. Furthermore, the HCNM continues his engagement in the implementation of recommendations on interethnic relations at primary and secondary schools submitted in May . The ‘Transition Year Project’ in FYROM is one of the HCNM’s largest-ever projects. Currently in its eighth year, the project seeks to increase the number of ethnic Albanian students admitted to state universities in Skopje and Bitola by providing intensive preparation courses for examinations in several subjects in the Macedonian language for Albanian-speaking pupils in their fourth year of secondary school. In April of , a training seminar for teachers and subject coordinators was organized in Struga. In September of the same year, a second training seminar was held in Krushevo. An expert from the National Agency for Latvian Language Training was invited to give a presentation on bilingual and multiethnic education, and interactive methodologies for the teaching of a second language to bilingual students were also introduced. An additional three seminars were organized in  in Skopje and Ohrid. The main aim of these events was to encourage Albanian teachers to network with one another and to take part in ethnic sensitivity training;  teachers serving in seven municipalities participated. The HCNM visited Croatia in April  to discuss the implementation of the Constitutional Law on the Rights of National Minorities. Proportional representation of national minorities in the state administration and in the judiciary was raised with authorities. The HCNM also highlighted the ongoing tendency of ethnic separation of students in a number of schools in Eastern Slavonia. Finally, the HCNM drew attention to several aspects of refugee return as well as an apparent rise in interethnic incidents. Concerning Serbia and Montenegro (including Kosovo), the HCNM visited Belgrade in January , where he discussed the implementation of the State Union Law on National Minorities, which could serve as a tool for the authorities to address this issue. Vojvodina, he noted, could be an appropriate venue for discussions on multiethnic policing on both a national and a regional level. Utilizing education as a tool of conflict prevention and promoting interethnic reconciliation, the HCNM initiated a project on the education of the Albanian national minority in South Serbia that aims to develop a history textbook in the Albanian lan

The Activities of the OSCE High Commissioner on National Minorities ( July -June ) guage for primary schoolchildren in the region. Two roundtables, organized under the aegis of the OSCE and the ethnically mixed commission established by the project, were held in Belgrade and Skopje in May and August of . International and Albanian historians were brought together with teachers serving in the region and with experts from the Serbian Ministry of Education. Both communities are interested in the publication of the new history textbook for sixth grade pupils, which corresponds to the new curriculum established by the Ministry of Education in Serbia and Montenegro. On  May , prior to independence, the Parliament of the Republic of Montenegro adopted the ‘Law on Minority Rights and Freedoms’ with which, since its very inception in , the HCNM has been very actively involved, especially during its drafting process. The finally adopted version of the law appears to be compatible with generally acceptable international standards and it reflects a high degree of legitimacy. There are still some issues that will require further clarification and improvement in the course of its implementation; for example, on the situation of non-citizens, electoral representation of minorities and minority councils. All in all, the HCNM has emphasized that the successful adoption of the Law on Minority Rights and Freedoms will not only open the way for regular international supervisory procedures, notably in regard to reporting under the FCNM, but above all has great potential to make a vital contribution to preventing tensions resulting from interethnic relations. The HCNM made an initial visit to Kosovo in May  in order to become acquainted with the situation on the ground. Issues identified as possible areas for further HCNM involvement were: education, the decentralization process, the economy and the employment of persons belonging to minorities in the public administration. The HCNM made his second visit to Kosovo in February  to further explore ways to support both local and international efforts to promote conciliation and improve relations between the communities living in the region. As a result of that visit, the HCNM has been actively pursuing a process throughout the first six months of  aimed at reconciliation among the communities. In addition, the High Commissioner continues to provide assistance to the ongoing international efforts in support of minority rights and to ensure a framework that protects the rights of all communities living in Kosovo. In particular, the HCNM has been providing advice to former Finnish President Martti Ahtisaari, the Special Envoy of the Secretary-General of the United Nations for the future status process for Kosovo, and his team. Finally, the HCNM has highlighted the need to promote integration of all communities into a genuinely multiethnic society. To this end, the HCNM has focused on possible involvement in the area of education in Kosovo. The HCNM has also raised the issue of curriculum reform in subjects such as history and literature and is currently looking into setting up projects in Kosovo in the field of multiethnic cooperation through education. IV. Conclusion The basic philosophy behind the HCNM’s approach is that a society at peace with itself will more likely be at peace with its neighbours. To achieve this internal stability, respect for the rights of persons belonging to national minorities is essential. The integration of minorities 

Krzysztof Drzewicki and Vincent de Graaf within a multicultural society—one which respects their cultural, linguistic and religious identities and recognizes the value of diversity—is likely to be the best way of reducing tensions. Integration involves rights and responsibilities on all sides. Persons belonging to national minorities whose rights are respected and who participate on an equitable basis in the political and economic life of the state are more likely to give their loyalty to the state and have, indeed, a duty to implement their responsibilities to it. During the reporting period the HCNM also examined the relevance of the concept of ‘integration respecting diversity’—the leitmotiv of his mandate—as well as the possible applicability of the methods that he has developed over the years, in situations involving the integration of so-called ‘new minorities’. An extensive study on this matter was presented by the HCNM to the July  session of the OSCE Parliamentary Assembly in Brussels. On the basis of his mandate, the HCNM uses quiet diplomacy in order to identify and seek resolution of tensions involving national minorities, which might, in his view, endanger peace. During the reporting period, the HCNM continued to devote considerable attention to the states of Central Asia, South East Europe and the Caucasus, and worked closely with the CoE, EU, UN and other international actors. Many of the causes of interethnic tensions are deep-seated and require not just political or legislative action but also the sustained deployment of significant resources, for example, in the fields of education, political participation or the media. Providing support through programmes and projects has therefore become an important part of the HCNM’s activities and, during the period under review, the HCNM has continued and expanded various projects in all of the abovementioned areas. In conclusion to the above information and comments on interagency cooperation, one may safely submit that the concept of enhanced cooperation between the OSCE and the CoE has started to bear fruit and, in some areas, including minority rights issues, has already brought about substantial and practical results. It does, however, remain to be seen whether the cooperation in question will continue and be further developed. One should nevertheless be aware that interaction between institutions sharing common values such as human rights and fundamental freedoms but fulfilling different functions brings with it certain consequences. As has been noted in a similar context, such institutions often do not work together and appear to ignore one another or even seem to be working against one another. “There is inevitably friction between them. But the friction is a sign of health, not pathology.”33 One can add that interagency cooperation should in no way replace natural competition altogether; in fact this can be an incentive to the cooperating entities to strive for further improvements and more efficient coordination. Indeed, such a message gives rise to some optimism with regard to the attainment of the admirable goal of ‘enhanced cooperation’. Finally, the HCNM contributes to the development of the normative framework regarding issues that affect the lives of persons belonging to national minorities and that, in his experience, have the potential to generate tensions. The fifth set of recommendations compiled at the invitation of the HCNM by a group of internationally 



David Feldman, “Confrontation and Co-operation between Institutions in the Protection of Human Rights”, in Frances Butler (ed.), Human Rights Protection: Methods and Effectiveness (Kluwer Law International, London, The Hague, New York, ), –, at –.

The Activities of the OSCE High Commissioner on National Minorities ( July -June ) recognized experts at the beginning of , namely the Recommendations on Policing in Multi-Ethnic Societies, is just one such contribution. This new reference document for law and policy makers in the OSCE participating states constitutes a translation and implementation of OSCE commitments and is highly relevant both east and west of Vienna in addressing crucial issues of policing in multiethnic societies.



Sally Holt* and John Packer**

The Use of Minority Languages in the Broadcast Media1

The use and regulation of minority languages is an important and sometimes emotive issue that not only relates closely to notions of identity and belonging but also influ*

**



Sally Holt is a Research Fellow at the Centre for International Cooperation and Security, Department of Peace Studies, University of Bradford. From - she was Legal Officer at the Office of the OSCE High Commissioner on National Minorities (HCNM). John Packer is an independent consultant currently advising a number of governments and intergovernmental and non-governmental organizations on matters of peace and security, conflict prevention and resolution, diversity management, prevention of genocide and the protection of minorities and human rights. He is also Principal Investigator and Project Coordinator of the global Initiative on Conflict Prevention through Quiet Diplomacy located at Human Rights Internet in Ottawa, Canada. In -, he taught International Law at the Fletcher School of Law and Diplomacy at Tufts University and was a Fellow at the Carr Center for Human Rights Policy at the John F. Kennedy School of Government at Harvard University. Until February , he was Director in the Office of the HCNM of the OSCE, located in The Hague, where from  to  he was Senior Legal Adviser to the HCNM. He was previously a United Nations Staff Member and consultant to several specialized agencies. This article draws on a background paper and later report prepared by the authors for the first meeting, and subsequent work, of the independent experts who elaborated the guidelines. It also makes reference to factual information provided by the survey of state legislation and related practice with regard to use of minority languages in the broadcast media which was prepared at the High Commissioner’s request by the Programme in Comparative Media Law and Practice at the Centre for Socio-Legal Studies, Wolfson College, Oxford University and the Institute for Information Law, University of Amsterdam. In addition, the article is informed by proceedings of the international conference co-hosted by the HCNM and the OSCE Representative on Freedom of the Media which took place in Baden bei Wien on - October  where the guidelines were presented for discussion. The conference brought together officials and civil society representatives from  OSCE participating states together with representatives of intergovernmental and international non-governmental organizations, as well as independent experts. The proceedings of the Conference are published in: Mercator Media Forum, Vol. , University of Wales Press, .

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 339-357. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Sally Holt and John Packer ences access to political, social and economic opportunities. Given both these symbolic resonances and practical implications it is perhaps not surprising that language use frequently arises as a contentious issue—with the key battles often played out in the fields of education and broadcasting, both of which have a potentially vital role to play in the continuation and development of any language. There is plenty of evidence to suggest that access to mass communication, in particular, is essential if minority languages are to survive in our increasingly monocultural “global village”. It was with the potentially divisive nature of disputes over language use in mind that the OSCE High Commissioner on National Minorities (HCNM), as an instrument of conflict prevention, commissioned a group of independent experts to elaborate Guidelines on the Use of Minority Languages in the Broadcast Media aimed at assisting states in adopting in this field policies, laws and practices which meet international standards and are appropriate to the factual situation in their country. This article is intended as an introduction to those guidelines. I. Background: HCNM Concerns The High Commissioner instigated the process that led to the elaboration of these guidelines out of concern about the practice in a number of participating states with regard to the use of minority languages as a vehicle of communication in the broadcast media. Over the course of years issues arose in a number of situations where the HCNM is involved in terms of opportunities for persons belonging to linguistic minorities to establish their own broadcast media and/or to access television and radio programming provided in their own language for the purpose of addressing their specific interests and needs. Specifically, a number of states have adopted legislation prescribing quotas for broadcasting time which have the effect of limiting minority language use. In some cases a direct limit is imposed on the amount of broadcasting allowed in one or more languages. In others, while the regulation may not directly target a particular minority language or languages for restriction, the prescription of high quotas (or even exclusive use) for broadcasting in the state language has the same effect of setting a maximum limit for broadcasting in other languages. The retransmission of foreign broadcasting may also be subject to regulation, including limitations on the volume of programming that may be relayed on domestic networks and the imposition of translation or other requirements. Again, while not all such restrictions may directly target the language of broadcasting (technical or other reasons may be invoked), they nevertheless impact negatively on the possibility to receive minority language programming—especially from a kin-state.2 In some cases sanctions may be imposed for breach of the provisions outlined above. Frequently, prescribed quotas for language broadcasting and other forms of regulation fail to make any distinction between publicly and privately owned and run broadcasting, meaning, in practice, that private media established and funded by persons belonging to national minorities (or others) can broadcast in their mother tongue only 



A ‘kin-state’ is the state in which the ethnic/national minority of another state constitutes the majority or dominant titular community; e.g. the ‘kin-state’ of the ethnic/national Hungarian minority in the Slovak Republic is the Republic of Hungary.

The Use of Minority Languages in the Broadcast Media to a limited extent irrespective of their intended or actual audiences. Such limitations on private broadcasters are particularly problematic in situations where the private sector has effectively taken over the function—including minority language broadcasting—of a public service broadcaster (PSB). Access to the media in one’s own language is important both for the maintenance of cultural identity and for exercising one’s right to freedom of expression including to impart and receive information and ideas of general interest, regardless of frontiers.3 Obviously, this is only possible where the language of broadcasting is understood. Thus, not only the substance of the ideas and information expressed, but also the medium of choice—including both the chosen form and the language of transmission or reception—are protected since “any restriction imposed on the means necessarily interferes with the right to receive and impart information.”4 In our complex and pluralist societies, the broadcast media constitute an important source of both information and cultural transmissions and are a potentially powerful instrument in keeping persons belonging to minorities fully informed and in keeping minority languages alive and developing across a broad spectrum of interest areas. The perception by persons belonging to minorities that they do not enjoy adequate opportunities to access broadcast media in their own language(s) has the potential to generate tensions—as has indeed been the case in a number of states. Further to the concerns expressed by persons belonging to linguistic minorities themselves, a number of OSCE participating states have also expressed a strong interest in issues concerning media and minorities. In a meeting of the Permanent Council in March , participating states requested that both the HCNM and the OSCE Representative on Freedom of the Media address this issue. Aware of the need to respond to these concerns, the HCNM set about providing some guidance for governments, minorities and other interested parties as to the limits of acceptable regulation of the use of languages in the broadcast media. But the existing international standards were not self-evident on the exact point of language use and possible quotas, while it was felt that state practice varied. The clarification of the content of relevant provisions of applicable international standards was recognized as a 



As guaranteed by Art.  of the  International Covenant on Civil and Political Rights (ICCPR) and Art.  of the  European Convention on Human Rights and Fundamental Freedoms (ECHR). See also ECtHR, Appl. Nos. /;/;/;/; /, Informationsverein Lentia and Others v. Austria, judgment of  November , para. , stressing the role of freedom of expression in imparting information and ideas “of general interest, which the public is moreover entitled to receive”. ECtHR, Appl. No. /, Autronic AG v. Switzerland, judgment of  May , para. . See also ECtHR, Appl. No. /, Oberschlick v. Austria, judgment of  May , para. ; and UN Human Rights Committee General Comment No. : Freedom of Expression (Art. ), para. . The relationship between language and freedom of expression has been articulated by the Supreme Court of Canada in the case of Ford v. Quebec as follows: “Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one’s choice”; quoted in Leonid Raihman, “Media Legislation, Minority Issues, and Implications for Latvia”, CPS International Policy Fellowship Program (/) at , .



Sally Holt and John Packer necessary first step. It was with this in mind that the first HCNM5 decided to engage a group of internationally recognized independent experts to draft a set of guidelines reflecting those standards and indicating some parameters within which any regulation of language use in the broadcast media should take place. The resulting guidelines are intended to be read in the context of democratic values and common principles agreed by OSCE participating states. They are firmly rooted in principles of international law, including the freedom of expression, cultural and linguistic diversity, and the right to maintain and develop one’s identity in conditions of equality and without discrimination. Their ‘added value’ lies in the marrying of these internationally agreed standards with practical guidance for developing policy and law in the field of media regulation which can balance and meet the needs and interests of all sectors of the population, including those of persons belonging to linguistic minorities. The guidelines follow a logical structure which serves, first, to highlight the need for states to develop laws and policies relating to the use of minority languages in the broadcast media and to provide guidance on the process of such law and policy-making. The question of the limits of acceptable regulation is then addressed and some parameters to help guide states in this regard are identified. A number of methods and practical tools to help states fulfil their obligations in promoting minority language use in the broadcast media are then presented. The Explanatory Report identifies the relevant international standards upon which each guideline is based. While the imposition of specific prescriptions in the form of quotas constitutes one—sometimes problematic—form of regulation, there are many others which impact more or less directly on minority language use in the broadcast media. It was with a view to acquiring a fuller picture with regard to the existing domestic regulation of minority languages in the broadcast media that the HCNM also commissioned a survey of state practice across the OSCE region.6 The results of these two processes—elaboration of experts’ guidelines and compilation of a survey of state practice—form a complementary body of work, with the guidelines drawing on examples of good practice identified in the survey to provide suggestions for ways in which states may meet their obligations with respect to linguistic minorities. The survey, in its very nature, is not a ‘definitive work’. Indeed, it has already been superseded by developments in a number of states and, as was made clear by participants at the conference convened in Baden bei Wien to launch the study and guidelines, it is important to continue to monitor developments in state practice in this respect. It is hoped that together the guidelines and survey will provide policy- and law-makers and other interested parties with a useful reference in their efforts to improve legislative and policy regimes governing language use in the broadcast media. 



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The initiative was made by the first High Commissioner, Max van der Stoel, in the last part of his tenure, but the process was carried out under the tenure of the current High Commissioner, Rolf Ekéus. Tarlach McGonagle, Bethany Davis Noll and Monroe Prince (eds.), “Minority-Language Related Broadcasting and Legislation in the OSCE”, Programme in Comparative Media Law and Practice at the Centre for Socio-Legal Studies, Wolfson College, Oxford University, and the Institute for Information Law, University of Amsterdam, April  (PCMLP/ IViR Report).

The Use of Minority Languages in the Broadcast Media II. Underlying Values and Principles The guidelines are underpinned by a number of common values to which all OSCE participating states have expressed their commitment. In this respect ideals of democracy and political pluralism are recognized as essential for ensuring all human rights and fundamental freedoms and for the development of human contacts.7 The fundamental role of freedom of expression as a corner stone in the functioning of open and democratic societies and the central role of the broadcast media as an avenue for that expression are equally well-established. OSCE participating states have recognized independent and pluralistic media as essential to a free and open society and accountable systems of government8 and have undertaken to ensure the freedom of the media as a basic condition for pluralistic and democratic societies.9 Furthermore, they have expressed their conviction that a diversity of private-sector broadcasters “helps to ensure pluralism and the freedom of artistic and cultural expression”.10 The European Court of Human Rights, likewise, recognizes the link between freedom of expression and democracy and has given increased weight to the social, cultural and democratic role of the media.11 The importance of respect for the freedom and pluralism of the media is also reflected in the Charter of Fundamental Rights of the European Union, which also enshrines the respect for linguistic diversity.12 Such pluralistic media serves to give “policy expression to the reality of cultural diversity”.13 As the UNESCO Universal Declaration on Cultural Diversity explains, it is the freedom of expression, media pluralism, multilingualism and the possibility for all cultures to have access to the means of expression and dissemination that are the guarantees of cultural—including linguistic—diversity.14     

  

 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Preamble.  Document of the Budapest Summit, “Towards a Genuine Partnership in a New Era”, Chapter VII The Human Dimension, Provision .  Istanbul Summit Declaration, Provision .  Document of the Cracow Symposium on the Cultural Heritage of the CSCE Participating States, para. (). The Court has established that “[f ]reedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man”. ECtHR, Appl. No. /, Handyside v. United Kingdom, judgment of  December , para. . In the case Informationsverein Lentia and Others v. Austria the European Court of Human Rights emphasized the importance of pluralism for freedom of expression. In that case, the Court specified (in para. ) that the public’s entitlement to receive information and ideas of general interest “cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor. This observation is especially valid in relation to audio-visual media, whose programmes are often broadcast very widely.” Charter of Fundamental Rights of the European Union, OJ  C , Art. , -. UNESCO Universal Declaration on Cultural Diversity, adopted by the st Session of UNESCO’s General Conference, Paris, November , Art. . Ibid., Art. .

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Sally Holt and John Packer According to international standards for the protection of minorities, a pluralist and genuinely democratic society should not only respect the linguistic identity of each person belonging to a minority, but should “also create appropriate conditions enabling them to express, preserve and develop this identity”.15 As noted above, the media has an important role to play in the development of linguistic identity, as recognized, for example, by the  UN Convention on the Rights of the Child which in Article (a) requires states parties to “encourage the mass media to disseminate information and material” in accordance with the Convention’s educational goals, including the development of respect for the child’s own cultural identity and language as prescribed in Article .16 Tolerance and broadmindedness are likewise recognized as common values essential for democratic societies17 with OSCE participating states having undertaken to take effective steps to promote understanding, tolerance and friendship among racial or ethnic groups.18 The potent force of the broadcast media in creating an atmosphere in which intolerance can be challenged is widely recognized.19 This relates not only to the content of broadcasting, but also the medium of expression, since exposure to the language and culture of others is beneficial in promoting intercultural understanding and tolerance. Media pluralism offers opportunities for the dissemination and exchange of information and ideas in minority languages which, therefore, not only serve to benefit the users of those languages, but can act as a powerful instrument of crosscultural understanding which benefits the whole of society. Translation can be a valuable tool in this respect. As one participant at the Baden conference pointed out, even a small niche on prime-time TV in a minority language is to be welcomed. It would be better still 



 



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Preamble to the  Framework Convention for the Protection of National Minorities (FCNM). Art. () of the same instrument explicitly places an obligation on states parties to promote the conditions necessary for persons belonging to national minorities “to preserve the essential elements of their identity”, including their language. Similar provisions concerning the protection and promotion of identity are to be found in Arts.  and  of the  UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The Report on European Regional and Lesser-Used Languages—the languages of minorities in the EU—in the context of enlargement and cultural diversity, adopted by the European Parliament in September , in para. T also explicitly recognizes the important role of the media in safeguarding and promoting the knowledge and use of regional and lesserused languages. Handyside case, para. . In the OSCE Helsinki Document, the participating states stress the vital role of tolerance, understanding and cooperation in the achievement and preservation of stable democratic societies (Provision ). In para.  of the Copenhagen Document participating states undertake to promote a climate of mutual respect, understanding, cooperation and solidarity among all persons living on their territory. See also the  Report of the CSCE Meeting of Experts on National Minorities in Geneva, Chapter IV, in which the participating states stress the need for tolerance and respect for different cultures. See, for example, Recommendation No. R() of the Committee of Ministers of the Council of Europe to Member States on The Media and the Promotion of a Culture of Tolerance, Appendix, in particular Point  on Broadcasting.

The Use of Minority Languages in the Broadcast Media to provide subtitling in the majority language, so exposing the wider population to the language, culture and concerns of persons belonging to minorities who fear themselves otherwise largely marginalized and ignored. The use of minority languages in the broadcast media should, therefore, be regarded not as an instrument of division, but one of integration.20 As has been noted by the President of the European Bureau of Lesser-Used Languages (EBLUL), Mr. Bojan Brezigar, minority languages do not belong to a small number of speakers, but are the common cultural heritage of the states where they are spoken—and those states have a duty to protect and promote them.21 III. Policy Since its inception broadcasting has been subject to regulation in the public interest based on those common values described above, such as freedom of expression, pluralism, and the promotion of cultural and linguistic diversity. In fact licensing, as a common form of regulation, is explicitly foreseen in the standards relating to freedom of expression.22 According to these principles, not only may states regulate broadcasting activities, they have a positive obligation to act to promote various activities or provide various services, including public (i.e. government owned and/or run) broadcasting for the purposes of maintaining a diverse and pluralistic media. States must, therefore, develop and implement policy to meet the interests and needs of all sectors of the population—including those persons who belong to linguistic minorities. Specifically, under international standards for the protection of minorities —principally the Council of Europe’s Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention”)—states have an obligation to adopt adequate measures to facilitate access for persons belonging to national minorities to the media in the interests of cultural pluralism.23 Access for persons belonging to linguistic minorities to the broadcast media encompasses the enjoyment of broadcast services provided by others in the language of choice, but also extends to the possibility for persons belonging to linguistic minorities to participate actively in the preparation of those services and/or to establish and maintain their own broadcast media. This latter form of access may be realised in many forms and at different levels. Persons belonging to linguistic minorities may participate, for example, as owners or employees, as pro





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See, for example, para. F of the European Parliament Report on European Regional and Lesser-Used Languages, which recognizes that “it is the aim of cultural diversity to be an element of social cohesion and not to operate as an argument for a division into majority and minority”. Statement of Mr. Bojan Brezigar, President of the European Bureau of Lesser-Used Languages (EBLUL) on Media and Minorities to the CEI Working Group on Minorities, Trieste,  May . See the ECHR in the third sentence of Art. (). While Art.  of the ICCPR lacks a similar provison, licensing for the orderly control of the broadcasting frequencies is considered to fall under the permissible restriction aimed at the protection of public order in Art. (). FCNM Art. ().

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Sally Holt and John Packer gramme producers, editors, and managers. They may also take part in the regulation and oversight of the broadcast media.24 The principle of pluralism (as an aspect of freedom of expression) in conjunction with that of non-discrimination25 requires access to the media for persons belonging to national minorities on an equitable basis with other members of the population.26 Given that legislation, policy and practice in most states generally serve to protect the (usually majority) state/official language(s), including through the media field and especially through public service broadcasting, persons belonging to the national minorities may find themselves at a disadvantage in terms of access to media in their own language(s). Positive measures may therefore be required in order to remedy this situation and bring those persons to a de facto level of equal enjoyment. In short, states have an obligation to provide an appropriate legal and policy framework within which media in various languages reflecting the linguistic make-up of the population are able to flourish. In this regard the vital role of the public broadcasting sector in enabling different groups and interests in society, including linguistic ones, to express themselves is confirmed and elaborated in a number of Council of Europe documents.27 In the framework of the European Union, the EU Protocol on the System of Public Broadcasting in the Member States to the Treaty of Amsterdam establishes “that the system of Public Broadcasting in the Member States is directly related to [...] the need to preserve media pluralism”.28 While international minority standards do not expressly address the question of access to the public media for linguistic minorities, the Oslo Recommendations regarding the Linguistic Rights of National Minorities suggest that such persons should have access to broadcasting time on publicly funded media.29 This should be commensurate with the numerical size and concentration of the national minority and appropriate to its situation and needs, i.e. based on objective and non-discriminatory criteria.30 The 

  

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For an elaboration on levels and forms of access, see Karol Jacubowitz, “Minority Media Rights: a Brief Overview”, paper prepared for presentation at the conference on “Use of Minority Languages in Broadcast Media” organized by the OSCE High Commissioner on National Minorities and the OSCE Representative on Freedom of the Media in Baden bei Wien, Austria, - October . As enshrined in the ICCPR, Arts.  and  and the ECHR, Art. . This is reflected in Art. () of the Framework Convention. See, Committee of Ministers’ Recommendation No. R() to Member States on Measures to Promote Media Pluralism, Preamble. The Committee of Ministers has also underlined the important contribution that public service broadcasters can make to media pluralism in its  Declaration on Cultural Diversity and Recommendation No. R() to Member States on the Guarantee of the Independence of Public Service Broadcasting, Preamble. Protocol on the System of Public Broadcasting in the Member States annexed to the Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Related Acts, OJ C ,  November . See OSCE HCNM, “Report on the Linguistic Rights of Persons Belonging to National Minorities in the OSCE Area”, The Hague, () (hereinafter “Linguistics Report”), , referring to the Oslo Recommendations regarding the Linguistic Rights of National Minorities, The Hague, , Recommendation No. . Oslo Recommendation No. .

The Use of Minority Languages in the Broadcast Media  Central European Initiative (CEI) Instrument for the Protection of Minority Rights confirms that states should assure “whenever appropriate and possible” that persons belonging to national minorities have the right of free access to publicly owned TV and radio, including the production of such programmes in their own language.31 Article  of the European Charter for Regional or Minority Languages (hereinafter “European Language Charter”) sets out guidelines for states as to their conduct in relation to public media and minority languages.32 Essentially, insofar as states control, operate or finance the broadcast media, they must do so in a non-discriminatory manner. Any distinctions among programming for different languages should be based on objective factors such as demand and technical limitations, not prejudice against a linguistic group.33 Furthermore, under the Framework Convention persons belonging to minorities are specifically granted the possibility to establish and control their own media and states are obliged to ensure this possibility “as far as possible and taking into account the provisions of paragraph ”.34 States should therefore ensure that regulation and policy serve to facilitate rather than hinder the establishment and maintenance of private broadcast media in minority languages. As a rule, any policy to address the question of access for persons belonging to linguistic minorities to broadcast media in their own language(s) should be based on an ascertainment of the interests of the needs and interests of those persons. This depends on their effective participation in the process of policy-making and implementation in line with states’ commitments which include: creating the conditions for such participation; engaging in due consultations, including through contacts with organizations or associations of such minorities or other representatives, particularly through decision-making or consultative bodies; and ensuring that the interests of minority language users are represented and taken into account specifically within broadcast media regulatory bodies.35 In this connection, the independence of regulatory bodies must be guaranteed,36 including through the appointment of members in a democratic and transparent manner,37 and through arrangements for funding which do not interfere with their independent functioning.38

    

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CEI Instrument for the Protection of Minority Rights, Art. . European Language Charter, Art. (). Linguistics Report, . FCNM, Art. (). In this respect, see para.  of the Copenhagen Document, Chapters III and IV of the Geneva Document, Art.  of the Framework Convention and Art. () of the European Language Charter. See further Council of Europe Committee of Ministers Recommendation Rec() to Member States on the Independence and Functions of Regulatory Authorities for the Broadcasting Sector, which also provides that members of regulatory bodies must be appointed in a democratic and transparent manner. Ibid., Appendix to Recommendation Rec(), guideline . Ibid., guidelines -.

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Sally Holt and John Packer IV. Regulation It is established that regulation of the broadcast media is both necessary and desirable where states act to promote freedom of expression and in the interests of diversity and plurality—and specifically, to ensure access to the media for persons belonging to linguistic minorities. Problems arise, however, when regulation serves to restrict rather than promote such access. A key function of the guidelines is to define some parameters for the limits of acceptable regulation of the use of languages in the broadcast media. Under international law, states must be able to provide grounds and justifications for the interference with freedom of expression and the nature of the specific regulation chosen (including the selection of a particular percentage where quotas are involved). Regulations that interfere with freedom of expression must fall under one of the specific public interest grounds as listed in the international instruments.39 Moreover, in order for a restriction on the freedom of expression to be justified on one of the grounds listed, it must be in pursuit of a legitimate aim and be proportionate to that aim. In practice, for example, states have invoked the protection of the rights of others, in connection with the promotion/protection of plurality, as grounds for interference in the freedom of expression and this has been accepted in the case law of the European Court.40 It may be noted that this is also a political argument used by states—particularly those of the former Soviet Union—in order to justify measures to limit the use of the (usually Russian) minority language and so to protect the rights of others to use the ‘fragile’ state/official language(s). While states may regulate to promote the use of certain languages, the legitimate public interest in promoting those languages does not extend to their imposition on those who have another language as their mother tongue. International monitoring bodies have stressed in this regard that state language promotion should not take place at the expense of minority languages.41 This raises the question of how to promote one 

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Art. () of the ECHR stipulates in part that no restrictions shall be placed on the exercise of these freedoms other than such “as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”. Art. () of the ICCPR holds similar provision. In the ECtHR case Appl. No. / of Groppera Radio AG and Others v. Switzerland, judgment of  March , paras. -, for example, the Court accepted the promotion of pluralism and protection of the diversity of expression of opinion in the media as a legitimate aim falling under the “protection of the [...] rights of others”. See, for example, European Commission against Racism and Intolerance, Second Report on Moldova, CRI(), adopted on  June , made public on  April , para. . With reference to the % language quota for broadcasting in the state language except in areas “densely populated with ethnic minorities”, ECRI “hopes that the Moldovan authorities will ensure the application of such legislation, particularly in relation to the granting and withdrawal of media licences, does not harm the development of minority languages spoken in Moldova”. See also Advisory Committee opinion on Moldova, ACFC/INF/OP/

The Use of Minority Languages in the Broadcast Media or more languages without restricting others (quotas are particularly problematic in this regard). As the HCNM regularly points out to his interlocutors in situations where the use of language is an issue of contention, language regulation should not be regarded as a ‘zero sum’ game; it is possible to promote one language without diminishing another. Of course no one ‘ideal’ regulatory regime can be advocated. The ultimate aim should be to achieve a fair and balanced regulatory regime that meets the needs of all those individuals and groups within society including those of persons belonging to linguistic minorities. In order to establish the legitimacy of any particular regulation under international law it is necessary both to consider the aims of the measure taken and to assess the proportionality of the results in practical terms within the specific context. In making that assessment specific indicators of the media (and wider) environment should be taken into account. For example, it might be possible to justify quotas, or other prescriptions or restrictions, where alternatives such as direct satellite reception or forms of rebroadcasting in minority languages are available or where a system of incentives (e.g. subsidies, tax regimes) exists to encourage minority language programming. Each case will be different, making it impossible to come up with hard and fast rules across the spectrum or with generally applicable figures for acceptable quota percentages across the board. Some indications of the factors to be considered when making an assessment of proportionality are provided in the guidelines, drawing in part on the case law of the European Court and (now defunct) Commission of Human Rights. These include the nature and objectives of the measure, as well as the existing political, social and religious context. In its decision on admissibility in the case of Verein Alternatives Lokalradio Bern v. Switzerland, for example, the European Commission of Human Rights also specified that political circumstances—“such as cultural and linguistic pluralism, balance between lowland and mountain regions and a balanced federalist policy”—may be taken into account when assessing proportionality of regulation.42 Another key consideration is the adequacy or otherwise of alternative opportunities for the broadcasting/receipt of information, including existing minority media and/or other stations with similar objectives etc., whether public or private. The form of alternative broadcasting—whether terrestrial, satellite or cable—is also relevant. In particular, the question arises as to whether restrictions on minority language broadcasting in the public media would be justified if such broadcasting is available elsewhere (through private cable or satellite broadcasters etc.). Transfrontier reception is one such possibility. As already noted, freedom of expression is guaranteed “regardless of frontiers”. While the minority standards do not directly address access by minority groups to broadcasts from other states in the minority language, they do protect the right of persons belonging to national minorities to establish



I(), adopted on  March , made public on  January , whereby the Committee considers that the Moldovan authorities should ensure that the implementation of these provisions does not result in excessive limitations of the right of persons belonging to national minorities to impart or receive information in minority languages (paras. - and ). ECOMHR, Appl. No./, Alternatives Lokalradio, Radio Dreyeckland v. Switzerland, decision of  October .

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Sally Holt and John Packer and maintain free and peaceful contacts across frontiers.43 In addition, European states which have ratified the European Language Charter have agreed to guarantee direct reception of radio and television broadcasts from neighbouring countries in a language used in identical or similar form to a regional or minority language, and not to oppose the transmissions of radio and television broadcasts from neighbouring countries in such language.44 Article  of the European Convention on Trans-Frontier Television (ECTT) also states, in part, that the parties shall “guarantee freedom of reception and shall not restrict the retransmission on their territories of programme services which comply with the terms of this convention”. In terms of identity, it may be especially important for minorities to have access to the usually more developed and fuller programming of a kin-state. However, a reliance on rebroadcasting as a source of information and ideas, which encourages persons belonging to national minorities to look outside of their state of residence for their information, may also have potentially negative political effects, serving to reinforce possible divides between communities, rather than working towards a model of shared understanding and social cohesion. In any event, in accordance with the principle of non-discrimination such access should not be denied based solely upon the language of communication.45 While it may make a valuable contribution as one part of the broadcasting network, kin-state (or other foreign) reception or rebroadcasting may not, however, necessarily be considered an adequate response in itself to minority language needs. According to Oslo Recommendation No. , access to media originating from abroad “should not justify a diminution of broadcast time allocated to the minority in the publicly funded media of the State of residence of the minorities concerned”. The opinions of the Advisory Committee of the FCNM confirm that the availability of foreign broadcasting in the language of a national minority does not obviate the need for, and importance of, domestically produced broadcasting in that language.46 While the case law of the European Court confirms that access to a non-terrestrial form of broadcasting can be considered a viable and sufficient alternative to a state’s monopoly over public broadcasting in certain circumstances, a number of other relevant factors must be taken into consideration. These include the size of the target audience and their ease of access to the alternative (in terms of available infrastructure, subscription fees etc.) compared with terrestrial TV. 47 In some countries, such as Tajikistan, money is an important consideration, since while direct reception through satellite provides an alternative source of foreign language programming, very few can afford these

   





See, para. () of the OSCE Copenhagen Document and Art. () of the FCNM. European Language Charter, Art. (). Linguistics report, . Advisory Committee opinions on Estonia, ACFC/INF/OP/I(), adopted on  September , made public on  April , para. ; and Albania, ACFC/INF/OP/ I(), adopted on  September , made public on  February , para. . ECtHR, Appl. No. /, Tele  Privatfernsehgesellschaft v. Austria, judgment of  September , para. .

The Use of Minority Languages in the Broadcast Media services.48 Thus, foreign programming may be regarded as just one (albeit potentially important) element of the wider broadcasting tapestry. Quality of reception of various available services (which may be hindered for technical reasons) is another factor to be taken into account, and which some states explicitly recognize. Licensing procedure according to the  Montenegrin Broadcasting Law, for example, includes quality of reception as one “objective and measurable” criterion to be taken into account when assessing public tenders.49 Where reception from abroad is inadequate positive action from the state, such as the installation of ‘repeater facilities’ in order to relay and amplify transfrontier broadcasting, may be required. This is the case in Albania where such provision is made in the south of the country to facilitate the transmission of Greek and other foreign television broadcasts.50 The need for quality of reception extends likewise to domestically produced broadcasting (where terrain or other physical/technical obstacles may present themselves). In Slovenia, because of very specific terrain, many of the smaller regional and local radio stations all around the country experience signalling difficulties.51 Reception is also a problem for private broadcasters in Kyrgyzstan where only a limited number of private broadcasting media can broadcast on meter (mostly long-wave) frequency, which limits their range of reception.52 The Advisory Committee of the FCNM had advised a number of states to remedy problems with regard to quality of, or possibility for, reception of minority language broadcasting.53 Further considerations include not only the quantity and quality of minority language broadcasting, but the timing of those provisions.54 The quality of time allotted to minority programming is an issue that needs to be approached in a reasonable and non-discriminatory manner. According to the Oslo Recommendations, the time slots allotted to minority language programming should be such as to ensure that persons belonging to national minorities can enjoy programming in their own language in a meaningful way, i.e. that they are transmitted at reasonable times of the day.55 By way of example, the Advisory Committee has welcomed the fact that Moldova’s public radio      





PCMLP/IViR Report, op.cit. note , . Ibid., . Ibid., . Ibid., . Ibid., . See, for example, Advisory Committee opinions on Italy, ACFC/INF/OP/I(), adopted on  September , made public on  July , para. , where reception of minority language programming is not possible in all areas; and Ukraine, ACFC/INF/OP/ I(), adopted on  March , made public on  November , paras.  and , where reception in the Crimean Tatar language is also a problem for some Crimean Tatar settlements and where recent changes (due to a state budget deficit) to the frequency of the state radio company which provides some minority-language programming slots finds the station inaccessible to regions where large majorities of these minorities live. As the Advisory Committee of the FCNM has pointed out, the timing of programmes is one aspect in the guarantee of appropriate coverage for respective national minorities; opinion on Albania, para. . Oslo Recommendations and Explanatory Report, .



Sally Holt and John Packer and television services broadcast programmes for persons belonging to national minorities, with their participation and generally in their languages, during advantageous time slots.56 In comparison, according to a very restrictive Kyrgyz provision, private broadcasting mass media are required to broadcast after the end of the main programmes on public channels (i.e. very late at night for - hours a day).57 The guidelines also list the rights, needs, expressed desires and nature of the audience affected as a factor to be taken into account in assessing proportionality. In its judgment in the Lentia case, the European Court of Human Rights identified “the rights and needs of a specific audience” as one of the “other considerations” (apart from the technical) to be taken into account in the grant or refusal of a licence.58 The Commission confirmed the importance of meeting the needs of a specific audience and the relevance of the size of that audience. In the case of Verein Alternatives Lokalradio Bern v. Switzerland, it considered that a problem may arise under Article  of the European Convention on Human Rights and Fundamental Freedoms (ECHR) in conjunction with Article  if the refusal to grant a broadcasting licence resulted directly in a considerable proportion of the inhabitants of the area concerned being deprived of broadcasts in their mother tongue. According to Oslo Recommendation , the size and concentration of a minority and its situation and needs are to be considered relevant factors in determining access for persons belonging to national minorities to broadcasting time in their own language on publicly funded media—in terms of both the amount and quality of time at all levels. As a matter of binding international law, parties to the European Language Charter have undertaken to make provision for the users of regional and minority languages within the territories where those languages are spoken “according to the situation of each language”.59 These provisions imply that when the number of speakers of a minority language reaches a certain level the public broadcasting media should respond to the needs and interests of that population. It should be noted, however, that the numbers affected as a percentage of the population may not generally or necessarily be a determining factor in assessing the proportionality of a restriction on the use of the minority language. Strict adherence to numerical proportionality might mean that a small linguistic minority would be entitled to little or no meaningful broadcasting time at all. Indeed, the argument has been made that exactly a small group would merit positive action to ensure its meaningful enjoyment of such a freedom.60 Departure from numerical proportionality does not then constitute discrimination if its aim and effect is to ensure the broader enjoyment of rights. In practice, some states do make exceptions to their prescriptions for state language use at national level in areas where persons belonging to national minorities reside com    



Opinion on Moldova, para. . PCMLP/IViR Report, op.cit. note , . Lentia case, para.  European Language Charter, Art. . See Robert Dunbar, “Minority Language Rights in International Law”,  International and Comparative Law Quarterly, (), -, at .

The Use of Minority Languages in the Broadcast Media pactly and where the languages of the numerically prevalent national minorities may be used.61 While provisions for meeting the needs of regional/local populations through the free reception of foreign broadcasts or the granting of licences for broadcasting in a minority language must be regarded in itself as positive, problems have arisen where legislation/practice extends support to minority language broadcasting only in those areas of geographical concentration. The Advisory Committee of the FCNM has drawn attention to this in Ukraine, for example, where a large number of persons belonging to national minorities live outside areas of compact residency.62 Similarly in the Russian Federation, the Advisory Committee considers that the authorities should address shortcomings whereby persons belonging to national minorities who find themselves outside their territorial formation or who do not have a specific formation within the Russian Federation’s political order face widespread difficulties in ensuring access to electronic media in their own language.63 Where the needs of a particular audience are used as justification (either by the broadcaster in application for a licence or for prescription/restriction by the authorities), it would seem reasonable that some mechanism should be in place to ensure that the genuine needs of the audience are met. This relates also to quality and balance in terms of the content of minority language broadcasting. It is unlikely, for example, that a local station broadcasting in a minority language, but whose airtime is devoted mainly to music, would be considered to fill adequately the needs of the local minority-language speaking population requiring information of ‘general interest’ including news, educational programming etc. V. Promotion of Minority Languages By its very nature minority language broadcasting faces problems inherent to those broadcasters which appeal to smaller audiences. This means that frequently, even in the absence of the kind of specific restrictions on minority language programming described above, the lack of a legislative framework and implementing regulations, procedures and policies to support and facilitate the development of minority language broadcasting place persons belonging to minorities at a disadvantage in accessing electronic broadcasting media in their own language. Even in an apparently neutral environment, minorities—whether by virtue of their size, past discrimination or for other reasons—often lack the financial resources and/or capacity to establish and maintain their own broadcast media. State support may therefore be required in order to ensure that linguistic minorities may enjoy access to the broadcast media on an equal basis. The guidelines provide a number of examples of ways that states can support minority language broadcasting, drawing in part on existing best practices. 

 

Moldovan Law on TV and Radio, No.  of  October , Monitorul Oficial al R. Moldova, N/ of  December , Art. (); and Ukrainian Law on TV and Radio Broadcasting,  February , at , Art. . Opinion on Ukraine, para. . Advisory Committee opinion on the Russian Federation, ACFC/INF/OP/I(), adopted on  September , made public on  July , para. .



Sally Holt and John Packer Licensing, as a common form of regulation of both the PSB and private enterprises, is one effective tool through which further plurality and diversity, including minority language broadcasting, may be promoted. Favorable consideration may be given to those whose schedule would contribute to these aims. In Austria under the Private Television Act, for example, preference is given to applicants promoting diversity of opinion and responding to the needs of the catchments area.64 In the Czech Republic, key criteria taken into account when considering the granting of a licence include the benefits to existing variety and, specifically, benefits of the development of the culture of ethnic and other minorities. Stipulations on the language of programming as a specification of a public tender also exist in some jurisdictions such as Ireland, Macedonia, Switzerland and Montenegro.65 Specific obligations—including those regarding programming in minority languages—may also be negotiated on a case-by-case basis depending upon the proposed purpose/schedule etc. of the applicant. This does not mean that minority (or indeed other) language programming requirements are imposed by the regulator. The regulator merely responds to a proposal from the applicant (taking into account whether it considers this proposal to be beneficial for diversity etc.). In Russia, for example, while the intended language of broadcasting must be noted, the choice of language is stipulated by the founder.66 The extent to which an operator who gains a licence on the basis of intended minority language programming actually broadcasts in those languages may, however, be regulated and monitored. For example, in Norway under the terms of a license granted for -, the private national TV channel TV  is obliged to broadcast programmes to the Sami people, which as a rule should be in the Sami language (and has been criticized in the past for not fulfilling this remit).67 In responding to such proposals, the regulating body is able to meet the demands of plurality and diversity without the imposition of onerous prescriptions. This works well where such proposals are made. In some states a real interest has been identified among national minorities in developing television and radio (e.g. in Austria, especially among Czechs, Slovaks and Hungarians living in Vienna), and in such cases the authorities should try and meet these expectations.68 In a number of other countries, however, no requests have been made to the appropriate bodies for licences to establish local radio or television stations on the part of persons belonging to national minorities. This may reflect less a lack of interest on their part, than a lack of prospective funding and other support.69 Dynamics, commitment and financial potential of the minority community concerned all affect the extent to which minorities either take the initiative themselves or demand a response from the state in terms of their broadcast     



PCMLP/IViR Report, op.cit. note , . Ibid., -. Ibid., -. Ibid., . Advisory Committee opinion on Austria, ACFC/INF/OP/I(), adopted on  May , made public on  November , paras.  and . Advisory Committee opinion on Albania, para. ; Advisory Committee opinion on Armenia, ACFC/INF/OP/I(), adopted on  May , made public on  January , para. .

The Use of Minority Languages in the Broadcast Media ing needs. In the absence of impetus from minority language broadcasters themselves, states have a positive obligation under the minority standards (and deriving also from their access/pluralism obligations as a component of freedom of expression) to promote minority language broadcasting. Otherwise particularly small groups, for example, which are not politically organized miss out. Hence, for example, the relatively modest status of Scottish Gaelic, compared to that of Welsh or Irish in Great Britain because its supporters have never been able to equal the political influence of their Celtic counterparts.70 States may choose to fulfil their obligations by opening up new space for broadcasters, for example through increased incentives for broadcasters to respond to different audience—including linguistic—needs. Furthermore, where lack of journalistic expertise and training opportunities for persons belonging to linguistic minorities is an obstacle to the setting up of stations which operate in a minority language, increased support should be provided.71 Overall, then, the onus is on the government to increase the broadcasting time made available in the public media for persons belonging to national minorities and to take facilitative steps to this end.72 Greater state support for setting up of private electronic media by persons belonging to national minorities is also recommended.73 These provisions should extend to meeting the needs of all minorities including small ones.74 A less clear cut question is that of whether—and if so to what extent—international law requires states to provide financial support to promote minority media. This is not explicitly addressed in the minority standards, except in the CEI instrument which in Article  allows the possibility of financial assistance for minorities in availing themselves of media in their own language. In any event the principle of nondiscrimination would require that the distribution of state support to the media must include allocation of a fair proportion to minority media—whether through access to public radio or television or the financial support of private minority media enterprises. In this respect, Article ()(f ) of the European Language Charter stipulates that state parties must either “cover the additional costs of those media which use regional or minority languages, wherever the law provides for financial assistance in general for the media,” or “apply existing measures for financial assistance also to audiovisual production in the regional or minority languages”. Since the provision of direct state funding for private broadcasters can potentially raise questions of independence, states are advised to consider indirect methods of support such as the provision of favourable financing/tax regimes or exemption from certain fees payable on award of a licence.

    

Brian Wilson, “Let’s Talk Gaelic Before It’s Too Late”, The Guardian,  April . Advisory Committee opinion on Armenia, para. . Ibid., para. . Ibid., Executive Summary and para. . Advisory Committee opinion on Estonia, para. .



Sally Holt and John Packer VI. Extent of Permissible Interference in the Private Media An even more complex question arises as to whether and to what extent a state may legitimately regulate the private sector in order to fulfil its own plurality/access obligations (including minority language broadcasting) in the absence of a functioning PSB. In Georgia, for example, there is no public service broadcasting to speak of and private broadcasters have effectively taken over the function of the public services, including minority language broadcasting (they tend to rely on state funding).75 In Russia, the state media does have a public interest function, but is failing to deliver fully in this respect. A shift in (or shared) responsibility for public service broadcasting to the private sector is not a phenomenon confined to newly independent states or transitional democracies/economies. According to Spanish regulation, the public service can be provided directly by the state (through national and regional public broadcasters) or by private entities once they have been granted a concession in a call for tenders.76 In Luxembourg where there is no obligation on the publicly owned radio station to provide minority language programming, a private station Radio Latina fills the gap, with the station’s charter specifying quotas for the amount of broadcasting time in various languages.77 It should be noted, however, that this is a voluntary undertaking in line with the station’s aim to provide programming specifically for those who do not speak Lëtzebuergesch. Thus, as far as the private sector may already provide for what states may want to prescribe (in terms of fulfilling a PSB function) there would be no need to impose formal prescriptions. It is another matter as to whether states may ever impose restrictions on private broadcasters in order to fulfil their own access/diversity/plurality obligations. It is possible to imagine, in the absence of a functioning PSB, that a private monopoly might be expected to take on a public service role. Any such restrictions could be imposed, however, only in accordance with principles of non-discrimination and only to the extent that they would increase alternatives and freedom. Furthermore, the principle of the least interference necessary should be applied. The possibility of imposing language restrictions on private broadcasters also raises questions of practical implementation, opening up a whole area of subjectivity in terms of regulatory policy. It does not seem sensible, for example, to insist that all broadcasters provide a percentage of their broadcasting in a particular language and it is, indeed, unlikely that such general quotas would fulfil the stipulation of least interference. Since it would also be unfair to target selected broadcasters for this obligation, voluntary  





PCMLP/IViR Report, op.cit. note , . According to the Spanish Statute on Radio and Television, regional or local television or radio stations—public and private—which provide their services in a specific autonomous community, are subject to a series of principles, including pluralism, that should regulate the activities of broadcasting and must comply with the promotion of co-official languages of the autonomous communities; PCMLP/IViR Report, op.cit. note , , . Although private cable television, terrestrial television and radio broadcasters are therefore concessionaires which provide a public service, hardly any specific public service obligations have been imposed upon them. Ibid., .

The Use of Minority Languages in the Broadcast Media agreements would have to be reached between licensee and regulator—making an agreement reasonable in the circumstances (taking into account those factors outlined above). Where licensees prepared to provide at least a proportion of their programming in minority languages are not forthcoming, states may be required to take positive action in order to encourage potential broadcasters (particularly persons belonging to linguistic minorities) to apply for licences. It is interesting in this respect that the Advisory Committee of the FCNM generally advocates state action to fulfil their access/diversity/plurality obligations through encouragement rather than prescription—including through creating the space for the development of private minority language broadcasters. In its opinion on Albania, however, the Advisory Committee has also endorsed an approach that would require licensees to allocate a certain amount of time to broadcasting in minority languages as one method of ensuring further such coverage.78 VII. Concluding Note The Guidelines and Explanatory Note have been circulated to all OSCE participating states. The next step is to ensure that they are further disseminated and taken up and used by governments, those working in the broadcast media, members of minorities themselves, and others who have an interest in the development of vibrant and pluralistic broadcast media. As was As was highlighted at the Baden conference, these guidelines should be viewed as a ‘living document’ which requires follow-up. Ongoing monitoring of compliance of current and evolving state practice with international standards was stressed by conference participants as one important aspect of this. It should be noted in this regard that, in terms of fulfilment of obligations, there is no absolute; there is always room for improvement. It may also be noted that it is frequently a lack of practical experience—rather than political will—which can hinder the development of more progressive policy-making. Pooling resources, building a platform of knowledge and expertise and ensuring the exchange of good practice would go a long way towards assisting policy-makers in this regard. New technologies are also increasing the range of possibilities and diminishing the costs of accommodating greater diversity in the broadcast media.79

 

Opinion on Albania, para. . It is to be hoped that the combined effort of politicians, officials, civil society actors, journalists, representatives of international institutions and independent experts will serve to bring these guidelines to the attention of policy-makers and key actors in the media field and encourage them to use them as a reference and tool. Further copies of the guidelines are available (currently in English and Russian) from the Office of the OSCE HCNM or, in electronic form, on the HCNM’s website at . Readers are invited to distribute them and have them translated.



Graham Fox and Erik Friberg*

The Minority Rights Activities of the UN Independent Expert on Minority Issues, UN Working Group on Minorities, and the Office of the High Commissioner for Human Rights ( July 2005-June 2006)

I. Introduction This period has been both a highly significant and somewhat uncertain one in regard to the human rights institutions and mechanisms of the United Nations, and has seen the abolition of the Commission on Human Rights and the establishment of the Human Rights Council. In regard to UN mechanisms on minority issues, a significant development was the creation of a new UN Special Procedures mandate, the UN Independent Expert on minority issues (hereinafter IEMI or “Independent Expert”), established to complement the work of the Sub-Commission Working Group on Minorities (hereinafter WGM or “Working Group”) and offer new possibilities to fill a widely perceived gap in the UN tools to promote and protect the rights of persons belonging to national, ethnic, religious and linguistic minority groups. ‘Review’ and ‘reform’ have been key features of this period, and the optimistic voices promoting new institutions for a new era of UN rights protection, have been matched by cautious voices foreseeing more modest outcome of reform efforts of UN political bodies. As one of the latest new human rights mechanisms created by the Commission, the establishment of the mandate of an Independent Expert was timely and a result of long-standing advocacy efforts, including from the Working Group itself.1 The first mandate-holder, Ms. Gay J. McDougall, was appointed on  July  by the United Nations High Commissioner for Human Rights, Ms. Louise Arbour. At the core of her mandate, the Independent Expert is tasked to promote the implementation of the  *



Graham Fox is a Human Rights Officer and Erik Friberg is an Associate Human Rights Officer at the United Nations Office of the High Commissioner for Human Rights, supporting the mandate of the UN Independent Expert on minority issues. The views expressed in this article are those of the authors and are not necessarily shared by the Office of the High Commissioner for Human Rights or the Independent Expert. See suggestions and recommendations reflected in prior reports of the Working Group on Minorities at their annual sessions, including UN Doc. E/CN./Sub.//, E/CN./ Sub.//.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 359-374. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Graham Fox and Erik Friberg UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (hereinafter “the Declaration on the Rights of Minorities”). This new mandate also offers a first unique opportunity for direct constructive engagement on minority issues in country situations. She can consult directly with governments regarding minority issues, a function that the Working Group has been lacking. However, the establishment of the mandate of the Independent Expert came at a significant cost to the Working Group; the length of the annual Working Group session was cut from five to just three days, imposing new limitations on its consideration of conceptual issues and thematic papers. Changes to the timing of the sessions, requiring the Working Group to meet in-session during the Sub-Commission proceedings in August, was another change resulting from the compromise package of political negotiations that established the mandate of the Independent Expert. Indeed, at the time of writing, the effects of reform efforts remain uncertain with regard to the future of the Sub-Commission and the Working Group on Minorities. In many respects this period has necessarily been a formative one for the new mandate of the Independent Expert, with Ms. McDougall quickly establishing the working practices and thematic priorities to guide her early work. Informed by the practices of other Special Procedures mandates, and guided by the founding Resolution of the Commission, Ms. McDougall established early on that she would receive information from a variety of sources, make communications directly to states on specific minority issues, and conduct country visits at the invitation of states. The first of these planned visits was to Hungary in June  and, with the welcome cooperation of the government of Hungary, has begun to establish a constructive practice of country visits that bodes well for future engagement in Europe and beyond. Staffed and serviced by the Special Procedures Branch of the Office of the High Commissioner for Human Rights (OHCHR), the Independent Expert has also benefited greatly from the institutional experience and expertise of the OHCHR in the field of minority issues and anti-discrimination and is specifically called upon within her mandate to identify possibilities for technical cooperation by the OHCHR. II. The Independent Expert on Minority Issues Undoubtedly the establishment of the United Nations Independent Expert on minority issues has been the most significant new development on minorities within the UN system. The Independent Expert on minority issues is a special-procedures mandate established in  by the United Nations Commission on Human Rights. An independent expert is one of a number of special-procedures mandates that also include thematic and country Special Rapporteurs, representatives of the Secretary-General, or representatives of the Human Rights Council (formerly the Commission on Human Rights). Despite some NGO concerns regarding the failure to establish a Special Rapporteur, the title of a special-procedures mandate does not necessarily reflect any hierarchy or indication of powers as witnessed over the first active months of the mandate. Of primary consideration are the actual terms of the mandate as formulated in the resolution establishing it (see below). In the case of the Independent Expert on minority issues, the mandate is provided in Commission on Human Rights Resolution



The Minority Rights Activities of Various UN Bodies ( July -June ) / which established the post only for an initial two-year period.2 However, with the establishment of the Human Rights Council and subsequent review of all elements of the UN human rights machinery, including special procedures, thematic and country mandates, the period has seen serious question marks raised over the future of all such mechanisms.3 On  July , Ms. Gay McDougall from the United States of America, a prominent human rights lawyer, was appointed by the High Commissioner for Human Rights, Ms. Louise Arbour, as the first holder of the position of Independent Expert on minority issues, in accordance with the provisions of Commission on Human Rights Resolution /. Ms. McDougall was in  elected an alternate member of the UN Sub-Commission on Human Rights, and was a member of the Committee on the Elimination of Racial Discrimination (CERD) from  to . As Special Rapporteur on the issue of systematic rape and sexual slavery practices in armed conflict, she presented a groundbreaking study calling for international legal standards for the prosecution of such acts. From September  until March  she was also Executive Director of the Washington DC-based NGO, Global Rights, formerly the International Human Rights Law Group. Among other numerous notable achievements, Ms. McDougall was one of five international members of South Africa’s Independent Electoral Commission, which successfully organized and administered that country’s first non-racial elections. Prior to these elections, she gave critical assistance to parties negotiating with the South African government for a transition to a post-apartheid democratic government, by providing to the negotiators analyses of comparative constitutional arrangements. In her initial annual report as Independent Expert, submitted in , Ms. McDougall sought to highlight clearly the contributions to be expected of a UN mandate on minority issues, to outline the parameters which inform her work, and to to demonstrate the complementarity of her role and approaches to the work of other mandates.4 She notes for example that while a number of United Nations bodies, mandates and mechanisms focus on violations of human rights that display discrimination, racism or xenophobia against minority groups and their members as a root cause, the minority rights component of such abuses is often hidden. When the minority status of 

 

See Human Rights Resolution / “Rights of persons belonging to national or ethnic, religious and linguistic minorities”, . For an overview of UN special procedures, see . The initial report of the Independent Expert (UN Doc. E/CN.//) is available at the OHCHR website of the Independent Expert, see . The report of the High Commissioner for Human Rights on the rights of persons belonging to minorities, submitted to the th session of the Commission, before the establishment of the Independent Expert’s mandate, stated: “Numerous observers […] are of the opinions that some challenges facing minorities have not been appropriately covered by existing mandates, for structural or functional reasons. As minority issues do not constitute the main focus of the existing mandates, inevitably the mandates are unable to reflect the full range of concerns relevant to minorities”; UN Doc. E/CN.//.



Graham Fox and Erik Friberg the victims remains unaddressed, subsequent attempts to achieve effective and sustainable solutions for individuals or communities may be limited. As such, the Independent Expert has stressed that she is focusing her work on the root causes of grievances, and offers her constructive assistance and engagement to address issues of concern, to the benefit of all communities and states alike. The mandate of the Independent Expert is essential in guiding the work of the mandate-holder. In its Resolution /, sponsored by the government of Austria, the Commission on Human Rights requested the United Nations High Commissioner for Human Rights to appoint an Independent Expert for a period of two years, assigning the mandate-holder a number of tasks and requirements. These are: (a) To promote the implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, including through consultations with governments, taking into account existing international standards and national legislation concerning minorities; (b) To identify best practices and possibilities for technical cooperation by the Office of the United Nations High Commissioner for Human Rights at the request of governments; (c) To apply a gender perspective in her work; (d) To cooperate closely, while avoiding duplication, with existing relevant United Nations bodies, mandates and mechanisms, as well as regional organizations; and (e) To take into account the views of NGOs on matters pertaining to her mandate. The Commission on Human Rights also requested the Independent Expert to submit annual reports on her activities to the Commission, including recommendations for effective strategies for the better implementation of the rights of persons belonging to minorities. Since the abolition of the Commission on Human Rights in , the mandates of special procedures have been assumed by the newly established Human Rights Council, to which reports of special procedures mandate-holders are now to be considered.5 The  Declaration on the Rights of Minorities is clearly at the heart of the mandate of the Independent Expert as the only global human rights standard specifically dedicated to address minority issues. However, the Independent Expert notes that the rights guaranteed in all other United Nations human rights conventions apply equally to members of minority groups. She is thus informed by provisions of other international treaties relevant to minority rights, including Article  of the International Covenant on Civil and Political Rights, from which the Declaration was inspired, and Article  of the Convention on the Rights of the Child. The work of treaty-monitoring bodies, among them the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, the Committee on the Rights of the Child, the Committee on the Elimination of Discrimination Against Women and the Committee on Economic, Social and Cultural Rights, also provides valuable sources of expertise, including authoritative interpretations of standards relevant to minorities.





See Resolution of General Assembly, UN Doc. A/RES//, and report of the first session of the Human Rights Council, UN Doc. A//.

The Minority Rights Activities of Various UN Bodies ( July -June ) In addition, she is clear to signal in her initial report that her work benefits from other existing regional human and minority rights instruments and mechanisms including, for example, the Council of Europe’s  Framework Convention for the Protection of National Minorities (FCNM). This point is reinforced by her stated desire to forge strong collaborative relationships with the Advisory Committee on the FCNM, and the OSCE High Commissioner on National Minorities (HCNM), in order to benefit from their significant experience in addressing minority issues in Europe and their proven track record, working methods, approaches and practices.6 Ms. McDougall is developing similar modalities for exchange of experiences and information with relevant bodies in other regions and sub-regions in Africa, Latin America and the Caribbean, and Asia. One of the real benefits of the global mandate and the Independent Expert’s personal experience lies in the possibility of facilitating such useful cross-regional sharing of experience to inform minority situations in all regions. Importantly, the initial annual report of the Independent Expert identifies four broad areas of concern relating to minorities globally, which provide a legal and conceptual framework for her work. These are: protecting a minority’s existence, including through protection of their physical integrity and the prevention of genocide; protecting and promoting cultural and social identity, and the right of national, ethnic, religious or linguistic groups to affirm and protect their collective identity and to reject forced assimilation; ensuring effective non-discrimination and equality, including ending structural or systemic discrimination; and ensuring effective participation of members of minorities in public life, especially with regard to decisions that affect them.7 In addition, the Independent Expert takes note of the collective nature of minority rights. This holds importance for the promotion and protection of minority identity and visibility; for the informed participation of these groups in decisions that affect their rights and resources; and for securing claims to linguistically and culturally appropriate education, land and other shared assets, to be enjoyed in community with others belonging to the minority group in question. While the Declaration on the Rights of Minorities examines rights that may be claimed by individual members of minority communities, the Independent Expert recognizes that those claims will often require the state to ensure the existence or identity of the group as a whole.8 III. Thematic Priorities of the Independent Experts Given the breadth of work that demands attention with respect to minority issues, as well as the limitations on the work of the Independent Expert due to resource and capacity constraints, she has focused her initial work on certain thematic priorities. These are:

  

See initial report of the Independent Expert (UN Doc. E/CN.//), para. . Ibid., para. . Ibid., para. .



Graham Fox and Erik Friberg A. Poverty Alleviation, Development and the Millennium Development Goals A primary thematic priority of the Independent Expert is to increase the focus on minority communities in the context of poverty alleviation, development and the Millennium Development Goals. The Independent Expert is concerned that minorities and other marginalized communities are failing to benefit from international efforts to achieve the Millennium Development Goals by .9 Poverty is both a cause and a manifestation of the diminished rights, opportunities and social advancement available to members of minority communities. The Independent Expert has highlighted the need to work with states and all other development actors, including minorities themselves, to promote programmes, policies and activities that take fully into account the needs and rights of minorities. She has identified the United Nations Development Programme (UNDP) as among key United Nations agencies with which to collaborate closely, and began an early engagement with repeated consultations in , including at senior level with the Associate Administrator. One result of these consultations is resulting in a UNDP Conference on Minorities in Development Processes to be held in New York in October , which will provide a basis for further cooperation, including through the implementation of the relevant components of the upcoming UNDP’s Global Human Rights Strengthening Programme (-). Equally, in line with her mandate she is also working to identify successful practices and effective implementation strategies, including poverty reduction strategies, to assist states in their consideration of minority issues. Full and effective participation of minorities in framing the policies and decisions that affect them is a guiding principle of the Independent Expert’s work. In the context of this work, she is also re-addressing long-standing issues and challenges including how to promote the collection and use of disaggregated data, which reveal inequalities between communities, and is a potentially important tool in the development field and for minority communities generally. B. Promoting Social Inclusion and Ensuring Stable Societies A second broad area of thematic priority is to increase the understanding of minority issues in the context of promoting social inclusion. The Independent Expert recognizes that exclusion, discrimination and racism directed at minority groups may result in social unrest based on inequality. Minority rights, inclusion and equality play an important role in promoting political and social stability and peace. In fact this has been recognized at the highest level of the United Nations and is stated in the outcome document of the  World Summit of Heads of State and Government, approved by the General Assembly.10 The implementation of law and policy relevant to inclusion 





This concern was made also in UNDP’s  Human Development Report (Millennium Development Goals: A compact among nations to end human poverty): “Women, rural inhabitants, ethnic minorities and other poor people are typically progressing slower than national averages – or showing no progress – even where countries as a whole are moving towards the Goals”. See . See World Summit Outcome, UN Doc. A/RES//, para. .

The Minority Rights Activities of Various UN Bodies ( July -June ) and equality, and effective strategies for social cohesion, are therefore important goals for the Independent Expert. There is a need to better understand the causes and prevalence of discrimination against minorities in order to put in place effective policies and practices to address such situations, and thus to avoid them. The Independent Expert highlights to states the significant benefits of legislative and policy reform that seeks to promote effective strategies of social cohesion, equality and non-discrimination. She also recognizes the need for mechanisms, including indicators, which allow deteriorating situations to be identified as early as possible in order to avoid expressions of grievance to develop into expressions of violence. Echoing the words of the United Nations Secretary-General in  that “[w]e must protect the rights of minorities, since they are genocide’s most frequent targets”,11 the Independent Expert has during the period in consideration held consultations with the Special Adviser to the Secretary-General on the Prevention of Genocide and CERD, with a view to enhancing effective early warning and action capacities and complementary functions. Under the banner of this work to promote inclusion and stability she has identified three specific areas where she plans to identify successful practice and develop work to assist states in their treatment of minorities. These are: i) in the areas of policing, security and criminal justice; ii) in relation to the denial or deprivation of citizenship to members of minority groups; and iii) in the field of education. Using the conceptual work undertaken by the Working Group on Minorities following its June  session12 and informed by the thematic work of regional bodies including the OSCE,13 the Independent Expert is addressing issues relating to policing and maintenance of security in multiethnic societies. She has noted that policing practices and the engagement of the police with minority communities can either ignite or quell social unrest and conflict. In collaboration with the WGM and other actors, she is putting in place a programme of work to identify and attempt to disseminate good practices in this regard, including through the use of guidelines and direct consultations. With regard to attention to issues of citizenship and minorities, the Independent Expert has stated that “the arbitrary denial of citizenship to certain minority groups has been used in order to exclude minorities from due benefits or reasonable participation, with consequences experienced over generations in some cases”14. In collaboration with regional NGO partners, she has begun work towards regional consultations to help  





Speech by the UN Secretary-General to the  Stockholm International Forum on Preventing Genocide, see . The Working Group on Minorities commissioned a Working Paper by Mr. Tom Hadden of University of Belfast on the issue of Integration with Diversity in Security, Policing and Criminal Justice. The Working Paper is available on the website of OHCHR at: . The OSCE High Commissioner on National Minorities, Recommendations on Policing in Multi-Ethnic Societies, February . This set of recommendations is available in a number of languages from the Office of the HCNM, or in electronic form on the HCNM’s website at . Oral statement of the Independent Expert on minority issues to the nd session of the Human Rights Council in Geneva on  September .



Graham Fox and Erik Friberg reveal the extent of this problem and to develop practical solutions. In this regard, over this period she participated in a number of consultations on citizenship issues with experts, government representatives, NGOs and colleagues within the UN system. This has indicated that practices that exclude persons belonging to minorities from obtaining citizenship or which arbitrarily deprive them of it merit close examination globally. Access to quality education for minority children is described by Ms. McDougall as “[t]he most compelling factor contributing to the reduction of poverty levels of disadvantaged minorities leading to their inclusion in the wider society”.15 This is a point that was reinforced during her June  visit to Hungary during which she encountered first-hand serious discrimination in education suffered by Roma children. Discriminatory practices of segregating disadvantaged minority children into separate and inferior schools or classes are widespread, while minority children also may lack equal access to instruction in their own language. Both of these factors may put minority children at a disadvantage in relation to other children. Equally, she has noted that in many countries, reform of school curricula is required to teach students about minority cultures, history and the important contributions of minorities to the wider society. C. The Situation of Minority Women A third thematic priority of the Independent Expert is that from the outset she has put issues of minority women at the centre of her mandate. In March  she issued a statement to mark International Women’s Day,16 highlighting the fact that minority women and girls may face multiple forms of discrimination based on both their minority status and their gender. Multiple or intersectional discrimination may make women and girls particularly vulnerable to violation and denial of their rights in both public and private life. She hopes to promote recognition of the fact that denial or violation of rights may be manifest in different ways in the experiences of men and women, and of girls and boys, and that different solutions may be necessary. During the first country visit of the mandate to Hungary in June , the Independent Expert demonstrated her intention to follow through on her stated objective of placing the issues of minority women at the centre of her mandate. She held a dedicated forum for Roma women to raise their issues and offer their perspectives, and conducted interviews with minority women whenever possible. The Independent Expert has expressed her desire to benefit from the wide experience of other mandate-holders and bodies dedicated to women’s issues, including the Committee on the Elimination of Discrimination Against Women and UN specialized agencies working on women issues. IV. Methods of Work of the Independent Expert The Independent Expert employs numerous and diverse methods of work and activities in the fulfilment of her mandate, with the aim of bringing about the most effective and timely use of her limited available resources. Her methods of work are informed by  



Ibid. OHCHR Press Release, “Hidden Victims of Multiple-Discrimination: UN Expert on Minority Issues Calls for ‘Gender Lens’ to Focus on Minority Women”,  March .

The Minority Rights Activities of Various UN Bodies ( July -June ) the practices of other special-procedures mandates, with due regard for the particular features of her mandate. Her key activities are focused on constructive engagement and consultation with governments, including via the use of communications and country visits. Her role in identifying ‘best’ or ‘successful’ practices, for example, and opportunities for technical cooperation by the Office of the United Nations High Commissioner for Human Rights also requires a form of engagement which clearly differs from the monitoring and criticizing function of some other mandates. She also meets with NGOs, minority groups, United Nations agencies, bodies and mechanisms; regional and other intergovernmental organizations; and academic, legal, research and policy development centres in the course of her work. To assist in gathering information on the current situation of minorities in all United Nations member states, the Independent Expert has developed a questionnaire on minority issues, designed to be completed by national authorities. This questionnaire was sent to all United Nations member states in March , and the resulting information will assist the Independent Expert in various aspects of her ongoing work. A preliminary analysis of this initiative will be reflected in the Independent Expert’s annual report in . In collaboration with specialized units of the Office of the United Nations High Commissioner for Human Rights, similar exercises will be undertaken to gather information on minority issues from NGOs, civil society organizations and national human rights institutions. The questionnaire, available on the website of the Office of the High Commissioner for Human Rights, has proven a useful early modality through which to gain detailed information from states relating to their legislation, policy and practice on minority issues. The Independent Expert encourages the provision of information on minority issues from a wide variety of sources, including NGOs, minority organizations, intergovernmental organizations and other United Nations bodies concerned with the protection of human rights. Consequently, she receives a large amount of material relevant to her mandate, often providing her with information about allegations of violations of the human rights and fundamental freedoms of minorities and other issues of interest and concern. The Independent Expert analyses information received and decides whether or not to take action, as well as the nature of that action. Information provided to the Independent Expert can be useful in a number of ways. For example, it can highlight issues of immediate or ongoing concern; it can help to identify areas where technical assistance and consultation could help to fill gaps in the protection and promotion of minority rights; and it can be useful to the work of other United Nations agencies and expert bodies and their work on minority issues. Throughout her engagements, the Independent Expert mainstreams the consideration of minority issues within the work of the United Nations and other multilateral forums tasked to promote human rights, development and stability. This offers the opportunity for greater and more consistent consideration of minority issues in key areas of United Nations work across its agencies, bodies and mechanisms. The aim of the Independent Expert is to contribute to the capacity of United Nations field staff at the national level to be better equipped to systematically consider minority issues and to respond to them appropriately. In the planning and implementation of all programmes, measures can be taken to ensure that minorities are consulted, and are thus able to participate effectively in decisions that affect them. The Independent Expert considers 

Graham Fox and Erik Friberg that mainstreaming offers the opportunity for the United Nations to better assist states, including through technical cooperation, to ensure that their policies and practices are fair, non-discriminatory and benefit all communities. The Independent Expert was initially provided with only a two-year mandate, short in comparison to the three years provided to many other special procedures mandate holders. This, when considered in view of the wide scope of any mandate on minority issues and also the uncertainties surrounding the future of all mandates under the HRC review procedures, has provided a somewhat uncertain foundation upon which to establish the mandate and set in process an effective programme of work. All mandates are under considerable pressure to demonstrate usefulness, but suffer from the same resource and staffing constraints common to most UN mandate holders, all of whom are part-time, unpaid experts, appointed because of their expertise in their field. Differing approaches in the work of mandate holders have resulted in calls for standardization of methods of work.17 However, in the current period of mandate review it is proving difficult for some mandates to obtain invitations for visits, and the Independent Expert is developing a strategic approach to communications with a view to maximizing their impact.18 V. Country Visits of the Independent Expert One of the most valuable tools available to the Independent Expert and other mandate holders is the ability to conduct country visits at the invitation of states, in order to consult on minority issues in situ, enabling a direct engagement with states to provide assistance and advice on the implementation of the  Declaration on the Rights of Minorities. The findings and recommendations of official visits are submitted through mission reports to the Human Rights Council, and discussed during an annual interactive dialogue.19 The first such official country visit of the mandate was to Hungary,  June- July , and has greatly assisted in establishing a constructive practice of country visits. In conducting her visit to Hungary, the Independent Expert was fully 







Efforts to guide the methods of work of all UN special procedures include a manual which is periodically revised and up-dated by mandate holders themselves, with an aim to reflect good practices and assist the special procedures mandate holders in their efforts to promote and protect human rights. The Coordination Committee of Special Procedures is scheduled to present a final revised draft for consideration and approval by the mandate holders at their th annual meeting, tentatively scheduled to take place in June . See the draft manual at . During the initial year of the mandate, the Independent Expert sent some ten communications to countries in all regions, jointly with other mandate holders. Communications are confidential until included in the reporting to the Human Rights Council. As reflected in her initial annual report, letters to Myanmar and Dominican Republic were among the first communications sent by the Independent Expert. See UN Doc. E/CN.//, paras. -. While the report of the Independent Expert is not yet public, she orally reported on her visit during the Human Rights Council’s nd session in September , with her full visit report and recommendations to be submitted for the th session of the Council in March .

The Minority Rights Activities of Various UN Bodies ( July -June ) informed of prior and ongoing work of Council of Europe bodies and the HCNM, including through prior consultations at Secretariat level. The Advisory Committee of the FCNM had issued its Advisory Opinion on its second cycle of monitoring of Hungary in , and the Independent Expert explored ways to benefit from and add value to the findings of that body in a collaborative fashion, consistent with the requirements of her mandate.20 The Independent Expert made the decision to make Roma issues the focus of her attention during her visit to Hungary, given the relatively serious situation faced by the Roma in comparison to other minorities. However, the visit to Hungary also allowed the Independent Expert to fulfill the elements of her mandate, including in regard to the identification of successful practices by states in regard to their treatment of minority issues. Hungary’s unique system of minority self-governments, for example, is considered by the Independent Expert to offer a creative and promising practice to ensure the cultural and linguistic autonomy of many minority groups. The adoption of comprehensive anti-discrimination legislation and a monitoring body, the Equal Treatment Authority, to promote implementation of the Anti-Discrimination Act, have also been highlighted as best practices, as have specific measures in the field of education and employment, and the micro-financing of small Roma businesses, for example. A series of recommendations will also seek to assist the government in meeting concerns expressed over the situation of Roma in the fields of education and employment, as well as the need to comprehensively address widespread societal discrimination and prejudice.21 While preliminary observations were included, as is practice, in a press release issued at the conclusion of the visit, an official report with detailed recommendations will be presented to the UN Human Rights Council in its March  session. Numerous other country situations were considered and pursued during the time under review, with requests for invitations sent to several countries in Asia, Africa and the Americas, with a view to enable visits in the future. VI. The UN Working Group on Minorities The UN Working Group on Minorities held its th annual session in June  during which sweeping changes to it were discussed, most significantly a cut in its duration from five to three working days, and a change to its pre-sessional status to make it an inter-sessional Working Group of the Sub-Commission, to be held annually during the Sub-Commission in August.22 These changes had been proposed in the Austrian





In fact, early consideration was given to the possibility of coordinating the visit of the Independent Expert with the follow-up visit and seminar of the Advisory Committee, which however could not be arranged due to conflicting schedules. See press release upon completion of the visit of the Independent Expert to Hungary, at . The UN Working Group on Minorities was established as a subsidiary Working Group of the Sub-Commission on Human Rights in , with a mandate to review the promotion and practical realization of the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, to examine possible solutions to problems



Graham Fox and Erik Friberg sponsored Commission on Human Rights Resolution, which created the mandate of Independent Expert, and were considered by many to be an acceptable compromise to ensure the creation of a second UN minority issues mandate. Significantly, the compromise ‘package’ of complementary mechanisms further required review of both after an initial two-year period, adding to the uncertainty over the future of the Working Group. Given these changes, its th annual session did not take place until August  (in fact, due to ongoing consideration of the future of the Sub-Commission and consequently the WGM, it was permitted to meet for only four morning sessions), and therefore no session was held during the period under review. Between sessions, however, the Working Group, under the administration of the OHCHR Indigenous and Minorities Unit, has not been dormant and has pursued, based on the report and recommendations of its th session, the development of thematic papers and conceptual tools in the area of minority issues, albeit pared down in consideration of a new three-day limitation. A report by Mr. Jose Bengoa, chair of the th session of the WGM, considered the outcomes of a June  consultation on minorities and conflict prevention.23 Furthermore, Mr. Tom Hadden of the University of Belfast was commissioned to prepare for submission to the WGM a paper and recommendations in the field of policing, security and criminal justice in multi-ethnic societies.24 Conceptual development continued in regard to the Minorities Profile and Matrix, an information and training tool conceived by the WGM. In addition, the secretariat of the Working Group commissioned additional pamphlets to be included in the United Nations Guide for Minorities,25 notably on the work of the Independent Expert26 and on minorities and the work of the United Nations human rights treaty system in dealing with individual complaints.27 Designed to be accessible tools for minorities to assist them in using the UN system, the pamphlets offer a unique training resource that is also available on-line. The complementary mechanism of the Independent Expert offered new prospects with a mandate to work continuously on minority issues, over her initial two-year tenure, and with the ability to engage directly with governments in regard to specific situations, as well as to take forward thematic work and initiatives in the field of technical cooperation. At the time of writing and given the abolition of its parent body, the Commission on Human Rights, the future of the Sub-Commission on Human Rights remains in doubt. This uncertainty has undoubtedly impacted greatly on the Working

 



 



involving minorities, and to recommend further measures, as appropriate, for the promotion and protection of the rights of minorities. Report of the Working Group on the th session, see UN Doc. E/CN./Sub.//. This preceded the working paper submitted by Tom Hadden on the Integration with Diversity in Security, Policing and Criminal Justice to the th session, see UN Doc. E/CN./ Sub./AC.//WP.. The United Nations Guide for Minorities provides an accessible dedicated resource designed for use by minorities or organizations promoting minority rights in the form of a series of pamphlets. These are available via the OHCHR website at . UN Doc. E/CN./Sub./AC.//,  June . UN Doc. E/CN./Sub./AC.//,  June .

The Minority Rights Activities of Various UN Bodies ( July -June ) Groups of the Sub-Commission over this period, since their own continuation may also depend on the continuation, in some form, of the Sub-Commission, perhaps as a new expert consultative organ of the Council. For supporters of the Working Group on Minorities attention has clearly turned in  to issues of ensuring the continuation of the only UN forum for minorities and minority issues. This question has galvanized discussion among both supporters and detractors of the WGM. Common to many is the desire to see this period of change also as an opportunity to address the shortcomings in the current Working Group. NGOs have taken the opportunity to advocate not only for the continuation of the current unique features of the Working Group, including open access to representatives of non-ECOSOC accredited NGOs, but for wider powers of engagement on specific country issues, for greater UN wide support, and for more resources to allow such a body to function more effectively.28 Supporters have called for a higher status to be accorded to the Working Group either within the Sub-Commission or its replacement body, or even for it to function as a direct advisory body to the Council or linked to its rotating Presidency. Equally, since the establishment of the Human Rights Council in June , its attention has turned to review of special-procedures mandates established by the Commission, including the Independent Expert on minority issues. All mandates are to be considered by the Council under this review process. Between August  and the th session of the WGM in August  there was no opportunity, other than via informal communications with the secretariat and the members of the Working Group, for the Independent Expert and the WGM to demonstrate the potential for the constructive collaboration that had been envisaged by those who had made the argument for a new minorities mandate in . In Resolution /, the Working Group on Minorities is requested in its work to engage in conceptual support of, and dialogue with, the Independent Expert, who will participate as an observer. Despite the lack of formal opportunities, over the period, the Independent Expert met informally with WGM members, and on numerous occasions stressed her support for the Working Group and its functions including its conceptual development work and the fact that it allows minorities themselves a voice within the UN system. VII. Activities of the Office of the High Commissioner for Human Rights Irrespective of the presence or absence of any provisions on minorities and indigenous groups, all UN human rights treaty bodies tend to devote attention to the protection of members of these groups.29 The recommendations and concluding observations of treaty bodies demonstrate that this continues to be the case. With a view to strengthen



See a joint intervention by  non-governmental organizations working to promote and protect minority rights worldwide, made at the th session of the UN Working Group on Minorities, August , available on the OHCHR website at . For an excellent account of the practice of UN treaty bodies in regard to minority and indigenous peoples, see the contribution by Ms. Nathalie Prouvez, “Minorities and Indigenous Peoples’ Protection: Practice of UN Treaty Bodies in ”,  EYMI (/), -.



Graham Fox and Erik Friberg ing the work of the Committees, the Independent Expert on minority issues has been engaging directly with treaty bodies, including CERD, the Human Rights Committee and the Committee on the Rights of the Child, to offer the services of her mandate to assist them in their consideration of minority issues. Over this period consideration of wide-ranging treaty body reform continued, although no firm decisions have been taken, for example in progress towards a unified treaty body or unified reporting procedures. Given the other significant changes that have taken place in regard to the human rights bodies of the UN system, and current ‘unfinished business’ in this respect at the time of writing, it is not perhaps surprising that consideration of treaty body reform did not result in real practical change during this period. The treaty bodies continue to function according to their original mandates created under the Covenants and Conventions themselves, and one problem remains the fact that fundamental change is likely to require a difficult review and revision process, including of the treaty provision establishing the Committees. While the Human Rights Council began its consideration of a Universal Periodic Review in this period, much work remains to be done to reach consensus on this issue, and it seems likely that treaty body reform will await developments in this area within the Council.30 The close attention to minority issues by the Committee on the Elimination of Racial Discrimination is perhaps exemplified in its consideration of the state report of Bosnia and Herzegovina in April , during its th session. The concluding observations of the Committee31 are heavily focused towards recommendations to ensure the equal treatment of ethnic minorities, while the situation of the Roma is singled out for attention. Strong recommendations address issues including the lack of disaggregated statistical data, amendments to the state constitution and election law to ensure equal enjoyment of the right to vote and stand for election by all citizens irrespective of ethnicity, and measures for the promotion of the rights of the Roma minority in education, employment and all economic, social and cultural rights. The creation of the mandate of the Independent Expert on minority issues, has been flagged by both the Committee and Gay McDougall, as offering new prospects for collaboration and to assist states in implementing the CERD recommendations. A first official dialogue between the Independent Expert and the Committee was requested in June  (and subsequently took place in August ), to explore early considerations into the modalities of such a constructive cooperation.32



 



For information on proposals and consultations on reforming the human rights treaty monitoring system, including the suggestion of the UN High Commissioner for Human Rights for a unified standing treaty body, see . UN Doc. CERD/C/BIH/CO/,  April , Concluding observations of the Committee on the Elimination of Racial Discrimination on Bosnia and Herzegovina. The potential of such dialogues with other treaty-monitoring bodies could also evolve into the Independent Expert being invited to address particular country situations, or to assist in the course of follow-up activities. The reporting of UNMIK and consideration of Kosovo by the Human Rights Committee during the time of review offered one example of where such cooperation could have taken place, on the basis of communications sent by the Inde-

The Minority Rights Activities of Various UN Bodies ( July -June ) The OHCHR Minorities Fellowship Programme, established in  prior to the th session of the Working Group on Minorities in June , was supported again in early  allowing six minority representatives to spend some three months training and working in the office. The Fellowship Programme is organized by the Indigenous and Minorities Unit in the OHCHR Research and Right to Development Branch, and is intended to assist organizations and communities in protecting and promoting human rights. With facilities and training provided by the office, the fellowship programme offers a protracted experience of the UN system to participants who are selected on the basis of their minority status, their experience in working on minority issues, and their potential to function as trainers upon return to their communities and non-governmental organizations. Fellowship participants took the opportunity during this training period to attend the sessions of numerous human rights bodies and mechanisms including the Committee on the Elimination of Racial Discrimination, and the Committee on Economic, Social and Cultural Rights. There were opportunities to learn about the work of National Human Rights Institutions and establish contact with the representatives who will be participating in the International Coordinating Committee. Additionally, the experience also offered opportunities to participants to establish contacts and to network and lobby with the non-governmental community and other inter-governmental organizations, such as UNDP. After an introduction to the work of treaty bodies, particularly CERD, and to charter-based bodies of the UN system, the Minorities Fellows took the opportunity to learn about the country-focused work of OHCHR and about the practical ways of strengthening national human rights protection systems. Training on the UN Declaration on the Rights of Minorities, the work of the UN Working Group on Minorities, and the work of the Independent Expert on minority issues, gave the participants a valuable understanding of the standards and mechanisms of the UN dedicated to minority issues. Importantly the  Minorities Fellows, within their programme of work with OHCHR, engaged in work to refine the above-mentioned Minorities Profile and Matrix with a view to its submission as an official UN document to the Working Group on Minorities’ th session. The concept of the Profile and Matrix arose from a need identified by minorities themselves to understand better the concept and scope of the UN Declaration on the Rights of Minorities, the Commentary on the Declaration and other international standards and jurisprudence relating to minorities. The Profile and Matrix are designed to function as tools for minorities and for all those with an interest or obligation to promote and protect the rights of minorities. Its aims include to improve understanding of the Declaration on Minorities; indicate current legislation, policies and practices; identify avenues for data collection, its analysis and application; enable suggestions for improving situations; develop a checklist on human rights challenges affecting minorities; identify trends and situations which could fuel conflict or violence; develop a common language for sharing information and good practices; and contribute to the work of international human rights mechanisms. In practice the Profile and Matrix, when functioning, is envisaged as a means for minorities to present

pendent Expert together with other mandate holders on the situation of displaced Roma and their health situation in lead-contaminated camps.



Graham Fox and Erik Friberg information to their own governments, national human rights institutions and regional organizations. VIII. Conclusions The establishment of the mandate of the Independent Expert on minority issues, and the appointment of Gay McDougall to this role, offer significant potential for enhancing and expanding the work of the OHCHR and the UN system more generally on minority issues. Over the period, this potential has begun to be realized through the constructive dialogue with UN treaty bodies, and collaborations including with UNDP and with the Working Group on Minorities of the Sub-Commission on Human Rights. Equally, direct country engagements of the Independent Expert, notably through the vehicle of country visits, the first of which was conducted to Hungary in June , have demonstrated the ability of the mandate to take up particular country situations, provide analysis of legislation, policy and practice and make recommendations to states. Her mandate to identify best practices and opportunities for technical cooperation by the OHCHR, and to report directly to the Human Rights Council, offers wider prospect for a truly constructive UN engagement on minority issues, in line with the OHCHR’s own desire for stronger country engagement strategies outlined in its own plan of action. When considered in relation to the established and secure minority rights mechanisms of the European region, the uncertainty that emerged over this period surrounding the future of the UN Working Group on Minorities and even the newly established mandate of the Independent Expert leaves cause for concern. The two dedicated minority mechanisms have had little opportunity to demonstrate fully the joint potential for collaboration and synergy that was envisaged and conceived in Commission on Human Rights Resolution / and strongly promoted by civil society advocates for minority issues within the UN. A dedicated forum for minorities and for the conceptual development of work on minority issues, is considered by many to be essential and yet has been eroded already by cuts to the current Working Group. Despite such uncertainties the work of both mechanisms and the ongoing initiatives of the OHCHR, including the Minorities Fellowship Programme, continue to raise the profile of minority issues and their cross-cutting nature within the context of the new UN ‘mantra’ on the interconnection of human rights, development and security.



B NATIONAL DEVELOPMENTS

Alexander Bröstl*

Positive Action and the Principle of Equality: Discussing a Decision of the Constitutional Court of the Slovak Republic

I. Positive Action and Anti-Discrimination Directives Positive action (in American usage, affirmative action or ‘reverse discrimination’)1 or positive discrimination (as it is usually referred to in British English) is a policy or programme that bequeaths certain preferences or advantages to certain groups and seeks to redress past discrimination through active measures to ensure equal opportunity (focusing mainly on education, employment, health care and social welfare).2 Affirmative action in the US is first of all associated with race and gender but the movement has also sought to correct the history of oppression against other groups (low-income people, ethnic minorities, etc.). Former US President Lyndon Johnson, in his famous speech to graduating students at Howard University on  June , framed the concept underlying affirmative action by emphasizing that civil rights laws alone are not enough to remedy discrimination: You do not wipe away the scars of centuries by saying: ‘now, you are free to go where you want, do as you desire, and choose the leaders you please.’ You do not take a man who for years has been hobbled by chains, liberate him, bring him to a starting line of a race, saying ‘you are free to compete with all the others,’ and still justly believe you have been completely fair … This is the next and the more profound stage of the * 



Justice of the Constitutional Court of the Slovak Republic. Ronald Dworkin, Taking Rights Seriously (Harvard University Press, Cambridge, MA, ); id., A Matter of Principle (Clarendon Press, Oxford, ), at –; and id., Law’s Empire (Fontana Press, London, ), at –. See, for example, Andrew Koppelman, Antidiscrimination Law and Social Equality (Yale University Press, New Haven, London, ). The disadvantages experienced by some communities (minority groups) are so widescale and embedded in the structure of society that positive action may be necessary to remedy the nature of their exclusion. In this respect, the Roma are the most disadvantaged ethnic minority group in Europe, facing significant barriers in employment and education.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 377-395. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Alexander Bröstl battle for civil rights. We seek not just freedom but opportunity—not just legal equity but human ability—not just equality as a right and a theory, but equality as a fact and as a result.3

Positive (affirmative) action is, in the view of its supporters, seen as a corrective measure for social injustice and as the only way to overcome the effects of past discrimination and to promote integration. Article  of European Council Directive //EC, which is to become the focus of consideration in this article, says under the title of positive action: With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.4

In this article, the concepts of ‘positive action’ (affirmative action) and ‘positive discrimination’ are used as equivalents, although these are sometimes defined and understood in different ways. Both concepts are clearly linked to membership of a particular group. Positive discrimination (seen as the more general concept) sometimes seems to be misinterpreted in the way that members of a particular group are given preference over others for no other reason than their belonging to that group (in this sense it may imply negative action). On the other hand, positive action (affirmative action) seems to be linked to corrective acts or measures taken by authorities. The aim of issuing Anti-Discrimination Directives recommending positive action (affirmative action) at the level of the European Community was to actualize, to amend and to unify the anti-discrimination laws of the member states of the EU. In this respect, I would like first of all to focus on two directives: European Council Directive //EC of  June , ‘Implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin’; and European Council Directive //EC of  November , ‘Establishing a General Framework for Equal Treatment in Employment and Occupation’.5 I will also address their transposition and implementation into the domestic legal orders of some member states,6 focusing later on the Slovak Republic. 

  



This speech was made after President J. F. Kennedy had issued Executive Order  on  March , which created the Committee on Equal Employment Opportunities and mandated that projects financed by federal funds should ‘take affirmative action’ to ensure that hiring and employment practices are free of racial bias and after President Johnson had signed the Civil Rights Act on  July , prohibiting discrimination of all kinds based on race, colour, religion, or national origin. See, for example, Borgna Brunner, “Timeline of Affirmative Action Milestones”, at . Article , European Council Directive //EC of  June , OJ L ,  July , at . Council Directive //EC of  November , OJ L ,  December , at . Another document dealing with the problem is Protocol No.  to the European Convention on Human Rights and Fundamental Freedoms.

Positive Action and the Principle of Equality It should be pointed out that Directive //EC was adopted swiftly, as a response to the electoral success of the right-wing Freedom Party in Austria in the same year. The European Commission, in an explanatory note, made clear its rationale for taking action at the EU level. Although most member states have ratified a number of international instruments combating racial discrimination, “none provides direct redress for individuals without further implementing action by the States which are party to them”.7 Both directives suggest the possibility of the adoption of positive action measures in order to ensure “full equality in practice”. The directives are oriented towards labour laws and they have at least two important aims and dimensions. First, they should protect individuals from discriminatory treatments (acts); second, they should initiate a rethinking process within society that would prevent discrimination from the very outset.8 The prohibitions on discrimination are prohibitions on arbitrariness and, on the other side, requirements of equality of opportunities. The directives have a recommendatory character; there are no obligatory measures to develop. Therefore, adoption of policies of positive action depends on the political will of member states, on the minority situation and on the situation of groups of persons of different racial and ethnic origin. The European Commission, in accordance with Article  of the Treaty of European Union (TEU), has launched proceedings of infringement against ‘old member states’ that failed to transpose Directive //EC by  July  or Directive //EC by  December . The deadline for ‘new member states’ to transpose and implement the directives was the date of their accession,  May . An example of such failure on the part of an ‘old member state’ pertains in regard to Germany. In response, on  July , the European Commission filed a motion against Germany at the European Court of Justice (ECJ) based on Article  of the TEU. The ECJ then ruled on  April  in its Decision in the Case C-/ that Germany had violated its obligations following from the abovementioned Directive //EC by non-implementation and urged Germany to adopt the Anti-Discrimination Act (A-DA) again.9 





Frederic Van den Berghe, “Race in European Law. EU Monitoring and Advocacy Programme—An Analysis of Council Directive //EC”, EU Monitoring and Advocacy Program Online Journal (), –. Ulrike Wendeling-Schröder, “Schriftliche Stellungnahme zur Sachverständigenanhörung im Bundestag am . .  zum Antidiskriminierungsgesetz – Entwurf ”, Ausschuss für Familie, Senioren, Frauen und Jugend, A. – Drs.  () -G, at . In Germany, although the original draft of  December  was elaborated on  March  and afterwards adopted by the Bundestag, this attempt failed because the final stage of adopting the A-DA was stopped in the Bundesrat and, later, as a result of the declaration of new parliamentary elections in Germany for  September . The announcement of new elections is relevant because, in this situation, all drafts of laws that have not been finished procedurally lose their validity and the legislative procedure by which they are developed must be started again from the very beginning. For discussion on these issues, see, for example, F. J. Säcker, “Europäische Diskriminierungsverbote und deutsches Zivilrecht (Kritische Gedanken zur Ergänzung des BGB durch Antidiskriminierungsvorschriften)”, Betriebs-Berater,  Jg, Nr. , , Anlage , S. ff.



Alexander Bröstl In this respect, some constitutional courts have also dealt with cases in which transposed or implemented directives in the form of national laws or decrees have been challenged on the basis of their constitutionality. In Belgium, in this respect, the Act of  February  on Combating Discrimination and Modifying the Act of  February  Creating a Centre for Equal Opportunities and Opposition to Racism was adopted as the main instrument for the implementation of Directive //EC and Directive //EC. However, the Court of Arbitration (Constitutional Court) of Belgium, in its Decision No. / of  October , limited the scope of the criminal provisions of the Act of  February  but extended the scope of its civil provisions in order to cover a broader range of discriminatory acts beyond the list of grounds originally contained in the Act.10 It modified Articles () (direct discrimination) and () (indirect discrimination) to make the law applicable to all forms of discrimination. II. On Adoption of the Anti-Discrimination Act in the Slovak Republic A. Introductory Remark ‘Positive action’ or ‘affirmative action’ is often wrongly understood to have negative effects upon the majority population: the public does not generally believe that discrimination exists and it thus considers positive action or affirmative action to be unfair.11 The negative perception of ‘positive discrimination’ in the Slovak Republic has its historical roots in the past of communist Czechoslovakia: the abuse of the concept of equality created strong antipathy against this practice. For example, (not only but mostly) the Roma people have been treated—on the basis of acts taken by the authorities (by laws) that could be, in a sense, also called ‘special balancing measures’—as “citizens who need special assistance”: because they live in extraordinarily difficult conditions, they therefore “need help from society to overcome the consequences and habits related to a different way of life in the past”.12 This has been offered by the authorities (by special sections of local government) in the form of educational care and advisory services, as well as material help and financial contributions. These measures have not been understood by society to be part of the principle of equality but to be advantages or unjustified ‘positive discrimination’. All laws with such content were abrogated prior to July , when the new concept of equality, which holds that “nobody should be more equal than

 





La Cour d’Arbitrage de Belge, Decision No. / of  October , at . Balázs Jarábik, “Equal Opportunities Policies and Decentralization in Slovakia”, Centre for Legal Analyses–Kalligram Foundation, at . See Section  of the Decree of the Ministry of Health and Social Care of the Slovak Republic No. / Coll. of Laws, by which the Law on Social Security No. / Coll. of Laws was executed.

Positive Action and the Principle of Equality anybody else any more” and there should be “equality of opportunities or chances”, was introduced.13 The Slovak Republic and its society needs to be shown that the new equal opportunities policies and positive actions in fact have little to do with the positive discrimination policies of the Communist period. B. The Expansion of Section 8 of the Anti-Discrimination Act Act No. / Coll. on Equal Treatment in Certain Areas and Protection Against Discrimination and on Changes and Amendments of Some Acts (hereinafter, “AntiDiscrimination Act” (A-DA)) was initiated as a draft proposed by the government of the Slovak Republic and adopted by the National Council of the Slovak Republic on  May , entering into force on  July . The abovementioned Directive // EC and Directive //EC, together with Directive / EC, are published in the List of Transposed Legal Acts of the EC as an Amendment to the A-DA and they are, along with domestic legislation, fundamental sources of anti-discrimination law in the Slovak Republic. The provision of Section  of the A-DA concerns ‘Permissible Different Treatment’ (PDT). Subsections – of Section  also include a definition of what is not considered to be discrimination: first, under Subsection , discrimination does not occur as a result of different treatment that is objectively justified by the nature of the activities being performed as a part of the employment or by the circumstances in which they are performed, with, at the same time, the extent and the means of the different treatment being adequate and necessary with regard to the activities or circumstances. Other categories of PDT include different treatment on the basis of: – age, sex, religion or belief, and the ascertaining of sexual orientation, if it concerns employment in registered churches and religious societies or other legal persons linked with religion or belief (Subsection ); – age when setting a maximum or a minimum age limit, or special preconditions for access to a job (Subsection ); – age when setting different age limits for a title within the social security system (Subsection ); – disability when setting a precondition of health ability for access to a job for which, by the nature of the employment, health preconditions for performance of the job are required (Subsection ); – age or disability when insurance services are granted if the different treatment follows from a different extent of risk (Subsection ); – sex when setting different pension ages for men and women or when seeking to protect pregnant women and mothers (Section ).



Law on Social Assistance No. / Coll. of Laws; and Law on Assistance in Material Need No. / Coll. of Laws.



Alexander Bröstl During the last stage of the discussion on the proposed act in the National Council, the original draft was amended by a deputy proposal,14 followed by the inclusion of Subsection  as the last subsection of Section  of the A-DA (note that the wording of the proposed amendment is identical with the part that was challenged at the Constitutional Court; see below). C. The Challenge: Petition to the Constitutional Court Initiated by the Government After the A-DA entered into force, the government initiated a proceeding on the compliance of the law with Article , Section , Letter a) of the Constitution of the Slovak Republic, in particular raising the objection of unconstitutionality in regard to Section , Subsection  of the A-DA. The challenged wording of Section , Subsection  of the A-DA says: With a view to ensuring full equality in practice and compliance with the principle of equal treatment, specific balancing measures to prevent disadvantages linked to racial or ethnic origin may be adopted.15

The government objected that the abovementioned provision of the A-DA is in contradiction to Articles () and (–), in connection with Articles (–), , (), (–),  and  of the Constitution, and asked for the abrogation of the respective provision. The key provisions in Article (–) of the Constitution are as follows: () ()

People are free and equal in dignity and their rights. Fundamental rights and freedoms are inviolable, inalienable, secured by law and unchallengeable. Fundamental rights and freedoms on the territory of the Slovak Republic are guaranteed to everyone regardless of sex, race, colour of skin, language, creed and religion, political or other beliefs, national or social origin, affiliation to a nation or ethnic group, property, descent, or another status. No one must be harmed, preferred or discriminated against on these grounds.16

In the opinion of the government, according to Article () of the Constitution, the Slovak Republic is a sovereign, democratic state, governed by law. It is not linked to any ideology or religious belief. The quoted and objected provision—according to the  





This was a proposal made by members of the Party of the Hungarian Coalition, which belonged to the government coalition during the legislative period –. Act No. / Coll. on Equal Treatment in Certain Areas and Protection Against Discrimination and on Changes and Amendments of Some Acts, at . Compare Article  of the Constitution with Article () of the German Grundgesetz: “Niemand darf wegen seines Geschlechtes, seiner Abstammung, seiner Rasse, seiner Sprache, seiner Heimat und Herkunft, seines Glaubens, seiner religiosen oder politischen Anschauungen benachteiligt oder bevorzugt werden. Niemand darf wegen seiner Behinderung benachteiligt werden”. Grundgesetz für die Bundesrepublik Deutschland, at .

Positive Action and the Principle of Equality view of the government—contradicts the principle of legal certainty, one of the principles included in the rule of law principle of Article () of the Constitution, in several respects.17 First, the wording of Section , Subsection  of the A-DA does not make evident the aim of specific balancing measures and, at the same time, the preconditions for the adoption of such measures are also not clearly defined. The first precondition for adopting such measures is “ensuring full equality in practice”. By setting a precondition to adopt these measures and, at the same time, enunciating the aim of “ensuring full equality in practice”, the challenged provision implies that equality of opportunity is twofold: it has a theoretical level (established by law) and a practical level (application of the law). In regard to the fact that the A-DA does not define “full equality in practice” or the circumstances under which this equality is violated, it may be stated that Section , Subsection  of the A-DA opens the possibility that decisions may be made in certain situations simply according to discretion, without any lawful criteria and that, consequently, for an anonymous addressee, full equality in practice may not be ensured as measures may be adopted the content of which are not certain to eliminate inequality in practice and ensure equality in practice. The second precondition for adopting positive action measures is in order to ensure “compliance with the principle of equal treatment”. The provision of Section , Subsection  of the A-DA sets a duty for everybody to keep to this principle: in the case of violation, there are means of legal protection foreseen in Sections – of the A-DA. Following the definition of the principle of equal treatment (Section , Subsection  of the A-DA) the A-DA states also that there is a duty of prevention (to adopt protective measures prior to the incidence of actual discrimination). The aim of the A-DA is that a court is obliged to declare a violation of that principle, in parallel with setting a duty to remedy. The abovementioned two cumulative preconditions must be fulfilled for the adoption of special measures. However, it is not clear when this will happen, upon which criteria and who will decide what constitutes ‘inequality’ and ‘not secured’. Second, the addressee of the act—the person who is responsible for adopting the special balancing measures—is not evident. This is not acceptable, first of all, because in the prevailing number of cases such measures should be adopted by the public authorities—either of the territorial selfadministrative areas or of the state authorities. These authorities can, in the sense of Article () of the Constitution, act only on the basis of the Constitution, within its limits and to the extent and in a manner defined by law. It is impossible to authorize a public authority to adopt measures—measures in the field of fundamental rights and freedoms according to Chapter  of the Constitution—in the absence of a clear definition of its competence, i.e., of which authority and under which circumstances the special balancing measures can and should be adopted. Third, the extent and, thus far, the content of the envisaged special balancing measures are also unclear. The vagueness and lack of definition of this central concept—particularly the lack of a demonstrative enumeration or indication concerning the content 

The main arguments are presented here in a shortened version, albeit keeping to the exact meaning of the main arguments of the petition made by the government (points A–D).



Alexander Bröstl and limits of these special balancing measures—may lead people into a state of legal uncertainty, as it is far from clear from the interpretation of the notion what their content may be and how they may be realized. All of this threatens to create a state of interpretative uncertainty, which contravenes Article () of the Constitution. The problem is serious because the areas where the special balancing measures may be applied belong to the areas of fundamental rights guaranteed by Chapter  of the Constitution; for this reason, it is necessary that their content, extent and preconditions be clearly specified because otherwise there will be a threat that, by their very adoption, the fundamental rights and freedoms of other persons could be limited or modified. So far as the basic aim of the A-DA is to prevent racial or ethnic origin becoming a reason for either preferential treatment or discrimination against persons, there is no reason to secure universal equality by any special measures. Fourth, the lack of clarity in Section , Subsection  of the A-DA may lead to a situation in which doors are opened to arbitrary interpretations. Special balancing measures so far shall be considered as a certain special kind of right, the addressees of which are not concrete persons with a concrete disadvantage in a concrete situation but are certain racial or ethnic groups, regardless of whether or not actual members or persons fulfilling the criteria of the respective race or ethnicity are really being discriminated against. Because of the ‘qualities’ of Section , Subsection  of the A-DA that were objected to, it is possible to introduce any extent of positive discrimination, either based on the quota-system or on another ‘automatic’ advantageous treatment. The government described the amendment of Section  with Subsection  of the A-DA as a failure of the National Council, when it de facto transposed the enabling clause of Directive //EC from its Article  on positive action—“With a view to ensuring equality of chances in practice and to maintaining the principle of equal treatment specific balancing measures may be adopted to prevent disadvantages linked to racial or ethnic origin”—without elaborating on any details concerning the adoption and contents of the potential “positive action” in a constitutionally acceptable manner. IV. The Echo: the Decision of the Constitutional Court on the Unconstitutionality of Section 8, Subsection 8 of the AntiDiscrimination Act A. Fundamentals of the Reasoning The Constitutional Court decided in its public plenary session on  October  by its finding PL. ÚS / that Section  Subsection  of the A-DA is not in compliance with Articles () and (–) of the Constitution.18





The respective parts of this article concerning the Fundamentals of Reasoning, the Conclusions of the Constitutional Court and the Dissenting Opinions following the Finding of the Constitutional Court PL ÚS / of October , .

Positive Action and the Principle of Equality . According to a majority opinion, the general principle of equality and non-discrimination is a fundamental part of the international protection of human rights and fundamental freedoms. It is based, in particular, on Article  of the Universal Declaration of Human Rights (UDHR), Article  of the International Covenant on Civil and Political Rights (ICCPR) and Article  of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Protocol No.  to the ECHR expresses the prohibition of discrimination not only in respect to rights and freedoms guaranteed by the ECHR but also as an independently applicable material right. In all of these documents, the principle of equality is not expressly mentioned but this principle is an evident starting point upon which the prohibition of discrimination is based. . Following the development of the constitutional history of the Slovak Republic, prohibition of discrimination has been laid down for the first time by Article  of the Charter of Fundamental Rights and Freedoms, according to which fundamental rights and freedoms are guaranteed to everyone regardless of sex, race, colour of skin, language, creed and religion, political or other beliefs, national or social origin, affiliation to a nation or ethnic group, property, descent or another status. . The fundamental aim of Article (–) of the Constitution is, according to the opinion of the Constitutional Court, the protection of people against discrimination from public authorities. This article has no direct horizontal effect, which means that it will not be applied in relationships between persons of private law. . Discrimination is generally defined as an act or omission that is less favourable to a certain person than other persons and which is predicated on the basis of race, ethnic origin, sexual orientation and other constitutionally given characteristics. Different treatment may be excused by the necessity to adopt positive measures for ensuring relatively full equality in practice with special regard to the fact that people should not be discriminated against on the basis of a characteristic that is related only to these persons, e.g., race, ethnic origin, creed, age, etc. However, such measures must be necessary and proportional and they must be based on reasonable needs. . The principle of equality is, on a general and theoretical level, defined as the right to be treated in the same cases equally (the formal principle) and in different cases differently (the material principle). The starting point of the material principle is the opinion according to which persons in different positions should be treated in a way that expresses their different position. In such cases, it is necessary to take into consideration three mutually interlinked principles. First of all, there is a need to take into consideration the effects that may be achieved by equal or unequal treatment from the point of view of the result, which is unequal regarding the distribution of and access to labour opportunities, just access to education, training, preparation, access to goods or services, etc. Equality in results within the redistribution is directed at the aim of overcoming the insufficient representation of disadvantaged groups in relation to labour opportunities or to secure their just participation in social benefits. This aim may require special means to overcome such disadvantages.



Alexander Bröstl . Equality of opportunity namely means that, although real equality may not be reached, when people want to make use of an opportunity but they start from different preconditions and starting points they should not be discriminated against on the basis of race, ethnic origin, sexual orientation and other constitutionally given characteristics. That is why equality of chances must be expressed in such a way that preconditions under which persons would like to win recognition within existing conditions will be equalized. This kind of equalization requires a scale of special measures, usually called positive measures, to compensate for disadvantages, personal barriers or obstacles created by the environment that hinder participation in opportunities. . Positive measures focus on making opportunities equal for all people. These measures approve traditionally discriminated categories of people, allowing them to participate in the competition for opportunities, starting from an equal basis but without any guarantee of automatic success. These measures include many techniques, such as special courses, educational activities, redistribution of sources from one group to another group, etc. The aim of these techniques is to safeguard a just proceeding of opportunities and it corresponds to the aim of material equality, which requires different situations not to be solved in the same way as like situations, which are the standard ones. . A provision that allows positive measures, according to the majority opinion, must be formulated in a way that makes it possible to understand these measures either as a certain derogation of the principle of equality or as its more or less irregular and diverse application. It follows also from what is stated in Article  of Directive //EC, which was incorporated into the A-DA in its exact wording, that not even the principle of equality should hinder a member state from adopting positive measures to ensure equality in practice to a full extent. Such a positive measure is clearly permissible but, as seems clear from Article , it is not explicitly required of a member state, taking into consideration the fact that member states may establish the general principle of equality in their legal orders in different manners. In this respect, it is also possible to refer to the doctrines of the ECJ, according to which the derogation of the general principle of equality must be restricted to what is necessary and proportional for achieving material equality by positive measures. That is why such positive measures must be interpreted narrowly.19 .

With reference to the finding of the Constitutional Court that: The National Council of the Slovak Republic is obliged to adopt such laws, which, in principle, do not discriminate against anybody concerning the right of access to judicial protection. Nevertheless, it should be admitted that not every difference appearing within the laws on the use of the respective right on judicial protection must be in contradiction with Article  Section  of the Constitution, because in certain situations rulings that may appear discriminatory can be used to remove or alleviate the





See case C-/, Johnston v. Chief Constable of the Royal Ulster Constabulary [] ECR  point ; and case C-/, Tanja Kreil v. Bundesrepublik Deutschland [] ECR I- point .

Positive Action and the Principle of Equality factual inequality of the participants in a proceeding (e.g. a participant acting in a state of insanity, a minor). A ruling on access to judicial protection may be considered discriminatory if it solves the same or analogical situations differently, providing the legislative power is not able to justify such a procedure by a legitimate aim.20

In the same way the Constitutional Court has argued in a previous finding that: The provision of Article  Section  of the Constitution is also indicated as a provision prohibiting discrimination, and, by the same token, prohibiting advantages in connection with any concrete fundamental right or freedom of everyone to whom it applies. The territorial dimension of the guarantees of universal equality, regardless of mentioned reasons of natural inequality, is determined by the boundaries of the Slovak Republic.21

. In connection with Article () of the Constitution and regarding the legislation the Constitutional Court stated the following view: The rule of law principle of Article  of the Constitution is a fundamental constitutional principle in the Slovak Republic. When the National Council uses its legislative competence in contradiction with any other provision of the Constitution, at the same time it also violates the mentioned principle of constitutionality established in Article  of the Constitution.22

. The Constitutional Court also provides an opinion that: In a case when a legal norm within a provision of an Act is not formulated unambiguously, and it lacks understandability for the addressee, whereupon it is impossible to eliminate this lack by interpretation according to Article  Section  of the Constitution, its content is not in compliance with the principle of the rule of law declared by Article  of the Constitution.23

B. Conclusions of the Constitutional Court According to the disputed provision in Section , Subsection  of the A-DA: With a view to ensuring full equality in practice and compliance with the principle of equal treatment, specific balancing measures to prevent disadvantages linked to racial or ethnic origin may be adopted.

The challenged provision of the A-DA does not contain, as was mentioned in the opinion of the government, any definitions of the concepts that are needed for the practical    

See the Finding of the Constitutional Court in Case PL. ÚS /. See the Finding of the Constitutional Court in Case PL. ÚS /. See the Finding of the Constitutional Court in Case PL. ÚS /. See the Finding of the Constitutional Court in Cases PL. ÚS / and PL. ÚS /.



Alexander Bröstl application of this legal norm, including specifications concerning the actor who should be responsible for adopting and carrying out of these specific balancing measures; the aim, criteria and preconditions for their adoption; and the extent and content of such measures. Consequently, this kind of legislative attitude may open the door to the possibility of arbitrary, ambiguous or undesirable interpretation and use of the law. The Constitutional Court added to these fundamental arguments of the government and the National Council the following conclusions: . The provision of Section , Subsection  of the A-DA was drawn up according to the model of material understanding of the principle of equality, which, in itself, would be in accordance with the principles of the rule of law (according to Article () of the Constitution). In a state ruled by law, equality of opportunities in practice and the principle of equal treatment must be respected, together with the way in which these principles are ensured in real life, including special balancing measures, which will prevent disadvantages understood as discrimination. However, the content of the challenged provision lacks a conception of how equality and the principle of equal treatment may be secured in practice from the point of view of a clear need to declare the temporary character of the special balancing measures that seek to equalize or compensate disadvantages. Without any strictly limited timing of the mentioned measures the situation could lead to the point that these measures could become the basis for the so-called ‘reverse discrimination’ of persons who are not among the addressees of the advantages linked with such measures, despite the fact that the reasons for their original adoption, termination and use may already have passed. For this reason, such measures can only be adopted to achieve a specific aim and, once this has been achieved, they should be terminated, in order that the general principle of equality towards different groups of persons not be violated. The conception of ensuring equal opportunities in practice and of following the principle of equal treatment, which should be congruent with the principles of the rule of law, should contain also a framework of methods for reaching these aims, in order not to impair the balance of and respect for the rights of other groups. The Constitutional Court shares the opinion that the challenged provision of Section , Subsection  of the A-DA does not contain these limiting factors for adopting special measures. This conclusion follows from the fact that the adoption of special balancing measures is neither defined with respect to the object of the measures, which has to be a legally permissible object (financial, material or performance-based), nor from the point of view of the existence of decision-making criteria concerning the object of the content of the equalizing measures that would exclude arbitrariness instead of allowing for the discretion of the agency that is responsible for the adoption of special measures. . The question of whether such special measures should be understood as positive measures containing identifiable techniques that seek to alleviate the effects of an objectively caused discrimination should be answered in an affirmative way. The aim of such measures can only be seen to remove the effects of an extant situation of discrimination and of unequal treatment in order to produce equal results. It follows from this that these special measures should be understood as conferring an advantage on a group of persons 

Positive Action and the Principle of Equality with special regard to their former disadvantageous position, which had hindered the particular group(s) from equal access to opportunities in practice. Such measures, at the same time, should complement the effects of the principle of equal treatment, which, by itself, would not be sufficient to secure equal access to opportunities but which cannot also mean equality of results. . Thus, a legal regulation that allows for the adoption of special balancing measures from the point of view of the concepts of equal opportunities and non-discrimination and of the techniques that may be used to this end could be constitutionally acceptable. Nevertheless, it must respect in its whole content the domestic legal regulation of the general principle of equality and the prohibition of discrimination; otherwise it will become contradictory to the constitutional order. It follows from Article () of the Constitution and from the previous interpretation made by the Constitutional Court that the Constitution prohibits positive discrimination and negative discrimination for the reasons declared in this Article, i.e., with regard to sex, race, colour of skin, language, belief and religion, political or other opinion, national or social origin, ethnicity, property, gender or another status. That is why the adoption of special measures is in contradiction with Article () of the Constitution, as well as with Article () of the Constitution. This position was confirmed during the public hearing of the case by the representative of the National Council, when he declared: “Article  of the Constitution excludes any discrimination, whether positive or negative” and he added, “The constitutional order is not so unambiguous, because the Constitution speaks in Article  on measures based on positive discrimination.”24 The Constitutional Court did not accept this particular argument, as Article (– ) of the Constitution actually creates more advantageous conditions for women, juvenile people and handicapped people, making use of their fundamental rights. The Constitutional Court ruled in connection with a previous case (which was challenged as ‘positive discrimination’) on permission for students’ work during their undergraduate studies on the basis of special brigade-work agreements introduced by the Labour Code: The legal regulation which prefers a certain group of persons into an advantageous position, cannot be labelled as violating the principle of equality only because of that simple reason. In the field of economic, social, cultural and minority rights are preferences or advantages within the mentioned appropriate limits not only acceptable, but sometimes even necessary, to eliminate natural differences between various groups of persons.25

However, the Constitutional Court also emphasizes in this finding its view that such a legal regulation would have to be based on the Constitution and concretely on the articles that regulate the status of women, juvenile people and handicapped people. Only in such a case would the legal regulation not contravene Article () of the Constitution  

See the Finding of the Constitutional Court in Case PL. ÚS /. See the Finding of the Constitutional Court in Case PL.ÚS /.



Alexander Bröstl but in fact would amend its aim, substance and sense, which is exclusively supported by a special constitutional provision, in Article  of the Constitution. . From the abovementioned finding of the Constitutional Court, it follows that in the constitutional order of the Slovak Republic, in terms of ensuring equality in opportunities, the only deviation from the universal understanding of equality (prohibition of discrimination) that is generally recognized is that which has an explicitly constitutional basis and which responds to natural inequalities between people for whom a lack of balancing by special legal measures could lead to unfavourable outcomes (i.e., juvenile people, women or handicapped people). The provision of the A-DA that was challenged does not—according to the understanding of the Constitutional Court—have such a constitutional basis, which would provide the foundation for a constitutionally allowed deviation from the universal principle of equality expressed in Article (–) of the Constitution. . For these reasons, the Constitutional Court decided that Section , Subsection  is not in compliance with Article () and Article (–) of the Constitution. This conclusion is based on the opinion that the challenged provision of the A-DA, by adopting positive measures, including special balancing measures, has established advantages (positive discrimination) for persons based upon racial or ethnic origin. Moreover, the disputed provision: a) does not determine by any means (in any way) the subject, content and criteria for the adoption of special balancing measures and, in this way, it impairs legal certainty in a constitutionally unacceptable manner into legal relations created before and after the adoption of special balancing measures; and b) by omitting the temporal nature of special balancing measures as a decisive factor it may create a basis for discrimination (so-called reverse discrimination) of other groups of people without any constitutionally acceptable basis. . With regard to this provision, the Constitutional Court did not consider it necessary to deal in any more detail with the additional objections included in the government’s opinion, which initiated the proceedings. V. Dissenting Opinions Dissenting opinions were added to the presented majority opinion, written by Justices Ľudmila Gajdošíková, Juraj Horváth, Alexander Bröstl, and Lajos Mészaros, and a further concurring opinion was added by Justice Eduard Bárány. The dissenting opinion of the first three Justices was supported by the following arguments: Any provision of the Constitution should not be interpreted in an isolated way but only within the context of all its related provisions.26 According to Article () of the Constitution: “The interpretation and application of Constitutional Acts, Acts, and other generally binding legal regulations must be in compliance with this Constitution.” In a case where a legal provision may be interpreted in more than one way—one in con



See the Finding of the Constitutional Court in Case PL. ÚS /.

Positive Action and the Principle of Equality formity with the Constitution, the other in contradiction—priority should be given to the first interpretation.27 . Respecting these considerations, in the case of the challenged provision, support from Article () of the Constitution makes it possible to consider the content of the challenged provision, which represents the transposition and implementation of Article  of Directive //EC and which, as ‘positive action’ with the aim of reaching full equality in practice and of respecting the principle of equal treatment, allows member states of the EU to support or adopt specific measures to prevent or to compensate disadvantages linked with racial or ethnic origin. Special balancing measures should include such measures as were incorporated into the A-DA adopted by the National Council on  May  (a few days after the Slovak Republic became a new member state of the EU). Not only is this provision of the A-DA based directly on an international document; it aims, on a non-discriminatory basis, to respect general principles of equality (which have also been established in other documents of international law), to look for constitutional limits and, from the point of view of the international obligations of the Slovak Republic, to look for acceptable solutions to the problems raised by the ‘otherness’ of people, which can arise for various reasons, including racial and ethnic origin. According to this dissenting opinion, it is thus necessary in considering the constitutionality of the challenged provision also to compare the presented solution within the context of other international treaties, which are binding upon the Slovak Republic and which are similar; all this should be done with the aim of evaluating to what extent the exceptional provision on adopting special measures to prevent disadvantageous treatment connected with racial or ethnic origin ‘is able’ to overstep the limits of permissible discrimination, disadvantage and the principle of equal treatment. Another related international document is the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), adopted by a Resolution of the General Assembly of the UN on  November  and later ratified by the Czechoslovak Republic in . The core content of the CERD relates not only to defending the principles of equality, equal values and the equality of different ethnic and racial groups; it also concerns not only the tolerance of plurality but the creation of the preconditions for equality of opportunities in having access to all positions within the society, which is, by its very nature, closed to special measures in the challenged A-DA. While in Article () of the CERD ‘racial discrimination’ is defined positively, Article () of CERD provides a negative definition: according to this provision, special measures designed exclusively to secure the adequate development of some racial or ethnic groups or individuals who need such protection and which may be necessary in order for them to secure equal use or exercise of their human rights and fundamental freedoms are not considered to be racial discrimination, provided, of course, that these measures do not lead to a preservation of different rights for various racial groups and so far as these measures do not remain active after their aims have been achieved.28

 

See the Finding of the Constitutional Court in Cases PL. ÚS / and II. ÚS /. From the wording of CERD, published under No. / of the Coll. of Laws of the Czechoslovak Socialist Republic.



Alexander Bröstl The Framework Convention for the Protection of National Minorities (FCNM), which was adopted on  February  and entered into force on  February ,29 has introduced a treaty-based minority regime acting on the principle of equal treatment for all persons and on the acceptation of special measures, limited in fact and in time. It follows from the jurisprudence of the ECtHR concerning Article  of the ECHR that to distinguish in fact does not mean to discriminate. The decision of the ECtHR of  July  in the case of Nachova and others v. Bulgaria was one of the first decisions declaring the violation of the prohibition of racial discrimination as such. The abovementioned facts signal that international documents do not consider the principle of equality to be the only possible approach to the just position of the individual within society: they try, in a sensitive, careful and realistic way, to solve the differences and varieties of individuals by special measures, if there should be reason for so doing. Such an approach is neither unique nor exclusive and it should not be ignored in the consideration of the constitutionality of the challenged provision. . The strictly formulated requirement on prohibition of discrimination in Article () of the Constitution is constitutionally bridged in the system of economic, social and cultural rights in Article  of the Constitution, which lays down a circle of persons (women, juvenile and handicapped persons) to whom the Constitution offers a higher degree of protection or, indeed, special protection. The provision of Article () of the Constitution—“details concerning rights of persons listed in former Sections  and  will be set out in a law”—so to speak, ex constitutione, legalizes the ‘advantageous status’ of the abovementioned groups of persons. The Constitutional Court had already stated in its finding PL. ÚS / that: the legal regulation which prefers a certain group of persons cannot be labeled as violating the principle of equality only because of that simple reason. The legislator must take into consideration and balance whether there is a reason for such a preference, what is this reason and what is aimed, according to the principle of proportionality.30

In the same finding it is said that: in the field of economic, social, cultural and minority rights are preferences or advantages within the mentioned appropriate limits not only acceptable, but sometimes even necessary, to eliminate natural inequalities between various groups of people.31

This approach is possible because Articles  and  of the Constitution (Chapter , Section  of the Constitution), at the constitutional level, ‘cap’ the legal regulation of the more favourable treatment of people on the basis of their national or ethnic origin analogously as Article  of the Constitution does in relation to other groups of persons; there is thus a legal space left open for the legal regulation of measures evoked by   



Published under No. / Coll. Of Laws. See the Finding of the Constitutional Court in Case PL. ÚS /. Ibid.

Positive Action and the Principle of Equality differences other than those enumerated by Article  of the Constitution. The constitutional principle in Article  of the Constitution that “membership of any national minority or ethnic group must not be to anyone’s detriment” does not solve the problem by itself but, according to this opinion, there is an acceptable constitutional basis for setting measures that ensure its use. One way to do so may be through the introduction of special balancing measures such as those in the challenged provision of Section , Subsection  of the A-DA: with reference only to Articles  and  of the Constitution, it need not be deemed unconstitutional. . From a legislative point of view, the challenged provision is only one of many provisions, which use terms related to assigned concepts within the framework of the A-DA and, equally, within the Constitution and international documents. According to the dissenting opinion, the Constitutional Court should have been more focused upon the conceptual framework of positive discrimination and negative discrimination, on equal treatment and equality of opportunities, as well as on balancing measures in these international documents. Specifically, the ambiguity and the almost arbitrary use of the abovementioned concepts makes a comparative view as a source of argumentation for testing the compliance of the challenged provision of the A-DA with the Constitution more difficult: this objection concerns the conceptual framework used throughout the whole body of the A-DA. The provisions of Section , Subsections – of the A-DA define the concept of discrimination and other linked concepts, including direct discrimination, indirect discrimination, harassment, instruction to discriminate, incitement to discriminate, encroachment and discrimination of a legal entity. In relation to Section , Subsection  of the A-DA, the definition of direct discrimination and indirect discrimination is of key importance. While direct discrimination is defined as a less favourable treatment of one person as opposed to another in a comparable situation, indirect discrimination is based on a ‘hidden’ harmful treatment in comparison with another person. In both cases, the Act defines negative discrimination; it does not use the definition of eventual positive discrimination, although by the use of argumentation a contrario it would be possible to create it. Not even this view should lead to a conclusion on the unacceptable discrimination of persons who should become the subject of special balancing measures. This opinion is supported by the following considerations, set out below. The conceptual elaboration of various forms of discrimination did not omit the category of otherwise ‘positive’ measures related to a certain group of persons, which are mentioned in the A-DA by the legislator but which are, according to the legislator, not linked with discrimination. Although more favourable treatment is included in the definition of direct discrimination, it is linked with cases in a comparable situation. It is difficult to speak about a comparable situation when it is necessary to use specific balancing measures for the aim primarily of putting one person into a comparable situation with another person. The conclusion on positive discrimination must suppose a simultaneous fulfillment of both preconditions. Favourable treatment (which is the content of special balancing measures) itself, without regard for the question of whether there is a comparable situation of a certain group of persons measured against another group, cannot be considered to be discrimination against this group. To bring a certain group 

Alexander Bröstl of persons (it is intentionally not being emphasized here that the parameters of this group of persons may be based on national or ethnic origin because this issue relates to a kind of general legislative rule) to an equal level with another group of persons means to provide the group in the less favourable situation with the opportunity to achieve a comparable situation by introducing special balancing measures, i.e. to create equality of opportunities. Positive discrimination would pertain in a situation when such special balancing measures remain applied to this group of persons after their aim has been fulfilled. This is a theoretical consideration, as special balancing measures should be terminated upon achievement of ‘equality’; this means that balancing measures should be considered to be of a temporary nature, something which was not explicitly expressed in the challenged provision but something which is evident from the wording: “ensuring equality of opportunities in practice … and preventing disadvantages”. The absence of an explicit expression of the temporal nature of specific measures is, according to the majority opinion, another defect of the challenged provision of the A-DA. Those of the dissenting opinion felt that there should be no doubt in regard to the temporal nature of the specific measures, given the nature of the aim that they seek to fulfil—ensuring equality of chances. Another argument of the majority opinion links uncertainty as to the content of special balancing measures with the fear that almost any measures might be adopted and by almost anybody. However, a sufficient barrier against the abuse of the respective provision may be found in Article (–) of the Constitution: State authorities shall act only on the basis of the Constitution, within its limits, and to the extent and in a way defined by a law. Everyone may do what is not forbidden by law, and no one must be forced to do anything that is not laid down by law.

. From a systematic point of view, the possibility of adopting specific balancing measures is stated not only in Section , Subsection  but also in Section  of the A-DA (which makes explicit mention of the use of the legal acts of the EC and EU, including Directive //EC Article ). Despite the effects following from Article () of the Constitution upon Section , Subsection  of the A-DA (the abrogation of legal norms contradictory to the Constitution) the use of Article  remains open. The systematic inclusion of Section , Subsection  of the A-DA (despite using different legislative techniques in its wording in comparison with other provisions of the relevant part of the A-DA) also means that this provision belongs to that part of the Act that establishes the legal basis of the permissible different treatment in regard to the explicitly mentioned groups of persons in certain situations, without labelling such action as ‘discrimination’. The deliberation of the legislator that led to the inclusion of the challenged provision into the body of this Act shows an intention to allow the different treatment of persons of a particular nationality or of a particular ethnic origin by adopting specific compensative measures. Within the context of the argument presented by the legislator, it is impossible to draw a concrete conclusion as to either the more favourable treatment of persons in certain situations, which could be construed as discriminatory, or on the unconstitutionality of the provisions of Section , Subsection  of the A-DA. 

Positive Action and the Principle of Equality In the opinion of Justice Mészaros, who focused upon the specific aim of the ADA, special balancing measures are, in the light of this aim, not in contradiction with the principle of justice and the violation of human dignity because they are only framework provisions that do not provide a concrete rule of behaviour but a legal principle that enables the adoption of special measures; they are explicitly aimed at introducing so-called positive discrimination, i.e., advantageous treatment in the sense of the Constitution. As such, they cannot be considered to be in contradiction with Article () of the Constitution. VI. Final Reflections The procedure of adoption (transposition and implementation) of Directive // EC and Directive //EC by the National Council, the bringing of the case to the Constitutional Court and its decision, have each shown the sensitivity of the problem. With regard to the challenged provision, because of the formalistic legalistic argumentation that dominated the majority opinion, as well as the reactions within the dissenting opinions, the problem and the solution may become difficult to understand and thus may seem less important than they actually are. Finally, it is necessary to mention that, during , the European Commission formally expressed its view concerning some aspects of the A-DA as adopted in the Slovak Republic, drawing attention to the lack of definitions and to the unsatisfactory conceptual basis of this particular Act (referring especially to the incorrect implementation of Directive //EC).



Balázs Majtényi*

What Has Happened to Our Model Child? The Creation and Evolution of the Hungarian Minority Act1

I. Introduction The Hungarian Minority Act (LXXVII) was adopted by the parliament on  July . The extensive parliamentary consensus of that time is evidenced by the fact that the Act was adopted with an overwhelming majority of .%, a legislative feat resembling the voting consensuses common in the former state-socialist regime. The legislature considered Article  of the Constitution, which stated that minorities living in Hungary are constituent parts of the state.2 After the adoption of the Act, the Parliament of the

* 



PhD Balázs Majtényi, a lawyer, is a research fellow at the Institute for Legal Studies of the Hungarian Academy of Sciences and an assistant professor at the Faculty of Public Administration of the Corvinus University of Budapest. The fourth minority self-government elections took place in Hungary after this manuscript had been completed. The elections brought a further increase in the number of local minority self-governments. Compared to the , local minority self-governments established in , their number grew to , in , despite the fact that fewer votes were cast than before. As expected, minority self-governments were established based on a minimum number of votes. In some cases, the results were more surprising than the author had anticipated: sometimes even the very candidates themselves failed to vote. For example, in the Ruthenian minority elections in Pomáz, altogether four persons cast their vote, thereby electing five members into the minority self-government. In all likelihood, few places in the world allow the possibility that the number of voters be smaller than the number of representatives elected. Art. (): The national and ethnic minorities living in the Republic of Hungary participate in the sovereign power of the people: they represent a constituent part of the state. () The Republic of Hungary shall provide for the protection of national and ethnic minorities and ensure their collective participation in public affairs, the fostering of their cultures, the use of their native languages, education in their native languages and the use of names in their native languages.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 397-449. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Balázs Majtényi Hungarian Republic modified the Acts on Local Governments3 and on the Election of Mayors and Self-Government Representatives accordingly.4 The reference in the Hungarian Constitution to minorities as constituent parts of the state and the Minority Act based on the Constitution theoretically lead to the construction of a multicultural political community. If an answer to the question of why the legislature is committed to the idea of a multicultural political community is to be found—which is of some interest in Central Eastern European state politics—it can be reasonably argued that such a commitment is not necessarily based on an attraction to multiculturalism per se. More likely, as those contemplating the obvious defects of the minority self-government structure have often pointed out, the Act was established with an eye towards politics regarding ethnic Hungarians living in the neighbouring states rather than a concern with the interests of national minorities within Hungary itself. According to this perspective, with which I agree, Hungarian minority politics has been the captive or servant of politics concerning ethnic Hungarians living abroad. Despite all attempts, the legislature has failed to convincingly refute this theory. In fact, acts adopted since the s contain aspects that support such an interpretation. To provide just one example, Governmental Decree  of  (XII..), establishing a Coordinating Council on Roma Issues (which is only of historical interest today as it is now defunct), appointed the chairman of the Government Office for Hungarian Minorities Abroad to be a member of the nationwide council. It is also revealing that in the course of the parliamentary debate on the Minority Act, politicians often referred to the assumed or real problems of Hungarians living abroad. In fact, the Act was intended to be a kind of ‘model child’, setting an example for politicians in neighbouring countries who were ‘enthusiastically’ searching for an acceptable minority-political framework. Yet, this model child was problematic from the outset. It is highly questionable, for instance, whether a more or less homogenous society like Hungary’s is an adequate model for the creation of an essentially multicultural political community. According to Joseph Raz, the model of multiculturalism cannot be applied to minorities that have lost their ability to sustain themselves, nor to minorities that have already largely assimilated but have managed to preserve some of their traditions in a limited capacity.5 By the time ()

  



The laws of the Republic of Hungary shall ensure representation for the national and ethnic minorities living within the country. () National and ethnic minorities shall have the right to form local and national bodies for self-government. () A majority of two-thirds of the votes of the members of parliament present is required to pass the law on the rights of national and ethnic minorities. Act XX of  on The Constitution of the Republic of Hungary. After the change of systems in Hungary, the foundations of the democratic system were laid by Act XXXI of  which, although only a law amending the constitution in form, in fact meant the adoption of a substantively new constitution. Act LXV of  on Local Governments. Act LXIV of  on the Election of Self-Government Representatives and Mayors. Joseph Raz, “Multikulturalizmus liberális szempontból” (“Multiculturalism: A Liberal Perspective”), in Margit Feischmidt (ed.), Multikulturalizmus (Multiculturalism) (Osiris – Láthatatlan Kollégium, Budapest, ), -, at -.

The Creation and Evolution of the Hungarian Minority Act the Minority Act of  came into force, minorities in Hungary were already in an advanced stage of assimilation. Today they represent a relatively small percentage of the overall population, and are to a large degree linguistically assimilated and thinly scattered throughout the country to the extent that they often form minorities even at the local level. In the latest census (taken in ), the number of minority language speakers decreased, while the number of those belonging to one of the national minorities increased.6 While , people (only .% of the population) acknowledged affiliation with some ethnic or national minority, only , (that is, .% of the population) professed to speak a mother tongue other than Hungarian—the census made it possible for every individual to indicate a maximum of three ethnic or national minorities and three languages. Article  of the Constitution on special minority rights and the Minority Act adopted according thereto was meant to halt, or possibly to reverse, this process of assimilation. It is doubtful, however, that a relatively advanced stage of assimilation can be reversed from above through an instrument of law. II.

Defects of the Legislation up to the Modification in 2005

In what follows, I will not attempt to follow the theoretical trajectory of the Minority Act, which, by evoking the long forgotten notions of personal autonomy in the region, has guided minority right experts into the utopian land of ‘to be’. Rather, I will examine the ways in which principles—as declared by the Constitution as well—are put into practice. With regard to the principles of regulation, however, it is worth repeating that on a theoretical level, the Act goes beyond international norms by declaring the right of minority communities to preserve their cultural identity and retain collective rights. However, in spite of the strides made on a theoretical level, the regulation in practice not only fails to offer real solutions to the problems of minorities, but has also served to discredit the notion of legal representation of minorities in the eyes of many citizens for some time. This fact has prompted the legislature to modify the legal regulation accordingly. Because of the small and dispersed proportion of minorities in Hungary, the principle of territorial autonomy could be applied only at the local level. The settlement level is an appropriate framework for local autonomy because minorities tend to live in small villages, and the settlement is the only regional setting in which they may constitute the majority of the population. If a minority does not represent the majority of the population of a settlement, they may establish local minority self-government organized along the personal principle. (Most of the issues dealt with by such legal persons organized at the local level to represent minority interests concern issues of minority language and culture.) At the national level, the national minority self-government—a quasi-minority parliament—is equipped with mainly consultative powers, and until the representation of minorities in the parliament is de facto introduced, representation 

See János Vékás, “Színképek: Magyarország nemzeti és etnikai kisebbségei a népszámlálások tükrében” (“Reflections of Colour: National and Ethnic Minorities in Hungary as Reflected in the Censuses”), in Zoltan Kántor and Balázs Majtényi (eds.), Szöveggyűjtemény a nemzeti kisebbségekről (Collected Materials on National Minorities) (Rejtjel Kiadó, Budapest, ), -.



Balázs Majtényi by self-government authorities remains the only legitimate form of representation for minorities.7 It might be pointed out that the national self-government authority is not entirely without influence. It has been authorized, for instance, to build a network of theatres, museums and libraries. Due to a number of defects in Hungarian legal regulation, before the Modification minority self-governments organized by territorial or personal principles could be established in practically any possible case.8 Thus, after earlier elections minority self-governments were formed in settlements where a certain national minority existed either as a local majority or minority. Moreover, in peculiar cases this occurred even when members of a particular minority did not live in the settlement at all. The reasons which led to this perverse situation are varied, but are primarily due to the peculiarity of the Hungarian electoral system. Citizens could decide to vote at the self-governmental elections—in the absence of registration—and support minority candidates of their district without belonging to that minority. Based on the number of votes cast at earlier elections, it can be safely claimed that a significant number of citizens who are not members of any minority, voted for minority candidates: at the first election ,, people, at the second one ,, people cast their vote for some minority candidate.9 Most elected minority leaders emphasized the significance of so called ‘sympathy votes’ on the basis of the majority votes. Leaders of smaller minority groups vindicate these votes because in their opinion they reflect the social recognition of minorities. We must acknowledge the unmistakable fact that there exist within the majority, whether stated or unstated, differing stereotypes about certain minorities, and that the sympathy 







In , before the adoption of the Minority Act, the Constitutional Court claimed that the parliament failed to fulfill its obligation to regulate the parliamentary representation of minorities and thereby it created an unconstitutional situation. The Court strengthened its opinion in one of its rulings in . Afterwards, the Minority Act adopted in  stipulated in Art. () the following: “Minorities are entitled to be represented in Parliament as set forth in a separate act.” In spite of this, an appropriate solution has not been found up until now. Minority self-governments could be formed indirectly and directly. Before the Modification they could be formed indirectly in the following two cases: . If more than half of the members of the municipal government were elected from the same national or ethnic minority and the elected body declared itself local minority self-government. . If more than % of the members of the self-government body represented one particular minority, the representatives, acting as a minority, could form a minority selfgovernment with a minimum of three members. These minority self-governments could be dissolved if the proportion of their minority members fell below %. Minority self-governments could be established also by direct election: elections had to be called if requested by at least five voters professing themselves to be members of a minority and resident in the locality in question. A local spokesperson could be elected, if legal requirements were met, without a local minority government. National self-governments were elected by minority electors. A minority elector is a representative of local self-government if (s)he was elected as a minority representative, as a local minority self-government representative, or as the spokesperson. Mária Demeter Zayzon, Kisebbségek Magyarországon (Minorities in Hungary)  (Nemzeti és Etnikai Kisebbségi Hivatal, Budapest, ), .

The Creation and Evolution of the Hungarian Minority Act index of the minorities could also be changed based on the political views of the majority. However, if that influences the result of minority elections, it infringes upon several basic principles of the rule of law—equality of law among others. The term ‘sympathy vote’ is obviously not precise, since people may reflect not only their sympathy but also their repugnance or prejudice with their votes—as happened in the Jászladány case— winning a mandate for majority candidates through opposition to the most repugnant minority candidate.10 Votes cast by voters affiliated with the majority infringe on the basic rights of those affiliated with the minority, contradicting the notion of minority self-government itself. This less than ideal situation was further exacerbated by the fact that in certain places, exploiting the defects of legislation, candidates not belonging to a particular minority entered the minority elections. Candidates could decide freely which minority group they wished to represent. To become candidates, they were required to provide only five recommendations. In some places, candidates driven by material rather than multicultural interests represented more than one minority group in minority self-government elections. Though the financial support given to minority self-governments is far from sufficient, it seemed adequate enough to motivate a few ‘odd balls’ to enter minority elections. One case in point would be the debate between the Romanian selfgovernment representatives following the second minority self-government elections. In the course of the debate, the former representatives claimed that “the new ones are not ethnic Romanians.” Candidates sometimes gained an advantage in minority self-government elections through the mere fact that their names placed them at the beginning of the alphabetically organized list. Knowing the tendency of voters to vote for the first candidate on the list when unfamiliar with the minority members listed, a few candidates were motivated to change their names to begin with the letter ‘A’, thus weakening the position of political opponents and gaining advantage for themselves. The absence of registration of minority voters and sympathy votes meant further problems. The system of financial support does not sufficiently take into account the respective size of the minority populations. This is not even possible without the registration of ethnic affiliation. Financial support could not be distributed by the total number of minority and ‘sympathy votes’ cast. Moreover, until the amendment of the Hungarian Constitution (which was necessitated by Hungary’s accession to the EU) there had been a contradiction between its Articles () and (). While the former said that “[n]ational and ethnic minorities shall have the right to form local and national bodies for self-government”, the latter prescribed that “all adult Hungarian citizens have the right to vote […] and the right to be elected.” According to Article (), the right to establish minority self-governments was the exclusive right of the minorities. In addressing this contradiction, the legislature favoured the universality of voting rights in the aforementioned way. The contradiction between the two articles of the Constitution was dissolved by Article  of Act LXI of  after the amendment of the Constitution with the following clause: 

At the  minority self-government elections in Jászladány, the members of the Roma minority self-government, confronting the local self-government earlier, were dismissed. After the elections, the mayor’s wife and his cronies won membership by the votes of the Hungarian majority.



Balázs Majtényi “All adult Hungarian citizens residing in the territory of the Republic of Hungary have the right to be elected and the right to vote in Parliamentary elections; they have the right, furthermore, to participate in national referenda and popular initiatives.” By that time, the reform of minority regulations and the creation of minority electoral registers seemed inevitable. In connection with the establishment of an electoral registry of minorities, the following could be said: if the state grants special rights on the basis of affiliation with a minority, a necessary precondition both for the protection of minority members and prevention of abuse is to determine the beneficiaries, i.e. members of a minority. In cases when rights and duties are granted to different groups of people—i.e. citizens—the law must define who belongs to which group. A high price should be paid for overlooking the need for registration and ignoring minority rights or affirmative provisions cited as positive discrimination. Taking advantage of minority rights or positive discrimination, which has only become available after sometimes century-long civil rights battles, should not be compulsory but should remain the prerogatives of the rightful recipients. Against historically justified fears that exclude the possibility of creating an electoral registry of minorities, it has to be noted that dictatorial regimes, whether registration exists before their coming into power or not, never find it difficult to prosecute and defame people labelled enemies, ethnic or otherwise. Though negative historical experience requires great care in these matters, it is important to see that registration is a necessary tool of legislation, the demand for which originates from the nature of law. To abandon minority special rights and other forms of positive discrimination in default of specifiable subjects of law would equate with a return to general human rights protection, a regress to the theoretical basis from which international regulation began to reject minority rights after the Second World War. It would mean reviving the idea of the non-intervening state—which never existed in practice—from the nineteenth century. Of course, prescriptions of regulations on data protection must be guaranteed, and the role of the state needs to be curbed due to negative historical experiences in Central Eastern Europe. Before the Modification, the most evident shortcoming of the Minority Act was not restricting participation in minority self-government elections to persons belonging to a minority group. The reason for this is that the legislature—when working on the regulations—decided to create the minority self-government system without circumscribing the subjects of law due to negative historical experiences, even though one of the preconditions of the minority self-government11 system is that persons belonging to a minority elect their representatives. After a lengthy debate, on  June  the parliament—knowing the obvious deficiency of the system—adopted the Act on the Elections of Members of the Minority Self-Government and on the Modification of Certain Acts Relating to National and Ethnic Minorities (hereinafter “the Modification”).12 According to the parliamentary debate, the Modification had two main objectives: on the one hand, to guarantee that

 



Emphasis added. Act CXIV of  on the Elections of Members of the Minority Self-Government and the Act on the Modification of Certain Acts Relating to National and Ethnic Minorities.

The Creation and Evolution of the Hungarian Minority Act it is really the minorities who establish their own institutional system, and on the other hand, to widen and specify the competence of minority self-governments. III. Minority Regulation after the Modification A. Defining the Notion of Minority and Circumscribing Persons Belonging to a Minority The decision of the legislature as to what persons it regards as affiliated with a certain minority group is not to be confused with the definition of a minority. Whereas to define the notion of minority is not absolutely necessary, to delimit the scope of persons belonging to a minority group is, in certain cases of regulation, indispensable. In international documents, definitions of the concept of minorities can only be found in soft law documents and drafts, and domestic legal systems are generally content to list the minorities living on their territories. National regulations are satisfied by listing those minorities to whom minority special rights are granted. The Hungarian Minority Act belongs to those exceptions that define the notion of “national and ethnic minorities”, as well as lists autochthonous minorities living in the country.13 That said, it is hard to find concordance between the list and the definition.14 Article  of the Hungarian Constitution and the Minority Act stipulated that minority status requires citizenship. The legal status of foreigners residing permanently in the territory of the country took shape only in the last decade. Therefore, at the time of the adoption of the Constitution, their situation could not really be taken into account.15 Their rights in the field of employment, social welfare and health care were rapidly expanded. Today, immigrants and settled individuals share most entitlements with Hungarian citizens. Most of those with residence permits and immigration licences 





According to the Minority Act (Art. ()), “a national or ethnic minority (hereinafter ‘minority’) is an ethnic group which has been living on the territory of the Republic of Hungary for at least one century, which represents a numerical minority among the citizens of the state, the members of which are Hungarian citizens, and are distinguished from the rest of the citizens by their own language, culture and traditions, and at the same time demonstrate a sense of belonging together, which is aimed at the preservation of all these, and at the expression and the protection of the interests of their historical communities.” According to the Act (Art. ()), the following groups qualify as autochthonous national or ethnic groups: Bulgarian, Roma, Greek, Croatian, Polish, German, Armenian, Romanian, Ruthenian, Serb, Slovak, Slovenian and Ukrainian. A further contradiction results from the fact that, while in principle the Minority Act emphasizes the equality of the  minority languages, Hungary assumed obligations in the European Charter of Regional or Minority Languages with respect only to six minority languages, namely Croatian, German, Romanian, Serbian, Slovak and Slovenian. See Act XL of  on the ratification of the European Charter for Regional or Minority Languages. Between  and , foreigners residing permanently in the national territory were identified as ‘immigrants’ by the Hungarian legislature, before and after which they were and are classified as ‘settled’. More details in Judit Tóth, Státusjogok (Status Rights) (Lucidus, Budapest, ), -.



Balázs Majtényi were, for a long period of time, ethnic Hungarians from the neighbouring states. Thus, in their case the problem of minority rights did not emerge. However, one deficiency of the legislation is that it cannot react to the new situation resulting from the appearance of sizeable non-ethnic Hungarian immigrant groups. This deficiency has remained even after the amendment when “on the one hand new immigrant minorities with significant cultural attributes appear, and on the other hand ethnic-national minority communities defined by the law are filled up by immigrants (Serbs, Ukrainians, and Armenians).”16 According to the amendment of , in the course of establishing a minority self-government, the right to vote and the right to be elected are granted to any Hungarian citizen who is affiliated with one of the minorities listed in the Minority Act, who admits and declares his/her identity, who has right to vote in the elections of the members of the local self-government and mayors, and who is listed in the electoral register of minorities. In line with that, besides creating a registry of minority electors, the requirement for permanent residency was also added to the former conditions (being included among the minorities listed in the Act) for the right to participate in the elections for the legislature. To link representation to the self-government structure—by circumscribing those with voting rights with the requirement for permanent residency—was reasonable, since the minority self-government structure is established parallel to the large self-government structure. However, narrowing the voting circle only to citizens—which, as mentioned above, theoretically existed earlier17—could hardly be justified. Furthermore, the question concerning EU citizens also emerges when modifying the minority legislation; they are outlawed despite the fact that according to their status they are entitled to the undivided practice of representation at local and European levels regardless of country borders. Thus, theoretically, they should be entitled to minority representation at the local level. Moreover, in accordance with the practice of the Luxembourg Court, the final instance court of community law, regulations on minority special rights outlawing any EU citizen belonging to a certain minority violate the prohibition of discrimination by citizenship,18 which is part of Article  of the Treaty establishing the European Community. Parallel to this, the regulation contradicts Article () of the Hungarian Constitution, stating that “the legal system of the Republic of Hungary guarantees concordance between international legal obligations and national law.” From my point of view, a system of regulation that differentiates between statuses (EU citizens, immigrants, or settlers) would be more justifiable. According to Hungarian law, immigrants and settlers also have the right to vote in local elections; the legislature should have considered granting them the right to vote in the minority self







András Kováts, “A magyarországi bevándorlás-politika problémái” (“Problems of Hungarian Immigration Policy”), in id. et al. (eds.), Nemzetfelfogások (Kisebbség – többség) (Conceptions of “Nation”: Minority – Majority) (ÚMK – MTA SZKI, Budapest, ), -. Earlier, those with local voting rights but without citizenship also had a right to vote—in spite of the definition by the Act—since no electoral registry of minorities existed, which however, could have listed only minorities with Hungarian citizenship. From the practice of the European Court of Justice: ECJ, case C-/, Criminal Proceedings against Bickel/Franz, judgment of  November , [] ECR .

The Creation and Evolution of the Hungarian Minority Act government election. The present practice contradicts the prescription of the Hungarian regulation on self-governments, meaning that persons who do not have Hungarian citizenship also should have the right to vote in minority self-government elections. According to Article () and () of the Hungarian Constitution, those individuals who have voting rights in local self-government elections include a) adult Hungarian citizens residing in the territory of the Republic of Hungary, b) adult citizens of another EU country with residence in the territory of the Republic of Hungary,19 or c) persons who are acknowledged adult refugees, immigrants or settlers provided that they are present in the country on the day of the election. Thus, theoretically the Modification should have been adjusted to this regulation principle when defining minority electors at local and capital or county level,20 since these two levels are organized parallel to the national self-government system. If minorities’ right to local self-government is considered correct, the voting circle defined by the Modification of  could still violate the cited sub-paragraphs of Article  of the Constitution. Of course, certain differentiating elements of specific legal statuses when granting minority rights could still be justified. Sustaining these elements—even by Article  of the Constitution—is necessary, since the Hungarian Constitution desires to promote only minority members with citizenship by granting them special rights. The aim of the Constitution was to promote not the rights belonging to the nominal cultural nation, but the ones belonging to the political nation (namely citizens) and to create a kind of multicultural political community. This concept is supported by the fact that Article (), which regards minorities as constituent parts of the state, refers back to Article () on popular sovereignty. Regardless of that, the introduction of a multilevel minority legal status would be possible if the granting of overall minority special rights was not separated from citizenship. Specific minority rights granted to different groups of people could be defined by the relation of certain legal statuses to citizenship. The entirety of the minority rights would be granted only to Hungarian citizens—for example, the right for parliamentary representation (presently non-existent) would be granted only to Hungarian citizens. As was previously mentioned, even after the Modification, the Minority Act differentiates between autochthonous minorities (who were historically oppressed) and non-autochthonous ones who, according to the legislature, voluntarily chose the fate of minorities. The definition of minority in the Hungarian Act implicitly sets forth the conditions of recognition; however, out of the  minorities listed in the Act, some do not meet the (hundred-year-old) criteria. Most of the Greeks living in Hungary, for example, are not descendants of the assimilated Greek minority that has lived in the country for a long time, but are former Greek Communist partisans and their descendants, who 



According to Article () of the Treaty establishing the European Community, “[e]very citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.” The Modification of  makes county representation possible.



Balázs Majtényi arrived in Hungary as the refugees of a lost civil war. Moreover, some of those having arrived in  profess to be Aegean Macedonians, and some of them have even considered establishing a minority self-government of their own.21 The Armenian minority is another case in point: most members are not descendants of the Armenians who lived in Hungary in the nineteenth century and have by now been almost completely assimilated. They are, rather, descended from the Armenians who fled to Hungary from the Armenian pogroms of the Young Turks in . The Act can of course be interpreted to the effect that the earlier, by now assimilated, Greek and Armenian minority groups have acquired a right to legal recognition. The justification of the century-old criteria is questionable, since the various autochthonous national minority communities recognized by the legislature settled in the country in several groups, and it is not the case that each group of the same minority complies with this criteria. Furthermore, the Act does not offer help regarding the date from which the one hundred years shall be calculated. Whereas a hundred years is a nice round number and indicates the presence of more generations, it is also questionable why a century was set out as the criteria of autochthony. Furthermore, the discrimination between the legal status of a Greek and of a Chinese person with Hungarian citizenship, for example, could also be questioned. Though it is a well-known practice throughout Europe, granting minority rights as compensation remains theoretically dubious. If the legislature wishes to define the notion of a minority or to list the minorities living in the territory of the country, the statement of will of the communities or parts of the communities should be considered. Such a statement of will should be requested before any further minorities are recognized. In Hungary, for example, the question of whether the Jewish minority shall be among the ethnic and national minorities had already been raised before the Minority Act was drafted. The majority of the Hungarian Jewish community rejected that advice, and thus was not included. But the Hungarian legislature listed the Roma minority among the national and ethnic minorities when adopting the Minority Act. Making such a decision could have been due to the official Roma policy of the previous era,22 and the fact that the system of social supports collapsed completely after the change of regime. Since the adoption of the Minority Act it has been discussed several times in professional circles whether it was a good decision to include the Roma among national and ethnic minorities—however, with more than ten years of hindsight, the decision seems to be considered by almost everyone to be unalterable. In an essay by István Kemény and Béla Janky, the situation of the Hungarian Romungro and the Jewish people are compared. They highlight the fact  



For more details see Herbert Küpper, Das neue Minderheitenrecht in Ungarn (R. Oldenbourg Verlag, München, ), . Under the socialist regime, in  the Political Committee of MSZMP KB (Hungarian Socialist Working People’s Party, Central Committee) declared that the Roma are not to be regarded as a national minority, so the official politics aimed at assimilating the Roma through social-political measures improving their situation. For more details see Balázs Majtényi and György Majtényi, “Romakérdés és állami politikák” (“Roma Issue and State Policy”), in Mária Neményi and Júlia Szalai (eds.), Kisebbségek kisebbsége: A magyarországi cigányok emberi és politikai jogai (Minority of Minorities. The Human and Political Rights of Hungarian Roma) (ÚMK, Budapest, ), -.

The Creation and Evolution of the Hungarian Minority Act that the mother tongue of both groups is Hungarian and the majority of both groups declared themselves to be Hungarians in the  census.23 Comparing  and  sociological research data the authors concluded that, as an effect of separation and discrimination, the majority of the Romungros distanced themselves from assimilation during the last years.24 Regarding Vlach and Boyash Roma groups there was a reverse tendency, as more of them declared themselves Hungarian than before. Thus, it is questionable whether the Hungarian legislature is right in treating the various Roma groups as a single homogeneous entity. One could profitably add to the two modes of social integration (minority rights or assimilation) national legislation providing guarantees for free choice of identity and for minority rights. People could therefore be theoretically free from any external impact when choosing one of the two ways. However, in practice—even in a case of democratic legislation—the extent to which the state encroaches upon the process, the possibility of obligation and the material tools associated with its preferences bear some impact on possible choices. Besides providing the possibility of minority special rights, other forms of positive discrimination (e.g. a quota system) could offer greater support for those choosing assimilation. The Hungarian Minority Act provides the possibility for new minorities requesting legal recognition by the parliament provided that at least , people belonging to a certain minority submit an initiative to the chair(wo)man of the parliament.25 According to the present regulation the parliament would be obliged to modify the text of the Minority Act with a two-thirds majority, if a new minority requested recognition. A public law gem of recent times was when the Hun minority requested recognition of their minority status as compensation for disadvantages originating from their ethnicminority existence, and submitted , certified signatures to the parliament.26 On  February , after the signatures were declared certified, the issue was forwarded to the committee of parliament dealing with human rights, minority and religious affairs. On  April , the committee gave a hearing to a four-member committee from the Huns, and by  abstaining and  negative votes, it did not recommend that the National Assembly discuss the issue in detail. The rejection was based on an expert opinion, according to which the Hun minority does not comply with the linguistic criteria. According to the statement of the Hungarian Academy of Sciences Institute for Linguistic Studies, the language of Huns living formerly in the Carpathian basis is 



 

Regarding mother tongue, three Roma groups are defined: Romungro speaking Hungarian, Vlach speaking Hungarian and Roma and Boyash speaking Hungarian and Romanian. The Roma and Boyash languages are considered a single category during the census. István Kemény and Béla Janky, “About the  Research on the Roma”, in Ernő Kállai (ed.), The Situation of the Hungarian Roma Population at the Beginning of the th Century (MTA Etnikai -nemzeti Kisebbségkutató Intézet, Budapest, ), -. Art. () of the Minority Act. According to Article () of the Minority Act, “[i]f a minority other than those listed in paragraph () wishes to prove that they meet the requirements specified in this Act, they may submit sheets of signatures related to this petition to the President of the National Electoral Committee if supported by at least , voters who declare themselves members of this minority.”



Balázs Majtényi unknown; what is more, not even the type of their language (Turkish or Mongolian) can be established. After that, on  April  the members of the parliament rejected the initiative of the Huns by  positive,  abstaining and  negative votes. Supposedly based on the help offered by the Hungarian Academy of Sciences (HAS) in that concrete issue, the Modification reviewed by the Constitutional Court has recently added the following to Article () of the Minority Act regarding the recognition of minorities: In the course of this procedure the provisions of the Act on National Referendums and Petitions shall apply, and the President of the National Electoral Committee is obliged to request the standpoint of the President of the Hungarian Academy of Sciences on the fulfilment of legal conditions.

In order that not all social groups could request their national and ethnic recognition, the legislature should have defined the conditions of recognition. Though in practice the minority definition of the Hungarian Act functions in such a way, the legislature in a peculiar way did not request minorities listed in the Act to meet the criteria of the definition (the best way of defining such criteria is obviously to compare minorities with other social groups, such as the associations of philatelists, readers of literature or the fans of Manchester United).27 In my opinion, the criteria of recognition should be the following: their language (still in use), culture, historic traditions and religion shall be different from those of the nominal cultural nation. The necessity of the linguistic criteria could be proven by the fact that social groups with only a few nation-circumscribing identity elements could be outlawed the most easily. Communities without their own language shall not necessarily demand cultural autonomy offered by a minority selfgovernment system. For them, the framework of the civil sphere could be sufficient. In summary, the following can be said: due to the increasing migration processes, it is doubtful whether differentiation between autochthonous and non-autochthonous minorities can be sustained. At present, Hungarian minority politics has dealt repeatedly with problems of relatively small minorities, whereas problems of larger immigrant communities are ignored. In the near future the legislature will have to redefine the notion of national and ethnic minorities also used in Article  of the Constitution and possibly introduce a new regulation where minority rights are linked to status (citizen, EU citizen, settler, refugee, etc.) and the entirety of minority rights shall be granted only to Hungarian citizens.





Regarding this question, see Avishai Margalit and Joseph Raz, “A nemzeti önrendelkezés” (“National Self-Determination”), in Zoltán Bretter and Ágnes Deák (eds.), Eszmék a politikában: a nacionalizmus (Ideologies in Politics: Nationalism) (Tanulmány Kiadó, Pécs, ), -.

The Creation and Evolution of the Hungarian Minority Act B. Registration28 The Modification regulates the creation of a registry of voters entitled to participate in the elections for minority representatives that shall be maintained by the head of the local electoral offices. The request for registration shall contain, besides personal data and place of residence, a statement regarding membership in the minority community. It is therefore based solely on self-declaration29 without any further requirement of objective criteria (speaking the language, knowing the minority culture, certification by a minority body). The head of the local electoral office decides on registration; his or her role in the absence of objective criteria can only be to check the person’s citizenship, right to vote in local elections, and whether the statement required has already been made. The registry is not public: each inspection has to be registered, and after the electoral results become legally binding, it must immediately be destroyed. The number of citizens registered in this way shall be made public. Article /D of the Modification requires polling stations different from those of self-government elections in each settlement, which would secure the secrecy of ethnic affiliation. Article  of the modified Minority Act states that a minority voter can be registered only on one list.30 Candidates in the election must provide information on the following: speaking the mother tongue of the minority, knowing its culture and traditions, and a statement whether s/he was a member of any other minority self-government. These declarations are public, anyone can inspect them. In theory, any restriction of passive voting rights could be attacked, since international human rights documents and also democratic legal systems declare the equality of active and passive voting rights. According to the International Covenant on Civil and Political Rights, for example, each citizen has a right without “unreasonable restriction” to vote and to be elected.31 Article () of the Hungarian Constitution also declares equality of passive and active voting rights. However, the conditions mentioned do not pose a real restriction, since the declaration concerning objective criteria like language, culture, tradition, etc. only poses yes and no questions and the candidate may give negative answers without consequence. It is indubitable that, for beneficial representation of minorities, the candidate—similarly to minority citizens who might not necessarily know them—may acquire that knowledge later.32 

 

 

For more details see Iván Halász and Balázs Majtényi (eds.), Regisztrálható-e az identitás? Az identitásválasztás szabadsága és a nemzeti hovatartozás nyilvántartása (Can Identity Be Registered? The Free Choice and the Registration of National Identity) (Gondolat – MTA JTI, Budapest, ), . See Article /E of the Modification. Furthermore, pursuant to the Modification, any act or enforceable legal rule may subject the practising of minority rights to a statement made by the individual on his/her affiliation to a minority community. Article (b) of the International Covenant on Civil and Political Rights. According to Article /J() point (b) and (c) of the Modification the questions are formulated as follows: “does (s)he speak the language of the minority community?, does (s)he know the culture and traditions of the minority community?”



Balázs Majtényi Multilingualism is supported by the minority self-government system, though the exclusive use of Hungarian is also allowed by the regulation. Thus, minority representation in the Hungarian language is not a problem.33 The candidate shall not declare affiliation with the minority, but has to be registered in the electoral registry. Only after being elected the representative oath is taken by the candidate as a member of the minority community. As already mentioned, the candidate’s statement contains a question as to whether the candidate has been a member of or clerk for any other minority self-government. An affirmative answer, besides being examined with extensive disfavour, has no other real consequences. During his/her lifetime a candidate is allowed to register him/herself as a candidate for all  minorities by frequent identity changes. According to Article () of the Modification “voters can be listed only in one register”, but since registries are destroyed after each election, it is possible to be registered again in subsequent elections without being registered more than once. According to the wording of the regulation, in the case of passive voting rights, the possibility of a candidate standing at elections more than once is intended to be excluded by Article () stating: “the right to represent is to be exercised for one minority only”. However, if free choice of identity is accepted by the law, the possibility to change it should also be granted to candidates. It is a reform that minority self-government candidates shall be appointed by registered minority organizations. According to Article , the declared aim of these organizations—excluding those registered as political parties—has had to be the representation of a certain national or ethnic minority for at least three years preceding the elections.34 It is not clear, however, why the legislature excluded political parties from the appointing organizations; it is as if parties were excluded from the large self-governmental elections. It is a further deficiency of the regulations that it makes it impossible for independent candidates to stand in the elections; thus, some kind of objective criteria exists in the case of passive voting rights. For registration, the articles of association of the organization have to be submitted to certify their fulfillment of the legal conditions. In theory it would be more favourable to introduce objective criteria not only for passive but also for active voting rights, and according to the Constitution, any exceptional deviation should be justified. Thus, the cited provision may infringe on the international obligations and the already mentioned Article () of the Constitution, since it does not guarantee the concordance of international legal obligations and national law. Furthermore, it may violate Article () of the Constitution35—namely, equality of active and passive voting rights.



 



Bilingualism or processes in Hungarian can be found in more details in the chapter about the functions of local minority self-governments. See Article /D() or Article /F() of the Modification. Act XXXIII of  on the Operation and Financial Functioning of Political Parties. Article (): All adult Hungarian citizens residing in the territory of the Republic of Hungary have the right to be elected and the right to vote in Parliamentary elections […] and furthermore to participate in national referenda and popular initiatives.

The Creation and Evolution of the Hungarian Minority Act C. Constitutional Problems of the 2005 Modification The Modification refers to Article () of the Constitution, which provides minority communities with the right to local and national self-government and is interpreted in a way that includes capital and county levels as well as local levels.36 The term ‘local’ in the Constitution is interpreted by the new regulation as a right to county self-governments. Though interpretation of the adjective cannot be concluded from the common meaning of the word, this meaning can be derived from Article  of the Constitution stating: “communities of voters in villages, in cities, in the capital and in its districts, and in counties have the right to self-government.” A step in this direction was already made by the legislature before the Modification, since minorities could have established selfgovernments in the capital (though the question why the legislature did not regulate parallel representation at county level emerges). Besides widening the competences and establishing financial guarantees for operating costs, some provisions of the new Act may, however, violate minorities’ right to self-government granted by the Constitution. When working on the new regulation, the legislature aimed to prevent any possible aversion on the part of minorities and to uphold rights already granted. Possibly as a result of the misinterpretation of the latter aim, according to the Modification the already existing minority self-governments—even those suspected of links with ethnobusiness and those that, according to statistical data, are without minorities—are given the opportunity to continue, though most probably with decreasing number of votes.37 And of course new self-governments might be established, even in default of a minority population. A step forward from the weird situation of the past could be expected only from elections at the national level. Regulations of the Modification on the elections of local minority self-government seem to be the most contradictory. Candidates for the election of these bodies can be nominated by minority organizations defined in the regulation and during the elections. Each voter can cast as many votes as the number of candidates that can be elected. According to the Amendment, a minority self-government election takes place if the number of individuals listed in the registry is at least  in a given settlement. Elections may be held, however, even if the number of individuals listed in the electoral registry of the minority drops below  after the date of the election is established. Consequently, the elections might take place if nobody except the registered candidates participates. (The Modification prescribes the registration of candidates.)





Until , the Act did not mention the establishment of county minority self-governments, which created a dubious situation, since the Hungarian self-government structure is traditionally of three levels. See reference data in András László Pap, “Etnikai-nemzetiségi identitás és választójogi korrupció” (“Ethnic-National Identity and Electoral Corruption”), in Halász and Majtényi, op.cit. note , . The author mentions that before the  elections, the Slovak selfgovernment “claimed the example of Ináncs, Jákfalva, Perkupa, Putnok és Szendrőlád in Borsod county, where Slovak minority elections shall occur, though no Slovak community living there is known and there were no signs of Slovaks living there during the census” (translation by the author).



Balázs Majtényi At the same time, it might happen that without the self-registered candidates (whose maximum number might be five) the other  voters included in the registry simply decide not to take part in the elections. Even in that case, candidates here might establish minority self-governments. This non-ideal situation was worsened by Article  of the Modification stating: “the candidate who did not get any votes, cannot become a representative”. This wording implies that a candidate might get into the body of representatives even with one single vote, which could be his/her own vote. Thus, this legal provision means that somebody who is not ready to support himself/herself with his/her vote, shall not become a representative. This provision is contrary to the Constitution—and if it ever comes to that—it might fail when examined from the perspective of constitutionality. In the sense of the Constitution, the right to representation is, namely, a community right, and the person elected embodies the intention of electors. Thus, this regulation may infringe upon Article () of the Constitution, which grants minority communities the right to minority self-governments, and since it is a special form of the right to local self-government, it also contradicts Article () stating “voters shall practise local self-governing by a body of representatives they have elected or by local popularity votes”.38 Members of the local minority self-governments (even if elected with a minimum number of votes, which could be their own vote) take part as electors in the election of the county, the capital and the national minority self-governments. In light of that, the modified Article  of the Minority Act—which states that minority self-governments shall be elected by direct elections—is hard to interpret, since there is an electoral election above the local level. A county self-governmental election is held if at least ten settlements in the county have minority self-governments. Lists at the county and national levels can be posted by minority organizations that contributed at least % of the elected members in the local minority self-government elections. In the absence of that condition, organizations shall post a list together. The election can only be held with at least nine candidates. If the number of candidates is nine, it becomes a delegation, since nine representatives are elected at the county level. Astonishingly, the regulation of the national election is somewhat less stringent. The national minority self-government is elected in a similar system to the one at county level. A minority may form a national self-government if it has minority self-governments in at least four settlements (whereas ten was needed for medium-level elections). Thus, the establishment of a national self-government is easier than that at county level. The legislature possibly aimed at maintaining already granted rights: all minorities with representation at the national level under the old regime should be entitled to one also under the new regime, since this level has the most extensive rights. The number of general assembly members depends on the number of local self-governments and can be anywhere between  and . Thus, minorities with only four local self-governments will have quite a few representatives. As in the aforementioned worst case, if only the candidates vote, and they vote for themselves at the local level,  minority members in four settlements who have declared their affiliation with the minority can elect  members of the national and  members of the local minority self-governments. It is rather 



Emphasis added.

The Creation and Evolution of the Hungarian Minority Act questionable whether  such people would need a national self-government. In my opinion, the cited provisions of the Act might violate Article () and Article () of the Constitution. The regulation prescribes that candidates at the county as well as the national level shall represent one of the nominating organizations during the elections. Minority nominating organizations have the right to post voting lists for which voters can cast their votes. The minimum number of votes is not defined by the Act. Anyone in the electoral registry of the minority has the right to represent a minority. In the Modification it would have been possible to diverge from electoral systems, since it does not appear anywhere else in the system of the Hungarian elections. Thus the procedures of large (majority) self-government elections should have been applied. The legislature possibly presumed that those provisions themselves cannot prevent regular abuses, whose well-known forms had to be regulated by special provisions. A well-documented form of abuse has already been mentioned: to help winning their own mandate, candidates changed their names in a way so that they began with a letter from the beginning of the alphabet, since they were listed in alphabetical order on voting sheets. To counteract this tendency, the amendment stipulated that the voting sheet shall list the candidates in an order drawn by the election committee. D. Decisions by the Constitutional Court after the Modification 1. The Constitutional Court Decision 34/2005 The president of Hungary made a petition to the Constitutional Court (CC) in connection with minority representatives preferentially winning mandates in local selfgovernments as per the provisions of the Amendment. The Modification aimed to add a sub-paragraph to Act LXV on Local Government of  stating that the member of the minority self-government elected by the most votes—if a certain number of citizens vote validly in the local self-government elections—becomes a member of the local selfgovernment after his/her declaration has been made. If the number of valid votes does not reach the necessary limit, the president of the minority self-government becomes the advocate of the local minority in question and participates in the work of the local self-government with counselling rights. In decision /, made pursuant to a presidential petition, the Constitutional Court found that this kind of regulation was not the only possible solution for preferential representation, therefore it was not necessary, and it violated Article  of the Constitution.39 Moreover, according to the Court’s view, the winning of a preferential mandate violates both the right of non-minority citizens to local self-government (Art.  of the Constitution) and the right of non-minority 

Parliamentary representatives, representatives of the EU Parliament, local self-government members, mayors and the mayor of Budapest are elected by direct secret vote, in accordance with general and equal voting right of citizens. All adult Hungarian citizens residing in the territory of the Republic of Hungary and all adult citizens of other member states of the European Union who reside in the territory of the Republic of Hungary shall have the right to be elected in local ballots for the election of representatives and mayors; they shall have the right to vote, provided that they are in the territory of the Republic of Hungary on the day of the election or referendum, and furthermore, to participate in local referenda and popular initiatives.



Balázs Majtényi citizens to vote in self-government elections (Art.  of the Constitution). In addition, the provision is not in concordance with Article  of the Constitution and is against the precept of the democratic constitutional state and sovereignty.40 The Constitutional Court referred to the tight connection between the democratic constitutional state and the universal and equal right to vote. The Court decision emphasized the connection between the right to self-governing and sovereignty, since the pretence that power shall be practised exclusively by democratic legitimization concerns self-governing as well. The decision highlighted a relevant statement, which could even be considered commonplace, stating that the basic theory when electing minority self-government shall be democratic legitimization, which would be violated if the provision came into force. Thus, the Court found it doubtful that a body elected partially by preferential mandate would have the right to make publicly binding decisions. It could also be doubtful whether minority self-government members receive authorization from those for whom they later make binding decisions. Eventually, the regulation came into force without the provisions on winning preferential mandate. 2. The Constitutional Court Decision 45/200541 This decision was made after the Parliamentary Commissioner for National and Ethnic Minority Rights had made a petition to the Constitutional Court to declare those provisions of Act LXIV of  on the Election of Self-Government Representatives and Mayors unconstitutional, which made it possible that any voter had the right to vote and stand as a candidate in the minority self-government elections. To prevent further abuse, besides annulling the cited regulations, the initiator requested the joint interpretation of Article () (right to minority self-government) and Article () (right to privacy and data protection) of the Constitution. Furthermore, he requested the Court to establish an unconstitutional omission to legislate, since regulations do not prescribe the creation of an electoral register of voters, the citizens are not obliged to state their affiliation with a minority community, and nor is the authenticity of such statements ensured. It was after the submission of the petition that the parliament adopted the Modification of the Minority Act overruling the regulations of the Act on national elections petitioned by the Commissioner. The Commissioner sustained his legal standpoint even after the modifications since, as already detailed, any person declaring affiliation with a certain national and ethnic minority can be listed in the electoral register. According to him, the Act still violated the precept of the constitutional state and he also claimed that it cannot guarantee the authenticity of the statements; there are no sanctions defined for inauthentic statements, which violates the enforcement of minority rights. The Constitutional Court’s decision said that the provisions of the modified regulations on electoral process do not contradict the precept of the constitutional state and thus the request for annulment was denied. According to the explanation of the Court, 

Article (): The Republic of Hungary is an independent, democratic constitutional state. ()





In the Republic of Hungary supreme power is vested in the people, who exercise their sovereign rights directly and through elected representatives. Published in  Magyar Közlöny ().

The Creation and Evolution of the Hungarian Minority Act the petitioner objected not to the content of the regulations but to the provisions, which were missing. After that the Court examined the issue of unconstitutional omission to legislate, which—if established—would have claimed that the Modification did not make it possible to check the authenticity of the prescribed statements and it did not contain sanctions in case of abuse.42 In spite of the above, the court did not claim any failure in legislation, since the regulations proposed by the petitioner would restrict the rights of protection of self-declaration and private secrets of those making a declaration concerning their national identity. According to the Court, the establishment of unconstitutional omission to legislate and obligation for legislation cannot amount to the legislature creating regulations by restricting basic rights. This reasoning, however, does not consider the legal nature of certain human rights, which are the restrictions of rights for freedom, i.e. someone can only be arrested by court decisions.43 Furthermore, accepting the argument of the Constitutional Court could endanger legal certainty. Take the following as an example: freedom of assembly cannot be unrestricted, but if the conditions of restriction are not defined, the freedom of citizens could be violated by the police prohibiting assembly without any conditions. This example is not to discredit the demand for special data protection of national and ethnic affiliation. It should be added that any examination of national affiliation can be carried out only if a specific legal status and entitlements are connected to it. Not even the thought of such examination may arise in a democratic society. As a consequence, the state cannot specify which citizens belong to the majority nation within the country. Thus, the Hungarian Constitution is correct in listing national and ethnic minorities but not citizens of the majority nation. 3. The Constitutional Court Decision 2/200644 In autumn  four private individuals (who were also referred to as the “Association for the Hungarian Jewish National Minority” in other forums) submitted a popular initiative to the parliament to recognize the Hungarian Jewish community as a national minority alongside the thirteen minorities listed in Act LXXVII of  on National and Ethnic Minority Rights. The Országos Választási Bizottság (National Elections Committee, NEC) certified the list of signatures,45 which after four objections was examined also by the Constitutional Court. The request on the list of signatures certified by the NEC was the following:

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 

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As per provisions of Act XXXIII/ on the Constitutional Court, an unconstitutional omission to legislate may be established if the legislature failed to fulfill their law-making task authorized by a regulation and if guarantees for exercising basic rights are not provided. András Sajó, Jogosultságok (Entitlements) (MTA Állam és Jogtudományi Intézete – Seneca Kiadó, Budapest, ), -. For a more detailed analysis of the decision see Balázs Majtényi and András László Pap, “Végtelen történet. A kisebbségi hovatartozásról” (“Never Ending Story: On Ethnic Affiliation”),  Fundamentum (), -. NEC decision / (X..).

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Balázs Majtényi In accordance with Article () of Act LXXVII of  on national and ethnic minority rights we undersigned Hungarian citizens declare affiliation with the Hungarian Jewish minority and satisfy the conditions of the Minority Act. Hereby we ask the Parliament of Honour to extend the list of minorities with the Jewish minority community.

According to the constitutional petitioners, the certification of the request on the list of signatures violated the law, since the conditions for declaring the Jewish community as a national minority are not set; the request is contradictory to the definition in the Minority Act.46 Considering the legal remedy feature of the petition, the Constitutional Court should have examined whether the decision of the National Elections Committee complied with the provisions of the Act. The Court claimed that the popular initiative of Article () of the Minority Act was a special form of popular initiative, whose material and legal conditions differed from the rules of national popular initiatives. In this case, the specific aim of the initiative was to modify Article () of the Minority Act, and to recognize a certain community as a minority. It was considered special, since instead of the , signatures necessary for an initiative, , citizens who declared their affiliation with that minority had the right to submission. In the course of the procedure, provisions of Act III of  on national referenda and popular initiatives shall be applied: thus, during the certification procedure of the list of signatures, the NEC can only examine whether the problem in question is within the competence of the parliament, if the list of signatures contains precisely and unambiguously the problem suggested for argument, if the wording in the request complies with the prescriptions of the Act, and if the list of signatures itself complies with the specifications of the Act on election procedures in form and content. Those objecting to the decision of the National Elections Committee did not base their petition on the fact that the above provisions of the Act had been infringed upon, but on the claim that the conditions for recognizing the Jewish community as a national or ethnic minority are not defined by the Minority Act. Thus, the Constitutional Court was obliged to decide if the NEC decision was in breach of the law by taking a stand on the existence of the legal conditions for minority recognition. According to the standpoint of the Court, stated also in several decisions,47 initiatives shall be followed by legislative debates and decisions; thus, the requirement of the request on the list of 

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For the legal regulation of the topic concerned, see Article () and () of the Minority Act in the Annex to this article. At the time of the NEC decision, the wording of Article  of the act was the following: “() As per the Act resident minorities are the following: Bulgarian, Roma, Greek, Croatian, Polish, German, Armenian, Romanian, Ruthenian, Serb, Slovak, Slovenian and Ukrainian. () In case any further minority besides the  minorities listed in paragraph () wishes to certify its compliance with the conditions of that law, at least , citizens belonging to that minority shall submit a referendum to the chairman of the Parliament. In course of the ensuring procedure provisions of Act XVII of  on popular vote and initiative shall be applied.” The last paragraph was modified by Act CXIV of  (see Annex to this article). E.g., Constitutional Court decision / (X..).

The Creation and Evolution of the Hungarian Minority Act signatures is only to be of legislative concern. The Court decided that under the certification procedure of the sample list of signatures, it is not the task of the National Elections Committee to examine whether the legal conditions fulfilling the initiative exist. The decision of whether the ‘testimony’ of the signature owners complies with the conditions of the Minority Act, and whether the conditions of the Modification of Article () included in Article () of the same act exist shall be made by the parliament.48 Furthermore, the Constitutional Court claimed that even the Court itself as a remedy forum would have extended its competence if further examinations had been made regarding minority recognition, thus the decision of the National Elections Committee was endorsed. Péter Kovács, constitutional judge, detailed his dissenting opinion in length. He noted inter alia that until the Association of the Hungarian Jewish Religious Communities (hereinafter “Mazsihisz”) sustains their well-known refusal on the matter, there is no “legal possibility for recognizing the Jewish community as a national minority beyond the theoretical level, since in that case the government would breach the agreement with the Mazsihisz regarding not only religious but also civil service, public life and social duties.”49 According to Gábor Halmai, the constitutional judge may be wrong, since the recognition of a minority by public law—irrespective of official documents of the issue—cannot be dependent upon the opinion of a civil organization. This would violate minority rights defined by Article  of the Hungarian Constitution. This statement cannot be correct, since civil organizations are not public bodies. They are not able to hold democratic elections, and thus can only represent religious communities through church hierarchies and not national minorities (it could not have been the case in that particular matter). Only in exceptional cases can civil organizations be entitled to public law licenses in contradiction with self-governments.50 Similarly, recognition cannot be dependent upon the opinion of another minority listed by the Minority Act, since it is not about the membership of a public body in which old members play a role when electing the new ones. András Kovács points out that the Hungarian Jewish identity is of an à la carte character: some are religious, some feel Jewish because of the fear of anti-Semitism, and some conceive identity in cultural traditions in some 

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The issue was reverted in the /H/ Constitutional Court decision, which was made after the Court had certified the sample list of signatures on recognizing the Hungarian Russians. According to the petition against the NEC decision, the act of certification was breaching the law, since in light of the modified Minority Act the NEC should have consulted the president of the HAS on the conditions of the law during the certifying process, which was omitted in that case. According to the regulation, the NEC is obliged to consult the president of the HAS, but it is not defined exactly when it should be done during the procedure. However, claimed the Court, assessing if the minority in question complies with conditions of the law shall be the competence of the parliament. Thus, the obligation of the NEC is to submit the referendum together with the report of the president of the HAS to the parliament. According to the minority report by Péter Kovács, it is the competence of the NEC to examine the conditions of law. Constitutional Court Decision /. Halmai Gábor, “Pókhálóból font híd – Nemzeti kisebbség – identitás – zsidóság” (“Bridge Spun from Spider Web – National Minority – Identity – Jewish community”), () Magyar Narancs ( February ).

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Balázs Majtényi way connected to religion. Thus, debates within the Jewish community itself regarding the definition and criteria for community affiliation with so many self-conceptions are normal. It is acknowledged by the legislature that the Hungarian minority self-government system offers a basis even to such minorities which do not comply with the definition of the law (e.g. the criteria of having their own language: Hungarian Jews—similarly to the Roma minority listed by the regulation—do not have a specific mother tongue other than Hungarian, though the Hebrew of the Old Testament, Aramaic or Yiddish could all be considered mother tongues). It is worth considering why no more initiatives51 similar to the aforementioned have yet been made, and it should be mentioned that Hungarian intellectuals had aversion to the Jewish initiative. Their solicitude could be rooted in the fact that recognition of the Jewish community as a national and ethnic minority would mean that the minority politics of today is about to bury, by reversing the process of assimilation, one of the last vestiges of Hungarian liberalism from the nineteenth century: the emancipation of the Hungarian Jewish community. 4. Other Concerns of Constitutional Law The Modification contains one more provision that is of serious concern from the point of constitutional law. According to Article /D, the rights of minority self-government shall be equal; however, their obligations may be of different kinds. This could authorize the legislature to prescribe, for example, special taxes for some of the self-governments, though the chance of such a prescription would be very low. But this article clearly contradicts the rationality of Article  of the Constitution, which guarantees equality between minorities. In spite of the unfavourable solutions detailed above, the Modification could represent a step forward from the situation of the past by, for example, widening and specifying the competence of the minority self-governments, and by its effort to offer financial52 and procedural guarantees. Considering the widening of competences, it has to be mentioned that the regulation grants the right to veto included by the Act as decisions in certain fields require the approval of the minority self-government concerned.53 The previous situation is further improved upon by the fact that the Modification affects Article () of the Minority Act. Before the Amendment, it said the following: “for decreasing the educational disadvantages of the Roma minority special educational conditions can be established.” This could have offered legal ground for educational 

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The NEC approved the referendum of the Association of the Hungarian Aegean Macedonians and their list of signatures in May  (NEC decision I/ (V..)) after it had been stated that the subject of the referendum is the competence of the parliament, and furthermore, that the list of signatures fulfills the conditions of the Act on electoral procedures and the act on national popular vote and referendum. The NEC certified the sample list of signatures of the referendum, recognizing the Bunyevac as a minority in its decision / (IV..) and similarly the Russians in its decision / (III..). According to the Modification, if competences are being assigned, all funds and material conditions practised by the self-government shall be appropriated to the minority self-government in proportion of the tasks to be fulfilled. See Article () and () of the Minority Act in the Annex to this article.

The Creation and Evolution of the Hungarian Minority Act segregation. The new wording of the Modification is the following: “The language of instruction in Roma minority education may be exclusively Hungarian, but the educational institution shall, according to the demands of the parents, provide for the teaching of the Roma languages (Romani and Beash [Boyash]).” IV. Final Thoughts The framers of the Hungarian Constitution possibly intended to create a multicultural political community when, besides using the concept of the political nation, they declared that national and ethnic minorities “participate in the sovereign power of the people: they represent a constituent part of the State”, acknowledged them as subpolitical communities within the state and committed themselves to grant collective rights. Special minority rights appear not only as basic rights, but also as issues of state structure in the Hungarian Constitution. The link between the two, in my opinion, could be the acknowledgement of the aforementioned collective rights. The model of a multicultural state, which was intended to be introduced in Hungary as well, has been open to greater criticism after reflection on recent ethnic and religious conflict in Western Europe. Such criticisms, however, do not recommend any new solution and the majority of critics would presumably be satisfied with the correction of the model. Nevertheless, Hungarian multiculturalism in support of national minorities failed not because of the supposed or real deficiencies of the idea, but because of the inappropriate implementation and malfunctions of legislation. To paraphrase Paulus, it might be said that not the idea, but its realization is wrong.54 Namely, in order that the undoubtedly limited means of law be useful to protect minorities, the legislator should apply them correctly. After evaluating certain measures of the Hungarian regulation, we have to say that the effort has not been successful in every aspect. The most problematic part of the Hungarian regulation is the definition of the subject of minority rights. In any case when affiliation with an ethnicity is in question, the first thing to be considered, in my opinion, is whether the person declares affiliation with the minority based on the free choice of identity. For recognition of the minority group, however, legal regulation prescribes the existence of objective criteria (like language), so that even the group is able to prove their existence as a separate national minority. The Modification is not able to change the unfavourable situation of the minority self-governmental elections, and cannot exclude the possibility of incompetent individuals participating in local minority elections. Furthermore, it does not consider minority settlers, nor the new situations appearing with the accession to the EU, and many of its provisions would not survive a precise control by the Constitutional Court. The significance of fundamental rights of a minority is illustrated by the fact that the fulfilment of granted rights in constitutions or in other regulations of a democratic political system is about the emergence and effectiveness of democracy in a certain country. In this case, it is about the fulfilment of being a multicultural political community defined by the Constitution, as well as the respect of rights acknowledged as human rights in the Constitution. 

“Law is not to blame, but its application.” Paulus (Digesta, XXVI. II. .).

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Act LXXVII of 1993 on the Rights of National and Ethnic Minorities (Entry in force:  November ) Unofficial translation

The National Assembly, – keeping up with the most noble traditions and values of Hungarian history; – in the spirit of its commitment to the notions of democracy and humanism; – with the intention of promoting friendly co-operation and understanding between peoples and nations; – conscious of the fact that the peaceful co-existence of national and ethnic minorities with the majority nation is a component of international security, declares that it regards the right to national and ethnic identity as a universal human right, and the special individual and collective rights of national and ethnic minorities as fundamental freedoms that it will respect and enforce in the Republic of Hungary. In their entirety these rights are neither a gift from the majority nor the privilege of the minority, nor is their basis the numerical proportion of the national and ethnic minorities within the majority nation, but the right to be different, which is based on the respect for the freedom of the individual and for social harmony. In its concept of equality and solidarity as well as the principles of the active protection of minorities, the National Assembly is guided by respect for minorities, esteem for moral and historical values, and the consistent representation of the shared vital interests of the minorities and the Hungarian nation within the framework of recognised universal moral and legal norms. The mother tongue, the intellectual and material culture, the historical traditions of the national and ethnic minorities who are Hungarian citizens and live in Hungary, as well as other characteristic qualities which stem from their minority status are parts of their individual and collective identity. All these elements are special values, the preservation, the cultivation and the enrichment of which is not only a basic right of the national and ethnic minorities, but also the interest of the Hungarian nation, and ultimately that of the community of states and nations. Considering the fact that self-governments form the basis of democratic systems, the establishment of minority self-governments, their operation and the resulting cultural autonomy is regarded by the National Assembly as one of the fundamental preconditions of the special enforcement of the rights of minorities.

The Creation and Evolution of the Hungarian Minority Act In view of the historical co-existence of the Hungarian majority with national and ethnic minorities, the National Assembly guarantees, also through this Act, all the rights which are not only the human rights of members of minorities as Hungarian citizens and their communities; but also political rights that enable them to promote the preservation of their national or ethnic identities. The aim of this Act is to establish the institutional basis necessary to ensure that citizens can lead the lives of members of national or ethnic minorities as laid down in the Final Act of the Helsinki Conference on Co-operation and Security in Europe in , including the freedom to maintain living and free contacts with the kin state and the mother nation. In preparing this Act, the National Assembly of the Republic of Hungary is guided by the vision of the establishment of a Europe without frontiers, the reduction and the elimination of the disadvantages which result from a minority status, and the development of the democratic institutional structures necessary to achieve these goals. While observing the provisions of international law and the principles laid down in the Constitution of the Republic of Hungary, and in the interest of achieving these objectives, the National Assembly has adopted the following Act to record the due rights of persons and their communities belonging to national and ethnic minorities so as to ensure the enforcement of these rights and to regulate the means of enforcement: CHAPTER 1 Basic Provisions Article 1 () This Act applies to all persons of Hungarian citizenship residing in the territory of the Republic of Hungary, who consider themselves members of any national or ethnic minority and to the communities of these people. () For the purposes of the present Act a national or ethnic minority (hereinafter ‘minority’) is an ethnic group which has been living on the territory of the Republic of Hungary for at least one century, which represents a numerical minority among the citizens of the state, the members of which are Hungarian citizens, and are distinguished from the rest of the citizens by their own language, culture and traditions, and at the same time demonstrate a sense of belonging together, which is aimed at the preservation of all these, and at the expression and the protection of the interests of their historical communities. Article 21 Article 3 () Minorities living in Hungary share the power of the people: they are components in the formation of the state [Article  par () of the Constitution]. Their culture is part of the culture of Hungary. 

Repealed.

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Balázs Majtényi () The right to national or ethnic identity is a fundamental human right, and is legally due to any individual or community. () Every minority has the right to exist and continue to exist as a national or ethnic community. () Each minority community, or the members of such communities, has the right to lead an undisturbed life in their country of birth, and maintain free and unimpeded contacts with their homeland. The right to have a country of birth does not only mean the freedom of the individual to feel attached to his/her own place of birth and the protection of this feeling, but also those of his/her attachment to the place of birth or residence of his/her parents, the people who raised him/her, his/her ancestors, as well as those of his/her attachment to the former homeland, its culture and traditions. () Any form of violation of the requirement of equal treatment with respect to minorities is prohibited. Article 4 () The Republic of Hungary prohibits any policy that – aims at, or leads to, the assimilation of a minority into the majority nation, its exclusion of the majority nation or its segregation; – aims to alter the national or ethnic conditions of territories inhabited by minorities; – persecutes a national or ethnic minority or any of its members because of their national status, makes their living conditions more difficult, or prevents them from exercising their rights; – aims at the forced evacuation or resettlement of a national or ethnic minority. () The Republic of Hungary, through its international relations, undertakes to act against any political intentions that might result in any of the consequences listed in par (). It also strives to provide protection against such a policy through international legal mechanisms and international agreements. () In drawing the boundaries of administrative units and constituencies, and in formulating plans for economic and urban environmental development and environmental protection, the Republic of Hungary will take into consideration the local conditions, relations, economic interests and established traditions of national and ethnic minorities. Article 5 () In the Republic of Hungary minorities have a right to establish local, regional and national self-governments (hereinafter uniformly: minority self-governments). () Only those voting citizens have the right to take part in the initiation of the establishment as well as in the election of minority self-governments, who are included in the minority election register (hereinafter: minority election list). One voting citizen may be included exclusively in one minority election list. Detailed provisions concerning the minority election lists are regulated in a separate law. 

The Creation and Evolution of the Hungarian Minority Act () The representation of any minority may be undertaken by a candidate who is included in the minority election list. The right of representing a minority may be exercised with respect to only one minority. Article 5/A () The basic function of minority governments is to protect and represent the interests of minorities by performing their duties and exercising their statutory authority. () This Act regulates the legal status of minority self-governments, their rights and obligations, their structure, the terms of their operation, the particular regulations of their management, and the relations between central state bodies, municipal governments and minority self-governments. Article 6 The Republic of Hungary promotes the realisation of equality before the law by introducing measures with the aim of ensuring the equality of opportunities [par () of Article /A of the Constitution]. Article 6/A (1) Explanatory provisions: 1.

Minority public affairs: (a) any affair related to the provision of certain public services to those belonging to minorities in the interest of the enforcement of individual and collective minority rights enshrined in this Act and the voicing of the interests of persons belonging to national or ethnic minorities – particularly in the field of the preservation, the safeguarding and the enrichment of the mother tongue as well as the implementation and the preservation of cultural autonomy by minority self-governments – and connected to the independent management of these issues and to the creation of the organisational, personal and financial conditions necessary for this purpose. (b) any affair in relation to guaranteeing minorities the right to representation in state organs and in municipal governments, as well as in minority self-governments, as well as to guaranteeing the organisational, personal and financial conditions necessary for this representation;

2. minority self-government: an organisation established by democratically held elections in accordance with the provisions of this Act and with the procedure set forth by a separate law, having the task of providing public services under the law, operating as a body with legal personality, being formed in order to enforce minority rights, to protect and to represent the interest of minorities, and to independently conduct minority public affairs on a local, regional (county and Budapest) or national level. 

Balázs Majtényi 3. minority public educational institution: a public educational institution, the founding charter of which contains the fulfilment of tasks related to national and ethnic minorities as required by the Act on Public Education, provided that the public educational institution performs those tasks de facto, and that at least of  % of pupils of kindergartens, schools and dormitories in question take part in the national and ethnic minority kindergarten or school education. 4. the staff of minority public educational institutions: those being employed as teachers in minority public educational institution, or those whose task is to directly assist the educational work therein. 5. further care on an adequate level: the take over of the right of administering an institution by the minority self-government shall not result in the deteriorating of the level of services, nor does it lead to the worsening of personal and material conditions. 6. minority mass communication: regular or periodical information and broadcasting provided in written or in electronic forms (television or radio) of mass media which enables the informing and the education of minorities, the preservation and the extension of their cultural autonomy, regardless of the fact whether it is operated by a mass media organisation or a minority organisation, or, whether the service is provided for by the public media, or by other suppliers on the basis of public service contracts, in accordance with the relevant law, 7. official document: a document qualifying as an identification document according to the relevant law, (2) In the application of this Act a) within the minority self-government’s sphere of powers, the right to election, to appointment and to granting a mandate – with the exception of the right to elect the president and the deputy president of a minority self-government – includes the right to dismissal and the right to revocation of a mandate of leadership, and furthermore, the right to granting any other mandate, the right to field a candidate or the right to delegation includes the right to revoke the mandate, the candidacy or the delegation. b) the term further rights of the employer includes any other right of the employer apart from the right to appoint, the right to grant a mandate of leadership, the right to dismiss, the right to revoke the mandate of leadership, the right to ascertain incompatibility, the right to launch a disciplinary procedure, and the right to impose disciplinary punishment, c) in case of national self-governments, the rights of the employer also affect the employees of its office; these rights are exercised by the head of the office, d) the right to found an institution includes the right of taking over an institution, the right to reorganise and liquidate it, e) relative: the relative in direct line and his/her spouse, the brother and sister, the spouse and the companion, 

The Creation and Evolution of the Hungarian Minority Act f)

minority cultural institution: a cultural institution, the primary task of which is the preservation and the cultivation of minority culture, traditions and language, g) cultural institution: an institution of culture or a public collection, listed in the appendix of the Act on Museums, Public Libraries and Culture as well as institutions defined by the explanatory and closing provisions of the Act on the Protection of Cultural Heritage, h) temporary trusteeship: use and exploitation exercised with proprietary solicitude as well as the right to collect the profit provided that this property – apart from the exceptions listed in a separate law – shall not be sold and mortgaged, and that the temporary trusteeship shall not be transferred. CHAPTER 2 Individual Minority Rights Article 7 () The admission and acknowledgement of the fact that one belongs to a national or ethnic minority is the exclusive and inalienable right of the individual. No one is obliged to make a statement concerning minority affiliation, with the exception of paragraph (). () An Act or a legal provision concerning its implementation may require the individual’s declaration with regard to the exercise of some minority right. () The right to national and ethnic identity and the acknowledgement and admission of minority affiliation does not preclude the recognition of dual or multi-affiliation. Article 8 It is the right of the citizen belonging to a national or ethnic minority to state during a census in an anonymous way to which minority group s/he belongs. Article 9 A person belonging to a minority has the right to the equality of opportunities in politics and culture, a right which the government is obliged to promote through effective measures. Article 10 Participation of persons belonging to a minority in public life must not be restricted. Members of minorities may establish societies, associations, political parties and other civil organisations in order to express and to protect their interests – in accordance with the regulations of the Constitution.

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Balázs Majtényi Article 11 Persons belonging to a minority have the right to respect the minority traditions connected to family life, to cultivate family relationships, to celebrate family feasts in their own mother tongue, and to require that the religious services associated with these feasts be performed in their mother tongue. Article 12 () A person belonging to a minority has the right to freely choose his/her own first name and the first name of his/her child, to have the first and last name of his/ her child registered in conformity with the grammatical rules and spelling of the mother tongue, and to indicate the names in official documents as long as this complies with applicable provisions. If the names are not registered with Latin characters, it is compulsory to give also the phonetic representation of the names with Latin letters. () If requested, the registration of births and the compilation of other personal documents – as listed in paragraph () – may also be bilingual. Article 13 Persons belonging to a minority have the right to a) learn, foster, enrich and pass on their mother tongue, history, culture and traditions; b) participate in minority language education and cultural activities; c) have their personal data related to their minority status protected as determined by a separate Act. Article 14 Persons belonging to a minority have the right to maintain contacts with state and community institutions of their kin state and/or linguistic nations, and also with minorities living in other countries. CHAPTER 3 The collective rights of Minorities Article 15 The preservation, fostering, strengthening and passing on of their minority identity is the unalienable collective right of minorities.

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The Creation and Evolution of the Hungarian Minority Act Article 16 It is the right of minorities to cultivate and to develop their historical traditions and language, as well as to preserve and to enrich their intellectual and material culture. Article 17 Minority communities have the right to self-organisation, and can, in accordance with the law, establish any organisation. Article 18 () Public service television and radio stations ensure – within an independent organisational unit and with resources allocated for this purpose alone, as provided for in a separate Act – that national and ethnic minority programmes are produced, broadcast and disseminated on a regular basis. () On territories inhabited by minorities, the government promotes – also through international contracts – the reception of radio and television programmes from the kin state. () Minority communities have the right to a) initiate and take part in the creation of the necessary conditions for minority kindergarten-, primary-, secondary- and higher education, and initiate and take part in the creation of the necessary conditions of complementary minority education through their national minority self-governments, b) establish their own educational, training, cultural and scientific institutional network at national level within the boundaries of existing laws. () The Republic of Hungary – within the framework of its laws – guarantees the rights of minority communities to hold their own events and celebrate their own feasts free from disturbance, to preserve and maintain their architectural, cultural and religious relics, to preserve, foster and pass on their traditions, and to use their cultural symbols. Article 19 Minorities and their organisations have the right to establish and maintain extensive and direct international contacts. Article 20 () Minorities have the right – as determined in a separate Act – to be represented in the National Assembly. () The National Assembly shall elect an Ombudsman for National and Ethnic Minority Rights. Before putting forward a proposal concerning the person of the Ombudsman for National and Ethnic Minority Rights, the President of the Republic shall seek the opinion of national minority self-governments, or in the absence of such a self-government, the view of the registered national organisation 

Balázs Majtényi representing the interests of the given minority. The provisions of Act LIX of  on the Ombudsman for Civil Rights shall apply to the Commissioner for National and Ethnic Minority Rights. () The Ombudsman for National and Ethnic Minority Rights shall have the authority to act on issues which fall within the scope of this Act. CHAPTER 4 The self-governments of minorities and their establishment Article 21 () Minorities, as determined in a separate Act, (a) have the right to establish local minority self-governments in townships, in towns, or in the districts of the capital city, as well as regional minority selfgovernments in the counties and in the capital city, (b) have the right to establish a national minority self-government. () A separate Act contains the provisions concerning the election by minority voters of their local and regional minority representatives as well as that of the members of the national minority self-governments. Article 22 Minority self-governments are established by direct elections, in accordance with the provisions of a separate law. Article 23 () The board of elected representatives of the local minority self-government (hereinafter: the board) consists of  members. () The regional minority self-governments and the minority self-governments in the capital city have  members. () One minority can establish only one local minority self-government in the same settlement. () One minority can establish only one regional minority self-government in a county and in the capital city. () One minority can establish only one national minority self-government. More than one minority can establish joint, associated national self-governments. The number of members of national self-governments varies between -, as determined in a separate Act.

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The Creation and Evolution of the Hungarian Minority Act The expiration of minority self-governments Article 24 () The minority self-government – simultaneously with the expiration of the board’s mandate – ceases to exist, if no new board is elected after the expiration of board’s mandate. () If the minority self-government ceases to exist, representatives of the minority self-governments can be elected only at the time of the next municipal general elections. The expiration of the mandate of the board Article 24/A The mandate of the board ends, if a) it has expired, b) the board has been dissolved, c) the board has declared its dissolution, d) the number of representatives has become less than half of the number of the representatives to be elected. The rights and obligations of minority self-governments Article 24/B () The voting citizens belonging to any national or ethnic minority are entitled to the rights of minority self-governance, and exercise these rights through their elected representatives, as determined by law. () The minority self-government is a legal entity. The board is entitled to exercise the duties and the powers of the minority self-government; the latter is represented by its president. () The minority self-government may conduct minority public affairs falling within the scope of its powers and duties individually or it may cooperate with state organs and municipal or regional self-governmental bodies. () Within its powers and duties, the minority self-government may determine the way of conducting minority public affairs individually or with the authorities determined in paragraph (). Article 24/C () The rights of minority self-governments and the legal exercise of their powers are protected by the court. () The illegal decisions of minority self-governments acting individually or jointly may be reviewed by the court.

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Balázs Majtényi Article 24/D () The rights of minority self-governments are equal with respect to all minority selfgovernments. The obligations of minority self-governments may differ. () There is no subordination or superordination between minority self-governments, or between minority and municipal governments. Article 24/E () In the interest of conducting minority public affairs, minority self-governments may initiate measures to be taken by, ask information from, and make proposal to, state organs and municipal or regional governmental bodies with the appropriate powers and competence. The right to initiate measures includes the right to initiate the discontinuance of a practice, and the amendment or withdrawal of an individual decision, which violates minority rights with respect to the operation of institutions administered (owned) by the state or by municipal and regional governments. () In case of an initiative defined in par (), the head of the organ with appropriate powers and competences is obliged to deliver a judgment on the merits or to issue a statement within  days from the receipt of the initiative. If the subject of the request does not fall within the powers or competence of the head of the respective organ, s/he is obliged to transfer the request to the organ with appropriate powers and competences within  days from the receipt of the request. () If the requested state, municipal or regional organ does not fulfil its obligations defined in par (), the minority self-government is entitled to initiate the extraordinary procedure of the supervising authority or the organ exercising legal control over the organ requested. The requesting party shall be informed about the result of the extraordinary procedure within  days at the latest. The scope of powers and duties of local minority self-governments

Article 25 () Within its powers and within the framework of existing laws, the minority selfgovernment shall define a) the detailed regulations of its organisational structure and operational order within  months from its statutory assembly; b) the name and the insignia of the local minority self-government, its medals/ decorations as well as the requirements and regulations for the awarding of such medals/decorations; c) the local feasts of the minority represented; d) the full list of its opening assets; the rules governing the utilization of assets at its exclusive disposal; e) the foundation, the take over and the administration of institutions; f ) the foundation of, and the participation in, business and other organisations; 

The Creation and Evolution of the Hungarian Minority Act g)

the foundation of, and the affiliation to, associations of minority self-governments; h) the announcement of calls for project proposals; i) the establishment of scholarships; j) the utilization of the assets of the municipal government that have been put separately at its disposal; k) its budget, its annual accounts, and the utilization of resources put at its disposal by the municipal government, within the framework of the budgetary decree of the municipal government; l) the initiative to declare its historical buildings and memorial sites as being protected by law; m) its participation in the election of lay-assessors at local courts. Article 26 () If it is necessary for the local minority self-government to obtain the approval of the municipal government or one of its organs in order to exercise its rights, the competent organ is obliged to put the related request of the local minority selfgovernment on the agenda of its next meeting, and the decision must be made within  days from the submission of the request. () The municipal government is obliged to incorporate the resolutions of the local minority self-government determined in points of j) and k) of par () of Article , into the decree on its budget and annual accounts, with its content unchanged, within  days from its receipt. Article 27 () The municipal government is obliged to provide – in a way defined in its organisational and operational statute – for the local minority self-government the conditions needed for its operation as a body. The mayor’s office ensures the implementation of the above. () The conditions of the operation as a body, and the related tasks include particularly: a) the use of premises; b) the costs of mailing, delivery, typing and copying. () In its capacity of executive organ for the minority local self- government’s economic activities, the mayor’s office may administer the economic activities of more than one local minority self-government upon the agreement between the municipal government and the respective minority self-government. () In case of neglect of paragraphs () – (), Article /E, paragraph () shall apply. Article 28 () In the field of local media, the promotion of local traditions and culture, and the collective usage of the language, any municipal government decree affecting the minority population in their capacity as such may be passed by the board of elected 

Balázs Majtényi representatives only with the approval of the minority self-government representing this population. () The appointment (the dismissal and the revocation of the mandate of leadership) of heads of minority institutions, (provided that the right to appointment is not exercised by the local minority self-government) as well as the decisions of the municipal government concerning the education of people belonging to minorities require the approval of the local minority self-governments affected. In the absence of such a minority self-government, the local association of the given minority must be consulted. () The party entitled to the right of consent and the right to consultation stipulated in paragraphs ()-() shall exercise those rights within  days from the receipt of the related initiative. Article 29 () Prior to the decision, the proponent must inform the competent decision-maker about the statement or the non-claim of the party entitled to the right of consent and the right to consultation under paragraphs ()-() of Article . () In case the municipal government makes a decision without the consent or the consultation specified under paragraphs ()-() of Article , the office of public administration, upon the initiative of the affected local minority self-government, examines the decision out of turn, and in case of well-foundedness, it may turn for remedy to the court or to the Constitutional Court. The initiative of the local minority self-government has delaying force with respect to the execution of the decision contested. () If the office of public administration does not share the view of the local minority self-government, and therefore it does not turn to a court or to the Constitutional Court, the local minority self-government may do so directly. Such an action by the local minority self-government has no delaying force with respect to the execution of the decision, but the minority self-government may ask the court to suspend the execution. () If the municipal government makes a decision without the consent or the consultation of the affected local minority self-government, provisions of paragraphs () and (), and paragraph () of Article  shall apply. Article 30 () The local minority self-government maintains contacts with any minority organisation or association, and may enter into an agreement of co-operation with them. Within the scope of its duties, the local minority self-government supports the self-organising activities of local communities, and it co-operates with such communities. () Minority associations, institutions and other organisations – in terms of the present paragraph, also minority public utility companies – may apply to state funding in the field of minority culture, education, science and civilization under the same conditions as local minority self-governments. 

The Creation and Evolution of the Hungarian Minority Act Article 30/A () When conducting minority public affairs, the local minority self-government shall act within the scope of its obligatory and voluntarily undertaken powers and duties. () When conducting minority public affairs, local minority self-governments may, in accordance with legal provisions, act with different scopes of powers and duties, depending on their capacity and on the demands of local minority communities. () The obligatory duties of local minority self-governments include particularly: a) the conduct of powers and duties transferred to it by the municipal government upon the initiative of the local minority self-government; b) the conduct of powers and duties transferred to it upon its own initiative by another local minority self-government. () Besides its duties determined in paragraph (), the local minority self-government may, within the framework of the resources at its disposal, voluntarily undertake further duties, particularly in the field of education, local written and electronic media, culture and the promotion of local traditions. () For the purpose of conducting its obligatory and voluntarily undertaken duties, the local minority self-government may found and take over institutions, companies and other organisations, and it also may appoint the heads of such organisations and exercise the rights of the founder as determined in a separate Act. () The local minority self-government may only found or take part in companies, in which its liability does not exceed its initial share, provided that such an activity does not jeopardize the conduct of its duties under the law. () The Act on Public Finances shall apply to companies, in which the local minority self-government possesses the majority of shares. Article 30/B () With the exception of the procedure determined in Articles  and , the board of the municipal government may delegate its legally transferable powers and duties to the board of the local minority self-government, upon the request of the latter, in accordance with the agreement determined in paragraph (). Powers and duties in the field of public utilities and those connected to the functions of an administrative authority may not be transferred. () Boards of local minority self-governments may, on the basis of an the agreement initited by them, mutually transfer their powers and duties to other local minority self-governments representing the same minority, provided that the conditions determined in paragraph () are given. The transfer shall not include the powers and duties transferred to the local minority self-government by the municipal government. () If this Act does not rule otherwise, the local minority self-government, which transfers its powers and duties, the local minority self-government, to which these powers and duties are transferred, and the affected national minority self-government conclude a trilateral agreement under paragraph ()- (). The agreement shall state that simultaneously with its conclusion, 

Balázs Majtényi a)

the powers and duties being the subject of the agreement are taken over by the affected local minority self-government, b) the local minority self-government or the municipal government, which transfers its powers and duties, puts the proportional material and financial conditions at the disposal of the affected local minority self-government, c) the recipient local minority self-government agrees that if the conduct of powers and duties meets difficulties on its part, the party which transfers its powers and duties may, with the consent of the national minority self-government, withdraw the transfer by a unilateral declaration. Shall this occur, the local minority self-government, which has taken over the powers and duties shall, to the value of the time at the transfer, put the transferred assets, or the assets equivalent to it, at the disposal of the party, which has originally transferred its duties and powers, d) the parties to the agreement accept, that in case the conduct of the obligatory powers and duties, as subjects of this agreement, becomes impossible, the powers and duties will subsequently be conducted by the competent municipal government, which is, under the law, obliged to conduct those powers and duties. () Shall any dispute concerning the implementation of this agreement arise between the parties, the office of public administration shall hold a conciliation within  working days from the proposal of the parties. If no consensus is reached within  working days, the office of public administration exercises its right to legal control. Article 30/C () The board may transfer its powers and duties to its organs (the president and the committees) as well as to the association concerned of minority self-governments as determined by law. () The local minority self-government may give instructions with respect to the conduct of the powers and duties transferred to its organs, and it also may withdraw them. The transferred powers and duties shall not be transferred further. () Within the scope of its non-transferable powers and duties, the local minority selfgovernment decides about a) the drafting, the review and the amendment of its organisational and operational statutes, within  months from its statutory assembly, b) its budget, its annual accounts, the utilisation of the property set aside for it as part of the total property of the municipal government; c) the planning and the utilisation of resources made available to it by the municipal government, d) the establishment, the take over, the liquidation, the reorganisation of institutions and the appointment of the heads of institutions, e) the conclusion of an agreement related to duties taken over from the municipal government or other local minority self-governments, f ) the establishment of, the liquidation of, and the participation in, business or other organisations, 

The Creation and Evolution of the Hungarian Minority Act g)

the establishment of, and the affiliation to, associations of minority self-governments, h) the affiliation to organisations of interest representation, and the conclusion of agreements on co-operation with municipal self-governments from other countries, and with other organisations, i) the election of its president and vice president, j) the establishment of its committees, k) the full list of its opening assets, l) the election of lay-assessors at local courts, m) any other issue which, according to the law, falls within its non-transferable powers and duties. The operation of local minority self-governments Article 30/D () The president of the local electoral committee convenes the statutory assembly of the board within  days after the election. () The statutory assembly will be chaired by seniority by the oldest member of the board. () Members of the board may take the oath under Article  in their mother tongue, in Hungarian, or in both languages either at the statutory assembly, or at the first session after their election. Members of the board shall not exercise their respective rights before taking the oath. Article 30/E () The board holds its sessions when necessary, in conformity with the number of sessions defined in its organisational and operational statutes, provided that this number is not less then four per year. The has to be convened if so proposed by at least one-third of the members of the board, or by a committee of the local minority self-government. The session is convened and chaired by the president. () The sessions are open to the public. () The board holds a closed session in the following cases: elections, appointments, dismissals, the granting of a mandate of leadership, the launch of disciplinary procedures, the imposition of disciplinary punishments, and also when a statement is required in connection to the hearing of a personal case, in case the affected person does not give his/her consent to a public hearing, furthermore, in cases of incompatibility and decorations, and in any other case when the law excludes publicity. () The board may order a closed session, if a public session would interfere with business interest. () Members of the board, the chief administrator of the mayor’s office, and upon invitation, the affected persons and experts may be present at the closed session. The law may impose the invitation of the affected persons.

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Balázs Majtényi Article 30/F () Minutes shall be taken of the sessions of the board. It shall be taken both in the language of the affected minority and in Hungarian, or exclusively in Hungarian. In case the minutes are taken both in the minority language and in Hungarian, those taken in the minority language shall be considered as authentic. The minutes include the list of the attending board members and invited guests, the discussed items on the agenda, the substance of the discussion, the exact results of voting and the decisions. The decision of the local minority self-government is a resolution. () The president of the board is in charge of the minutes. The minutes shall be signed by the president, and by a representative, who is appointed by the board from among its members to authenticate the minutes. Within  days after the session, the president submits the minutes to the chief administrator of the mayor’s office, who forwards it to the office of public administration in  days. () The proposals submitted to the sessions as well as the minutes of the sessions are public, with the exceptions of the proposals and the minutes of closed sessions. () Separate minutes shall be taken of closed sessions. The access to data of public interest as defined in a separate law, and to data to be made public for general interest, shall be guaranteed in case of closed sessions, too. The provisions governing the taking of the minutes at public sessions shall apply to minutes taken at closed sessions. Article 30/G The board passes its resolutions by open voting. In cases of paragraphs () and () of Article /E, secret voting may also be held. The president shall order a vote by name upon the proposal of at least one half of the board members. Article /H () The board constitutes a quorum if there are at least one half of the representatives present at the session. The adoption of a decision requires the simple majority of affirmative votes of the representatives present. () The board member or his/her relative may be excluded from the decision making process if they are personally affected in the issue. The board member is obliged to notify the board about his/her being personally affected. The board makes a decision about the exclusion upon the proposal of the affected parties, or upon the proposal of any other board member. The excluded board member shall be taken into account as being present with regard to the quorum. () A simple majority of votes is needed for passing a resolution on the issues under paragraph () of Article /C, Article /J, paragraph () of Article /P, paragraph () of Article , paragraph () and paragraph () b) of Article /A, and on issues which, according to the organisational and operational statutes, require the simple majority of votes of the representatives. () The chief administrator of the competent municipal government or the person s/he has mandated (henceforth: the chief administrator), shall be invited to the sessions of the board. The chief administrator is obliged to notify the board about any infringement of the law concerning its resolutions. 

The Creation and Evolution of the Hungarian Minority Act Article 30/I The board holds at least one public hearing a year. Article 30/J Before the termination of its mandate, the board may declare its dissolution by a voting by name. This decision requires a qualified majority of votes. The representative of the local minority self-government Article 30/K () The representative of the local minority self-government, as a member of the board, represents the interests of the respective local minority community concerning minority public affairs. S/he takes part in the preparation, in the making and in the implementation of board decisions. () The mandate, the rights and the obligations of the representative of the local minority self-government originate at the time of his/her election, and terminate with the end of the mandate. () The representative of the local minority self-government a) may seek information on issues affecting the local minority self-government from the president, the deputy president, the president of the committee, and the chief administrator at the session of the board. The requested persons are obliged to provide a response on the merits orally at the session, or in writing within  days, b) may request that his/her written comments be attached to the minutes, and that his/her opinion be recorded in the minutes, c) may represent the board upon authorisation, d) is obliged to take part in the work of the board. () The representative of the local minority self-government shall be exempted from his/her job for the time necessary for his/her participation in the work of the board. S/he shall be recompensed by the board for the income lost this way. On the basis of this income the representative is also entitled to social security. The board also may state a lump sum. () The mandate of the representative of the local minority self-government terminates in case a) the mandate of the board terminates, b) of the abdication of the representative submitted in writing or recorded in the minutes of the session of the board, c) of the loss of the representative’s voting right, d) of the statement of incompatibility, e) of the dissolution or the liquidation of the board, f ) the representative of the local minority self-government has not taken part in the sessions of the board for more than a year.

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Balázs Majtényi The committees of the local minority self-government Article 30/L () The board may establish a committee / committees. At least half of the committee members shall be members of the board at the same time. The organisational and operational statutes of the committee shall define the detailed provisions concerning its operation. () In the scope of its duties, the committee shall prepare the decisions of the board. The board may transfer its powers to its committees, and in this respect the committee may make a decision, which may be reviewed by the board. () The committee shall be convened upon the request of the president of the local minority self-government, or upon the request of at least one third of the members of the committee. () The provisions concerning the operation of the board and its decision-making process shall apply to the operation, to the quorum and to the decision making process of the committee. Article 30/M () The chair of the committee and at least two of its members shall be appointed from the members of the board. The president and the deputy president of the local minority self-government shall not be the chair or member of the committees. The committee has at least three members. () The president of the local minority self-government may suspend the committee’s decision, if it is contrary to the resolution of the local minority self-government, or if it interferes with the interests of the local minority self-government. The decision suspended will be discussed and decided at the upcoming session of the board. () The member of the committee or his/her relative may be excluded from the decision making process if they are personally affected. The member of the committee is obliged to notify the committee about his/her conflict of personal interest. The committee makes a decision about the exclusion. The affected member of the committee shall be taken into account as being present with regard to the quorum. The president, the deputy president and the members of the local minority self-government Article 30/N () At its statutory assembly, the board elects a president from among its members and, in order to assist and replace the president, a deputy president from its members. The president and the deputy president work as agents mandated by their communities. () In case of the simultaneous vacancy of the presidency and the deputy presidency, or in case of the long-term incapacitation of the president and the deputy presi

The Creation and Evolution of the Hungarian Minority Act dent, the operational and organisational statutes shall regulate the way of convening and running the sessions of the board. () The president of the local minority self-government is entitled to the right of consultation in the sessions of the board of the municipal government. Article 30/O () The following functionaries may not be elected to the position of the president of the local minority self-government: the president of the Republic of Hungary, members of the Constitutional Court, parliamentary commissioners, the president, the deputy president and the auditors of the State Audit Office, ministers, state secretaries, deputy state secretaries, civil servants of the central administration, heads of the county and Budapest offices of public administration, the civil servants of those local and regional state organs whose powers and duties include the affairs of the respective local minority self-government and whose competence covers also the local (regional) minority self-government, the chief administrator (the county chief administrator, the district chief administrator) of the territorially competent municipal government, the civil servants of the mayor’s office, judges, prosecutors, notaries, court – bailiffs, members of the permanent staff of armed forces and the police, staff members of the territorially competent council for regional development, the heads and the managers of institutions and companies established or administered by the local minority self-government, who have been granted their mandate of leadership by the local minority self-government. () The president shall eliminate the incompatibility within  days from his/her election, respectively from the day of the emergence of the incompatibility. () If the president neglects his/her duty under paragraph (), the board has the right to decide on the matter of incompatibility upon the proposal of any board member, and if justified, it declares the incompatibility of the president. () The provisions of paragraph ()-() shall apply also to the deputy president and the representative of the local minority self-government. Article 30/P The mandate of the president terminates in case a) his mandate as a representative of the local minority self-government terminates (Article /K, par()), b) the court declares the suppression of the post of the president under paragraph(). () The mandate of the president may not be terminated by revocation. () On the basis of its related resolution passed with qualified majority, the board may file a lawsuit against the president at the territorially competent county or Budapest court requesting the suppression of his/her post because of his/her ongoing illegal actions. The board may simultaneously request the suspension of the president from this post.

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Balázs Majtényi () The Act on the Code of Civil Procedure shall apply to the court proceedings under paragraph () with the difference that there is no counter-claim, intermission or settlement of dispute in these procedures. () Provisions concerning the president shall apply to the deputy president. The remuneration of the president, the deputy president, the representatives of the board, the president and the members of the committees of the local minority self-government Article 30/Q () The board may grant honoraria from its budget to the president, to the deputy president, to the board members, and also to the president and the members of its committees. () The honorarium of the president of the local minority self-government cannot be higher than the triple of the base salary of civil servants stated by law, and in the case of the deputy president it should be lower than the amount determined for the president. () The honorarium of the president and the members of the committees cannot be higher than  % of the president’s honorarium. () The honorarium of the representatives of the local minority self-government cannot be higher than  % of the president’s honorarium. () The amount of the honorarium of the president and the deputy president is numerically established by the board. () With the exception of the refunding of costs, the president cannot be remunerated for his work carried out in public foundations or in public utility companies established by the minority self-government. The regional minority self-governments Article 30/R () Articles -, /A-/Q and paragraphs () and () of Article  of this Act governing the legal status, the powers and duties as well as the organs of local minority self-governments shall apply to the regional minority self-governments, with respect to disparities contained in Articles /R-/T. () The regional minority self-government: a) gives its opinion on draft resolutions of the county assembly or the government of the capital city which affect minorities in their capacity as such, b) contributes in the field of secondary education of the given minority to the professional supervision of state organs having the appropriate powers and duties, as determined in the Act on Public Education, c) may propose the transfer of powers and duties of county assemblies and the Budapest municipal government concerning the administration of dormitories of national and ethnic minorities, their secondary schools and vocational schools; 

The Creation and Evolution of the Hungarian Minority Act d)

e)

may propose the transfer of powers and duties of municipal governments and district governments of Budapest concerning the administration of dormitories of national and ethnic minorities, their secondary schools and vocational schools, may, through the association of regional minority self-governments, undertake the organisation of zonal minority public services, provided that this is in line with the regulations of the Act on Municipal Governments. Article 30/S

() The board of the regional self-government may establish committees. The establishment of a committee of finances is obligatory. () Members of the regional self-government elect the president and the deputy president of the regional self-government from among themselves at the statutory assembly. Article 30/T The honorarium determined by the board of the regional minority self-government cannot be higher a) than the sextuple of the base salary of civil servants, in the case of the president b) than the amount determined for the president, in the case of the deputy president c) than % of the honorarium of the president of the regional minority self-government, in the case of the chair and the members of the committee d) than % of the honorarium of the president of the regional minority self-government, in the case of the representatives. The national minority self-government Article 31 Articles /A-/Q of this Act governing the legal status, the powers and duties as well as the organs of local minority self-governments shall apply to national minority self-governments (hereinafter: national self-governments) with respect to disparities contained in paragraph () of Article  and in Articles -/C.



Balázs Majtényi Article 32-342

The statutory assembly of the national self-government Article 35 () The mandate of the national self-government commences with the statutory assembly. The statutory assembly is convened by the president of the National Electoral Committee within  days after the election of the representatives. () If no new general assembly is elected, the national self-government shall cease to exist, and the Office for National and Ethnic Minorities takes over the administration of its assets. () Before the election of the president, the statutory assembly is chaired by the oldest representative, as chairman by seniority. () A three-member committee of mandates is established at the statutory assembly. The committee of mandates examines the mandates of the elected representatives and submits a report on the results of this examination to the general assembly. () The national self-government elects its president and deputy president from among its members at the statutory assembly. () The national self-government establishes the committee of financial control at its statutory assembly. () The outgoing president, the head of the office of the national self-government and the newly elected president jointly provide the regular take over and transmission. The powers and duties of the national-self-government Article 36 () The national self-government represents and protects the rights of the minority represented by it on a national level, and also on regional (county and capital city) level if the given minority has no regional self-government. In the interest of developing the cultural autonomy of the given minority, it may establish institutions and co-ordinate their activities. Article 37 () The national self-government – in accordance with the law – decides independently on a) its name, the location of its headquarters, the detailed regulations concerning its form of organisation and operation within  months after the statutory assembly, b) its budget, its closing balance sheet, the inventory of its assets; 



Repealed.

The Creation and Evolution of the Hungarian Minority Act c) d) e) f)

the full list of its opening assets; its insignia; the nation-wide feasts of the minority represented by it; its medals/decorations, and the requirements and regulations of awarding them; g) the principles and the means governing the utilisation of the radio and television channels at its disposal; h) the principles governing the utilisation of the public radio and television air time at its disposal; i) the establishment, administration, operation and liquidation of institutions, particularly primary and secondary minority educational institutions, and further, on the establishment, administration, operation and take over of higher educational institutions or training courses to be offered in institutions of higher education; j) the establishment of business or other organisations, k) the administration of a theatre; l) the establishment and administration of a museum/exhibition hall, and a public collection with a countrywide collection coverage; m) the administration of a minority library; n) the establishment and administration of an artistic or scientific institute, and a publishing house; o) the establishment and operation of legal advisory services; p) the announcement of calls for project proposals and the foundation of scholarships within the scope of its operation; q) the conclusion of a public education agreement with the Minister of Education under the Act on Public Education, r) the conclusion of a public education agreement with the municipal government under the Act on Public Education, s) the publication of its press releases; t) the compilation of the list of minority forenames and the requests related to forenames; u) the performance of other duties which legally fall within its scope pf powers and duties. () With the exception of powers and duties provided for the board of the municipal government as an administrative agency by law, and also with the exception of its powers and duties in the field of public utility services, the board of the municipal government shall delegate its legally transferable powers and duties to the board of the national minority self-government upon the request of the latter, on the basis of a separate agreement, provided that when acting in the area of these transferred powers and duties, the board of the national self-government would conduct minority public affairs, and that it can also provide the necessary conditions determined by law for performing these duties. () The national self-government shall state its opinion on the take over of institutions by local and regional minority self-governments.



Balázs Majtényi Article 38 () The national self-government may a) with the exception of the decrees of municipal governments, state its opinion on bills affecting the minority represented by it in its capacity of minority, and on regulations issued by the general assemblies of counties and the capital city, if the given minority has no regional minority self-government, b) state its opinion on the domestic implementation of bilateral and multilateral agreements concerning the protection of minorities, and it also may propose measures in favour of their enforcement; c) contribute to spreading information about the minority voters’ register required for the election of minority self-governments, as determined in a separate Act, d) seek information from public administrative bodies with relation to issues concerning minority groups, may make proposals to them, and may initiate measures within their competence; e) co-operate with state bodies having the appropriate powers and competences in the professional supervision of the primary, secondary and higher education of the minority it represents. () In the course of legislation on the preservation and conservation of the historical settlements and architectural monuments of minorities (with the exception of the decrees of municipal governments), and also in the course of the drafting government decrees on the implementation of the Act on Public Education, the national self-government is entitled to the right of consent concerning the kindergarten and school education of those belonging to a minority. Article 39 () The president, the deputy president and the representative of the national selfgovernment may take part at the sessions of the local and the regional minority self-governments. Article 39/A () The powers and duties of the national self-government are the due of its general assembly. With the exception of the non-transferable powers and duties, the general assembly may transfer its powers and duties to the president, to its committee, and also to the association of minority self-governments, as determined by the law. () The organs of the general assembly are: the president, one or more than one deputy president, the committees and the office. Article 39/B () The national self-government shall regulate in detail the operation of its office in its organisational and operational statute. 

The Creation and Evolution of the Hungarian Minority Act () The head of the office is appointed by the general assembly upon the proposition of the president for an undetermined period. With respect to the head of the office, the employer’s rights are exercised by the president, with the exception of the right to dismissal. The later is exercised by the general assembly. () The head of the office is obliged to inform the board, the committee and the president of the national self-government in case s/he perceives illegality with respect to their decisions. () The office, as an organisation of the national self-government, prepares and implements the resolutions of the national self-government, and it carries out management-related duties. () The office is a budgetary institution of the national self-government. If the national self-government ceases to exists, the office takes over the duties of the national self-government concerning the operation of its institutions, and also its responsibilities as (part) owner or (part) administrator with regard to other organisations established by it. The present paragraph does not apply to the responsibilities of the national self-government stemming from a transfer of powers and duties under this Act, an agreement on public education or the take over of the administration of public educational and cultural institutions. () As for the movable and immovable property, the assets and the documents not falling under paragraph (), the office shall temporarily hand them over to the Office for National and Ethnic Minorities within  days after the cessation of the national self-government. The Office for National and Ethnic Minorities shall, under obligation of accountability, return the documents and the originally transferred assets or those that have replaced them to the new national self-government within  days after its establishment. () The powers and duties of the office under paragraph () shall go back to the new national self-government from the day of its establishment. With regard to its activities under paragraph (), the office is obliged to present accounts to the general assembly, and it shall at the same time no longer exercise independently its rights under paragraph (). Article 39/C The honorarium, respectively the salary determined by the general assembly of the national self-government cannot be higher than a) the tenfold of the base salary of civil servants, for the president, b) the eightfold of the base salary of civil servants, for the deputy president, c) the sextuple of the base salary of civil servants, for the chair of the committee, d) the triple of the base salary of civil servants, for members of committees, e) the double of the base salary of civil servants, for the elected representatives. Article 39/D () Regulations governing budgetary institutions shall apply to the management, to the reporting and bookkeeping obligations of national self-governments and their working organs, with a view to disparities contained in this Act. 

Balázs Majtényi () The national self-government may contract on a loan only without jeopardizing its solvency, and shall not use state support and assets for the purpose of loan recovery. () In a manner required by the allocator, the national self-government shall financially report on the use of targeted subsidies received from the state budget under the law or a separate agreement. The national self-government shall provide for the separate registration and bookkeeping of such subsidies. () The national self-government shall grant subsidies to outside organisations and persons only for the purpose of conducting its duties under the law. The possibility to obtain subsidies shall be made public and the requirement of equal treatment shall be respected in the course of granting subsidies. () Members and employees of the national self-government, outside organisations and persons, and the relatives of these all may be granted subsidies by the national self-government only in line with the restrictions laid down in its organisational and operational statutes. Article 39/E () The incomes and expenditures of the entrepreneurial activities of the national selfgovernment shall be registered and kept separately and included in the annual report. () In the closing balance sheet, the national self-government shall state what proportion of its income shall be spent for its operation and respectively for the conduct of minority public affairs. () Provisions of the Act on State Finances shall apply to the majority-owned companies of the national self-government, and also to companies in which the joint share of the national self-government and the local minority self-government exceeds  per cent. Article 39/F () The business activities of national self-governments shall not jeopardize the conduct of minority public affairs; the national self-government may have shares in companies, in which its liabilities do not exceed its initial share. () The general assembly is responsible for the safety of business activities, while the chair of the general assembly shall be responsible for the correctitude of business activities. () The responsibility for loss-making business activities shall lie with the national self-government, and the state has no liabilities in this respect. () The Act on paying off debts of municipal governments shall apply to the paying off debts of the national self-governments. () In order to restore its solvency, the national self-government shall suspend the financing of all activities other than its duties under the law.



The Creation and Evolution of the Hungarian Minority Act Article 39/G () The economic activities of the national self-governments, and the use of subsidies and assets provided free of charge by the State for determined objectives, shall be supervised by the National Audit Office. The national self-government shall conduct its own financial supervision and that of its institutions by a lawfully qualified interior auditor, independently or jointly with other national self-governments. () The national self-government shall establish a committee of finances. With respect to the national self-government and its institutions, the tasks of the committee of finances lie particularly in giving its opinion on the draft annual budget and on the draft of the semi-annual and annual report, in the following and analysing of financial transactions, in the examination of the well-foundedness of financial decisions (particularly the contracts on loans), and in the enforcement of the financial legal provisions and interior statutes. The committee shall submit the report on its activity to the general assembly without delay. The general assembly decides on the report out of turn. In case of the disagreement of the general assembly or in case it fails to decide on the report, the committee on finances shall forward the report to the National Audit Office. () Independently or jointly with other national self-governments, the national selfgovernment shall charge a budget auditor (office) who (which) is legally registered as such, and furthermore, it also shall make public in Belügyi Közlöny (the Gazette of Interior Affairs) and in Cégközlöny (Gazette of Businesses) the simplified annual report on its cash flow – as determined in a separate act – which includes the joint data of the national self-government and its institutions, its annual balance sheet, the pay-off amount and the profit and loss statement. Regulations of the act on municipal governments shall otherwise apply to the auditor. () Each year, the national self-government shall make public in Magyar Közlöny (the Official Gazette of the Republic of Hungary), and – if such exists – on the website of the national self-government, its budget approved by the general assembly, by  February, its report, by  May, and its organisational and operational statutes within  days from its approval or its modification. Article 39/H () The representative of the national self-government shall make a declaration on his/ her assets within  days from receiving his/her credentials, and henceforth, s/he is obliged to do so before  January each year, according to the rules of the appendix of this Act. The representative shall attach to his own declaration of assets that of his/her spouse or companion and that of his/her child, provided that these persons live with him/her. () In case the representative of the national self-government fails to make the declaration of assets, s/he shall not exercise her/his rights as a representative and shall not be granted the allowances determined in Article /C – until s/he hands in the declaration. () The declarations of assets are registered and verified by the committee designated for this purpose by the provisions of the organisational and operational statutes. 

Balázs Majtényi

()

()

() ()

The declarations of assets are public, with the exception of identification data. The declaration of the representative’s relative is not public, it may be inspected only by members of the verifying committee. A procedure concerning the declarations of assets may be proposed by anyone before the verifying committee. The committee shall inform the national self-government about the results of the procedure at its upcoming session. In the course of the procedure on the declarations of assets, the representative shall notify the verifying committee – upon its request – without delay and in writing about the identification data contained in his/her declaration of assets and in that of his/her relative. The identification data are only accessible to the members of the committee, and shall be deleted within  days from the ending of the procedure. The national self-government shall not transfer its powers with respect to the decision on the procedure on the declarations of assets. The national self-government shall discuss the procedure on the declarations of assets at its closed session. CHAPTER 5 The Local Spokesperson for Minorities Article 40

() In accordance with paragraph () of Article  of the act on municipal governments, the local spokesperson of a minority (hereinafter `spokesperson’) is entitled, a) unless s/he is a representative in the municipal government, to attend, and participate with consultative right in, the sessions – including closed sessions – of the board of the municipal government or any of its committees where issues on the agenda concern minorities, b) to propose to the mayor, or to the president of a committee, the discussion of an issue, which concerns minorities and falls within the competence of the board of the municipal government or the committee; c) to propose that the board of the municipal government review a decision made by its committee which affects a minority; d) to seek information at the meeting of the board or any committee, from the mayor, from the chief administrator or from the president of the committee on issues affecting a minority which fall within the competence of the municipal government; e) to ask for information and for administrative co-operation from the mayor and the chief administrator if necessary to perform his/her duties; f ) to initiate action by the mayor, the chief administrator, or by an administrator with appropriate powers on issues affecting minorities in their capacity as such; g) to propose – in line with the provisions of par () of Article  of the act on municipal governments – that the board of the municipal government turn to



The Creation and Evolution of the Hungarian Minority Act

()

()

()

()

()

the body with appropriate powers concerning issues affecting the situation of the given minority. On the basis of the initiative specified in item b) of paragraph (), the mayor or the president of the committee is obliged to put forward the proposal of the spokesperson at the next session of the board of the municipal government, or at the next session of the committee. The board of the municipal government or the committee shall decide on putting the issue on the agenda, and also on the modalities of preparing the case. If the spokesperson seeks information from the mayor, from the chief administrator or from the president of the committee during the session of the board of municipal government or during the session of the committee, s/he must be given reply at the session or – in a written form – within  days from the meeting at the latest. The verbal contribution of the spokesperson must be recorded – at his/her request – in the minutes of the meeting of the board of the municipal government or the committee, or – if the contribution has been submitted in writing – it must be enclosed to the minutes. The discussion of an issue affecting a given minority, which has been put on the agenda in accordance with the provisions of paragraph () on the basis of the initiative specified in item b) of paragraph (), may be postponed or removed from the agenda by the board of representatives only if so requested by the spokesperson. Before the competent municipal government body enacts a municipal government decree concerning the rights and the obligations of a minority, or before it takes a measure having a general impact on the situation of a minority, it must consult the spokesperson. Article 41

() The employer must release the spokesperson from his/her duties – at his/her own request – for the period s/he performs his/her duties as a spokesperson. The board of the municipal government shall compensate him/her for the loss of income resulting from his/her absence from work. On the basis of this income the spokesperson is also entitled to social security. () The spokesperson is not entitled to honorarium for performing his/her duties as a spokesperson, the provisions regulating the reimbursement of costs and payment of allowances of town councillors shall apply to him/her. () The provisions of paragraph () – () do not affect the rights and the duties of members of the board of the municipal government in cases where the spokesperson is also a member of the municipal government.



Balázs Majtényi CHAPTER 6 The Cultural and Educational Autonomy of Minorities Article 42 In accordance with this Act the following languages are deemed languages used by minorities: Bulgarian, Gypsy (‘Romani’ and ‘Beash’), Greek, Croatian, Polish, German, Armenian, Romanian, Ruthenian, Serbian, Slovak, Slovenian and Ukrainian. Article 43 () The state recognises the mother tongues of minorities as a factor contributing to community cohesion. Regardless of the administrator, the state supports the use of minority languages in minority educational institutions. () Depending on the decision of their parents or guardian, children belonging to a minority may be educated in their mother tongue, bilingually (in their mother tongue and in Hungarian), or in Hungarian. From the year on, when the child turns , the parents exercise the above right together with their child, provided that s/he is not incapable. () The education of minorities in their mother tongue or their bilingual education may be provided in minority kindergartens, schools, or in classes or groups within schools, according to local possibilities and demands. () The municipal government being legally tasked with the organisation of minority kindergarten and school education, shall, at the request of the parents of minimum eight students belonging to the same minority, establish and run a minority class or group, provided that the kindergarten groups and the school classes can be organised under the Act on Public Education. If the number of pupils in a given settlement is not sufficient to establish minority classes, the regional (capital city) minority self-government ensures the conditions for complementary minority education at the request of the affected national self-government. Article 44 The extra costs of minority education in the mother tongue or those of bilingual education as provided for in Article  are to be met by the state or the municipal government in line with the provisions of the law. Article 45 () In the course of the legal regulation of education and higher education, the choice of the content and the structure of educational activities and the supervision of such activities, cultural and educational interests corresponding to the cultural autonomy of minorities have to be enforced in line with this Act.



The Creation and Evolution of the Hungarian Minority Act () The language of instruction in Roma minority education may be exclusively Hungarian, but the educational institution shall, according to the demands of the parents, provide for the teaching of the Roma languages (Romani and Beash). () Minority kindergarten and school education shall ensure that students acquire knowledge on their people, particularly in the field of the history of their minority and its mother country, as well as its cultural traditions and values. Article 46 () Municipal governments and minority self-governments co-operate in assessing the demand for minority education and in the organisation of such education. () It is the duty of the state to train native teachers to provide education in the mother tongue or bilingual education. () The state will ensure – also through international agreements – that members of minorities participate in full-time and part-time training, further training, and scientific training in foreign institutions that teach in the relevant minority language and foster that culture. () In order to implement the provisions of paragraph (), the state shall support the employment in Hungary of guest teachers coming from the mother country or from the linguistic region of the minority concerned. () A university or college degree, a certificate of qualifications and skills acquired by a person belonging to a minority in his/her kin state must be considered – within the scope of applicable laws and international agreements – as equivalent to the appropriate degrees and certificates obtained in the Republic of Hungary. Article 47 () In accordance with the provisions of the Act on Public Education, the minority self-government may take part in the implementation of the obligatory tasks of municipal governments related to kindergarten, school and dormitory education of children belonging to a national or ethnic minority. () In accordance with the provisions of the Act on Public Education, the local minority self-government may found and administer public educational institutions and it may take over the right of managing public educational institutions founded by others. The transfer of administration rights shall not result in reorganisation. In the absence of evidence to the contrary, a reorganisation conducted before the planned transfer or within two years after it shall qualify as a reorganisation with respect to the transfer of administration rights. By virtue of this paragraph, fusion or dissection of institutions qualify as reorganisation. () The local minority self-government may take over public educational institutions from the municipal government in accordance with the provisions of the Act on Public Education, unless otherwise stipulated in this Act. () At the request of the national self-government, the municipal government is obliged to transfer the administration of schools or dormitories with regional or national coverage which, in conformity with their founding charter, carry out minority related tasks, and if all students take part in minority education. This 

Balázs Majtényi

()

()

()

()

()



provision applies to schools and dormitories operating on a district level if the geographical location of persons belonging to the given minority does not allow those institutions to operate on a regional or national level. The opinion of the school board and the dormitory board of the affected institutions, or for lack of those, the opinion of the parents’ association and the students’ self-government must be enclosed to the request. The take over and on the transfer of administration shall take the form of a written agreement. In the course of the transfer, provisions of Act on Public Education shall apply with the disparity that the municipal government, before making a decision on the transfer, must obtain the approval of the kindergarten board, the school board, the dormitory board or, for lack of those, the agreement of the parents’ association and the school and the dormitory students’ self-governments, if the transfer does not occur according to paragraph (). If the transfer of the educational institution is conducted a) according to paragraph (), the Minister of Education, b) differently from the conditions determined in paragraph (), the municipal government transferring the administration shall conclude a public educational agreement with the minority self-government, as the future administrator, in accordance with the provisions of the Act on Public Education. Along with the administration rights, the moveable and immovable property used for carrying out the tasks of a public educational institution shall also be transferred. The transfer is free of charge. As regards educational and teaching institutions, the date of the transfer of use is  July after the year of the notification about the intent of transfer, as regards other institutions of public education, it is the  January of the year following the notification. The period of use shall not be shorter than  years. If the transfer of administration rights to the minority self-government is not conducted in accordance with paragraph (), then the transfer shall not affect the obligation of the municipal government to carry out its compulsory tasks. For the time of the transfer of administration rights, the right of the municipal government to administer and tu supervise the institutions shall be suspended. The tasks of the administrator determined in Articles - and  of the Act on Public Education shall be carried out by the minority self-government, as the new administrator. For the time of the suspension of its competence to administer institutions, the municipal government may request information from the minority self-government about the implementation of local governmental tasks and may put forward proposals on the implementation of certain tasks it deems necessary. If a minority self-government ceases to exists without the establishment of a new minority self-government, the rights of administration shall be exercised, until the establishment of the minority self-government, a) by the Ministry of Education, if the transfer is conducted according to paragraph (), b) by the municipal government that has transferred the administration right, if the transfer has been carried out differently from the regulations contained in paragraph ().

The Creation and Evolution of the Hungarian Minority Act () Minority self-governments, which take over public educational institutions may claim financial support and subsidies under the same legal title and conditions as municipal governments on the basis of the current Act on State Budget and the public educational agreement specified in paragraph (). Minority self-governments may also claim complementary subsidy for carrying out minority-related tasks (hereinafter: complementary minority administration subsidy), or according to the conditions specified, it may take part in calls for proposals announced for municipal governments. () If the transfer is carried out under paragraph (), the complementary minority administration subsidy shall be provided from the state budget. If the transfer is done otherwise than determined in paragraph (), the complementary subsidy shall be allocated to the minority self-government from the state budget, and the subsidy shall be accounted for to the municipal government, in accordance with the Act on Public Education. If the transfer is carried out according to paragraph (), the state budget provides complementary subsidy for the operation of the transferred public educational institutions through calls for proposals in line with the conditions determined therein. The minority self-government shall use subsidies provided for the purpose of carrying out public educational tasks, the complementary minority administration subsidy as well as the subsidies for operational costs exclusively in favour of the particular institution. The public educational state subsidies and the complementary minority administration subsidy should be registered and kept separately from other incomes, and they must be accounted for. () The complementary minority administration subsidy under paragraph () shall be calculated each year on the basis of data available at the time of the budgetary planning, in the Act on State Budget, with regard to the use of public educational services. For calculating the complementary minority administration subsidy, the amount of sectorial operational expenses and the renovation costs of municipal governments shall be reduced by the incomes of the institution and by the amount of other subsidies that have been allocated from the public educational budget and that are available through calls for proposals for municipal governments, minority self-governments and their institutions too. The accordingly calculated amount constitutes the base for calculating the proportion of normative support as well as the amount of the complementary minority administration subsidy. () If the national self-government establishes a new school, item a) of paragraph (), paragraph () and with regard to item a), paragraph () of this Article shall apply provided that the school qualifies as a national institution under point , paragraph () of Article  of the Act on Public Education. If a local minority self-government establishes a school, item b) of paragraph (), paragraph () and – with regard to item b) – paragraph () of this Article shall apply, provided that no school carries out minority educational tasks in the given settlement. () The state subsidy available to minority self-governments through applying for the purpose of running public educational institutions shall be included in the budget of the Ministry of Education. () The municipal government and the minority self-government may conclude an agreement on the joint administration of the public educational institution. Paragraph () shall apply to jointly administered public educational institutions. 

Balázs Majtényi () The provisions of Act No. XXXII/ on the legal status of public servants shall apply to employment in public educational institutions administered by minority self-governments. Article /A If the law guarantees the right to consultation or the right of consent to minority selfgovernments with regard to public educational affairs, the minority self-government shall make its statement within  days. Upon the request of the affected party, this deadline shall be extended by  days. This deadline must be respected under pain of loss of rights. If the minority self-government fails to give its consent and no agreement is reached between the parties within the next  days, a nine-member committee shall be established. The minority self-government, the party interested in the consent and the National Minority Committee, (the latter regulated by paragraph () of Article  of the Act on Public Education) are entitled to delegate to the committee  members each. The National Minority Committee selects its candidates from the national list of experts (henceforth: the candidates). The committee establishes its own operating order with the restriction that its decisions shall require the simple majority of votes. This decision qualifies as a consent. The operational costs of the committee shall be covered by the party interested in the consent. The candidates are entitled to remuneration under the same conditions as the experts on the national list; their honorarium shall be determined by the National Minority Committee and it shall be paid by the party interested in the consent. Article 48 () Those who do not belong to a minority may study in a minority educational institution if it has free places after meeting the demands of the given minority. The admission of students (enrolment) shall follow the regulations made public in advance. () The teaching of the Hungarian language shall be provided also in minority public educational institutions in a number of lessons and at a level that are necessary to master it. () In settlements where the Hungarian population or another national or ethnic minority constitutes a numerical minority, education in the mother tongue or the bilingual education of Hungarian pupils and the pupils of the other minority shall be guaranteed by the municipal government, in accordance with the provisions of the law. Article 49 () In accordance with the provisions of the respective law, the local minority self-government may take part in the execution of the obligatory municipal tasks related to the cultural life of minorities. () The minority self-government is entitled to establish, to administer, or to take over cultural institutions and duties related to culture. The state contributes to the performance of these duties according to the provisions of the Act on State Budget.



The Creation and Evolution of the Hungarian Minority Act Article 49/A () At the request of the national self-government, the municipal government, as the administrator of the institution, is obliged to transfer to the requesting national self-government the administration of those institutions that carry out exclusively minority culture related tasks and meet the cultural demands of the affected minority. () The administration right of multiethnic cultural institutions shall be transferred on the basis of an agreement concluded by the affected national self-governments; the national minority self-government(s) that will administer the institution shall be designated in the agreement. () Parties shall specify in an agreement the performance of those obligatory duties regulated by law, which relate to those inhabitants who do not belong to the affected minority. () As the new administrator of the institution, the national self-government is responsible for its proper, legal and expedient operation and management. () The new administrator is obliged to maintain in good state the immovable property transferred to it. The new administrator is liable for the damages caused under the general regulations of civil law. Article 49/B () The municipal government, which transfers the administration of the cultural institution and the related tasks, shall conclude an agreement with the minority self-government, as the new administrator. () The parties are free to decide on the content of the agreement within the framework of the law. The purpose of the transfer is to ensure the substantial and organisational continuity and possibly the extension of basic municipal cultural services even if they are managed by the minority self-government. The agreement shall regulate: a) the tasks of the cultural institution, b) the scope of those being affected by the activity of the cultural institution, c) the time of its validity. d) the minimum opening hours of the cultural institution deemed necessary for performing its legal duties, e) the required professional qualification of the actors with respect to the conduct of cultural tasks, f ) the personal, material and financial conditions of the operation of the institution, g) the provisions concerning the ownership, h) the conditions of the re-transfer of the cultural institution. Article 49/C () In the case of the establishment of a cultural institution, its transfer, its reorganisation and the suspension of its activities for more than  days, the opinion of the 

Balázs Majtényi

()

()

()

()

()

Minister of National Cultural Heritage shall be obtained  days before the decision of the board, and its content shall be communicated to the board. The transfer does not affect the employment relations of those employed at the cultural institution. The rights of the employer shall be exercised by the new administrator after the transfer. The transfer does not qualify as reorganisation. The transfer of administration rights shall not result in reorganisation. In the absence of evidence to the contrary, a reorganisation conducted before the planned transfer or within two years afterwards shall qualify as reorganisation related to the transfer of administration. Under the present paragraph, fusion or dissection of institutions qualify as reorganisation. Along with the transfer of cultural tasks, the moveable and immovable property used for this purpose shall also be transferred to the use and possession of the new administrator. The transfer is free of charge. The period of use shall not be shorter than  years. In case of the non-realization of conditions and duties enshrined in the law, the administrative body responsible for the given sector and for its supervision, may request the court to annul the agreement and at the same time, it may also request in integrum restitutio. In the course of the court procedure, the Minister of National Cultural Heritage shall be called upon in order to give a professional statement on the issue. For the time of the transfer, the administration rights of the municipal government shall be suspended and the administration tasks regulated by the respective law shall be conducted by the minority self-government, as the new administrator. If the minority self-government is unable to perform its duties, the municipal government that transferred the administration shall, on the basis of the conditions enshrined in the agreement concluded with the minority self-government, take back the administration of the institution. The minority self-government is entitled to state support under the Act on State Budget in order to operate the cultural institutions it administers. Article 49/D

() With respect to the provisions of the Act on the association and cooperation of municipal governments, the municipal government and the minority self-government may enter into an agreement on the joint administration of a cultural institution and the joint conduct of cultural activities. Article /C paragraph () shall apply to jointly administered cultural institutions. () If the law guarantees consultative rights or the right of consent for the minority self-government with respect to the transfer of cultural institutions and the related cultural tasks, Article /A shall apply to the procedure. Article 49/E () A public library system ensures that minorities have access to literature in their mother tongue.



The Creation and Evolution of the Hungarian Minority Act () In settlements where there is no library administered by the municipal government, it is the duty of the municipal government to provide the minority population with library material in their mother tongue according to the related legal provisions. Article  () The state guarantees the publication of textbooks and the provision of equipment necessary for minority education. () The state supports a) the collection of material documents of minority cultures, the establishment and the enrichment of public collections; b) the publication of books by minorities and the publication of their periodicals; c) information on acts and on announcements of public interest in the native languages of the minorities; d) the performance of church ceremonies related to the family events of minorities in their mother tongue, and the religious activities of churches in the mother tongue of minorities. CHAPTER 7 Language Use Article 51 () In the Republic of Hungary everybody may freely use his/her mother tongue wherever and whenever s/he wishes to do so. The conditions of the language use of minorities – in cases provided for by a separate law – must be guaranteed by the state. () In the course of civil and criminal proceedings, or in administrative procedures the use of the mother tongue is ensured by the applicable procedural acts. Article 52 () In the National Assembly, MPs belonging to minorities may also use their mother tongue. () In the board of representatives of the municipal government, a minority representative may also use his/her mother tongue. If s/he takes the floor in the language of a minority, the Hungarian translation of the contribution or a Hungarian summary of its contents will be enclosed to the minutes of the meeting. () If the settlement is also inhabited by people belonging to a minority, the minutes and resolutions of the board of representatives of the municipal government may – besides Hungarian – also be recorded or worded in the mother tongue of the given minority. In the event of disputes over the interpretation, the Hungarian version is deemed to be authentic.

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Balázs Majtényi Article 53 () Upon the well-founded request of the local minority self-government or the regional minority self-government operating on the territory under the competence of the municipal government, the latter is obliged to ensure that a) the announcement of its regulations and the publication of its announcements are also made in the language of the minority – in addition to the Hungarian language; b) the forms used in the course of administrative procedures are also available in the language of the minority; c) signs bearing the names of settlements and streets, public offices, and companies offering public services, or announcements relating to their operations – in addition to the Hungarian wording and spelling, with the same content and form – may also be read in the mother tongue of the minority. () The board of the municipal government decides about the well-foundedness of the request within  days from its submitting. Article 54 The local authorities shall ensure that in the course of filling vacancies in local public services, and also in the course of hiring notaries and bailiffs, candidates speaking also the mother tongue of the given minority would be employed, provided that they meet the general professional requirements and that the numerical proportion of the given minority in the settlement justifies these measures. CHAPTER 8 Assistance to Minorities, the Financial Management and the Assets of Minority Governments Article 55 () For conducting minority public affairs, the state shall, in the Act on State Budget a) allocate financial support, the general and the task-based conditions of which shall be determined by a government decree, b) provide additional normative support for the kindergarten education of minorities, and for their schooling in their mother tongue or their bilingual education, c) provide the financial assistance specified in chapter VI, in the field of the cultural and educational autonomy of minorities, d) provide financial assistance for the Public Foundation regulated under Article /A, and for the minority civil organisations. () With the exceptions contained in Article  paragraph()-(), and Article /C paragraph(), institutions administered by the national self-governments shall be treated in respect to normative state support equally with church institutions providing human services,. 

The Creation and Evolution of the Hungarian Minority Act () With the exceptions specified in Article  paragraphs (-), and Article /C, paragraph (), local and regional minority self-governments are entitled to normative state support under the same rules as churches. The local and regional minority self-governments receive the normative state support through the municipal government. () The local and the regional minority self-government receive the normative state support specified in paragraph (), and the operational support specified in point a) of paragraph () through the municipal government, which is obliged to transfer the support to the account of the local or the regional minority self-government within  days. () The minority self-government is entitled to the state support specified in point a) of paragraph () in the case if it conducts minority public affairs specified in a resolution passed by its board. () A public foundation shall be established to help preserve the identity of minorities living in Hungary, foster and pass on their traditions, preserve and develop their mother tongues, preserve their intellectual and material monuments, and promote activities aimed at reducing the cultural and political disadvantages which derive from their minority affiliation. () The provision of assistance by the public foundation is part of the public financing scheme targeted at minorities. Article 55/A () The public foundation referred to in paragraphs ()-() of Article  shall be established by the Government of the Republic of Hungary under the name `Public Foundation for the National and Ethnic Minorities living in Hungary’ (hereinafter `Public Foundation’) with its headquarters in Budapest. () The property of the Public Foundation comprises the assets transferred to it, and the financial means specified in the prevailing annual Act on State Budget. () The primary decision-making board of the Public Foundation is the Board of Trustees. Its members shall be the following: a) one representative from each national minority self-government – elected at their general assembly – or, in the absence of a national minority self-government, a person designated by the local minority self-governments of the given minority, or else, in their absence, by the civil organisations of the given minority; b) one person from among the MPs of the governing party/ies and one person from the MPs of the opposition, designated by the Parliamentary Standing Committee dealing with national and ethnic minorities in Hungary, c) four persons appointed by the Founder and one person appointed by the President of the Hungarian Academy of Sciences. () The President of the Board of Trustees – who is also its legal representative – shall be the prevailing President of the Office for National and Ethnic Minorities. () Members of the body authorised to control the Public Foundation (The Board of Supervisors) shall be the following:



Balázs Majtényi a)

one person from among the MPs of the governing party/ies and one person from the MPs of the opposition, designated by the Parliamentary Standing Committee dealing with national and ethnic minorities in Hungary, b) two persons appointed by the Founder. () The President of the Board of Supervisors shall be a person nominated by the Founder. () The right of the designation and the appointment specified in paragraphs ()-() includes the right of revocation of the mandate and the appointment. Article 56 Domestic and foreign organisations, foundations and private persons may participate in the financing of minorities. Article 57 () The business activities of minority self-governments shall be supervised by the National Audit Office. () The supervisory monitoring of the budgetary institutions administered by the local and regional minority self-governments shall be carried out by the interior auditor of the minority self-governments, or by the interior auditor responsible for the monitoring of the business activities of municipal governmental organs. The interior auditor is obliged to report to the board of the local or regional minority self-government about the results of the monitoring. The assets of minority governments Article 58 () The legal provisions of this Act and the act on municipal governments shall apply to the assets and to the management activities of minority self-governments. () The assets and the incomes of minority self-governments are particularly: a) contributions from the state budget; b) contributions by the municipal government; c) their own revenues, d) financial assistance, e) the gain from its property, f ) donations g) transferred financial assets. Article 59 () In case of the transfer of powers and duties under this Act, the property necessary for the minority self-government to perform its duties shall be transferred for its use and to its ownership by the municipal government or the minority self-government, which transferred its powers and duties. This transfer shall be conducted 

The Creation and Evolution of the Hungarian Minority Act according to a separate agreement, and must not hinder the municipal government in performing its duties and exercising its powers. () In order to ensure the conditions of operation of national minority self-governments, the territorially competent municipal government must transfer to their disposal a net area of - square metres – and be compensated by the state – within  months from their establishment, if the national minority self-government is established within two budgetary years from this Act coming into force. () Within two months after the establishment of the local minority self-government, the municipal government shall pass to the free use of the local minority self-government the assets necessary to conduct minority public affairs and to ensure the conditions of operation as specified in Article . This transfer must not hinder the municipal government in performing its duties and exercising its powers. The municipal government separately specifies the list of transferred assets in its decree. () The regulations of the Civil Code shall apply to the right of use and to the transfer procedure, however, the terms of conditions of the transfer shall be recorded in a written document containing the detailed specification of the assets to be transferred, their value, and the minority public affairs to be conducted through the transfer. ()3 Article 59/A () The self-contained building, or the part of a building transferred to the national minority self-government for use, shall be passed into its proprietorship as a free one-off transfer of assets. () Paragraph () shall apply to national self-governments which do not possess a selfcontained building, or a part of a building. () The self-contained building, or the part of a building acquired by the national self-government as a free one-off transfer of assets, constitutes the opening assets of national self-governments, which are not commercializable, according to the provisions of point a) of paragraph (), Article /A. Article 60 () The minority self-government, with the disparities specified by law, is entitled to the rights and is bound by the obligations of an owner. The board decides on matters concerning its rights as an owner within its non-transferable powers; the resolution requires a qualified majority of the votes. () If the local or regional minority self-government terminates its activities, all their movable and immovable property and all the rights of material value shall be transferred to the temporary trusteeship of the municipal government, for the time until the succession occurs. After the succession, the newly established local or



Repealed.



Balázs Majtényi regional minority self-government will own the property or the property of equal value replacing the original assets. () If the local or regional minority self-government terminates its activities according to paragraph (), their administration rights as well as the employer’s rights in respect to the heads of institutions shall be exercised by the municipal government. The municipal government cannot sell or mortgage the property temporarily administered by it, nor can it convey the property to the trusteeship of others. Within  days from the establishment of the local or regional minority self-government, the municipal government shall give an account of its temporary trusteeship. () Within  days from the succession, the temporarily administered property, or the property of equal value shall be transferred to the newly established local or regional minority self-government, and an account shall be made of the temporary trusteeship. () The municipal government is liable for the debts of the local or the regional minority self-government only if this is included in the agreement they concluded, and to the extent determined in the agreement. Article 60/A () The property of the minority self-government serves the conduct of minority public affairs. () In the course of the conduct of minority public affairs, the minority self-government independently administers its property. The board is responsible for the safety of the financial management, while the president shall be responsible for its correctitude. () The capital constitutes a separate unit within the property of the minority selfgovernment. The list of the items of the capital is determined by the board within the scope of its non-transferable powers; the related resolution requires a qualified majority of the votes. The capital comprises all movable and immovable assets as well as rights of material value that are owned or exclusively used by the minority self-government and directly serve the conduct of minority public affairs. () From among the items of the capital, a) the following are not commercializable: the immovable property ensuring the operation, and all other assets specified as such by law or by the resolution of the minority self-government concerning its organisation and operation, b) all assets not specified in paragraph () are commercializable with restrictions. () It is possible to dispose of the assets of the capital commercializable with restrictions on the basis of conditions specified by law or by the resolution passed by the minority self-government with a qualified majority of the votes. Article 60/B The budget of minority self-governments is part of the state finances, and it is connected to state finances through its entire cash flow. The budget of minority self-gov

The Creation and Evolution of the Hungarian Minority Act ernments is separated from the central state budget and is connected to it through state subventions and other budgetary relations. Article 60/C () Provisions governing the operational order of state finances, as well as provisions governing the order the budgetary obligations and the reporting of budgetary agencies shall apply to the management of minority self-governments. () Within state finances, the local and regional minority self-governments are part of the system of municipal governments, and provisions governing the management of municipal governmental budgetary institutions shall apply to their management, with regard to disparities specified in this Act. () Provisions governing the management of central budgetary institutions shall apply to the management of national self-governments, with regard to disparities specified in this Act. Article 60/D The certificate of the competent electoral committee and the minutes recorded at the statutory assembly of the board shall be required for minority self-governments to open a bank account. CHAPTER 9 The associations of minority self-governments Article 60/E () The minority self-government can freely associate with municipal governments and with other minority self-governments for the purpose of fulfilling its tasks more effectively. The conditions of the association shall be specified in an agreement. () Besides the provisions of Articles /F and /G concerning the establishment of associations, associations may also be established under the Act on the association and cooperation of municipal governments. () The association may not infringe the self-governance rights of minority self- governments and municipal governments that take part in it. () The court decides over the disputes arisen between the associated minority self-governments in the course of the activities of the association. The associated minority self-governments may agree that in case of disputes, any minority self-government can request the standpoint of a conciliatory committee whose members are invited by the consortium for the protection of the interests of municipal governments designated in the agreement. The associated minority self-governments may also agree that before filing a lawsuit, the minority self-government shall request the standpoint of the conciliatory committee.

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Balázs Majtényi The associations of institutions Article 60/F () The affected minority self-governments may agree to jointly establish, administer and develop one or more minority institutions, the sphere of activities of which covers two or more municipalities. () The following shall be specified in the agreement: a) the sphere of activity and the sphere of those served by the joint institution; b) the proportion of the financial contribution of the individual self-governments; c) the rights and obligations concerning the administration of the institution, and also the way of exercising them; d) the conditions of the denunciation of the agreement. The board of associated minority self-governments Article 60/G () Boards of minority self-governments of the same minority may establish an associated minority self-governmental board. () In case of the establishment of an associated minority self-governmental board, the minority self-governments partly or entirely unite their budgets, and jointly run their institutions. () The conditions for the operation of the associated minority self-governmental board shall be provided by the municipal government designated in the agreement concluded by the affected municipal governments. Concerning the conditions of the operation, Article  of this act shall apply with the condition that all municipal governments affected shall be involved in ensuring them. () At its statutory assembly, the associated minority self-governmental board adopts a resolution concerning its establishment, its headquarters and the list of the minority self-governments associated. The associated minority self-governmental board decides on its organisation and its operational order. The session of the associated minority self-governmental board shall be convened upon the initiative of the president of any participating minority self-government. CHAPTER 10 The control of legality of minority self-governments Article 60/H () The head of the office of public administration of the capital city or of the county conducts the control of legality of minority self-governments. S/he can examine the decisions of minority self-governments only from a legal point of view.

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The Creation and Evolution of the Hungarian Minority Act () The control of legality of national minority self-governments under paragraph () shall be conducted by the head of the office of public administration which is territorially competent according to the headquarters of the national self-government. Article 60/I () Within his/her authority concerning the control of legality, the head of the office of public administration examines whether a) the organisation, operation, decision-making procedure, b) the decrees, including the decisions made by the board, by the president, by the committees and by the association of minority self-governments are in conformity with the law. () With the exception included in paragraph (), the control of legality exercised by the head of the office of public administration does not cover those decisions of the minority self-government that are subject to a) labour dispute (disputes arising from the legal status of civil servants and public servants) b) court or administrative procedure specified in a separate act. () The right of legality control exercised by the head of the office of public administration covers also legal disputes specified in paragraph () within the sphere of point a) of paragraph () and point a) of paragraph (), provided that the decision of the minority self-government contains an infringement of the law in favour of the employee. () Upon the request of the minority self-government, the head of the public administration office provides professional assistance within the scope of his/her duties and authority. Article 60/J () Within the control of legality, the head of the office of public administration, simultaneously with setting a deadline, invites the affected persons to eliminate the infringement of the law. The affected person is obliged to examine the notice and inform the head of the office of public administration about the measures taken in conformity with the notice, or about his/her disapproval by the deadline fixed. () If no measures have been taken by the deadline, or the affected person disapproves of the notice, the head of the office of public administration may initiate: a) the judicial review of the illegal resolution, b) the convocation of the board of the minority self-government in order to eliminate the infringement of the law, c) the statement of liability of the president or the deputy president of the board. () The lawsuit aiming at the elimination of the infringement of the law can be filed against the minority self-government within  days after the expiration of the deadline fixed. With the exception of provisions contained in paragraph () of Article , the filing has no delaying force with regard to the execution of the decision, but the court may order to suspend the execution. If the execution of the 

Balázs Majtényi illegal decision would cause severe harm to public interest or inevitable damages, the court must be requested to suspend the execution of the decision and at the same time, the affected person must be informed about the related request. () Based on his/her experiences concerning the control of legality, the head of the office of public administration may initiate that the National Audit Office monitor the financial activities of the minority self-government. CHAPTER 11 The relation between minority self-governments and organs of central administration Article 60/K () The Parliament shall regulate in an act a) the legal status of minority self-governments, their exclusive powers and duties, their obligatory tasks, their obligatory organs, the guarantees of their operation, their financial means and the basic legal provisions of their management, b) the legal status of the elected representatives of minority self-governments, the order of their election, their rights and obligations. () The Constitutional Court shall, upon the proposal of the Government, dissolve the board of the minority self-government if its operation is contrary to the Constitution. Article 60/L If the Constitutional Court has ruled to dissolve the board, the President of the Republic appoints a Commissioner of the Republic to govern the execution of certain minority self-governmental tasks; the appointment applies to the time prior to the establishment of a new minority self-government, and respectively to the time prior to the failure of establishing a new minority self-government. Article 60/M The Government a) reviews the situation of minorities living in Hungary at least once every second year, and submits a report to the Parliament, b) provides for the control of legality of minority self-governments, with the intervention of the Minister of the Interior, and through the heads of county and capital city offices of public administration, c) submits a proposal to the Constitutional Court on the dissolution of the boards of minority self-governments operating in an anticonstitutional way, d) regulates in a decree the requirements of professional qualification with regard to providing local public services for minorities,



The Creation and Evolution of the Hungarian Minority Act e)

settles disputes between organs of state administration and minority self-governments, if the disputes do not fall under the procedures regulated by law. Article 60/N

() The Minister designated by the Government a) initiates in the Government the submission of a proposal concerning the dissolution of the boards operating in an anticonstitutional way, b) takes part in the drafting of legal provisions and individual state decisions concerning the powers and duties of minority self-governments. Article 60/O The Minister having the competence according to his/her powers and duties: a) regulates in a decree the professional requirements with regard to the operation of institutions administered by minority self-governments; the professional qualifications required from the employees of these institutions, and s/he monitors the enforcement of the regulations. b) informs the minority self-government about the results of the monitoring specified in point a), makes proposals in order to eliminate deficiencies, and s/he may propose that the board discuss the experiences of the monitoring, and finally, in case of the infringement of the law, s/he informs the office of public administration in charge of the control of legality, c) provides, or may provide, financial support to minority self-governments according to the titles and conditions specified in the Act on State Budget. CHAPTER 12 Closing Provisions Article 61 () In accordance with this Act the following groups qualify as autochthonous national or ethnic groups of Hungary: Bulgarian, Gypsy, Greek, Croatian, Polish, German, Armenian, Romanian, Ruthenian, Serbian, Slovak, Slovenian and Ukrainian. () If a minority other than those listed in paragraph () wishes to prove that they meet the requirements specified in this Act, they may submit sheets of signatures related to this petition to the President of the National Electoral Committee if supported by at least , voters who declare themselves members of this minority. In the course of this procedure the provisions of the Act on National Referendums and Petitions shall apply, and the President of the National Electoral Committee is obliged to request the standpoint of the President of the Hungarian Academy of Sciences on the fulfilment of legal conditions. ()-()4 

Repealed.



Balázs Majtényi Article 62 () With the involvement of the ministries and state organs of nationwide authority concerned, and in co-operation with the heads of county and capital city offices of public administration, the Government shall assist the enforcement of the rights and special interests of minorities and ensure the related conditions through the Office for National and Ethnic Minorities. ()-()5 Article 63 () Legal provisions concerning municipal governments, representatives of municipal governments, mayors and associations of municipal governments shall apply to minority self-governments in cases not ruled by the present Act. () The budgetary appropriation specified in the Act on State Budget in respect to national minority self-governments can be amended during the budgetary year exclusively by the National Assembly. () The Act on State Budget regulates the budget of national self-governments in the chapter of the National Assembly, and it separately regulates therein the state support of institutions partly or entirely administered by the national self-governments. ()-()6 Article 64 () This Act – with the exception of paragraphs () and () of Article  – shall come into effect on the th day following its promulgation. A separate Act shall provide for the entry into force of paragraphs () and () of Article . ()-()7 () The Government is authorized to pass a decree regulating a) the order of the financial management, the reporting, the accounting and the obligation of information of minority self-governments, and the order of the interior monitoring of their budgetary organs, b) the conditions and the order of accounting on the task-proportional support (general operational support and task-based support) allocated to minority self-governments from the state budget. ()8

   



Repealed. Repealed. Repealed. Repealed

The Creation and Evolution of the Hungarian Minority Act Article 65 Regardless of the way of the termination of the activities of a minority self-government, its successor is the newly elected and established minority self-government,. The minority self-government that ceases to exist shall close its accounting on the day of its termination and shall formulate a budgetary report with the same content as the annual report of budgetary organs. Article 66 The provisions of the Act on Civil Procedure shall apply to suits filed under this Act (Article /C, , /P, /E, /I, /J). Article 67 The form of the oath specified in Article /D paragraph () is the following: “I …….(name), as member of the minority community listed in the Act on the Rights of National and Ethnic Minorities, pledge loyalty to my minority community with respect to my electoral mandate, I shall abide by the Constitution and by the laws, I shall keep the secrets brought to my knowledge, I shall perform my duties according to the will of my electors and to my conscience, and I shall strive with all my might to preserve and foster the mother tongue, the traditions and the culture of the ... minority (specification of the minority). (According to the conviction of the person taking the oath) So help me God!”



Agnieszka Malicka* and Karina Zabielska**

Legal Status of National Minorities in Poland: The Act on National and Ethnic Minorities as well as Regional Language

I. Introduction Up to the point of the Sejm’s passing of the Act on National and Ethnic Minorities as well as Regional Language1 the legal status of national minorities had been regulated on the basis of international treaties2 to which Poland was a party, adequate provisions of the Constitution and ordinary law developing the constitutional provisions. In the Constitution of the Republic of Poland of  April , the legal status of national minorities is regulated directly in Article . However, this regulation does not provide any special rights to national and ethnic minorities. It guarantees the freedom to maintain their identity and develop their culture, and gives the right to establish institutions designed to protect and preserve their national identity and culture.3 Article  of the Constitution (which concerns the official language in Poland) also relates directly to the protection of minority rights. Additionally, there are some other constitutional provisions that refer to the protection of minority rights, although these do not contain the notion ‘national minority’. As an example Article  can be mentioned, since it introduces equality of rights of churches and other religious organizations and Article , which ensures freedom of faith and religion. Other provisions, which can be *

**  



Doctor of Constitutional Law; Head of the Institute of Law Teaching in Foreign Languages at the Faculty of Law, Administration and Economy of the University of Wrocław, Poland. PhD-student at the European University “Viadrina” in Frankfurt (Oder), Germany. The Journal of Laws of the Republic of Poland (Dziennik Ustaw) .. with further amendments. The Republic of Poland is inter alia a party to the Framework Convention for the Protection of National Minorities, signed on  February , ratified on  December . Additionally, the rights of national minorities are included in bilateral treaties on friendly relations that Poland completed with all its neighbouring countries. Agnieszka Malicka, Ochrona mniejszości narodowych – standardy międzynarodowe i rozwiązania polskie (Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław, ), .

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 471-502. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Agnieszka Malicka and Karina Zabielska indirectly referred to the rights of national minorities, are for instance Article , which forbids political organizations aiming at incitement of racial or national hatred, Article , which ensures the freedom to express opinions and Article , which provides for freedom of association.4 The most important provisions concerning the rights of national minorities within the framework of the ordinary law5 have been placed in particular in Article  of the Act on Polish Language,6 the Act on Educational System7 as well as in its executory provisions, which regulate the rules of teaching the minority languages and being taught in the minority languages as well as oblige the state to finance that education from the state budget. The Act on Radio and Television8 contains relevant regulations concerning the consideration of the needs of national and ethnic minorities in programmes of public radio and television. The minority rights of a political character are guaranteed by the Electoral Law for the Sejm and Senate of the Republic of Poland.9 At present the main legal act regulating the legal status of national minorities in Poland is the Act on National and Ethnic Minorities as well as Regional Language. However, the constitutional and ordinary law regulations mentioned above are still considered as the relevant complement of this act’s provisions. II. The Act on National and Ethnic Minorities as well as Regional Language A. Genesis of the Act The passing of the Act completed the formation process of one of the pillars of democracy, based on the European standards in this field. That process took almost  years because until , no national minorities had officially existed in Poland. The state policy towards minorities reflected the post-war changes to the social structure—its homogenization.10 Identity preservation rights were limited, and assimilation and exclusion from the social life were taking place. However, that policy was faintly institutionalized, so minorities’ activities were tolerated to some extent. The turning point in the minority problem area seems to have been the year . Firstly, the Sejm Commission on National and Ethnic Minorities was appointed, and secondly, Prime Minister Tadeusz Mazowiecki emphasized in his speech at Sejm that Poland is a home country also for national and ethnic minorities. The need to take minority issues into consideration, as well as into the structure of the state’s legal system,  

    



Ibid.,  et seq. Only exemplary provisions are mentioned within the scope of this article. A detailed description of the regulations concerning minority rights in the ordinary law can be found in Malicka, op.cit. note ,  et seq. Dziennik Ustaw .. with further amendments. Dziennik Ustaw .. with further amendments. Dziennik Ustaw .. with further amendments. Dziennik Ustaw ... Christoph Pan „Die Minderheitenrechte in Polen”, in Christoph Pan and Beate Sybille Pfeil, Minderheitenrechte in Europa (Springer, Wien, nd. ed. ), -, at .

Legal Status of National Minorities in Poland was explained by the memory of the good traditions and multicultural heritage of the First Republic11 and the need to redress the minority members’ treatment during communism (especially under the assimilation policy). However, from the very beginning only the ‘old’ minorities were recognized. Immigrant groups were not considered national minorities. This was the case for the Greeks and Macedonians, who until  enjoyed financial support from the state, as well as the Vietnamese, whose organizations were considered social and not minority institutions. Nevertheless, the biggest challenge in this field seemed to be the recognition of the German minority group (today it is the largest minority in Poland with , members according to the latest census). Its existence in Poland astonished both Polish society and the Polish authorities. One claimed that as a result of the postwar expulsion of Germans or their subsequent emigration there were no Germans left in Poland. The recognition of minorities, particularly the German minority, constitutes one of the biggest political events of the early s.12 Almost all political parties of the tenth and fist term Sejm admitted the need to introduce equality of rights for minority members as Polish citizens, as well as enabling them the preservation of their cultural, language and educational identity. Minority rights other than educational and cultural have been considered very controversial, though. Different positions were represented in respect of use of minority language as an auxiliary language in the administration, preferences for minorities’ electoral committees in electoral law and the reciprocity clause in bilateral relations with neighbouring countries. Discussions on those problem areas took place mainly during the readings of the Minorities’ Act drafts or making amendments to the electoral law.13 The introduction of minority rights in the Constitution as well as in the ordinary law acts, mentioned above, was not controversial from either the political or the social point of view. However, the passing of the separate minority act—being the institutionalization of the state’s policy in regard to minorities—caused many disputes. Its adherents argued that the act would strengthen the position of minority members, meet their expectations and enable them to restore their trust in the state. One also pointed out that there had been no political danger regarding the minorities—they had not required the autonomy, nor had serious ethnic conflict within Poland existed. It was also stressed that a waiver of passing the act would reflect negatively on the position of Poles living in other Eastern European countries. The opponents of the act emphasized constantly that there was no need to pass it, since Poland was (and is) a party of international legal acts on minority issues and the rights guaranteed by the Polish legal system were already far-reaching. However, it has to be stressed that the existence of a compact rights catalogue was—in particular at the local level—highly desirable. It can discipline administration workers on the one hand and make the minority members conscious of their rights on the other. From 

 

Bogusław Banaszak, „Die Entwicklung des Minderheitenschutzes in Polen seit “, in Dieter Blumenwitz, Gilbert H. Gornig and Dietrich Murswiek (eds.), Minderheitenschutz und Menschenrechte (Duncker & Humblot, Berlin, ), -, at . Sławomir Łodziński, Równość i różnica – Mniejszości narodowe w porządku demokratycznym w Polsce po  r. (Wydawnictwo naukowe SCHOLAR, Warszawa, ),  et al. Ibid., .



Agnieszka Malicka and Karina Zabielska the point of view of the whole state, it enables the fulfilment of obligations following from the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention”), since not all the Convention’s obligations were contained in the Polish legal system existing up to the point of passing the Act (e.g. Articles (), () and (), and () and (), () and (), and  of the Framework Convention).14 B. Work on the Act Work on the Act on National and Ethnic Minorities as well as Regional Language had been going on since , when the first draft of the act on national minorities was introduced.15 However, it hadn’t been discussed widely. More relevant seemed to be at that point the constitutional regulation of the minority status.16 The next draft was prepared in  by the Helsinki Foundation for Human Rights and was called A Draft of the Act on the Rights of Persons Belonging to National and Ethnic Minorities.17 It was transferred to the Sejm Commission on National and Ethnic Minorities (nd term Sejm of the Republic of Poland) and in January  the subcommission was appointed, whose task was to prepare the draft law.18 The aim of the draft designers was not to introduce new regulations, but most of all to arrange and modify the provisions being already in force. The draft was based on the experiences of the other European countries and provided for a wide range of group rights.19 Finally, the draft of the Act on National and Ethnic Minorities in the version of  September  was accepted. It was submitted to the parliament’s speaker and subsequently to the government for the purpose of obtaining its opinion. In  the Council of Ministers expressed its positive opinion and during the rd term Sejm a special subcommission was appointed. The th term Sejm subsequently continued work on the act. On  January  the Sejm Commission on National and Ethnic Minorities passed to the parliament’s speaker the draft of the act in the version of  September . After  

 

 



For more information on the political discussion concerning the need of a separate minority act, see ibid.  et.al. The first draft of the act was formulated by the Civic Committee by Lech Wałęsa; More information in Andrzej Kaczyński, “Kompendium praw mniejszości”, Rzeczpospolita,  March . Łodziński, op.cit. note , . The draft was formulated by the expert team, consisting of Zbigniew Hołda, Grzegorz Janusz, Marek Nowicki and Andrzej Rzepliński for the Sejm Commission on National and Ethnic Minorities. The Chairman of the subcommission was Sejm deputy Henryk Kroll—member of the German minority. The provisions of the act guaranteed inter alia the freedom to declare national belongingness, equality before law, prohibition of enforced assimilation and discrimination against persons belonging to national minorities. The draft provided for the possibility to use a minority language as an auxiliary language. It also contained regulations concerning the parliamentary elections and the proposal of appointing the office of the commissioner for the issues of national and ethnic minorities. More information can be found in Malicka, op.cit. note , .

Legal Status of National Minorities in Poland the first reading the project was forwarded to three commissions: the Commission of Administration and Internal Affairs, the Commission of Education, Science and Youth and the Commission of National and Ethnic Minorities. Those commissions had been working jointly within the special subcommission, which was appointed by them.20 The subcommission worked out the final version of the draft and introduced it to the Sejm. The main change on the draft was the introduction of the term ‘regional language’ and the recognition of the Kashubian language as such. It was connected with the application of the Kashubian-Pomeranian Association for taking the Kashubian community into the scope of the act, recognizing them inter alia as an ‘ethnic minority’. Work on the act was abandoned until . Results of the census, and subsequently the controversies concerning the ‘Silesian nationality’, gave a new incentive for adopting it.21 Sejm passed the bill on  November , which was forwarded to the Senate. Finally, after having taken into consideration the amendments of the Senate (i.e. the possibility of using the additional names in the minority language as well as the introduction of auxiliary language that has been previously erased by the Sejm), the Sejm passed the Act on National and Ethnic Minorities as well as Regional Language on  January . The act came into force on  May . The Act consists of  articles divided into six chapters: general provisions, inter alia definitions of national and ethnic minority, regulations concerning the rules of using the minority languages as well as the regional language, provisions concerning the education and culture as well as the regulations appointing the special body for minority issues, stating the principles of its functioning and finally the list of amendments to the provisions in force. C. General Provisions The objective of the Act is the regulation of all issues connected with the preservation and development of the cultural identity of national and ethnic minorities as well as the development of the regional language. The Act also defines the ways of implementing the principle of equal treatment as well as the tasks and competences of the bodies responsible for those issues (Art. ). 1. Definition of a National and Ethnic Minority Article  constitutes one of the most important general provisions. It contains definitions of national and ethnic minority as well as the enumeration of minorities, which fulfil the criteria provided by the Act,22 while most of the documents on minority rights—of 

 

The report of the Commission of Administration and Internal Affairs, the Commission of Education, Science and Youth as well as the Commission of National and Ethnic Minorities from  September  (reporter: deputy Eugeniusz Czykwin), at . According to the census of  Silesians are the most numerous non-Polish group in Poland (, members) but nevertheless they are not considered ethnic minority. Because of the lack of definitions of national and ethnic minority in international as well as domestic law, minority rights have also been granted to groups of a regional character. The enumeration of the national groups considered national minorities in Poland will prevent



Agnieszka Malicka and Karina Zabielska both an international as well as domestic character—do not contain a coherent description of the subject of these regulations. According to Article () a national minority is a group of Polish citizens, which fulfils jointly the following conditions: ) is smaller in number than the rest of the population of the Republic of Poland; ) is essentially distinguished from the rest of citizens by its own language, culture or tradition; ) is guided by the will to safeguard its language, culture or tradition; ) is conscious of its individual historical national community and is oriented on its expression and protection; ) its ancestors have resided within the present territory of the Republic of Poland for at least a hundred years; ) identifies itself with the nation organized in its own country. The definition of ethnic minority differs from the above in the points  and . An ethnic minority is conscious of its individual historical ethnic community and does not identify itself with the nation organized in its own country. According to the criteria listed upon Article () and () there are nine national minorities (Armenian, Byelorussian, Czech, German, Jewish, Lithuanian, Russian, Slovak and Ukrainian minority) and four ethnic minorities (Karaites, Lemkos, Roma and Tartars) in the Republic of Poland. The introduction of these definitions constitutes a great achievement of the Polish legislator. The lack of a definition of ‘minority’ in the Polish legal system was appreciable in particular in the second half of the s, when Polish courts refused the registration of the association ‘Union of People of Silesian Nationality’ (Związek Ludności Narodowości Śląskiej) (hereinafter “Union”), for which the Upper Silesia autonomists had applied. The Supreme Court of Poland23 held that the registration of an association, stating in its memorandum that it is “an organization of the Silesian national minority”24, would be in breach of law since it would enable a non-existing ‘national minority’ to take advantage of the minority rights guaranteed upon the framework of the Polish legal system, in particular, electoral rights. Thereupon the founders of the association laid a complaint before the European Court of Human Rights (hereinafter EctHR) with the appeal of the violation of Article  of the European Convention on Human Rights and Fundamental Freedoms (hereinafter ECHR) (freedom of association). In

 



that in the future. Moreover, the introduction of the definitions constitutes an important achievement of Polish legislators, as it provides for detailed—both subjective and objective—criteria for being recognized as a minority group. This issue has been especially problematic in relation to the Silesians. Kashubian nationality was also declared in the census, but as most of the Kashubians consider themselves both Poles and Kashubians and they first of all aim at the preservation of their own language, they are also not recognized as a minority group. For more information on creating the minority definitions, see “The Report of the Commission of Administration and Internal Affairs, Commission of Education, Science and Youth and the Commission of National and Ethnic Minorities” from  September , at . Supreme Court of Poland (Sąd Najwyższy), decision of  March , reference symbol I PKN /. Paragraph  of the memorandum of the ‘Union of People of Silesian Nationality’.

Legal Status of National Minorities in Poland May  the Court stated Poland had not violated the ECHR.25 It argued that in order to dispel the doubts of Polish authorities, the applicants would need to slightly change the name of the association and amend paragraph  of its memorandum. Since the applicants tend not to change the controversial provisions, it gave the impression that the Union’s members might in the future aspire to stand in elections. The applicants appealed to the Grand Chamber of the EctHR in July , but the Court held (unanimously) that there had been no violation of Article  of the ECHR.26 The controversies connected with the registration of the Union have caused the largest discussion on the issue of a ‘national minority’ definition in Poland in the s. The majority of the disputants held that no Silesian nationality exists. However, some of them stressed that it does not exist yet. In this context, also the Advisory Committee on the Council of Europe Framework Convention (hereinafter “Advisory Committee”) in its opinion on November 27 induced Polish authorities to continue their dialogue with the Silesian community and allow them the preservation of their identity. In regard to the judgement of the EctHR, the Advisory Committee stressed that the Court had not expressed an opinion as to whether Silesians constitute a national minority or not. 2. Prohibition of Assimilation and Discrimination Articles - contain provisions developing the constitutional principles and implementing the rights provided by the Framework Convention. These are: right to decide whether to be considered as belonging or not belonging to a minority, right to enjoy the rights and freedoms individually or in community with other members of a minority (Art. ), forbiddance of any means of public authority aimed at assimilation of persons belonging to national minorities as well as forbiddance of any means aimed at the changing of national or ethnic proportions on the territories inhabited by the minorities (Art. ). According to Article , discrimination resulting from the fact of belonging to a minority is forbidden, and public bodies are obliged to protect the victims of such discrimination. Thereby the Polish legislator confirmed the obligations of the state resulting from the Framework Convention. Up to the point of passing the Act, the forbiddance of discrimination and equality before law were guaranteed by the respective constitutional provisions. Additionally provisions of Article  of the Labour Code have forbidden discrimination on employment. Arts.  and  of the Criminal Code of  have also protected every person in the Republic of Poland before the acts of genocide and acts of racial, ethnic or religious discrimination.28

  



EctHR, Appl. No. /, Gorzelik & Others v. Poland, judgment of  December . For more information on that judgment, see Roberta Medda-Windischer, The Jurisprudence of European Court of Human Rights,  EYMI (/), -, at  et seq. Available at . Dziennik Ustaw .. with further amendments.



Agnieszka Malicka and Karina Zabielska D. Regulations Concerning Minority Language Chapter  of the Act provides for language rights to the minorities. It concerns a few major issues: the use of names and surnames in the minority language and the use of the minority language in public as well as in private. The use of names and surnames in the minority language, the use of the minority language in private and the right to learn the minority language or being taught in the minority language had already been guaranteed by the bilateral treaties concluded with Poland’s neighbouring countries,29 as well as by legal acts concerning issues other than minority affairs. These are, specifically, the Act on Change of Names and Surnames30 as well as the Act on Education System,31 including its numerous executive regulations. However, the Advisory Committee emphasized in its opinion that language rights were not guaranteed to a sufficient degree. It concerns in particular the use of the minority language in contact with the local administration, as well as the introduction of bilingual signs in certain municipalities. The provisions of the minority act were supposed to fulfil that evident lacuna in the law, and for that reason the Advisory Committee found the passing of the Act highly desirable. 1. Use of Names and Surnames in the Minority Language According to Article , persons belonging to a minority have a right to use and spell their first names and surnames in accordance with the principles of spelling of the minority language, including the right to register them in documents of marital status and in identity cards. This regulation is of great importance, as after the Second World War, many people were forced to change their names and surnames in accordance with the Polish principles of spelling.32 Details of the procedure of changing names and surnames are provided in the Act on Change of Names and Surnames33 and the Decree of the Minister of Interior Affairs and Administration on the Ways of Transliteration of Names and Surnames of Persons Belonging to National Minorities, Written in a Different Alphabet than Latin.34 2. Use of Minority Language in Private and in Public Article  provides for linguistic rights of minorities. Specifically, according to its wording, persons belonging to a minority have the rights to freely use the minority language in private as well as in public, to disseminate and exchange information in the minority language, to display information of private nature in their minority language, and to learn or be taught in this minority language. The introduction of such regulations was possible thanks to the wording of Article  of the Constitution, according to which    

 



These are treaties on Good Neighbourhood and Friendly Relations completed by the Republic of Poland with its neighbouring countries in the years -. Dziennik Ustaw .. with further amendments. Dziennik Ustaw .. with further amendments. More information can be found in Malicka, op.cit. note ,  et seq; Zbigniew Kurcz, Mniejszość niemiecka w Polsce (Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław, ),  et seq. Dziennik Ustaw ... Dziennik Ustaw ...

Legal Status of National Minorities in Poland Polish is the official language of Poland, but also stating that this provision does not infringe upon national minority rights resulting from ratified international agreements. The Act on Polish Language35 also contains a similar regulation, according to which it is possible to introduce regulations enabling the use of minority language alongside the official language.36 3. Auxiliary Language Provisions concerning the use of minority language in the fields of education and culture are elaborated in chapter  of the Act. The other clauses of chapter  refer to the rules of using minority language in public life, in particular in contact with institutions of public authority. The introduction of the so-called auxiliary language enables the use of minority language in contact with municipality institutions.37 It means, in practice, that persons belonging to national or ethnic minorities have the right to turn to municipality bodies in their own language in both written and oral form. The reply is usually formulated in the official language, but by explicit request it may also be obtained in the auxiliary language. However, this regulation is only applicable in the municipalities fulfilling the criteria stated in Article (). According to that article, an auxiliary language can be used only within the municipalities where the number of inhabitants belonging to the minority whose language shall be used as auxiliary language is no lower than %38 of its total population. The number of municipality inhabitants belonging to a minority is ascertained according to the latest census. Furthermore, the municipality has to be registered in the Official Register of the Municipalities, in which the auxiliary language is used. The minister responsible for issues of religious beliefs, national and ethnic minorities handles this register,39 and accomplishes registration on the basis of the application of the municipality council. Before registration takes place, the application is verified. If it does not fulfil the formal conditions, the minister refuses the registration. In the case of refusal of registration, the municipality council has a right to submit a complaint to the administrative court. Upon the application of the municipality council the minister conducting the register also removes the municipality from that register. Detailed

 

 



Dziennik Ustaw .. with further amendments. Such regulations do not constitute a novelty in Polish law. The use of minority language in contact with public administrative bodies was, to some extent, also permitted in the period between the two World Wars. A municipality (gmina) is a basic unit of self-government of the Republic of Poland. During the preparation of the Act, the percentage of the population belonging to national or ethnic minorities was discussed. On the one hand, it was suggested to set the threshold at a level of %, on the other, %. Critical comments on the version adopted on  November  are found in the Opinion on the Act on National and Ethnic Minorities as well as Regional Language prepared on  November  by the Legislative Office of the Chambers of Senate, at . The minister responsible for religious beliefs, national and ethnic minorities is the Minister of Interior and Administration; para. () p.  of the Decree of the Council of Ministers of  October  on the Detailed Scope of Activities of the Minister of Interior Affairs.



Agnieszka Malicka and Karina Zabielska rules of conducting the register have been provided by the corresponding decrees.40 According to the criteria provided by the Act, there are  municipalities where the auxiliary language can be introduced. These municipalities are inhabited either by national minorities or by communities using Kashubian as the regional language.41 The use of the auxiliary language is also connected with the opportunity to use the additional names of places and physiographic objects, as well as names of streets (Art. ). Additional names must not be used independently, and are placed after the name in Polish language. Furthermore, the additional names must not refer to names given by the authorities of the Third Reich of Germany and the Union of Soviet Socialist Republics in the period between  and . The additional name can be authorized if the number of the municipality inhabitants belonging to the minority is not lower than % of the total population of that municipality, or more than half of the inhabitants of a respective place, consulted according to the procedure specified in the Act on the Municipality Self-Government, opted for the arrangement of the additional name of that place. The application of the municipality council must get a positive opinion from the Commission of Names of Places and Physiographic Objects. 4. Regional Language Beside the term ‘auxiliary language’ there has been also introduced the term ‘regional language’. According to the Act’s provisions, the Kashubian language is supposed to be understood as such (Art. ). The definition of a regional language is based on the regulations provided by the European Charter of Regional and Minority Languages.42 The rights of individuals using the regional language refer to the provisions regulating the use of the auxiliary language. The reason for the introduction of this category was to solve the problematic issue of the Kashubian community and to guarantee preservation of the identity of its members on the one hand and to constitute the base for the ratification of the European Charter for Regional and Minority Languages on the other.43





 



The Decree of the Minister of Interior Affairs and Administration of  May  on Register of the Municipalities in which Territories the Names in Minority Language are Used, Specimen of the Applications for the Registration into that Register as well as the Arrangement of the Additional Name of a Place or a Physiographic Object in a National or Ethnic Minority Language or in the Regional Language (Dziennik Ustaw ..); Decree of the Minister of Interior Affairs and Administration of  May  on the Official Register of the Municipalities, in which the Auxiliary Language is Used (Dziennik Ustaw ..).  municipalities are inhabited by the German minority,  by the Byelorussian minority, one by the Lithuanian minority, ten by people speaking the Kashubian language. More information can be found in Eugeniusz Czykwin, Minority in the civic society, at . The Republic of Poland signed the European Charter for Regional or Minority Languages on  May . Łodziński, op.cit. note , .

Legal Status of National Minorities in Poland E. Provisions on Education and Culture These issues are covered in two Articles of chapter . In Article  (concerning the implementation of the right of persons belonging to minorities to learn their language or to be taught in their language and the right to learn the history and culture of the minority) the legislator refers to the principles and procedures specified by the Act on the Education System.44 According to the rules provided by that Act, public schools are obliged to enable the preservation of national, ethnic, linguistic and religious identity, and in particular, the study of the language, history and culture.45 The activities of public schools in favour of national minorities are financed from the state budget. Article  specifies the obligation on the part of the public authorities to take adequate measures in order to support activities aimed at the protection, preservation and development of minority cultural identity. Specifically, these measures contain financial subsidies from the state budget for the support of activities of cultural institutions: publishing books and magazines, production of television programmes and radio broadcasts, operation of libraries, and popularization of knowledge on minorities. In Article () there are mentioned—in addition to the specific (for concrete projects) ones—also general subsidies for running costs. This provision made a very relevant amendment, which is hoped to improve the ‘living’ situation of many minorities’ organizations. At the end of , the Polish state abandoned subjective financing in favour of project-related support. Consequently, many organizations were deprived of the means to function. All minorities’ organizations applied for a return to subjective financing. The Advisory Committee also asked Poland to consider the possibility of this type of financial support. According to the law in force, organizations of minorities and communities using the regional language, as well as cultural institutions having relevant significance to the minorities’ cultures, can apply for general (subjective) subsidies for activities listed upon Article (), with the exception of activities covered in paragrasphs ,  and , for which only specific support can be granted (investments aimed at the preservation of





It is specifically Art.  of the Act on the Education System and Art. , according to which minorities also have the right to establish private schools. The details of the organization of learning the minority language and receiving knowledge in the minority language (inter alia the minimum number of pupils in order to teach the minority language or to establish a class using the minority language as medium of instruction depending on the types of classes, schools or educational units) have been regulated by the Decree of the Minister of National Education and Sport of  December  on the conditions and means of exercise of the tasks enabling the preservation of the sense of national, ethnic, language and religious identity of students belonging to national minorities and ethnic groups by schools and public institutions. For more information on the system of national minorities education, see Sławomir Łodziński, “Przekroczyć własny cień”, in Bogumiła Berdychowska (ed.), Mniejszości narodowe w Polsce, Praktyka po  r. (Wydawnictwo Sejmowe, Warszawa, ), -, at ; Agnieszka Malicka, “Schutz der deutschen Minderheit in der Republik Polen”, in Gerrit Manssen and Bogusław Banaszak (eds.), Minderheitenschutz in Mittel- und Osteuropa (Peter Lang, Frankfurt/Main, ), -, at  et seq.



Agnieszka Malicka and Karina Zabielska minority cultural identities, protection of places connected with minority cultures and dispersal of information about minorities). F. Bodies Responsible for Issues of National and Ethnic Minorities One of the most important tasks during the preparation of this Act was to improve the function of bodies and institutions involved in national and ethnic minorities’ issues. According to the provisions of chapter  of the Act, there are three bodies responsible for minority affairs. Two of them are institutions of public administration: the minister responsible for issues of religious beliefs, national and ethnic minorities (Art. ) and the voivode (head of a province) (Art. ). The third body is the Joint Commission of the Government and National and Ethnic Minorities (hereinafter “Joint Commission”) (Arts. -)—the Prime Minister’s advisory-consultative organ. The Act defines the responsibilities of each body. According to the Act’s provisions, the minister’s main task is to coordinate government policy in relation to national and ethnic minorities, as well as to initiate changes of that policy. On the other hand, the voivode acts as a coordinator of the activities of the governmental authorities within the territory of the province. His task is also to counteract the violation of minority rights and discrimination of people belonging to minorities, as well as to render opinions on programmes in favour of minorities. For the purpose of the implementation of his tasks, the voivode cooperates with territorial self-government bodies and minority organizations. The voivode may also appoint the commissioner responsible for issues of national and ethnic minorities.46 The appointment of the Joint Commission constitutes the implementation of the right of the national and ethnic minorities to participate in the resolution of matters connected with their cultural identity provided by Article  of the Constitution. It should be also understood as the implementation of Article  of the Framework Convention, according to which parties create the conditions necessary for the effective participation of members of national minorities in public affairs, particularly those affecting them. Thanks to the creation of the Joint Commission, national and ethnic minorities have representation and, at the same time, an opportunity to influence the policy of public administration in relation to minorities. The main tasks of the Joint Commission are to pronounce both opinions on activities aimed at the implementation of rights of minorities and opinions on programmes aimed at the development of the cultural identity of minorities. Thanks to the right of forwarding opinions on legal acts concerning minority issues, the Joint Commission is supposed to have a relevant influence on the content of these regulations. Furthermore, the Joint Commission pronounces opinions on the rules of division of means in the state budget designed for supporting activities aimed at the protection of minority rights and development of minority cultural identity. Its task also includes taking action to counteract discrimination against minority members. For the purpose of implementing its tasks, the Joint Commission may cooperate with governmental authorities and territorial self-government bodies, as well as with minority organizations. It can also 



The offices of the commissioner responsible for issues of national and ethnic minorities have been appointed in all provinces.

Legal Status of National Minorities in Poland apply to scientific institutions and social organizations for opinions, standpoints, evaluations and information. The Act also specifies the staff of the Joint Commission. According to Article , the Joint Commission consists of representatives of the governmental authorities on one hand and of representatives of national and ethnic minorities on the other. Members of the Joint Commission are appointed and recalled by the Prime Minister upon the proposal of the minister responsible for issues of religious beliefs, national and ethnic minorities. Bodies and minorities represented in the Joint Commission submit their proposals of candidates for the Joint Commission members. According to the Act, the Joint Commission therefore consists of representatives of the minister responsible for issues of religious beliefs, national and ethnic minorities, the minister for issues of public administration, the minister for culture and the protection of the cultural heritage, the minister for education and upbringing, the minister of finance, the minister for employment, the Minister of Justice, the minister of the interior, the minister for social security, the minister for foreign affairs, representatives of the chairman of the Central Statistic Office, the Council of the Protection of Memory of Struggle and Martyrdom and the Head of the Chambers of the Prime Minister. The number of minority representatives has been fixed on the basis of the numerical criteria. The minorities whose number (according to the latest census) is larger than , people are represented by two Commission members, while smaller minority groups are represented by just one member.47 The community using the regional language also has two representatives in the Joint Commission. According to the Act’s provisions, the sessions of the Joint Commission take place at least once every six months. The positions of the Joint Commission are worked out not by means of voting, but through consensus among the parties. It is also possible to call for sessions at which only the representatives of the national and ethnic minorities or only the governmental representatives take part. Three teams can be active within the scope of the Joint Commission: the team for educational affairs, the team for culture and the team for Roma issues.48 Among the tasks of the bodies responsible for issues of national and ethnic minorities, there is also an obligation on the part of the minister responsible for issues of religious beliefs, national and ethnic minorities to prepare, at least once every two years, a report concerning the situation of minorities in the Republic of Poland. The report is presented to the Joint Commission. III. Final Remarks The passing of the Act on National and Ethnic Minorities as well as Regional Language has not introduced any radical changes to the provisions concerning safeguards of the right of national and ethnic minorities. Its main aim is to provide for cohesion between 



The following minority groups have two representatives: Byelorussian, Lithuanian, German, Ukrainian, Lemko and Roma; The Czech, Armenian, Russian, Slovak, Jewish, Karaite and Tartar minorities have just one representative each. Information on the creation of the Joint Commission of the Government and National and Ethnic Minorities can be found at .



Agnieszka Malicka and Karina Zabielska different legal acts on the one hand and particular units of state administration on the other. The legislation implemented, developed and specified the constitutional and statutory provisions pertaining to the situation of minorities. The Act constitutes an implementation of all the principles contained in the Framework Convention, which the Republic of Poland signed as one of the first signatories. It also fulfils the obligations arising from bilateral treaties with neighbouring countries. Above all, the Act contains regulations aimed at the development and preservation of minority national and ethnic identity, while it does not implicate any regulation falling into the scope of the political rights of minorities. Two important achievements of this Act are the introduction of definitions of national and ethnic minority (as well as of regional language) and the enumeration of the minorities fulfilling the provided criteria. The introduced body responsible for minority issues guarantees cooperation between governmental authorities and the representatives of the minorities. The first years of the Joint Commission functioning are supposed to show to what extent persons belonging to national and ethnic minorities will be able to influence the decisions made in matters pertaining to them. Although the minority representatives were invited to the sessions of the previous bodies responsible for the minority issues, they had never been members—as it is in case of the Joint Commission—of any of those organs. The way of losing the minority issue seems to be a compromise between the state obligations to introduce European standards into the national legal system on the one hand and majority expectations to manifest the state’s affection towards national values on the other. The compromise boundary in the field of minority rights protection was specified by the recognition of the ‘old’ and indigenous minorities and the introduction of limited acceptance of bilingualism.49 The introduction of bilingualism turned out to be the most controversial innovation. Practical application of that provision requires the cooperation of the political elite at the national local level as well as the positive attitude of public opinion. The Act on National and Ethnic Minorities as well as Regional Language constitutes an act of complex character. It defines main terms, clearly specifies the tasks and competences of the public authorities responsible for minority issues and regulates the fundamental rights of people belonging to minorities, as well as the methods of implementation. Upon adopting the Act, Poland joined the enlarging group of countries50 that has regulated the legal status of national minorities by the implementation of the fundamental standards of international law at the statutory level.

 



Łodziński, op.cit. note , . The acts on national minorities take effect inter alia in Lithuania, Latvia, Estonia, Czech Republik and Hungary.

Legal Status of National Minorities in Poland

ACT of 6 January 2005 on National and Ethnic Minorities as well as Regional Language (DZIENNIK USTAW NO. , ITEM. , WITH THE AMENDMENT OF , NO. , ITEM ) Unofficial translation

Chapter 1 General Provisions Article 1 The Act regulates issues connected with the preservation and development of the cultural identity of national and ethnic minorities, the preservation and development of the regional language, as well as ways to implement the principle of equal treatment irrespective of a person’s ethnic origin. It also specifies the tasks and responsibilities of governmental administration bodies and territorial self-government units regarding these issues. Article 2 .

.

For the purpose of this Act, a national minority is a group of Polish citizens that fulfils all of the following conditions: ) It is smaller in number than the rest of the population of the Republic of Poland; ) It is essentially distinguished from the rest of the citizens by its own language, culture or tradition; ) It is guided by the will to safeguard its language, culture or tradition; ) It is conscious of its individual historical ethnic community and is interested in its expression and protection; ) Its ancestors have resided within the present territory of the Republic of Poland for at least a hundred years; ) It identifies itself with the nation organized in its own country. The following minorities are considered national minorities: ) Byelorussian; ) Czech; ) Lithuanian; ) German; ) Armenian; ) Russian; 

Agnieszka Malicka and Karina Zabielska

.

.

) Slovak; ) Ukrainian; ) Jewish. For the purpose of this Act, an ethnic minority is a group of Polish citizens that fulfils all of the following conditions: ) It is smaller in number than the rest of the population of the Republic of Poland; ) It is essentially distinguished from the rest of the citizens by its own its language, culture or tradition; ) It is guided by the will to safeguard its language, culture or tradition; ) It is conscious of its individual historical ethnic community and is interested in its expression and protection; ) Its ancestors have resided within the present territory of the Republic of Poland for at least a hundred years; ) It does not identify itself with the nation organized in its own country. The following minorities are considered ethnic minorities: ) Karaites; ) Lemkos; ) Roma; ) Tartars. Article 3

Whenever the regulations of the Act mention: ) minorities – this shall mean national and ethnic minorities, referred to in Article ; ) minority language – this shall mean the respective language of a national or ethnic minority, referred to in Article . Article 4 .

.

. .

Each person belonging to a minority has a free right to decide whether to be considered as belonging to or not belonging to a minority, and no disadvantage shall arise from this decision, nor from exercising the rights related to that decision. No one can be obliged, by any means other than the basis of a legal act, to reveal information concerning his or her membership to a minority, nor to reveal his or her ancestry, minority language or religion. No one can be obliged to prove membership to a certain minority. Persons belonging to a minority may enjoy the rights and freedoms consequent upon the rules included in the present Act both individually and in community with members of their group. Article 5

.



Any means aimed at assimilation of persons belonging to national minorities, applied against their will, shall be forbidden.

Legal Status of National Minorities in Poland .

Any instruments intended to change the national or ethnic proportions on the territories inhabited by the minorities shall be forbidden. Article 6

. .

Discrimination resulting from the fact of belonging to a minority shall be forbidden. Bodies of public authority are obliged to take appropriate measures in order to: ) support full and real equality in the economical, social, political and cultural life of those individuals belonging to a minority and those belonging to a majority; ) protect those persons who, as members of a minority, are the objects of discrimination, hostility or violence consequent upon their minority status; ) strengthen the intercultural dialogue. Chapter 2 Use of Minority Languages Article 7

.

. .

Persons belonging to a minority have the right to use and spell their first names and surnames as spelt in their minority language, particularly in documents of marital status and on identity cards. The first names and surnames of persons belonging to minorities, if written in an alphabet other than the Latin alphabet, shall undergo transliteration. The minister responsible for public administration affairs shall specify by decree, in agreement with the minister responsible for issues of religious beliefs, national and ethnic minorities, the method of transliteration referred to in para. , complying with the principles of spelling of a minority language. Article 8

Persons belonging to a minority have, in particular, the right to: ) freely use the minority language in private as well as in public; ) disseminate and exchange information in the minority language; ) display information of private nature in the minority language; ) learn their minority language or be taught in their minority language. Article 9 .

In contact with the local governing bodies, the minority language can be used as an auxiliary language to the official language.



Agnieszka Malicka and Karina Zabielska .

.

.

. .

.

An auxiliary language can be used only within those municipalities* where the number of inhabitants belonging to the minority whose language is supposed to be used auxiliary is not lower than % of the total population of the municipality, and which have been entered in the Official Register of the Municipalities where the auxiliary language is used, hereinafter called the “Official Register”. Subject to para. , a possibility to use auxiliary language means that individuals belonging to a minority have the right to: ) turn to municipality institutions in the auxiliary language in written as well as in oral communication; ) receive the reply, following explicit application, in their auxiliary language in written as well as in oral communication; Submission of applications in the auxiliary language shall be permitted. Submission of an application in the auxiliary language does not constitute grounds for refusal of its consideration. Appeal procedures shall be held exclusively in the official language. No one can refuse to follow the legitimate instruction or sentence, expressed in the official language, if it must, under the circumstances, be done without undue delay in order to achieve its goal. Issues called into doubt shall be decided on the basis of a document drafted in the official language. Article 10

.

.

.

.

.

*



The minister conducting the Official Register, responsible for issues of religious beliefs, national and ethnic minorities, shall perform the registration in the Official Register on the basis of application of the municipality council. The application referred to in para.  should contain, particularly, official data regarding the number of municipality inhabitants, including the number of inhabitants belonging to a minority (whose language should be used as auxiliary language), as well as a resolution of the municipality acknowledging the introduction of the auxiliary language and indicating that language. Before the registration in the Official Register, the minister responsible for issues of religious beliefs, national and ethnic minorities shall verify the application referred to in para. . The minister responsible for issues of religious beliefs national and ethnic minorities may refuse the registration in the Official Register in the case that the application does not fulfil the conditions referred to in para. . The minister responsible for issues of religious beliefs, national and ethnic minorities shall refuse registration in the Official Register if the number of the minority members in the municipality (whose language is to be used as an auxiliary language), is lower than % of the total population of that municipality. In the case of refusal of the registration in the Official Register, the municipality council has a right to lay a complaint in an administrative court.

Note by the translator: A municipality (gmina) is a basic unit of self-government of the Republic of Poland.

Legal Status of National Minorities in Poland .

.

Upon application of the municipality council, the minister responsible for issues of religious beliefs, national and ethnic minorities shall remove the municipality from the Official Register. The minister responsible for issues of religious beliefs, national and ethnic minorities shall specify by decree, in agreement with the minister responsible for public administration affairs, the means of keeping the Official Register, and the composition of the application form (referred to in para. ) taking into particular consideration those data which allow unambiguous identification of the municipality (province, district, municipality name) and the information referred to in para. . Article 11

.

. .

Employees of the municipality office and its supplementary units, as well as of the municipality units and budgetary institutions in the municipalities entered in the Official Register may be awarded a bonus by virtue of the command of the auxiliary language recognized in that municipality. The rules for awarding the bonus and its amount are specified in the regulations concerning the rewards for employees of the territorial self-government. One’s command of the auxiliary language shall be confirmed by by a diploma, an acknowledgement or a certificate. The minister responsible for issues of religious beliefs, national and ethnic minorities shall specify by decree, in agreement with the minister responsible for education and upbringing, a list of diplomas, acknowledgements or certificates referred to in para. , considering all minority languages. Article 12

.

.

.

.

Additional traditional names in the minority language may be used next to: ) official names of places and physiographic objects, ) names of the streets – established in Polish language on the basis of separate regulations. Additional names referred to in para.  can be used explicitly within the territory of the municipalities, which are entered in the Register of the municipalities on which territories the names in minority language are used, hereinafter called ‘municipalities’ Register’, led by the minister responsible for issues of religious beliefs, national and ethnic minorities. Subject to para.  and Article , paras. - the minister responsible for issues of religious beliefs, national and ethnic minorities shall accomplish the registration to the municipalities’ Register on application of the municipality council, on which territory the additional names shall be used. Additional names, referred to in para.  must not refer to the names given by the authorities of the Third Reich of Germany and the Union of Soviet Socialist Republic in the period between  and . Additional names, referred to in para. , may be introduced either on the territory of the whole municipality or in individual places.



Agnieszka Malicka and Karina Zabielska . . .

.

Additional names, referred to in para.  shall be placed after the name in Polish language and they must not be used independently. The arrangement of the additional name in a minority language is made according to the principles of spelling of this language. Additional name of place or physiographic object in a minority language can be arranged on application of the municipality council, if: ) the number of municipality inhabitants belonging to the minority is not lower than % of the total number of the inhabitants of that municipality, or, in case of an inhabited place, more than a half of the inhabitants of that place, consulted according to the procedure specified in Article a para.  of the Act of  March  on the Municipality Self-Government ( Journal of Laws Dziennik Ustaw of , No. , item , with further amendments), opted for the arrangement of the additional name of that place. ) the application of the municipality council has got a positive opinion by the Commission on the Names of Places and Physiographic Objects established on the basis of the Act of  August  on the Official Names of Places and Physiographic Objects (Dziennik Ustaw No. , item ). The regulations of the Act referred to in para.  subpara.  are applicable for the arrangement of additional names of the streets in a minority language. Article 13

.

.

.

.



On request of the municipality inhabitants belonging to a minority or on its own initiative the municipality council shall introduce the application referred to in Article  para. . In case of the application concerning the name of an inhabited place, the municipality council is obliged to carry out the consultations on this issue with the inhabitants of that place, according to the procedure specified in Article a para.  of the Act on the Municipality Self-Government. The municipality council shall introduce the application referred to in Article  para.  to the minister responsible for issues of religious beliefs, national and ethnic minorities by hand of the voivode (head of province). The application referred to in Article  para.  should contain: ) a resolution of the municipality council concerning the arrangement of the additional name of a place or a physiographic object; ) correct spelling of the official name of the place or physiographic object in Polish language; ) in case of physiographic object – opinions of the boards of the provinces, on which territories the object is situated; ) suggested spelling of the additional name in the minority language; ) debriefing of the results of the consultations referred to in para.  as well as in Article  para.  subpara. ; ) information concerning the financial costs of the implementation of the suggested change. The condition of the consultation referred to in para.  subpara.  is considered as fulfilled if no opinion has been expressed within  days from the date of receipting the request for opinion.

Legal Status of National Minorities in Poland The voivode is obliged to forward to the minister responsible for issues of religious beliefs, national and ethnic minorities the application referred to in Article  para.  along with his own opinion, not later than within  days from the date of its receiving. The minister responsible for issues of religious beliefs, national and ethnic minorities shall forward the application to the Commission on the Names of Places and Physiographic Objects in order to obtain its opinion. The Commission on the Names of Places and Physiographic Objects shall advance its opinion to the minister responsible for issues of religious beliefs, national and ethnic minorities by hand of the minister responsible for public administration affairs, without delay, after familiarization with the application. . As soon as it has been entered in the municipalities’ Register, the additional name of the place or physiographic object in the minority language is considered as established. . The minister responsible for issues of religious beliefs, national and ethnic minorities shall carry out the registration referred to in para. , after he has obtained positive opinion of the Commission on the Names of Places and Physiographic Objects. . The minister responsible for issues of religious beliefs, national and ethnic minorities shall refuse the registration of an additional name of a place or a physiographic object in the minority language or remove the entered name from the Register, if it refers to the name from the period between  and  given by the authorities of the Third Reich of Germany or the Union of Soviet Socialist Republics. . In case of the refusal of the registration referred to in para.  and the removal referred to in para. , the municipality council has a right to lay a complaint in an administrative court. . The minister responsible for issues of religious beliefs, national and ethnic minorities in agreement with the minister responsible for public administration affairs shall specify by decree the specimen of application forms of the municipality council for: ) registration in the municipalities’ Register; ) establishing the additional name of a place or a physiographic object in a minority language – taking into consideration the detailed range of information placed in the municipalities’ Register. . The minister responsible for issues of religious beliefs, national and ethnic minorities in agreement with the minister responsible for public administration affairs shall specify by decree the method of administering the municipalities’ Register, as well as detailed range of information recorded in that Register, including the specification of the province and district where the municipality is situated, the name of the municipality, the official names of places and physiographic objects, as well as the additional name in the minority language. . The minister responsible for transport, in agreement with the minister responsible for issues of religious beliefs, national and ethnic minorities and the minister responsible for public administration affairs, shall specify by decree details considering the placement of additional names in the minority language on signs and

.



Agnieszka Malicka and Karina Zabielska panels, specifically the font size and font style of the names both in Polish and in the minority language. Article 14 Under the number of municipality inhabitants belonging to a minority, referred to in Article  para. , Article  para. , and Article  para.  subpara. , shall be understood the number of individuals according to the latest census. Article 15 .

.

Subject to para. , the costs connected with the implementation and usage of the auxiliary language within the area of the municipality, as well as costs connected with the implementation of additional names in the minority language referred to in Article  para. , shall be covered by the municipality budget. The costs connected with the replacement of information panels arising from the establishment of additional names of places and physiographical objects in the minority language, shall be covered by the state budget. Article 16

The minister responsible for issues of religious beliefs, national and ethnic minorities shall ordain the translation of this Act into minority languages. Chapter 3 Education and Culture Article 17 The implementation of the right of individuals belonging to minorities to learn and to be educated in their respective languages, as well as the right to learn the history and culture of the minority, shall be performed according to the principles and procedure specified in the Act of  September  on the Education System (Dziennik Ustaw of , No , item , No , item  and No , item ). Article 18 . .



Public authorities are obliged to take adequate measures to support activities aimed at the protection, preservation and development of minorities’ cultural identity. The measures referred to in para.  may be used for either specific or general subsidies for: ) support of the activities of cultural institutions, artistic movements, and creative activities of the minority, as well as cultural events of relevant importance to minority cultures; ) investments aimed at the preservation of minority cultural identities;

Legal Status of National Minorities in Poland )

.

.

.

publishing books, magazines, periodicals, and leaflets in either minority languages or in Polish, in a print version, as well as in other techniques of sound and image recording; ) supporting the television programmes and radio broadcasts produced by minorities; ) protection of places connected with minority cultures; ) operation of day rooms; ) operation of libraries and documentation of minority cultural and artistic life; ) education of children and youths realised in various forms; ) popularization of knowledge about minorities; ) other programmes aiming at achieving the goals referred to in para. , as well as supporting the civic integration of minorities. Subsidies referred to in para. , awarded from this part of the state budget, whose disburser is the minister responsible for issues of religious beliefs, national and ethnic minorities, can be awarded without open tender. The minister responsible for issues of religious beliefs, national and ethnic minorities shall announce the principles of procedure in issues concerning the awarding of the subsidies annually, referred to in para. . The provisions of Articles – of the Act of  April  on Non-profit Activities and Voluntary Work (Dziennik Ustaw No , item , and of , No , item , No , item  and No , item ) are applicable. Among the means referred to in para.  may also be counted means transferred from the budget of the territorial self-government units to the organizations or institutions, which realize the activities aimed at the protection, preservation and development of minority cultural identities. Subsidies referred to in para.  can be awarded to the organizations of minorities or cultural institutions of significant importance to minority cultures. The provisions of Article  para.  of the Act of  November  on Public Finance (Dziennik Ustaw of , No , item  with further amendments) are applicable. Chapter 4 Regional Language Article 19

.

.

For the purposes of this Act, according to the European Charter for Regional or Minority Languages, a regional language means a language that: ) is traditionally used within a given territory of a state by nationals of that state who form a group smaller in number than the rest of the state’s population; ) differs from the official language of that state; this includes neither dialects of the official language of the state nor the languages of immigrants. For the purposes of this Act, the regional language is Kashubian. The provisions of Articles – are applicable, but as a number of the inhabitants of a municipality



Agnieszka Malicka and Karina Zabielska referred to in Article , there should be understood a number of those using the regional language according to the latest census. Article 20 .

The implementation of the right of individuals using the language referred to in Article  to learn or be educated in this language shall be performed according to the rules and procedures of the Act referred to in Article . The bodies of public authority are obliged to undertake adequate measures to support the activities aimed at the preservation and development of the language referred to in Article . The provisions of Article  paras. ,  and  are applicable. Among the means referred to in para. , may also be included means transferred from the budget of the territorial self-government unit to the organizations or institutions that realize the activities aimed at the preservation and development of the language, referred to in Article .

.

.

Chapter 5 Responsible Bodies for the Issues of National and Ethnic Minorities Article 21 . .



The governmental body responsible for the issues covered within this Act is the minister responsible for issues of religious beliefs, national and ethnic minorities. The minister responsible for issues of religious beliefs, national and ethnic minorities shall specifically: ) promote the implementation of the rights and needs of minorities by undertaking activities in favour of minorities and by initiating programmes concerning: a) the preservation and development of minority identities, cultures and languages, while guaranteeing the comprehensive civic integration of minority members; b) the implementation of a principle of equal treatment of individuals, irrespective of their ethnic origin; ) cooperate with the appropriate institutions in the scope of activities against the violation of minority rights; ) prepare analysis and assessments of the legal and social situation of minorities, including the implementation of the principle referred to in subpara.  (b); ) popularize knowledge on minorities and their cultures and initiate research on the situation of minorities, including discrimination as referred to in Article  para.  as well as its symptoms and methods and strategies of acting against its appearance. ) undertake measures for the preservation and development of the language referred to in Article .

Legal Status of National Minorities in Poland Article 22 .

.

.

A voivode’s tasks shall consist of the following: ) coordination—within the territory of the province—of the activities of governmental authorities in order to implement tasks in favour of minorities; ) action in favour of respecting the rights of minorities and action against both the violation of those rights and discrimination against minority members; ) action in favour of solving the problems of minorities; ) action in favour of respecting the rights of individuals using the language referred to in Article . For the purpose of the implementation of the tasks referred to in para. , the voivode shall cooperate with territorial self-government bodies and social organizations, in particular with the minorities’ organizations. He shall also orient the programmes in favour of minorities and the preservation and development of the language referred to in Article , implemented within the territory of the respective province. The voivode may appoint the commissioner responsible for issues of national and ethnic minorities according to the procedure specified in Article  of the Act of  June  on Governmental Administration Within a Province (Dziennik Ustaw No , item  of , with further amendments) for an unspecified period of time. Article 23

A Joint Commission of the Government and National and Ethnic Minorities shall be established as an advisory-consultative organ to the Prime Minister, hereinafter called the ‘Joint Commission’. . The tasks of the Joint Commission shall consist of following: ) advancement of opinions on issues concerning the implementation of the rights and needs of minorities, including opinions on the method of implementation of those rights, as well as articulation of the propositions in the scope of activities aimed at guaranteeing the implementation of the rights and needs of minorities; ) advancement of opinions on the programmes aimed at providing circumstances conducive to the preservation and development of the minorities’ cultural identity and the regional language; ) advancement of opinions on legal drafts concerning minority issues; ) advancement of opinions on the amount and rules of division of the means in the state budget designed for supporting activities aimed at the protection, preservation and development of minorities’ cultural identity and the regional language; ) action counteracting discrimination against minority members. . For the purpose of implementation of its tasks, the Joint Commission: ) cooperates with the governmental administration and territorial self-government bodies as well as concerned social organizations;



Agnieszka Malicka and Karina Zabielska ) )

can apply for opinions, positions, evaluations and information to scientific institutions and circles as well as social organizations; can invite representatives of territorial self-government units, social organizations and scientific circles to participate in its work. Article 24

.

.



The Joint Commission shall be composed of: ) the representatives of the governmental administration bodies: a) the minister responsible for issues of religious beliefs, national and ethnic minorities, b) the minister responsible for issues of public administration, c) the minister responsible for issues of culture and protection of cultural heritage, d) the minister responsible for issues of education and upbringing, e) the minister responsible for issues of public finance, f ) the minister responsible for issues of employment, g) the Minister of Justice, h) the minister responsible for issues of interior affairs, i) the minister responsible for issues of social security, j) the minister responsible for issues of foreign affairs, k) the chairman of the Central Statistic Office, l) the Council of the Protection of Memory of Struggle and Martyrdom, m) the Head of the Chambers of the Prime Minister; ) Representatives of the minorities: b) two representatives of the Byelorussian minority, c) one representative of the Czech minority, d) two representatives of the Lithuanian minority, e) two representatives of the German minority, f ) one representative of the Armenian minority, g) one representative of the Russian minority, h) one representative of the Slovak minority, i) two representatives of the Ukrainian minority, j) one representative of the Jewish minority, k) one representative of the Karaite minority, l) two representatives of the Lemko minority, m) two representatives of the Roma minority, n) one representative of the Tartar minority; ) two representatives of the community using the language referred to in Article ; ) The Secretary of the Joint Commission, employed by the body supervised by the minister responsible for issues of religious beliefs, ethnic and national minorities. Members of the Joint Commission shall be appointed and recalled by the Prime Minister upon the proposal of the minister responsible for issues of religious beliefs, national and ethnic minorities.

Legal Status of National Minorities in Poland .

.

.

.

.

The minister responsible for issues of religious beliefs, national and ethnic minorities shall notify the bodies referred to in para.  subpara. , as well as the minority organizations and community using the language referred to in Article , about the intention of presenting the Prime Minister with the proposal referred to in para. . Bodies referred to in para.  subpara.  shall submit, to the minister responsible for issues of religious beliefs, national and ethnic minorities, a proposal of candidates for the Joint Commission members within  days from the date of receiving the notification referred to in para. . Each minority referred to in Article , as well as community using the language referred to in Article , shall submit to the minister responsible for issues of religious beliefs, national and ethnic minorities their proposals of candidates for the Joint Commission members representing given minority or community using the language referred to in Article , in the number specified for this minority or community in para.  subpara.  or , within  days from the date of receiving the notification referred to in para. . If, within the period referred to in para. , one of the minorities or community using the language referred to in Article  does not submit its proposal, or submits a proposal of candidates in a number different from the one specified for that minority in para.  subpara.  and for the community in para.  subpara. , the minister responsible for issues of religious beliefs, national and ethnic minorities shall introduce to that minority or community his own candidates for the Joint Commission members representing that minority or community and ask them to express their opinion on these candidates. In case that the minority or community expresses no opinion within  days from the date the minister responsible for issues of religious beliefs, national and ethnic minorities proposed the list of candidates, the condition of obtaining an opinion is considered fulfilled. In the proposal referred to in para. , subject to para. , the minister responsible for issues of religious beliefs, national and ethnic minorities shall place only the candidates for the Joint Commission members proposed by the bodies referred to in para.  subpara. , minorities and community using the language referred to in Article , and the candidate for the secretary of the Joint Commission. Article 25

.

.

The minister responsible for issues of religious beliefs, national and ethnic minorities applies to the Prime Minister for the recall of a Joint Commission member if: ) said member of the Joint Commission tenders his or her own membership; ) a body, minority or community using the language referred to in Article  and being represented by the member applies for said member’s dismissal, and the application is justified; ) said member has been sentenced with a valid verdict for an intentional offence. Membership in the Joint Commission expires upon the death of a member.



Agnieszka Malicka and Karina Zabielska .

In case of the expiration of a membership of the Joint Commission or the recall of a member, the Prime Minister, upon the proposal of the minister responsible for issues of religious beliefs, national and ethnic minorities, shall appoint a new member. The provisions of Article  paras. – are applicable. Article 26

By decree, the Council of Ministers may include in the Joint Commission a representative of a governmental administration body other than these referred to in Article  para.  subpara. . The provisions of Article  paras. , ,  and Article  are applicable for both the appointment and the recall of a Joint Commission member. Article 27 .

.

The co-chairmen of the Joint Commission are the representative of the minister responsible for issues of religious beliefs, national and ethnic minorities and the representative of minorities and community using the language referred to in Article , chosen by the members of the Joint Commission, referred to in Article  paras. ,  and . The co-chairmen of the Joint Commission shall be appointed and recalled by the Prime Minister at the proposal of the minister responsible for issues of religious beliefs, national and ethnic minorities. Article 28

. .

.

.



The sessions of the Joint Commissions shall be held at least once every six months. The co-chairmen of the Joint Commission, being the representative of the minister responsible for the issues of religious beliefs, national and ethnic minorities, shall summon the sessions on his own initiative or at the proposal of the co-chairman representing minorities and community using the language referred to in Article . In order to work out a common position among the minorities and community using the language referred to in Article , the co-chairman representing minorities and that community may call for sessions in which only the members of the Joint Commission referred to in Article  para.  subparas.  and  shall take part. The co-chairman shall convey the statement to the other members of the Joint Commission without undue delay. In order to work out a common position among the governmental administration, the co-chairman representing the minister responsible for issues of religious beliefs, national and ethnic minorities, may summon the sessions in which only the members of the Joint Commission referred to in Article  para.  subpara.  shall take part. The co-chairman shall convey the statement to the other members of the Joint Commission without undue delay.

Legal Status of National Minorities in Poland .

.

The statements referred to in paras.  and , as well as opinions referred to in Article  para. , shall be conveyed to the Prime Minister and to the Council of Ministers. The Prime Minister shall specify by decree detailed regulations on the work of the Joint Commission. Article 29

. .

Members of the Joint Commission are not entitled to remuneration by virtue of their membership in the Joint Commission. The representatives of organizations of minorities and community using the language referred to in Article  and taking part in the sessions of the Joint Commission are entitled to reimbursement of travel and accommodation costs according to the rules specified in the regulations concerning the amount and conditions of due, to which employees of the state or self-government unit in the budgetary sphere are entitled by virtue of the business trip in the territory of the country, on the basis of Article  para.  of the Labour Code. Article 30

.

.

The office of the minister responsible for issues of religious beliefs, national and ethnic minorities shall ensure the organizational and technical service of the sessions of the Joint Commissions. The functioning costs of the Joint Commission are covered by the part of the state budget, whose disburser is the minister responsible for issues of religious beliefs, national and ethnic minorities. Article 31

.

. .

.

Governmental authorities, territorial self-government agencies and organizations of minorities and community using the language referred to in Article  are obliged to supply to the minister responsible for issues of religious beliefs, national and ethnic minorities, on his request, information regarding the activities of these bodies or organizations and concerning the situation of minorities and community using the language referred to in Article , or accomplishing tasks in favour of minorities or the preservation and development of the language referred to in Article . The range of information referred to in para.  is to be determined by the Joint Commission. The minister responsible for issues of religious beliefs, national and ethnic minorities shall prepare, at least once every two years, a report on the situation of minorities in the Republic of Poland, including the information referred to in para. . This report shall be commented upon by the Joint Commission. This report, along with the commentary referred to in para. , shall be conveyed to the Council of Ministers, and subsequently—after approval by the Council of



Agnieszka Malicka and Karina Zabielska Ministers – published in electronic form by the minister responsible for issues of religious beliefs, national and ethnic minorities. Article 32 In order to obtain an opinion, governmental authorities and self-governmental institutions as well as non-governmental organizations are obliged to forward to the voivode the documents concerning the programmes implemented with their participation within the territory of the province that refer to minorities or aim at the preservation and development of the language referred to in Article , and which are completely or partially financed from the public sources. Chapter 6 Amendments to the Provisions in Force, Transitional and Final Provisions Article 33 (deleted) Article 34 In the Act of  December  on the Education System (Dziennik Ustaw of , No , item , No  item  and No , item ) paras.  and  shall be added to Article  the following: “.

.

The minister responsible for issues of education and upbringing shall take actions in order to guarantee the possibility of education for teachers, as well as access to textbooks for the needs of schools and public institutions referred to in para. . The minister responsible for issues of education and upbringing shall take actions in order to spread knowledge about history, culture, language and religious traditions of national and ethnic minorities, as well as of community using the regional language.”.

Article 35 In the Act of  December  on Radio and Television (Dziennik Ustaw of , No , item ), the following changes shall be introduced: ) in Article : a) subpara. a shall be added to para. a as follows: “a) considering the needs of national and ethnic minorities, as well as of community using the regional language, including emission of information programmes in minority languages, as well as in the regional language;”,

)



b) subpara.  in para. a shall be deleted; para. a shall be added to Article  as follows:

Legal Status of National Minorities in Poland “a. Directors of divisions shall consider the candidates proposed by the social organizations of national and ethnic minorities, as well as by community using the regional language while appointing the programme boards of divisions broadcasting the programmes in both minority languages and in the regional language”.

Article 36 In the Act of  September  on Governmental Administrative Divisions (Dziennik Ustaw of , No , item  with further amendments), the following changes shall be introduced: ) Subpara.  of Article  shall be replaced by the following: “) religious beliefs , national and ethnic minorities;”; ) Article  shall be replaced by the following: Article . The division “religious beliefs as well as national and ethnic minorities” covers the issues: ) of relations between the state and the Catholic Church, as well as other churches and religious unions; ) connected with the preservation and development of the cultural identity of national and ethnic minorities, as well as the preservation and development of the regional language”.

Article 37 In the Act of  October  on the Polish Language (Dziennik Ustaw No , item  with further amendments) subpara. a of Article  shall be replaced by the following: “)

the rights of national and ethnic minorities, as well as community using the regional language”.

Article 38 In the Act of  August  on Official Names of Places and Physiographic Objects (Dziennik Ustaw No , item ), in para.  of Article , subpara.  is followed by subpara. : “)

the secretary of the Joint Commission of Government and National and Ethnic Minorities, established on the basis of the Act of  January  on National and Ethnic Minorities, as well as Regional Language (Dziennik Ustaw No , item ).”.

Article 39 The minister responsible for issues of religious beliefs, national and ethnic minorities shall inform the bodies referred to in Article  para.  subpara. , as well as the organi

Agnieszka Malicka and Karina Zabielska zations of the minorities and community using the language referred to in Article , about the intention to turn to the Prime Minister with the application, referred to in Article  para. , within  days from the date of promulgation of the act. Article 40 For issues falling within the scope of this Act, covered by the regulations of international agreements ratified by the Republic of Poland upon prior consent granted by statute, these international regulations shall be applied. Article 41 Employees of the office of the minister responsible for issues of culture and protection of national heritage, which up to the day of the promulgation of the Act had implemented the tasks within the scope of the rights of national and ethnic minorities, become on that day the employees of the office of the minister responsible for issues of religious beliefs, national and ethnic minorities. The provisions of Article  of the Labour Code are applicable. Article 42 .

.

The property of the office of the minister responsible for issues of culture and protection of national heritage, which had served the purpose of realising tasks within the scope of minority rights, become from the day of promulgation of this Act the property of the office of the minister responsible for issues of religious beliefs, national and ethnic minorities. The financial resources referred to in part  of the state budget—culture and the protection of national heritage—destined for the realization of tasks within the field of minority rights, as well as for supporting the publishing of magazines in the regional language, are transferred on the day of the promulgation of this act to part  of the state budget—religious beliefs, national and ethnic minorities. Article 43

With the exception of Article , Article , Article  and Article , which come into force on the day of their promulgation, this Act shall come into force upon the expiration of a -month period following the day of its promulgation.



Eduardo J. Ruiz Vieytez*

The New Act on Autonomy of Catalonia1

I. The Spanish Territorial Model: a Never-Ending Debate The Spanish Constitution of  represented an important change in the territorial organization of the state. After  years of dictatorship, the Constitution returned, indicating the necessity of decentralization in a state with such a great degree of internal plurality. It should not be forgotten that the minority groups in Spain have more power than any others in Europe if we consider, for instance, the linguistic factor. Thus, practically a quarter of the Spanish population speaks a mother tongue other than Spanish, the most significant being Catalan. Nevertheless, the topic of territorial organization is one of the most sensible aspects of the Spanish political agenda. It is surely the country’s last major unresolved constitutional matter. The Constitution articulates a wide and undefined frame of possibilities for self-government. It does not establish a map of autonomous communities, nor the specific powers granted to autonomous communities. Furthermore, the Constitution favours neither an asymmetric nor a symmetrical system. Autonomy is recognized as a right for nationalities and regions, ambiguous terms that are not defined. Considering the political circumstances in , it was clear that the Basque Country, Catalonia and Galicia would accede to self-government regimes of political character. From there, an open principle of access to autonomy was opened for any other district, with two modes of access, which are described further below. Subsequent political agreements reinforced the current model. After the statutory reforms of the s,  autonomous communities have been recognized which, in matters of substance, show an even level of competencies. From the point of view of constitutional law, some voices defend the idea that the autonomous state is actually comparable to a federal model like those of Germany, * 

LLD, Director of the Human Rights Institute at the University of Deusto (Bilbao). The text of the New Act on Autonomy of Catalonia is available in various languages at .

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 503-509. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Eduardo J. Ruiz Vieytez Belgium or Austria. Nevertheless, others deny such statements, claiming in defence of the present Spanish state that it is more like a regional state such as Italy. In order to compare the present Spanish model with those of a federal or regional state, various rationales may be used. Among them, the more common opinion is that which emphasizes the autonomous communities’ high degree of competency. In this respect, recognizing that the level of self-government for the autonomous communities is comparatively elevated, the so-called ‘state of autonomies’ cannot be understood as a federal state for several reasons. The autonomous communities are not constituent entities of the state, nor do they have their own sovereignty. At the same time, there is a clear inequality between the state institutions and those of the communities, fitting relatively poorly with the federal theoretical scheme. There is neither a balance in participation of the autonomous communities in conformity of the state, nor in the important state institutions’ composition. Finally, from a political point of view, there is no generalized perception of having a federal state. On the contrary, there is no relevant political force clearly defending the notion that Spain already embodies a federal model, whereas political formations that incorporate constitutional reform into their programme in order to advance towards a federal state (e.g. United Left, Izquierda Unida (IU)) do exist. All in all, it would be more accurate to define the model developed in Spain as a unitary state with strong political decentralization (except for Ceuta and Melilla) and with a tendency towards equal distribution of designated powers among all its parts: that is to say, relatively symmetrical. This tendency toward symmetry is one of the country’s greatest political controversies, insomuch as the nationally differentiated communities (mainly the Basques and the Catalans) seem to aspire, in global terms, to a differentiated treatment in order to emphasize their peculiarity, whereas in many other communities, this possible asymmetry is understood as a privilege or offence that greatly destabilizes the system. On the other hand, it cannot be forgotten that in the field of symbols and principles, the Spanish Constitution raises a univocal model of national identity, and is therefore resistant to plurality of identity. In effect, the only concession that the constitutional text makes to a hypothetical plurality of national identities is the inclusion of the ambiguous term “nationalities” in Article , without legal consequences. In contrast, the Constitution is categorical when establishing national unity. According to Article , the mere existence of a definitively Spanish nation and its indivisibility constitutes the ‘fundament’ of the Constitution. The text of this article reflects a clearly nationalist conception, since the constitutional norm is based on the existence of a nation that, in addition, ostensibly attempts to integrate all the citizens of the state, regardless of their national identity feelings. On the other hand, it is known that a certain percentage of the population does not relate to Spanish national identity, and a still greater percentage feels or thinks that other national identities exist, especially in Catalonia and, to an even greater degree, in the Basque Country. Consequently, as Professor Perez Royo indicates, Spanish society has still not proposed a legally tenable answer to the problem of structuring the state.2 On the one hand, 



Javier Pérez Royo, “Una asignatura pendiente: la reforma de la Constitución”,  Revista Española de Derecho Constitucional (), -, at .

The New Act on Autonomy of Catalonia the Constitution has not undergone reform since ,3 largely because of the lack of consensus and the non-existence of a consolidated constitutional culture.4 On the other hand, since the second half of the s, the reform of various communities’ autonomy statutes seems to have entered an uncoordinated stage in which each community seeks its own reforms without a predefined global model. This process is now accelerating, as the first autonomous communities, established by special legal procedure, have also begun to amend their respective statutes. In fact, the  Constitution established two tracks for attaining access to autonomy. The special procedure foreseen in Article  implied a greater desire for self-government and to begin the development of autonomy with a higher degree of competencies. Thus, only the Basque Country (in ), Catalonia (), Galicia () and Andalusia () were established by virtue of Article , whereas the rest of the communities followed the normal track described in Article . Nevertheless, with the passage of time, the communities founded under Article  have been able to reform their statutes to elevate their competencies level. In practical terms, then, the current model is symmetrical. However, the communities initially distinguished by special procedure must now also complete special requirements for the amendment of their statutes. This explains to some extent why until recently, no reform had taken place in the statutes of the four communities mentioned above. In , the Basque Country was the first ‘historical community’ to raise the issue of reforming its statute. Nevertheless, in spite of approval by the Basque parliament in December  by an overwhelming majority, the proposal was rejected by the state parliament, which refused even to open a discussion on it. The cause of this deep disagreement lies in the conflicting political majorities in the Basque Country and Spain regarding the future of this community. Catalonia’s attempt has been more successful, probably because of this community’s lesser political and ideological fragmentation, as well as the fact that the main governing party in Catalonia is in fact the same party that holds a national majority. Finally, Andalusia is also in the process of reforming its statute, and Galicia is expected to develop a proposal of its own. Therefore, the Basque issue appears to be the only one to which a favourable political solution is not anticipated in the near future. But at the same time, the increasing divergence of the present reforms between political parties, not only in the Basque Country and Catalonia but also in the rest of the state, demonstrates that Spain lacks a definitive model of territorial organization, and that the problem of internal organization will prove persistent in the long run. II. The Catalan Reform of the Act (Statute) on Autonomy Focusing on the specific case of Catalonia, the current reform process of the autonomy statute started in the Catalan parliament after the community’s change of governmen 

Apart from the minimal reform to Art.  performed to adapt the text to the European Union Treaty in . Eduardo J. Ruiz Vieytez, “¿Hacia un Estado plurinacional? Reforma de la Constitución, Modelo de Estado y conflicto vasco”,  Pasajes de Pensamiento Contemporáneo (), -, at -.



Eduardo J. Ruiz Vieytez tal administration in . After  years of uninterrupted government by the centre nationalist federation Convergencia i Unió (CIU), a left-wing government emerged with the participation of the Socialist Party of Catalonia (PSC) as the main force (PSC is a brother party of the Spanish Socialist Party), the eco-socialist Initiative for Catalonia (Iniciativa per Catalunya (ICV)) and the left-wing, pro-independence Catalonia Republican Left (Esquerra Republicana de Catalunya (ERC)). One of the main actions of this new government in  was to implement the reform of the Autonomy Act of . The debate on the new statute was developed within the Catalan parliament during  and , until its final approval on  September . The adopted text was supported by % of the deputies in the Catalan parliament, including the three parties in the government and CIU. However, the fifth political force that makes up the Catalan parliament, the right-wing Popular Spanish Party (PP), opposed the initiative. The promise made in  by the current Spanish Prime Minister Jose Luis Rodríguez Zapatero to support the Catalan proposal wide heartedly in Madrid was soon forgotten by the government and the PSOE and once the statute proposal was sent to the central parliament for its transaction, it was clear that substantial aspects of the text agreed in Catalonia would be subject to severe modification. This was not necessarily due to its presumed unconstitutionality, but because of the political reaction in other Spanish regions by the Popular Party and even within an important segment of the PSOE itself. The debate on a new autonomy bill for Catalonia was complex from the beginning, since to start with, the text supposes an important extension of the number of articles. From the existing  articles in the  statute, it goes now to a total of . During the parliamentary process, the main discussions between the parties centred on three major aspects that match the greater changes of the new autonomy statute. A. The Definition of Catalonia and the Identity Issue The autonomy act of  stated, according to Article  of the Spanish Constitution, that Catalonia composed a “nationality”. This term, impossible to define in legal terms, seems to be understood by the Constitution as an intermediate entity between a nation (which can only mean Spain) and the region. In , this definition still appears insufficient, and the approved proposal of the statute by the Catalan parliament categorically affirmed in its Article  that “Catalonia is a nation”. This article carried, naturally, an enormous political and symbolic weight. While the overwhelming majority of Catalan citizens and parties support their own national self-definition, in the rest of Spain an important rejection was expressed. This rejection was raised mainly by the Popular Party, but also by a significant sector of the PSOE opposed to the national definition of Catalonia. In fact, what lies behind this debate is the multinational character of the Spanish state. The existence of diverse nations within the Spanish state (primarily Catalonia, Basque Country and Galicia), is a position widely endorsed in Catalonia and the Basque Country, but broadly rejected by the rest of the country, since it equates the Catalan or Basque nation with the Spanish one, recognising them as different realities. In spite of the evidence, this position is not assumable in the Spanish political culture, for which national unity is something unquestionable. 

The New Act on Autonomy of Catalonia All this led to the substitution of the word “nation” with “nationality”. In this way, the text goes back to a very similar definition to that of the  statute. In contrast, the Introduction (which does not comprise the legal norm itself ) recognizes that the Catalan parliament has defined Catalonia as a nation, which does not imply that Spain recognizes the national character of Catalonia. Besides this, some references to symbolic elements of national identity, such as Catalonia’s participation at international sporting events, were also removed during the discussion at the central parliament. B. The New Competencies of the Autonomous Community The reform of the statute has been perceived as an opportunity to extend the scope of competencies managed by Catalonia compared to the ones decreed in . Some of them could not have been anticipated at that time. In other cases, attempts have been made to extend these competencies in spite of the state or the Constitutional Court’s interpretation by means of a more articulated regulation. Thus, besides assuming new competencies within the constitutional framework, the new statute will try to guarantee that Catalonia’s own competencies are not aggrieved by jurisprudence, nor by the basic laws of the state. The more relevant competencies that Catalonia will assume with the new statute will be about participation in immigration policy, labour security, rural development, pre-school education, commerce schedules, regional trains, urbanism and environmental protection. The recognition of powers in the field of security through an integrated development of the regional police of Catalonia is also worth noting. With the exception of the latter, there are few competencies with strong symbolism for citizen, and a large part of them is shared with the state. C. The Financing of the Autonomous Community The greatest debate in the negotiation of the new statute has probably been the financing of the Community of Catalonia. In this community, a traditional feeling of economic damage for having received less than what is invested by the state government persists. On the other hand, the Catalan autonomic powers have developed a feeling of admiration for the fiscal model of the Basque Country, which guarantees its community ample financial independence. Nevertheless, the state is not prepared to extend the Basque model to other communities, which forces Catalonia to negotiate a tributary model expansible to the rest of the territory. After deep disagreements between Catalan and Spanish political forces, the model adopted by the Catalan parliament was largely rejected by the central parliament. Finally, CIU and the PSOE agreed upon a model that gives Catalonia greater participation in the return for certain taxes. At the same time, a Catalan Tax Agency would be created for the purpose of tax collection. Finally, the state has committed to invest in Catalonia in proportion to the economic weight of the community during the next seven years. D. Other Changes of the New Autonomy Statute Finally, the content of the new statute shows a much more meticulous regulation of citizens’ rights, something that was not considered in the  statute. This regulation 

Eduardo J. Ruiz Vieytez has been criticized as ‘excessive’ in some sectors. In fact, a good amount of programmatic norms and social or cultural rights not anticipated in the Constitution have been included. Because of this symbolic weight, as well as the protection of Catalonia’s two official languages (Catalan and Spanish), the citizens of Catalonia must now know both, whereas only Spanish was previously required. III. The Political Side of the Reform and Future Perspectives As previously indicated, the compelling political forces of the new autonomy statute were the members of the Catalonia tripartite government: PSOE, ERC and ICV, which reached an agreement in the Catalan parliament with CIU. Nevertheless, while these four forces were defending the original text in the national parliament, the proposed modifications of the Spanish PSOE and the central government itself made the position of the more nationalist parties (the ERC and CIU) increasingly difficult. At the same time, in the Lower Chamber the government of Zapatero (PSOE) was receiving parliamentary support from the left-wing coalition federated to ICV and from ERC itself. Nevertheless, in January of , the president of the government reached an agreement with the CIU leader, Artur Mas, to unblock negotiations on the statute, leaving its other nationalist partner, the ERC, displaced. From there on, politically speaking, Zapatero and Mas both capitalized on the success of this negotiation. This agreement dragged the PSOE, CIU and ICV towards a common position, implying important cuts in the final text, mainly with respect to the definition of Catalonia as a nation (that would be hidden within a complex formula in the Introduction) and to some relevant competencies. The Zapatero-Mas agreement was perceived as a betrayal of its privileged position as government partner by ERC, as much in Catalonia as in the state. On the other hand, the text agreed upon by CIU and PSOE was not assumable for the nationalist position of ERC, which ultimately called on its supporters to vote against the adoption of the new statute during the referendum, the same position taken by the PP for diametrically opposed reasons. This has caused a strange situation in which three out of the five largest parties of Catalonia (CIU, PSOE and ICV) entered a Yes vote, while the other two (ERC and PP) cast No votes with divergent arguments. These contrasting positions lead to the rupture of the Catalan government, from which the ERC was expelled in May . In the  June referendum, the new act on autonomy was approved by a large majority of the voters (% in favour, % against, % void), although turnout was reduced to %, which indicates that support for the new statute only is given by % of those eligible to vote. Nevertheless, the new statute was enacted although the Popular Party, some neighbour communities and the state Ombudsman have challenged it before the Constitutional Court. Besides this, the statute reform process modified the political alliances, breaking the coalition regional government and leading to anticipated regional elections in November . In any event, the problem is rooted in the fact that political consensus for the new text was finally reduced to three political parties out of five. If we consider at the same time that some CIU leaders have declared the current text an insufficient “step ahead”, it can be concluded that the question of institutional integration of Catalonia in Spain is still far from being solved. Really, the present text supposes an adjustment that may stabilize Catalan political life for a decade, but does 

The New Act on Autonomy of Catalonia not imply a stable closing for the system. On the contrary, a significant part of Catalan nationalism understands the present text as insufficient, or at most a stopgap measure, and at the same time, the state right represented by the PP has challenged the new legal framework not only politically, but also before the Constitutional Court. To put it in a nutshell, in spite of the appearance of success exhibited by the approval in referendum, the Catalan case comes to demonstrate that the Spanish territorial model is not yet clearly defined. Although the new text can imply a certain stability for a period of time, tensions within and between some Autonomous Communities are more frequent than in previous periods. Legally speaking, the process has also shown that there is no room for manoeuvre for Catalan (or Basque) nationalists when their proposals are opposed by Madrid, even if they gain majority support at the regional level. Thus, it can be expected that political tensions between the national centre and certain minority peripheries will remain part of the Spanish political agenda for the foreseeable future.



Wouter Pas*

Minority Issues in Belgium: A Brief Overview of Recent Developments

In this short overview we will highlight some recent legal developments in Belgian constitutional law. These developments relate to the reform of the institutions, in particular the Brussels institutions, as well as to the implementation of linguistic legislation. All these developments take place in the context of Belgium’s decision on whether to ratify the Framework Convention for the Protection of National Minorities. I. Introduction Addressing recent developments in the field of minority protection in Belgium immediately raises the question of which groups can be considered minorities. The issue of definition and delimitation of minorities is very closely linked to the debate on the possible ratification of the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention”). The Framework Convention was signed by the Belgian State in , as one element of a larger political agreement (the so-called “Lambermont Agreement”) concerning the amendment of the rules of Belgian federalism. To its signature, Belgium added a reservation stating inter alia that “the notion of national minority will be defined by the inter-ministerial conference of foreign policy”.1 A definition of ‘national minority’ has not yet been provided by this inter-ministerial conference because of the diverging viewpoints of Flemish and Francophone politicians and lawyers. The impossibility of reaching a definition on the scope of application of the *



Wouter Pas is auditor at the Belgian Council of State (section legislation) and is scientific collaborator at the Institute of Constitutional Law of the K.U.Leuven. His research interests include Belgian and comparative constitutional law and federalism. This inter-ministerial conference is composed of the federal and subnational (regional and community) ministers of foreign affairs and international relations. They represent the governments of all authorities that will have to assent to the Framework Convention. See Wouter Pas, “The role of the Belgian regions and communities in international and European law”, in Luigi Daniele, Regioni e autonomie territoriali nel diritto internazionale ed Europeo (Editoriale Scientifica, Napoli, ), -.

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 511-520. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Wouter Pas Framework Convention, as well as uncertainty about the consequences of its ratification for the Belgian institutional and linguistic equilibrium, has so far made its ratification impossible.2 Like the Belgian Constitutional Court,3 which in its Judgement / carefully avoided the term ‘minority’,4 we will not enter into the debate about the definition of ‘national minority’ in the sense of the Framework Convention here, but will instead, rather unscientifically, skip the issue of definition. An overview of minority issues would therefore consider two fields: the classic Belgian issues of the coexistence of the Dutchand French-speaking populations (the institutional and linguistic structures) and the newly arisen issues, related to the position of immigrants and their descendants. Given Belgium’s specificities in dealing with linguistic diversity, we will focus on the classic Belgian living apart together. However, one should not conclude from this approach that the question of anti-discrimination legislation or of integration or diversity policies are deemed less important. In these fields, Belgium does not appear essentially different from other comparable European states. The classic issue of Flemish-Francophone relations is found both in the sphere of Belgian federalism as such (its institutional issues), and in the sphere of linguistic legislation. Both domains, which are often closely linked, have been exposed to the last few years’ intense political controversies. II. Belgian Federalism The Belgian federal structure5 is based on a centrifugal or devolutionary federalism, grown out of the country’s binary division into a French- and a Dutch-speaking population. This split transformed a unitary state into a federal state by creating sub-national entities, and also led to a federal authority organized in a confederal way by equalizing the French-speaking minority with the Dutch-speaking majority. The rules of this



 





See Wilfried Swenden, “Personality versus Territoriality: Belgium and the Framework Convention for the Protection of National Minorities”,  EYMI (/), -; Simona Granata-Menghini, “The Application of the Framework Convention for the Protection of National Minorities in Belgium: The Opinion of the European Commission for Democracy through Law”,  EYMI (/), -. The so-called Court of Arbitration. For a critical analysis, see Pascal Boucquey et al., “La Cour d’arbitrage et Saint-Polycarpe: un brevet de constitutionnalité mal motivé”, () Journal des Tribunaux (), , at -. On Belgian federalism, see, e.g., André Alen, “Nationalism - Federalism - Democracy. The Example of Belgium”, Revue européenne de droit public (), -; Kris Deschouwer, “Kingdom of Belgium”, in John Kincaid and G. Alan Tarr (eds.), A Global Dialogue on Federalism. Volume . Constitutional Origins, Structure, and Change in Federal Countries (McGillQueen’s University Press, Montreal, ), -; Wouter Pas, “A dynamic federalism built on static principles: The Belgian Case”, in G. Alan Tarr, Robert F. Williams and Joseph Marko (eds.), Federalism, Subnational Constitutions, and Minority Rights (Praeger Publishers, London, ), -.

Minority Issues in Belgium: A Brief Overview of Recent Developments federal system are laid out in the Constitution6 as well as in various so-called Special Majority Acts.7 The federal structure features two types of sub-national entities: three regions and three communities, with the Flemish, French and German-speaking communities on one side, the Flemish, Walloon Region and the capital Brussels on the other. Within the bilingual linguistic region of Brussels, the powers of the communities are distributed and exercised in a complicated way. Both the French and the Flemish Communities have important powers, but only with regard to institutions or organisations. Concerning individual persons or bilingual institutions and organisations, the powers are attributed to the federal authority or the Joint Community Commission. In some fields, the French Community has passed the exercise of its powers in Brussels to the French Community Commission.8 III. The Lambermont Judgment of the Constitutional Court The last important reform of the Belgian federal institutions took place in , in the context of the so-called “Lambermont and Lombard Agreements”. The content of this reform will not be discussed in this contribution,9 but we will address certain points out of the assessment of the reform by the Constitutional Court.10 In fact, the constitutionality of the legislation executing these reforms was challenged. The court upheld the central point of the reform, the transfer to the regions of powers concerning decentralized authorities, especially the municipalities and the provinces, under the Special Majority Act, without amending the Constitution. Two elements of the court’s judgments are worth mentioning. They relate to the Lombard Agreement, which was the section of the institutional reform that dealt with the functioning of the institutions of and within the bilingual region of Brussels. The two elements can be described as respectively fixed minority representation in the Brussels regional parliament and the democracy principle. IV. Fixed Minority Representation From  on, a fixed number of seats in the Brussels regional parliament is granted to both Flemish and Francophone members of parliaments.  seats are reserved for  

 



The main amendments took place in , ,  and . According to Art.  of the Constitution, a Special Majority Act requires besides an overall two-thirds majority in each house of the federal parliament, a majority in each linguistic groups within these houses. The French Community Commission and the Flemish Community Commission are in origin administrative, executive bodies, subordinated to their respective communities. See Patrick Peeters, “The Fifth Belgian State Reform (‘Lambermont’): A General Overview”,  European Public Law (), -; Dirk Jacobs and Marc Swyngedouw, “Territorial and Non-territorial Federalism in Belgium: Reform of the Brussels Capital Region, ”, () Regional and Federal Studies (), -. Constitutional Court of Belgium, judgment of  March , / available at .



Wouter Pas Flemish representatives, while  seats go to the Francophone representatives. These members of parliament are elected on linguistically divided lists during regional elections. This guarantees the Flemish population a fixed representation, regardless of their demographic strength. The constitutional court examined the legality of this electoral system in the light of the constitutional principle of equality and in the light of Article  of the First Protocol to the European Convention on Human Rights. The Court considered that Article  of the First Protocol does not require elections to be held according to the principal of proportional representation. Therefore, it does not impede the institutional legislator to create a fixed representation of numerical minorities. With regard to the principle of equality, the Court judges that the fixed representation should be situated in the general institutional system of the Belgian state that intends to create a balance between the different communities and regions. Within this general institutional framework, the region of Brussels is the only bilingual region. This fact justifies specific organs and mechanisms. The Court argues that the legislator started from the observation that the eleven Dutch-speaking members of the Brussels regional parliament were unable to fully carry out their mandates, since they had to participate in the activities of the Brussels regional parliament, in the Council of the Flemish Community Commission and the Joint Council of the Joint Community Commission of Brussels. Moreover, six out of the eleven members also had to sit in the Flemish parliament as a whole. Increasing the number of members of the Brussels regional parliament (in particular of the eleven Flemish seats out of  to  seats from a total of ) enables the normal and democratic functioning of the Brussels’ institutions. The Court discards an evaluation of the number of seats for the Dutch linguistic group on the basis of previous elections. The electors are not necessarily guided, and surely not determined, by the linguistic affiliation of the candidates. But even if later elections showed an imbalance between the number of votes necessary to obtain a Dutch or French seat, respectively, the measure would not be disproportionate to the objective, which is to guarantee the representatives of the smaller linguistic group the conditions to carry out their mandate correctly and plainly. Because the electoral district of the region of Brussels is the only electoral district that corresponds to a constitutional bilingual region, the fact that no analogous measures are adopted in either the Walloon parliament (for German-speaking representatives) or the Flemish parliament is irrelevant to the Court. This constitutional bilingual character of the region of Brussels does not, however, prohibit the special majority legislator from abolishing the existing mechanisms for which double majority voting was required for certain decisions (like the election of the government) in the Brussels regional parliament or the Joint Council of the Joint Community Commission. The Court, therefore, does not object to one of the counterparts of fixed representation, which is the replacement of double majority voting by a system in which, in a second turn, one-third approval in the smallest linguistic group (Flemish) is sufficient.



Minority Issues in Belgium: A Brief Overview of Recent Developments V. Democracy Principle Another element of the Constitutional Court’s landmark judgment illustrates that even Belgian institutional engineering has its limits. The two linguistic groups in the parliament and in the government of the region of Brussels constitute the French and Flemish Community Commissions. The task of the Flemish Community Commission is that of a decentralized institution of the Flemish Community. According to the Lombard Agreement, the Special Majority Act on the Brussels Institutions added five members to the  members of the Council of the Flemish Community Commission (VGC). These added members should have been assigned amongst the non-elected candidates for the regional parliament, but on the basis of the election results for the Flemish parliament. This meant that the election of the additional members of the VGC would not only be influenced by the Flemish voters in Brussels, but also by the Flemish voters outside of Brussels. According to the special majority legislator, this unusual mechanism was introduced in order to avoid a deadlock of the Brussels institutions. In particular, the electoral success of the Flemish extreme right-wing party was feared. That is the reason why additional members had also to play a role in the overall Brussels regional institutions. If it turned out to be impossible to elect a government supported by both the general majority and a majority in each linguistic group, the ministers would eventually have been nominated by their respective linguistic group. With regard to the Dutch language group, five extra members of the VGC would have been added. In principle, the Constitutional Court accepts the possibility of radical measures to prevent the use of political freedom in a way that destroys democracy. However, in casu, the Court does not accept deviation from the principle that the members of representative organs must be assigned by the citizens who are affected by its decisions. As a result of the annulment of these procedures by the Court, some amendments were introduced in the federal parliament. In these amendments, the risk of deadlock in the Flemish institutions in Brussels was tackled by no longer demanding that the ministers in the Brussels regional government and the executive organs of the Community Commissions be elected by double majority voting. In an advisory opinion on these amendments, the legislation section of the Belgian Council of State stressed that there is no constitutional necessity that the government of the region of Brussels needs to be supported by a majority in each linguistic group. However, the Council of State brought up the subject of democratic principle, according to which the executive organ of a political entity has to be the direct or indirect emanation of the representative body of this political entity.11 The latter must also apply for the executive organs of the community commissions. VI. The Linguistic “Facilities” In December , the Council of State, in its capacity as the supreme administrative court, put an end to an ongoing dispute over the correct implementation of linguistic 

Council of State, section legislation advice of  June , ./VR, Parliamentary Documents, House of Representatives, -, No. /.



Wouter Pas legislation.12 The judgments of the Council of State dealt with the so-called ‘Peeterscirculars’ that, after complaints by some francophone politicians, set off reports and resolutions of the Parliamentary Assembly of the Council of Europe.13 As well known, the linguistic legislation in Belgium is based on the division of the country into linguistic regions. On the basis of the territoriality principle, in  Article  of the Belgian Constitution divided the Belgian state into four territorial linguistic regions: the Dutch-speaking region, the French-speaking region, the bilingual region of Brussels and the German-speaking region. The boundaries of these regions cannot be changed except by a special majority in the federal parliament. All linguistic regions, apart from the bilingual region of Brussels, are in principle monolingual. In the bilingual region of Brussels, Dutch and French are both official languages. The authorities in each region may, in principle, only use the official language of that region in their relations with citizens. Within the ‘monolingual’ zones, in twenty-seven municipalities bordering on a different linguistic region, so-called “facilities” have been installed. These facilities give the citizens the right to demand that the municipal authority uses another language than the compulsory one of the linguistic region to which the municipality belongs. Facilities also imply that parents have the right to have their children educated in kindergarten and primary schools of their own language. Since their creation, there has been continuous controversy over the definition, interpretation and extent of these facilities. For some, the language facilities constitute a temporary exception to the principle of territoriality and a means of accommodating linguistic newcomers until they learn the language of a region sufficiently to be able to communicate with the public authorities. To others, the facilities are a permanent form of minority protection that should not be seen as a transitional measure. This discussion about the nature of the facilities became apparent when the Flemish regional government issued some interpretation and implementation rules for the municipalities under its authority (the Peeters-circulars of ).14 The linguistic legislation for the use of languages by the municipal authorities, belongs, in principle to the powers of the Communities. However, excepted are those aspects that touch directly the interest of both linguistic groups, namely the use of languages in the bilingual area of Brussels, and the linguistic facilities. For the latter, the Constitution requires a federal special majority act, implying a two-thirds majority and a majority in each linguistic group. In addition, the regions, which have the power to organize and to control the local authorities and administrations, also have the power to control the correct implementation of the law, including linguistic laws, in all their municipalities, including those with linguistic facilities. 







Council of State, Municipality of Kraainem et al., Nos. .-.,  December , see at ; see Jan Clement, “Waarom de Grondwetgever geen etnograaf is”, () Chroniques de droit public (), -; id., “Omzendbrief-Peeters: Raad van State bevestigt institutionele basisgegevens van het land”, () Tijdschrift voor bestuurswetenschappen en publiekrecht (), -. See André Alen, “Deux rapporteurs suisses sur les minorités nationales belges”, in Peter Hänni, Mensch und Staat - L’homme et l’Etat (Editions Universitaires, Fribourg, ), , at  and . Swenden, op.cit. note , -.

Minority Issues in Belgium: A Brief Overview of Recent Developments In the circulars of , the Flemish regional government explained its view on the correct implementation of the facilities. One of the aspects of these circulars means that any act or document addressed to a citizen by the public services must be written in Dutch. The citizen can only obtain a French version by explicit request on a case-bycase basis. The circulars put an end to the practice in some municipalities of dispatching communications in either Dutch or French, according to a register of linguistic affiliation of the citizens. The question of limited significance (whether a document could be written directly in French, or only following an explicit request) therefore hides a more fundamental question: can the local authority create and use a register of linguistic affiliation? As a matter of fact, the idea of linguistic affiliation seems to be at odds with one of the basic features of Belgian federalism, which is the absence of sub-nationality. These ministerial circulars were contested at the Council of State, by the French Community government and the Walloon government, as well as some of the municipality communes. The Council of State took six years to decide on the matter, which in the meantime led to many political controversies. Furthermore, among Flemish politicians, the issue was not undisputed. Political initiatives by nationalist French-speaking politicians at the level of the Council of Europe led to reports by D. Columberg and L. Nabholz, as well as two resolutions by the Parliamentary Assembly.15 The final judgments of the Council of State go in line with the case law of the Court of Arbitration on Article  of the Constitution, which stated that the rights of those who want to make use of a minority language cannot do away with the precedence of the official language of the municipality. The Council of State confirms that a practice of external (i.e. in relations with the citizens) bilingual communication, to which the linguistic preference of citizens is recorded in a register, is illegal. The Flemish government is therefore entitled to counter this illegal implementation of the federal linguistic legislation. VII. The Electoral Reform The greatest political storm with regard to the tormented relations between the linguistic groups resulted from the electoral reform passed in December . The Constitution stipulates that the establishing of the constituencies or electoral colleges is governed by law, and that the elections are carried out by the system of proportional representation, as determined by the law. Concerning elections to the Senate, for which voters in the entire country are divided into two electoral colleges, one French and the other Flemish, responsible for electing  and  senators respectively, voters from the constituency of Brussels-Halle-Vilvoorde can vote for either a Flemish or a French-speaking list and thus belong, according to the choice made, to one or the other college. Brussels-Halle-Vilvoorde is also a special constituency for the elections 

PACE Resolution  () on the Situation of the French-Speaking Population Living in the Brussels Periphery and Resolution  () on the Protection of Minorities in Belgium; on these resolutions, see Alen, op.cit. note  ; or Marc Bossuyt, “Protection internationale des minorités: le cas particulier de la Belgique”, in id. et al., Droit constitutionnel et minorités (Académie Internationale de Droit Constitutionnel, Tunis, ), -.



Wouter Pas to the House of Representatives as well as to the European Parliament. The constituency of Brussels-Halle-Vilvoorde comprises a district (Halle-Vilvoorde) situated in the Flemish province of Flemish-Brabant as well as the bilingual region of Brussels. The electoral reform of  affected the electoral districts for the election of the members of the federal House of Representatives. The existing smaller but very unequal constituencies or electoral districts were replaced by electoral districts based on the division of the country into ten provinces. At the same time, an electoral threshold of % was introduced. The creation of provincial electoral districts knew one exception. The province of Flemish Brabant, in the Dutch-speaking linguistic region, comprises the districts of Halle-Vilvoorde and Leuven. The bilingual region of Brussels is situated as an enclave within this province. For these areas, two electoral districts were maintained: one of Brussels-Halle-Vilvoorde and one of Leuven. The Constitutional Court found this situation discriminatory in principle, and asked the legislator to modify it.16 The Court ruled that, among others, there was a contradiction to the explicitly provincial definition of all other electoral districts. At the same time, the court stated that the legislator, when maintaining the provincial constituencies, can set up specific conditions for the former province of Brabant (i.e. Brussels, the province of Flemish Brabant and the province of Walloon Brabant), different from the rules applicable to other constituencies in order to preserve the legitimate interests of the Dutch-speaking and French-speaking population. What these specific conditions should look like, is decided by the legislator17 who was granted some delay by the Constitutional Court: the electoral system should be reviewed before the end of the term of the actual federal parliament (that was elected in June ). The federal government, however, defends the position that the Constitutional Court awarded a delay of four years, which would allow it to hold federal elections on the basis of the existing constituencies before June . Nevertheless, the governing coalition tried in  to reach an agreement on amending the electoral system, with regard to the court’s decision, but was unable to reach a compromise between Flemish and francophone political parties. The impossibility of a compromise seems due to, among other things, the fact that discussion about the electoral district had expanded into a quarrel over the linguistic legislation and the position of the borderline municipalities in the institutional framework. However, it should be kept in mind that the essence of the debate is not about the right of French-speaking citizens in the district of Halle-Vilvoorde to vote for their (French-speaking) candidates in legislative elections, but about the possibility of voters of one linguistic region voting for the candidates of another region. The judgment of the Constitutional Court imposes a division in electoral districts which is consistent, although the court does not exclude exceptions to or adjustments of the territorial logic of the division in provinces. 





Constitutional Court of Belgium, judgments / and /, available at ; see Hendrik Vuye, Charline Desmecht and Katrin Stangherlin, “La réforme électorale de décembre : la Cour d’arbitrage annule le passé et impose le futur!”, () Chroniques de droit public (), -. Koen Muylle and Jeroen Van Nieuwenhove, “De Raad van State en de splitsing van de kieskring Brussel-Halle-Vilvoorde”, () Tijdschrift voor bestuurswetenschappen en publiek recht (), -.

Minority Issues in Belgium: A Brief Overview of Recent Developments Put in a broader perspective, it raises the question to what extent a ‘kin-state’ has the possibility of intervening in another constituent region, or to what extent the territorial logic on which Belgian federalism is based, should affect the organization of the federal legislature. VIII. Outlook In spring  federal elections will take place. After these elections, the issue of the electoral district of Brussels-Halle-Vilvoorde will have to be dealt with again, given the  judgment of the Constitutional Court. According to the statements of various political agents on both sides of the linguistic border, broad institutional negotiations are anticipated, in which many issues should or could be (re)negotiated: the composition of the Senate, the transfer of competencies in the field of social security or the labour market, the financing of the regions, in particular the region of Brussels, the linguistic border, etc. Regardless of the possible evolution of Belgian federalism, the discussions and decisions on minority issues will take place against the background of the interference of the Council of Europe, in particular the Parliamentary Assembly (PACE). As a matter of fact, the Belgian linguistic situation and arrangements continue to draw the attention of the Council of Europe:18 In October , a parliamentary recommendation was adopted, in which the Parliamentary Assembly once again encouraged Belgium, among other states, to ratify the Framework Convention.19 However, this time the Assembly also requested the Committee of Ministers to revisit the Framework Convention and initiate, where appropriate, a review procedure, in order to clarify the reasons why some member states have either not signed or ratified it, or have done so with reservations or restrictive declarations. The report20 preparing this recommendation seems to acknowledge that the Framework Convention may be, or at least may be feared to be, at odds with the constitutional structure of some member states. The report recognizes, with regard to the situation of France, that ratification of the Framework Convention would imply a radical reshaping of the constitutional system, making it probable that France will never ratify. As far as Belgium is concerned, the report states that at the root of Belgium’s reluctance to ratify the Framework Convention lies its fear that the principle of territoriality, which constitutes the basic principle of Belgium’s federal structure, would be incompatible with the Framework Convention. Indeed, there seems to be (as is the case for France,) a conceptual incompatibility between the Framework Convention and the Belgian Constitution.21 Belgian 

  

See the above mentioned PACE Resolutions  () and  (), as well as Resolution  () on Language Problems in Access to Public Health Care in the BrusselsCapital Region in Belgium. Recommendation  () on the Ratification of the Framework Convention for the Protection of National Minorities by the Member States of the Council of Europe. Report of the Committee on Legal Affairs and Human Rights, by Boriss Cilevics, Doc. . Jan Clement, “L’emploi des langues en matière administrative, les facilités et la resolution Nabholz du Conseil de l’Europe. Pas de langue, pas de liberté?”, (-) Administration



Wouter Pas linguistic legislation, and the form of federalism that finds its roots in this legislation, is based on the use of linguistic security-areas, through which the three languages groups are protected. The territorial division protects also the Dutch-speakers, and made the survival of the non-dominant language in Belgium possible. The Framework Convention, however, does not take into consideration the protection of minorities and non-dominant groups by the use of security areas. The willingness of the PACE to clarify the reasons for non-ratification may hopefully lead to a more fruitful and fact-based22 dialogue between Belgium and the institutions of the Council of Europe on the Framework Convention.23







Publique (), -; Jan Clement and Mieke Van de Putte, “België, de minderheidsbescherming en het kaderverdrag. Kan het Belgisch model de wereld redden?”, in id. et al., Recht en Minderheden, Tegenspraak – Cahier  (die Keure, Brugge, ), -. The inaccuracy with which the Parliamentary Assembly is dealing with complex constitutional issues, is illustrated by the—repeated—request at Belgium to bring its legislation into line with the Belgian linguistic case judgment of the European Court of Human Rights (see Resolution  (), para.  and Resolution  (), para. ). The ECtHR indeed declared that the fact of preventing children whose parents do not live on the territory of one of the six municipalities with facilities in the Brussels periphery from attending the French-language schools in these municipalities, constitutes a discrimination. However, the Belgium government explained already in  to the Committee of Ministers how the constitutional reform of  met the requirements of the judgment. By adding the six municipalities in the Dutch linguistic region, the position of the French-speaking schools was equalized to that of the other minority schools in the unilingual region (e.g. in Leuven), for which the court saw no discrimination. In  the Committee of Ministers referred to this answer of the Belgian government when answering a question about the implementation of the  judgment (see CM/Del/Dec.()/.); see more extensively André Alen and Patrick Peeters, “The Columberg Report on the Belgian Linguistic Legislation: A Storm in a Teacup”, () European Public Law (), -, at -; Clement, op.cit. note , . The report stresses, e.g., the margin of appreciation left to states when determining the scope of application of the Framework Convention, and thus in determining the definition and qualification of national minorities within the state. This latitude however is subject to limits. The implementation of the Framework Convention should not be a source of arbitrary or unjustified distinctions. The report does not mention the curious fact that this margin of appreciation apparently does not count for Belgium. In fact, in the resolution / the Parliamentary Assembly considered itself entitled to determine precisely the “national minorities” present in Belgium.

Kataryna Wolczuk*

Whose Ukraine? Language and Regional Factors in the 2004 and 2006 Elections in Ukraine

I. Introduction Throughout the s, Ukraine’s ethnic issues tended to be viewed through the prism of majority–minority relations. Indeed, because of their number, territorial concentration and the interest of the kin-state, the position and rights of Russians in Ukraine constituted a significant ethnic challenge to post-Soviet Ukraine. However, the role of the Russian minority in political developments in Ukraine does not represent a majority versus minority dichotomy. As the  presidential and  parliamentary elections demonstrated, the line of political contestation is not ethnic but regional, as the titular majority itself is strongly polarized in terms of political behaviour. Nevertheless, even though political differences divide the eponymous majority itself, the presence of the Russian minority plays a pivotal role in what constitutes a ‘Ukrainian–Russian nexus’. This nexus, which includes a profound lack of consensus on the interpretation of Russia’s influence on the history and foreign policy of Ukraine, as well as the position of the Russian minority, culture and language in Ukraine, represents a profound challenge for post-Soviet Ukraine. The divergent cultural and linguistic profiles of Ukraine’s regions, allied to differences in people’s interpretations of the Ukrainian–Russian past, are factors that are readily exploitable by politicians. This was evidenced during the  and  elections, when eastern Ukrainian elites sought to rally the support of voters in east Ukraine by focusing on Kiev’s disregard for the specificity of these industrial and predominantly Russianspeaking areas of Ukraine. In , this strategy involved raising the spectre of separatism and, in , the status of the Russian language was used as an instrument of political pressure on Kiev. These developments have been driven by the interests of political elites competing for power and have little to do with any actual concern for citizens’ rights. Elections in post-Soviet Ukraine are characterized by the tendency to bring to the fore long-standing regional differences.1 The  and  elections exposed the *

Research for this article was facilitated by the support of the British Academy (Grant number SG-) for research on relations between Ukraine and the European Union. The author would like to thank the reviewer, Oleh Protsyk, for useful comments on the first

European Yearbook of Minority Issues Vol 5, 2005/6, ISBN 978 90 04 16146 7, 521-547. © 2007 Koninklijke Brill NV. Printed in the Netherlands.

Kataryna Wolczuk persistent and deepening nature of this polarization, primarily owing to its expediency. Thus, paradoxically, the reintroduction of genuine political competition in Ukraine as a result of the so-called ‘Orange Revolution’ in late  exacerbated the political divisions within Ukraine. As things stand, the continuation of this regional political contestation is self-sustaining: the more the eastern Ukrainian elites have been determined to gain influence in national politics, the more they have been likely to rely on their regional distinctiveness and strengths to bolster their position at the national level. This may come across as counterintuitive: if influencing national politics is understood as winning elections, then the regional elites’ strategy would require downplaying their regional distinctiveness in order to widen their electoral base geographically. However, since , the eastern Ukrainian elites’ strategies have centred on preventing opposition forces from venturing into their geographical powerbase—namely, eastern and southern Ukraine. Their overarching aim was to retain their sway in the densely populated eastern Ukraine, rather than to widen their geographical base. This strategy was successfully replicated in . Thus, demographics and the ‘Ukrainian-Russian nexus’ dictated the electoral strategy of the eastern Ukrainian elites. This means that the future prospects for overcoming regional polarization depend not only on Kiev’s strategies and policies but also on the role that eastern Ukrainian elites play in national politics. At the same time, the non-transparent relations between the capital and regions and, especially, the unresolved issue of the status of the Russian and Ukrainian languages in Ukraine help to make them into convenient vehicles for political bargaining in Ukraine. In order to give the necessary background to the developments of -, the first part of the chapter offers an analysis of the ethnic composition of Ukraine and the legal framework pertaining to minority rights and language politics. The second part deals with the presidential and parliamentary elections of  and . It aims to explain why and how regional diversity and language policy became so salient during the  and  elections. II. The Ethnic Composition of Ukrainian Society Ukraine’s ethnic composition reflects the country’s complex history and its oft-mentioned ‘borderland’ location. Various ethnic groups had coexisted on the territory of today’s Ukraine for centuries prior to its incorporation into the Soviet Union. As the first federation based on ethnic principles in the world, the Soviet Union elevated ethnicity to a fundamental social category that determined the political organization of society. This was achieved by ascribing nationality at the level of the individual and granting national–territorial units to some of the ethnic groups. Ukrainians were one of those groups who gained the highest level of political recognition through the creation





draft, which enhanced the final version. The author alone is responsible for any remaining shortcomings. The multiple (religious, cultural, ethnolinguistic and political) divisions running through Ukrainian society have been the subject of numerous studies. See, for example, Lowell W. Barrington and Erik S. Herron, “One Ukraine or Many? Regionalism in Ukraine and Its Political Consequences”, () NP (), –.

Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine of the Ukrainian Soviet Socialist Republic (UkrSSR), even though it was defined as a multiethnic republic in its  Constitution. Post-Soviet Ukraine adhered to the Soviet-era notion of nationalities, recognizing nationhood as a state-constituting factor, while at the same time pursuing what could be defined as an inclusive, bureaucratic approach to managing the country’s multiethnic composition. The territorial definition of Ukrainian citizenship adopted on the eve of independence in autumn  reflected a non-ethnic notion of the political community and citizenship was granted automatically to almost everyone who was living in Ukraine at the time the law was passed (the so-called ‘Option Zero’). As no category of the population was formally excluded from the political community, citizenship based on ius soli became one of the fundamental attributes of the new state. Even though ethnicity has not been recorded in post-Soviet Ukrainian passports since , officially, every citizen of Ukraine possesses a fixed nationality. One’s nationality may differ from one’s citizenship. However, only nationalities sanctioned by the state ( in total in ) are recognized; no other national, ethnoreligious or ethnolinguistic identities, such as, for example, Rusyns in Transcarpathia or Russophone Ukrainians, have a formally recognized status. In line with the Soviet-era practice, the national census only includes information on those ethnic groups that have been recognized as nationalities since Soviet times. In other words, only individuals belonging to one of the officially recognized nationalities can have the status of a minority. The opposite is also true: individuals belonging to a recognized non-titular nationality are regarded as a minority even though their ascribed nationality may not coincide with their cultural and linguistic identity.2 For example, Belarussians, who do not form a distinct self-organized ethnocultural group in post-Soviet Ukraine, are nevertheless defined and recognized as a minority. Moreover, as will be argued below, the national census data then informs administrative efforts to ensure congruence between the ethnic composition and provisions for the use of various languages of ethnic groups in the public sphere. According to the first post-Soviet survey in December , Ukrainians account for .% of the population and form a statistical majority in all regions except Crimea.3 Moreover, Ukrainians constitute more than % of the population in  regions out of , mainly in western and central Ukraine.4 However, in Crimea, Ukrainians are the minority, accounting for only % of the population. Overall, the next most populous nationality are Russians at .%; other ethnic groups account for .% (see Table ).

  

Oleksandr Hrytsenko, “Imagining a Community: Various Perspectives on Ukraine’s Ethnocultural Diversity”, NP (forthcoming ). Ukraine is divided into  territorial units:  regions (oblasts), the Autonomous Republic of Crimea and two cities with a special territorial status (Kiev and Sevastopol). The regions where Ukrainians comprise over % of the population include Vinnytsia, Volhynia, Zhytomyr, Ivano-Frankivsk, Kirovohrad, Kiev and Kiev oblast, Lviv, Mykolaiv, Poltava, Rivne, Sumy, Ternopil, Transcarpathia, Khmelnytsky, Kherson, Cherkasy and Chernihiv.



Kataryna Wolczuk Table 1. Ethnic Composition of Ukraine According to the 2001 National Census of Ukraine

Ukrainians Russians Belarussians Moldovans Crimean Tatars Bulgarians Magyars Romanians Poles Jews Armenians Greeks Tatars Roma Azeri Georgians Germans Gagauz Other

Total number (in thousands)

As % of the population of Ukraine  

. . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . .

 as percentage of  (=) . . . . . . . . . . .. . . . . . . . .

Source: State Statistics Committee of Ukraine, “National Census of Ukraine ”, at

The locations and concentrations of minorities reflect Ukraine’s history, insofar as Ukraine’s constituent regions formed parts of other states at some stage in the past. Thus, most minorities are concentrated in regions where they constitute a sizable part of the local population. However, with the exception of Crimea, in no region does any minority group constitute a majority. This factor, as will be seen later, is of crucial importance for Ukrainian minority and language policies. The presence of Russians, who migrated to eastern and southern parts of today’s Ukraine during the rapid industralization process in the twentieth century, is by far the most important and visible legacy of the Soviet nationality policy in today’s Ukraine. In , their number was almost three times as high as in , heavily concentrated in eastern Ukraine and Crimea.5 They make up almost % of the population in the region of Donbas (made up of the Donetsk and Luhansk oblasts) and % in Crimea. In contrast, in western Ukrainian oblasts, ethnic Russians constitute less than % of the population; in central oblasts, their number does not exceed %. 



Volodymyr Kulyk, “Revisiting a Success Story: Implementation of the Recommendations of the OSCE High Commissioner on National Minorities to Ukraine, -”, Centre for OSCE Research, CORE Working Paper No. , Hamburg (), at , at .

Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine Even though other minorities are much less numerous, several of them are regionally concentrated and hence contribute to ethnic diversity at the regional level. Over % of Ukraine’s , Hungarians live in Transcarpathia, where they make up % of the population. Similarly, three quarters of the , Bulgarians in Ukraine live in the Odesa oblast and constitute just over % of the region’s population; almost % of Romanians in Ukraine live in Bukovyna (.% of the local population, with Moldovans adding another .%). As a result, these regions have a clearly multiethnic character.6 The post-Soviet period witnessed a shift in the ethnic composition of Ukraine. Comparison of the data from the  and  censuses reveals a sharp decline in the numbers of some groups. Most striking is the fall in numbers of people who identified themselves as Russians and a corresponding increase in the number of people who regard themselves as Ukrainian.7 As a result of this large-scale ethnic reidentification, the proportion of ethnic Ukrainians has increased from .% to .% and the number of Russians has declined from .% to .% of the overall population of Ukraine. The drop in the number of ethnic Russians by over  million (a reduction of %) has been facilitated by the fluidity of the ethnic boundaries between Ukrainians and Russians, a corollary of cultural and linguistic proximity and the high level of intermarriage. In sum, post-Soviet Ukraine is a multiethnic country with over  recognized minorities. Yet, despite the drop in their numbers, Russians and the status of the Russian language within Ukraine continue to be the primary and politically potent minority issue in Ukraine. III. The Legal Framework How is this multiethnic composition of Ukraine accommodated and recognized from a legal point of view? National minorities have been recognized as ‘state-constituting communities’, as expressed in the first sentence of the  Constitution’s preamble, which refers to “the Ukrainian people—citizens of Ukraine of all nationalities”. This conception of the political community seemed to reconcile the profound differences between the rightwing parties, which favoured the term ‘Ukrainian people’ to highlight the central role of ethnic Ukrainians, and the left-wing parties, which favoured the Soviet-era notion of Ukraine as a ‘multiethnic society’. The two concepts of nationhood—civic and ethnic— were further synthesized by the statement that the right to self-determination that led to Ukraine’s independence in  was being exercised by the “Ukrainian ethnic nation (natsiia), all-Ukrainian nation (narod)”.8 Being wider than the ethnic natsiia, Ukrainskyi narod encompasses ‘citizens of all nationalities’. However, the role of the Ukrainian natsiia as the nucleus of the ‘Ukrainian people’ is reflected in a number of constitutional provisions, such as Article , which obliges the state “to support the consolidation and development of the Ukrainian natsiia, its historical consciousness, tradition, and cul-

  

Hrytsenko, op.cit. note . However, by far the most significant decline affected the Jewish minority, which experienced a five-fold decline between  and  due to emigration, mainly to Israel. Preamble, Constitution of Ukraine, at .



Kataryna Wolczuk ture”.9 In particular, the link between the Ukrainian natsiia and the state emanates from constitutional norms in regard to the state language and symbols.10 Thus, in Connor’s terms, Ukraine was conceived of as a “unihomeland, multinational state”: inhabited by many ethnic groups but homeland of the titular majority, the Ukrainians.11 The constitutional conception of the political community does not imply that political and ethnic identities have to be congruent and hence allows divergence between ethnicity and citizenship. Thus, while emphasizing the role of the titular majority through language and symbols, the Constitution also granted collective minority rights to indigenous people (korinni narody) and national minorities: “the state ... guarantees ethnic, cultural, linguistic and religious self-preservation (samobutnist) of all indigenous nations and national minorities of Ukraine”.12 Article  states that the free development of “Russian [and] other languages of the national minorities” is guaranteed in Ukraine and the rights to education in minority languages are stated in Article .13 Moreover, in places of compact residence of indigenous people and national minorities, the state administrations are to “ensure that programmes for their national and cultural development are implemented”.14 The constitutional provisions were based upon the Law of Ukraine on National Minorities, adopted in June , which offered a broad palette of individual and collective rights, including the use of minority languages alongside the state language in places where a minority formed a majority of the population.15 However, the Constitution unambiguously placed the Russians and the Russian language on a par with other national minorities and their languages. This has been a controversial issue, not only because of the large size of the Russian minority but, more importantly, because of its traditionally privileged status, its perceived commonality of historical fate and religion with the Ukrainian majority and because of the linguistic similarity between Ukrainian and Russian, which obtains to the extent that, outside western Ukraine, Russians tend not to be viewed as alien from the titular majority and Russian is widely used by members of the eponymous majority. While the concept of the ‘Ukrainian people’ incorporates both civic/territorial and ethnic criteria, the weight of respective ‘elements’ in this precarious but not untypical juxtaposition has remained open to interpretation and has been contested (see below). The degree of inclusion and accommodation of various ethnic and linguistic groups in

     





Article , Constitution of Ukraine, at . Kataryna Wolczuk, The Moulding of Ukraine: The Constitutional Politics of State Formation (Central European University Press, Budapest, ), at –. Walker Connor, Ethnonationalism: the Quest for Understanding (Princeton University Press, Princeton, ), . Article , Constitution of Ukraine, at . Articles  and , Constitution of Ukraine, at . Article (), Constitution of Ukraine, at . Moreover, Article () refers to the “the development and implementation of state programmes for the return of deported peoples”, which was particularly aimed at the Crimean Tatars, the largest group of indigenous people in Ukraine. The Law of Ukraine on National Minorities in Ukraine (No.-XI) of  June .

Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine society can be determined by analyzing the operationalization and implementation of constitutional norms.16 Importantly for minority rights, the Constitution stipulated that international treaties ratified by the Ukrainian Parliament form part of national legislation. Among such treaties are the Framework Convention for the Protection of National Minorities (FCNM) which was ratified in  and, more significantly for domestic politics, the European Charter for Regional or Minority Languages (EChRML), which Ukraine ratified in .17 Within the above constitutional framework, post-Soviet Ukraine adhered to the Soviet notion of nationality and pursued what could be defined as a bureaucratic approach to dealing with the country’s multiethnic composition. On the one hand, this entailed striving for a formulaic compliance between ethnic composition and state policies at a regional level, regardless of actual dynamics and local specificities. On the other hand, however, flexibility has been maintained by diverse interpretations of the often imprecise legislation and, especially, by lax and selective enforcement of legislation at the regional and local level. The lack of precision in the legal framework, alongside the ambivalent position of political elites and weak enforcement of formal rules by the state, has to a large degree allowed for accommodation of local specificities across Ukraine, so that minority and linguistic issues have rarely stirred controversy and conflict within society. However, this does not mean that conflict potential around minority issues is absent, as evidenced by ongoing disputes over the status of the Russian language in Ukraine. IV. Language Politics in Ukraine A. Statistics on Language Identification and Use The statistics on language identification in Ukraine appear to confirm the view of Ukraine as a country in which the Ukrainian (and Ukrainian-speaking) titular nation coexists with (Russian-speaking) national minorities. In the  national census, .% of Ukraine’s population claimed Ukrainian as their native language, while .% indicated Russian. This means that nearly % of people who declared themselves to be Ukrainian said that Russian was their mother tongue. Besides Russians, there are several ethnic groups that are predominantly Russophone (such as Belarussians, Jews, Greeks, Volga Tatars and Germans). Few minorities are Ukrainophone; the Poles display the highest level of linguistic Ukrainization with % declaring Ukrainian to be their mother tongue. In absolute terms, it is Russians who are the most numerous Ukrainophone minority: , Russians stated that Ukrainian was their native language (.% of all Russians). Clearly, Ukrainian and Russian predominate in terms of usage in Ukraine: the total share of all other languages spoken is just .% (less than the size of non-Russian minorities).  

For an excellent, comprehensive review of minority rights issues in Ukraine up until  see Kulyk, op.cit. note . European Charter for Regional or Minority Languages, adopted on  November , entered into force on  March , ETS No. .



Kataryna Wolczuk Table 2. Language Identification in Ukraine According to the 2001 National Census of Ukraine

Ukrainians Russians Belarussians Moldovans Crimean Tatars Bulgarians Magyars Romanians Poles Jews Armenians Greeks [Volga] Tatars Roma Azeris Georgians Germans Gagauz Other

Defined as their native language (%) Language of their Ukrainian language nationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Russian language

Other language

. . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . .

Source: State Statistics Committee of Ukraine, “National Census of Ukraine ”, at

However, language identification in Ukraine differs from language use to a much greater extent than the census data suggest. This is due to historical factors. Upon its launch, the official Soviet nationality policy prescribed the fullest possible correspondence between language and ethnicity but, in the s, this policy was reversed and replaced by support for Russian as a language of interethnic communication. As a result of the interplay between the urbanization process and language policy in Soviet Ukraine, linguistic boundaries began to diverge significantly from ascribed ethnic ones. In particular, Russian was adopted en masse by members of the eponymous nationality, especially in urban centres undergoing rapid industralization, which experienced a massive influx of migrants from both the Ukrainian-speaking countryside and Russia. As a result, in many regions of Ukraine, Ukrainian ethnicity was embedded in Russophone and culturally Russian urban milieux. As Russian functions as the primary language of many social practices in many areas of Ukraine, language use is not synonymous with ethnic self-identification in Ukraine. By the mid-s, according to Arel and Khmelko, it was not ethnicity but ethnolinguistic criteria that became the best predictors of political behaviour in Ukraine. They argued that the ethnolinguistic spectrum in Ukraine comprised three nominal groups: Ukrainian-speaking Ukrainians (%), Russian-speaking Ukrainians (%),



Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine and Russian-speaking Russians (%).18 However, even though identifiable in public opinion surveys, no mutually exclusive and self-conscious groups of Russophones and Ukrainophones emerged in Ukraine19 and there has been no large-scale mobilization of these groups on language issues. This is not only due to the marginality of ethnicity in the identities of many people in Ukraine20 but most of all due to the fact that the actual language use of many Ukrainian citizens defies easy categorization. Instead, there is a continuum of language use in many areas, with individuals using either Ukrainian or Russian or a mix of both, according to context. For example, a hybrid Russian–Ukrainian (surzhyk) is widely spoken within Kiev. The fluidity and erosion of the linguistic and cultural boundaries between Ukrainians and Russians, aided by the deliberate policies of the Soviet authorities (despite the preservation of ‘official’ nationality as recorded in the national census), has been an enduring feature of Soviet and post-Soviet Ukraine.21 The complex patterns of linguistic behaviour have been compounded by Sovietera legacies in regard to language identification. Even though as many as % of ethnic Ukrainians use Russian in everyday life, approximately half of them continue to claim Ukrainian as their mother tongue, in line with the Soviet practice that it is nationality, rather than personal preference, which determines an individual’s mother tongue. The  data confirmed the extent to which many Russophone Ukrainians see mother tongue as linked to their official nationality rather than actual language use. At the same time, however, the apparent symbolic attachment to the Ukrainian language, which characterizes many Russophone Ukrainians, does not preclude them from supporting 



 

% of ethnic Ukrainians cited Ukrainian as their mother tongue in the  census. However, when the category ‘language of convenience’ was used in surveys, it was found that in eastern and southern Ukraine .% of the population uses Russian as their language of convenience. See Dominique Arel and Valerii Khmelko, “The Russian Factor and the Territorial Polarisation in Ukraine”,  The Harriman Review (), –. See Louise Jackson, “Identity, Languauge and Transformation in Eastern Ukraine: the Case Study of Zaporizhzhia”, in Taras Kuzio (ed.), Contemporary Ukraine. Dynamics of Post-Soviet Transformation (M. E. Sharpe, Armonk, New York, London, ), –. Paul S. Pirie, “National Identity and Politics in Southern and Eastern Ukraine”, () E-ASt (), –. The literature on Russification in Soviet Ukraine argues that the erosion of the linguistic boundaries between Ukrainian and Russian was a result of systematic Soviet interventions not only in terms of linguistic policy (in schooling, publishing, etc.) but also by changing the Ukrainian language itself (through changing grammar, the lexicon, the alphabet, etc.). For a criticism of Soviet nationality policy in Ukraine by a prominent member of the Ukrainian cultural intelligentsia, see Ivan Dzyuba, Internationalism or Russification? (Wiedenfeld and Nicholson, London, ). On Soviet Ukraine, see also Yurii Boshyk (ed.), Ukraine During World War II: History and its Aftermath (CIUS, Edmonton, ); Bohdan Krawchenko, Social Change and National Consciousness in Twentieth-Century Ukraine (Macmillan, Houndmills, ); Robert S. Sullivant, Soviet Politics and the Ukraine - (Columbia University Press, New York, ); James E. Mace, Communism and the Dilemmas of National Liberation: National Communism in Soviet Ukraine, - (Harvard University Press, Cambridge, MA, ); Bohdan Krawchenko, “The Impact of Industralisation on the Social Structure of Ukraine”, () Canadian Slavonic Papers (), –; and George Liber, Soviet Nationality Policy, Urban Growth and Identity Change in the Ukrainian SSR,  (Cambridge University Press, Cambridge, ).



Kataryna Wolczuk the status of the Russian language. Public opinion surveys indicate the support of around –% of the population for making Russian an official language of Ukraine.22 B. The Legal Framework and State Policies The Law on Languages in the Ukrainian SSR (hereinafter, “Law on Languages”), which was adopted by the Supreme Soviet of the UkrSSR in , established Ukrainian as the sole state language and stipulated that Ukrainian was to be introduced in higher education and state administrative bodies within  years.23 In , the passage of the law was a symbolic gesture towards the Ukrainian cultural intelligentsia in order to subdue the rising tide of protests about linguistic Russification during perestroika. As the law did not specify the mechanisms for its implementation, however, the law has not been systematically implemented.24 In the  Constitution of Ukraine, Ukrainian was declared to be the sole state language, while Russian (despite being explicitly referred to) was essentially demoted to the language of the Russian minority. According to Article : “the free development, use of and protection of Russian, [along with] other languages of national minorities of Ukraine is guaranteed”.25 The same article stipulates that the state “ensures the comprehensive development and functioning of the Ukrainian language in all spheres of social life throughout the entire territory of Ukraine”.26 Thereby, the Constitution defined the aims of the state in the sphere of language as a progressive Ukrainization of public life. Thus, the status of Ukrainian was enshrined in the Constitution as a key element of affirmative action, in order to strengthen the position of Ukraine after decades of discrimination under Tsarist and Soviet rule. The shifting of the highly contentious issue of language policies into the sphere of constitutional obligations was intended to take it above day-to-day politics at the level of central and, especially, regional governments. While the ethnic diversity of Ukraine has been recognized, linguistic diversity has been only partially acknowledged in the Constitution. In particular, ethnolinguis

  





According to a nationwide survey conducted in June  by the Razumkov Centre, % of the Ukrainian public supported making Russian the second state language, whereas % opposed it. See Razumkov Centre, “Assessment of the Authorities, Socio-political and Electoral Preferences of Citizens of Ukraine: Results of a Public Opinion Survey”, Razumkov Centre Press Realease, June , at . The Law of the Ukrainian SSR on Languages in the Ukrainian SSR, (No.-XI),  October  (including subsequent amendments). See, for example, Jan G. Janmaat, “Language Politics in Education and the Responses of the Russians in Ukraine”, () NP (), –. Article , Constitution of Ukraine, at . Article  in the Ukrainian language original text actually reads “the free development, use of and protection of Russian, other languages of national minorities of Ukraine, is guaranteed”. The awkward wording was adopted as the right-wing parties would not allow an ‘and’ between the word ‘Russian’ and the phrase ‘other minority languages’, as this, in their opinion, would indicate the special status of Russian in Ukraine, whereas they wanted to emphasize its ‘minority status’, whereas the left-wing parties insisted on an explicit reference to the Russian language. Ibid., emphasis added.

Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine tic categories that cut across constituent ethnic communities, such as, for example, Russian-speaking Ukrainians, have not been granted constitutional recognition. Such a construction of the political community has diverse implications for various groups in society, especially those that do not fit into any of the categories of the constituent communities sanctioned in the Ukrainian Constitution. Because they cannot be regarded as a minority, Russophone Ukrainians, who account for approximately one third of the population, were not granted the constitutional right to demand provisions to ensure the use of Russian in the public sphere.27 However, the recognition of this group is hampered by the fact that approximately half of Russophone Ukrainians still identify with the mother tongue of their nationality rather the language they use on an everyday basis. Given these complexities, the preferences and rights of Russian-speaking Ukrainians are difficult to define in legal terms. The above legal framework has not led to the elimination of Russian from the public domain in Ukraine. The implementation of the Constitution and the Law on Languages has been characterized by a lack of consistency and commitment to linguistic and cultural Ukrainization. Official support for the linguistic Ukrainization of public life has continued under each president of Ukraine (Kravchuk, –, Leonid Kuchma – and Viktor Yuschenko –present) but has been pursued in an arbitrary and inconsistent manner in the media, bureaucracy and educational sphere. For example, the number of Ukrainian language schools has increased most significantly in Ukrainian-speaking regions, whereas Ukrainization has made only limited inroads in some predominantly Russian-speaking areas,28 where, overall, the percentage of schools where Russian is the language of instruction has not decreased at nearly the same rate as the share of Russians in the population. Moreover, in line with Soviet traditions, official statistics do not often accurately reflect actual practice in educational establishments. Indeed, the  census data confirm the limited impact of the policy of progressive linguistic Ukrainization since independence. Between  and , there was only a .% increase in the number of people claiming Ukrainian as their mother tongue. The widespread use of the Russian language in public and private in eastern and southern regions of the country makes Ukraine an essentially bilingual country.29 With the partial exception of the educational sphere, the process of Ukrainization has not threatened the position of the Russian language. As Kulyk argues, the use of Russian in the public sphere, far from being demoted to the level of a minority language, remained virtually unchanged or even increased in several areas in comparison to the Soviet era (in the realm of popular culture, such as magazine and book publishing and cinema production, Russian prevails and Ukrainian exists as a minority language across Ukraine).30 

  

Admittedly, at the time of the adoption of the Constitution, there was no cohesive or mobilized Russophone Ukrainian group demanding recognition. Making Ukrainian the sole state language did not provoke any organized protests on the part of the Russophones in general and Russian-speaking Ukrainians in particular during the mid-s. Janmaat, op.cit. note . On the linguistic rights of the Russian minority in Ukraine see Kulyk, op.cit. note . Volodymyr Kulyk, “Constructing Common Sense: Language and Ethnicity in Ukrainian Public Discourse”, () ERS (), – at –.



Kataryna Wolczuk In these circumstances, the fact that Ukrainian is defined as the sole state language has more to do with elites’ interests rather than citizens’ rights and duties. In particular, Shevchuk argues that support for making Ukrainian the sole state language has been dictated by the elites’ agenda of creating a discursive distance from Russia in order to legitimize the emergence of independent Ukraine: “Ukrainian language, the language of the titular majority, proposed itself as an organic instrument to articulate the statebuilding project called ‘an independent Ukraine’”.31 This explains why the officiallydefined status of the Ukrainian language has not reflected a concern for the rights of Ukrainian-speaking citizens, despite them being in a linguistic minority in many oblasts of eastern and southern Ukraine. Despite the fact that, on the ground, language issues rarely stir controversy, the vagueness of the constitutional provisions and the discrepancies between the legal framework and state policies, on the one hand, and people’s identification and actual language use, on the other, has paved the way to a radically different assessment of the position of the Russian language in Ukraine. Various bodies in Ukraine, including central authorities, regional and local self-government and judicial organs, base their positions on the language issues on the basis of often diverse arguments and often conflicting evidence.32 Given the precarious balance between the Ukrainian and Russian languages in Ukraine and the conflicting assessments of the situation, it is hardly surprising that the issue of language has considerable potential to be highly politicized. As was pointed out above, fixing the status of the Ukrainian language in the Constitution meant that any change in the status of the Russian language required a constitutional amendment, which was subject to more stringent requirements than normal legislative acts. This lifts the resolution of the formal status of languages beyond political contestation at the national and subnational levels. Because of this, those seeking to upgrade the status of Russian have focused on Ukraine’s international obligations as a way of bypassing domestic constitutional impediments. This became apparent during the process of ratification, interpretation and implementation of the EChRML. Upon joining the Council of Europe in January , Ukraine took on the obligation of signing and ratifying the EChRML. Following the signing of the EChRML in May , the ratification process has been marred by political and legal controversies. The Verkhovna Rada ratified the EChRML in December  but the law was declared unconstitutional by the Constitutional Court on the basis of procedural irregularities during its adoption. Yet the underlying reason for filing the petition to the Constitutional Court by the right-wing deputies was the fact that the ratification law envisaged application of the EChRML to the Russian  



Yurii Shevchuk, “Movne Pytannia ta Ukrainska Elita”, Telekrytyka,  April , at . For example, in a highly controversial ruling in December , the Constitutional Court stepped into language policy when it ruled that state officials were obliged to use the Ukrainian language in the conduct of their duties, something that has not been endorsed within the state apparatus. The ruling has not been implemented. See Kataryna Wolczuk, “The Constitutional Court in Ukraine: the Politics of Survival”, in Wojciech Sadurski (ed.), Constitutional Justice, East and West (Kluwer Law International, The Hague, London New York, ), –.

Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine language. After two more attempts (in  and ), the EChRML was finally ratified in May , because the Ukrainian authorities were keen to meet at least some demands of the Council of Europe, which heavily criticised the Kuchma administration for breaches of democratic standards and human rights. However, numerous technical shortcomings became apparent soon after the ratification. According to Vasylenko, the EChRML was translated into Ukrainian from a Russian translation of the original text, rather than from one of the original languages of the EChRML.33 Indeed, in the Ukrainian translation the term ‘minority languages’ was translated as ‘languages of minorities’. The Law of Ukraine on Ratification of the European Charter for Regional or Minority Languages of  May  (hereinafter, “Ratification Law”) interprets the term ‘minority’ as ‘national minorities’: “the law shall apply to languages of the following national minorities in Ukraine: Belarussian, Bulgarian, Gagauzian, Greek, Jewish, Crimean Tatar, Moldovan, German, Polish, Russian, Romanian, Slovak and Hungarian”.34 At the same time, other languages, such as Roma, Karaim and Armenian, even though they appear to conform to the ‘minority language’ definition under the EChRML, are not listed in the ratification law. Many observers questioned the application of the EChRML to the Russian language on the grounds that, being spoken by the majority of the population of Ukraine, it does not fall under the definition of a ‘minority language’.35 The key issue with Russian in Ukraine is not its protection as a ‘minority language’ or a language of the Russian minority but rather with the definition of the linguistic rights of Russophone citizens of Ukraine who do not belong to the Russian national minority. The consternation over the ratification law within the Ministry of Foreign Affairs resulted in a two-year delay in sending the ratification documents to the Council of Europe. In , the Ministry of Justice of Ukraine started to prepare amendments to the ratification law, including a revised list of languages protected under the EChRML. However, it was precisely because of the EChRML’s perceived power to elevate the status of Russian to a regional language that made the deputies ratify the EChRML in . The contestation over the mutual position of the Ukrainian and Russian languages overshadows the issues surrounding other languages. Indeed, as argued above, concern for other languages was of marginal significance during the ratification process of the EChRML. This is despite the fact that no sufficient legal framework on languages has been developed in Ukraine. For example, Article  of the  Constitution, which stipulates that “citizens who belong to national minorities are guaranteed in accordance with the law the right to receive instruction in their native language, or to study their native language in state and communal educational establishments and through national cultural societies”, has not been developed into national legislation.36   



Volodymyr Vasylenko, “Yaki Movy v Ukraini Potrebuyut’ Osoblyvoho Zahystu”, Dzerkalo Tyzhnia, - March . The Law of Ukraine on the Ratification of the European Charter for Regional or Minority Languages (No. -IV) of  May , emphasis added. See, for example, Vasylenko, op.cit. note ; and Volodymyr Kulyk, “Not Much Has Changed on the Language Front”, Krytyka, available in an English translation, at . Article , Constitution of Ukraine, at .



Kataryna Wolczuk The contestation of language status has taken place mainly amongst the political elites and not at the popular level. However, even though language rarely generates conflict or even stirs controversy in everyday life, the discrepancy between the formal status of Ukrainian as the sole state language and the actual dominance of Russian in many spheres of life, especially in the eastern part of Ukraine, means that the ethnic principle, which nominally guides the language policies of the state, ignores the ethnolinguistic specificity of this part of Ukraine. This situation turned the language question into a source of periodical contention between Kiev and eastern provinces of Ukraine. Particularly during electoral campaigns, the issue of language has turned into a potent symbolic device via which regional elites seek to increase their electoral appeal and/or exert pressure on Kiev. As will be argued below, challenges of this type have little to do with concern for the linguistic rights of Russophone and Ukrainophone citizens and more to do with political elite-level interests and strategies. V. Whose ukraine? The 2004 Presidential and 2006 Parliamentary Elections Following independence, contestation along the so-called ‘Ukrainian–Russian nexus’ took on an ideological character, even though regional differences were manifested in preferences for geographically polarized political parties in Ukraine. However, since , this contestation has acquired a more regional character, in that the main protagonists are not divided by ideological platforms but by highly regionalized patterns of electoral support, which encourages them to emphasize, rather than downplay, regional differences. In particular, as eastern Ukrainian elites37 found themselves ‘under siege’ as a result of the ‘Orange Revolution’, they resorted to issues of nationalism, separatism and language as instruments of political struggle. Paradoxically, the opening of political space since the demise of the Kuchma regime and the intensive political competition that followed have fuelled a confrontation that carried a risk of political instability. In order to understand the dynamics of this phenomenon, this paper will examine the key role that political actors have played since independence, prior to a discussion of the  and  elections. A. Setting the Scene: the National Democrats versus the Left in the 1990s In the first decade following independence, the key protagonists were the so-called national democrats and the left-wing parties. In the s, the left wing was represented by the Communist Party of Ukraine (Komunistychna Partiya Ukrainy (KPU)), which attracted the votes of eastern Ukrainian voters, as well as some ‘centrist’ parties, representing regional business interests, and non-affiliated candidates. Ideologically, the KPU adhered to the Soviet-era ideological blueprint and defined the political community of Ukraine as the territorial, supraethnic community ‘the people of Ukraine’ (narod 



For convenience, ‘eastern Ukraine’ refers to ten territorial units of Ukraine (including eight eastern and southern oblasts, the Autonomous Republic of Crimea and the city of Sevastopol), in which Yanukovych and the Party of Regions won in the  and  elections, respectively.

Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine Ukrainy). The party opposed breaking ‘the people’ down into subcomponents (that is, the eponymous majority and national minorities) on the grounds that “it was discriminatory and would practically exclude the tens of millions of citizens of Ukraine of other nationalities who build and support their state—Ukraine”.38 In particular, they opposed defining Russians in Ukraine as the national minority. The attributes of the political community—language and symbols—were to reflect and respect the multiethnic composition of Ukraine. While all languages could develop freely, Russian was to become the state language or at least the official language of Ukraine alongside Ukrainian, although the meaning of ‘official’ as opposed to ‘state’ language remained unclear. Yet apart from getting some minor concessions, the communists failed to shape the constitutional provisions on language, minorities and state symbols.39 Since the late s, the KPU has gradually lost its position as the biggest political party. In , the Communists obtained nearly a quarter of all votes cast for all political parties (.%, while the second largest party, Rukh, only obtained .%; % of seats were elected according to the proportional representation system during this election). The KPU faction in Verkhovna Rada was three times bigger than the next one. In the  elections, which were held under a similar mixed electoral system, their share was reduced to %, only to decline to .% in the  elections, which were held under the fully proportional representation system. A new wave of parties has now taken over the mantle of representing the eastern Ukrainian electorate. In , the strongest of these was the Party of Regions (Partiya Rehioniv). Even though the party was created as a vehicle for promoting the business interest of the Donbas elites, it acquired national prominence when one of its leaders, Viktor Yanukovych, became the last prime minister under Kuchma and the chosen successor of the Kuchma regime. Opposing the Communists at the beginning of the s were the so-called national democrats, who championed the assertion of the position of the titular majority in the Ukrainian state as a distinctive ethnocultural and linguistic collectivity. In particular, the national democrats opposed including reference to Russian alongside Ukrainian as a state or official language in the Constitution on the grounds that it would perpetuate the dominant position of Russian in Ukraine and impede the reversal of the discrimination of the Ukrainian language. Within their ideological platform, cultural and language issues took priority over other areas such as the economy, democracy and corruption. Throughout Kuchma’s second term in office (-), the power elites grouped around the presidency successfully marginalized both the left- and right-wing parties by depicting them as dangerous radicals. In particular, while presiding over the moderate pace of Ukrainization of public life, the president depicted any comprehensive Ukrainization of Ukraine, as advocated by the national democrats, as a way of destabilizing the country. Against such a backdrop, Kuchma presented himself as a respectable alternative and a source of stability in the country.40 However, this scheme of framing political actors outlived itself with the decline of the national democratic parties.   

Kommunist, No. , March , at . See Wolczuk, op.cit. note , –. Kulyk, op cit. note , –.



Kataryna Wolczuk During the  parliamentary election campaign, the Our Ukraine (Nasha Ukraina) bloc emerged as the most prominent successor force to the national democratic platform in Ukraine but with radically different priorities. The post-national democratic parties represented in Our Ukraine gave up their emphasis on language and cultural issues and focused on the economy, democracy, corruption and the malfunctioning of the state—that is, the issues that generated the greatest concern for the voters. Culture and language played a minor role in the platform of Yushchenko and the Our Ukraine bloc during the ,  and  elections, thereby indicating the extent to which the old national democratic platform had been left behind, while at the same time favouring a broad continuation of the policy of Kuchma’s presidency in the language domain—that is, the recognition of Ukrainian as the only state language and the progressive, albeit slow, Ukrainization of public life in Ukraine. It is against this background that the presidential elections of  were staged. B. The Electoral Campaign, Candidates and the ‘Nationalist Card’ The high stakes of—and resulting tensions around—the presidential elections of  stemmed from the fact that the most powerful position in the country was being contested. Incumbent President Leonid Kuchma, did not stand for reelection. However, he sought to ensure that the secretive, corrupt and inequitable regime that he had presided over would continue, by nominating Viktor Yanukovych as his successor, even though Yanukovych’s public profile was damaged by revelations about criminal convictions in his youth. This was to be ‘arranged’ by legitimate and illegitimate means. This handover was challenged by an opposition, which united behind Viktor Yushchenko, a former banker and prime minister, as a presidential candidate. From the start, the electoral campaign effectively boiled down to a contest between Yanukovych, the prime minister, and Viktor Yushchenko, the former prime minister and leader of the opposition. Many people in the country regarded the election as the most important political event since Ukraine’s independence in . Confronted with the popular Yushchenko, the authorities attempted to discredit him by playing the so-called ‘nationalist card’ in the elections—that is, bringing up the contentious issue of attitudes towards Russia and the Russian language in Ukraine. When Yanukovych failed to overtake Yushchenko in public opinion surveys, despite his heavy reliance on the state apparatus (the so-called adminresursy), the state-controlled media and intimidation, the issue of the Russian language and dual citizenship were raised by Yanukovych, even though it had not featured in his original manifesto. In addition, the strategy, guided by the so-called Russian political technologists, was to depict Yushchenko as a radical nationalist of the western Ukrainian type, even though Yushchenko’s origins were in the Sumy oblast, northeast of Kiev.41 The state-controlled mass media portrayed Yushchenko as a ‘nashist’ (a play on the similarities between the words ‘Nazi’ and ‘Nashi’, as in the name of Yushchenko’s Our Ukraine, Nasha Ukraina),





As Wilson argues, one of the provocations included supporting four virtual nationalists in Yushchenko’s stead who preached xenophobic ideas. Andrew Wilson, Ukraine’s Orange Revolution (Yale University Press, New Haven and London, ), .

Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine thereby invoking connotations with western Ukrainian collaboration with the Nazi regime against the Soviet Union. As Wilson argues, the technologists devised the strategy of ‘directed conflict’ by stirring up “animosity between Ukrainians from east and west; between Poles and Ukrainians; between Ukraine’s various churches; and between Slavs and Crimean Tatars”.42 The government-controlled media presented the contestation between Yushchenko and Yanukovych as a conflict between eastern and western Ukraine. The depiction of Yushchenko as a nationalist capitalized on preexisting negative stereotypes of western Ukrainians—as anti-Russian radical nationalists—held by those in the eastern part of the country.43 Yulia Mostovaya, editor of the Ukraine’s most influential weekly, Zerkalo Nedeli, referred to it as a “technology of civil war”.44 According to the Ukrainian historian Hrytsak, this highly successful framing of Yushchenko as a nationalist strongly affected the general mood of the electorate in eastern Ukraine and resulted in an axiomatic rejection of Yushchenko. This prevented Yushchenko from becoming a genuinely national candidate. Regional differences in Ukraine cannot be negated but they can be amplified (as was the case during the  presidential elections) or downplayed at will (as happened during the  presidential elections when both western and eastern Ukraine voted for Kuchma). In , Yanukovych and his party chose to exacerbate these regional differences, while Yushchenko sought to minimize them, although “Yushchenko … lost this battle”.45 Most observers agree that the conflict was more apparent than real. “The radical west Ukrainian nationalism [of Yushchenko] that Yanukovych claimed to be fighting against in  was a paper tiger, and Yushchenko had been carefully stirring the ‘national-democratic’ movement in a more centrist direction since .”46 The use of the ‘nationalist card’ to discredit Yushchenko did not prevent the voters in central Ukrainian oblasts, who support closer ties with Russia, from voting for him but it succeeded in east Ukrainian oblasts. There, Yushchenko’s alleged radical nationalist agenda turned voters away, even though the level of dissatisfaction with living standards under the Kuchma regime and, by extension, the mood for change, was strong too. The primary divide was not ethnic, religious or linguistic but political: western and central Ukraine were determined to oust the Kuchma regime, whereas eastern Ukraine preferred the status quo under Yanukovych over the accession of the ‘nationalist’ Yushchenko to power and regarded reforms advocated by him as a threat to the political, ethnic and economic stability in eastern Ukraine. In this context, the electoral contestation acquired a regional dimension by pitching western and central Ukraine against the eastern part of the country.

 

  

Wilson, op.cit. note , . For an analysis of the stereotypes of western Ukrainians that prevail in eastern Ukraine, see Peter Rodgers, “A Study of Identity Change in the Eastern Borderlands of Ukraine”, PhD thesis, University of Birmingham, School of Social Sciences (). Yulia Mostova, “Ukraina Razbilas na Schastie?” Zerkalo Nedeli, - December . Yaroslav Hrytsak, “Regional Polarisation and the  Elections in Ukraine”,  Ukraine List,  November . Wilson, op.cit. note , .



Kataryna Wolczuk C. The ‘Orange Revolution’ and the Spectre of Separatism The first round of the elections took place on  October  and, according to the official results, with .% Yushchenko had a half percent lead over Yanukovych. Since neither candidate won the required % of the vote, the election proceeded to a second round contest between Yanukovych and Yushchenko on  November. The results of that round indicated an almost % victory of Yanukovych over Yushchenko (see Table ). The polling on  November , however, was marred by reports of falsification from the OSCE and other international and domestic observers. Examples of this include turnout exceeding % in the eastern Ukrainian city of Donetsk—the powerbase of Yanukovych—a figure that is statistically nigh on impossible to achieve and certainly improbable. Table 3. Official Results of the First, Second and Repeated Second Rounds of the 2004 Presidential Elections in Ukraine Name of the Candidate

First Round  Oct  % Number of votes

Second Round  Nov  % Number of votes

(Repeated) Second Round  Dec  % Number of votes

Viktor Yushchenko

.

,,

.

,,

.

,,

Viktor Yanukovych

.

,,

.

,,

.

,,

Source: The Central Electoral Commission of Ukraine, “Elections of the President of Ukraine ”, at

The opposition immediately challenged the result and called for mass protests. Unprecedented, large-scale demonstrations in the centre of Kiev ensued and became known as the ‘Orange Revolution’ (named after Yushchenko’s electoral campaign colour). Within a couple of days, despite domestic and international disquiet, Yanukovych was pronounced the official winner by the Kuchma-controlled Central Electoral Commission (CEC) and, in response, the opposition pledged to keep the protesters on the street until the authorities backed down. Despite fears of violence against the protestors, the law enforcement agencies did not move against the demonstrators, although the reasons for this restraint remain unclear. The conflict became internationalized when the US and the EU refused to accept the results, in contrast to President Putin of Russia, who congratulated Yanukovych on his victory. As the mass protests (including a blockade of government buildings) persisted in Kiev, the authorities held talks with the opposition with the mediation of representatives from the EU, some key member states and Russia. Tensions were raised when calls for secession started to emanate from eastern Ukraine (see below).47





For a detailed chronology of events see Wojciech Stanisławski (ed.), The Orange Ribbon: a Calendar of the Political Crisis in Ukraine Autumn  (Centre for Eastern Studies, Warsaw, ). On the ‘Orange Revolution’, see also A. Aslund and M. McFaul (eds.), Revolution in Orange: the Origins of Ukraine’s Democratic Breakthrough (Carnegie Endowment for International Peace, Washington, DC, ).

Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine In a striking act of judicial independence, on  December , the Supreme Court, after considering the evidence of electoral irregularities presented by the opposition, declared the results of the second round invalid and ordered a re-run by  December. The decision was a major victory for the opposition and a setback for the authorities. Kuchma, however, insisted on changes to the Ukrainian Constitution, transferring significant powers from the president to the prime minister and parliament. The opposition agreed to compromise and changes to the electoral law and the Constitution were ratified simultaneously on  December . While the tensions were still at their peak in late November, the regional dimension of the contestation became especially pronounced when the question of separatism and federalism in eastern Ukraine was reopened.48 On  November , a conference of eastern Ukrainian leaders in Donbas called for a referendum on the federalization of Ukraine. While Yevhen Kushnariov, the head of the presidential administration of the east Ukrainian oblast of Kharkiv, made the most radical statements, the event was dominated by the elite from the city of Donetsk, Yanukovych’s native city, and was marked by the presence of some prominent Russian politicians. While reviving the old and vague ideas of autonomy for eastern or southeastern regions of Ukraine (dating back to the early twentieth century) and thereby emphasizing the historical legitimacy of the demands,49 the initiative was a direct response to the protests in Kiev. Calls for separatism by the eastern Ukrainian regional elites were made to counteract the effects of the demonstrations challenging Yanukovych’s victory. However, despite alarmist media coverage at the time, Ukraine was not in fact vulnerable to direct confrontation between supporters of Yushchenko and Yanukovych or mass support for separatism in eastern Ukraine. Even though both electorates differed in their preferences, there was no support for separatism at the popular level anywhere in Ukraine prior, during or after the ‘Orange Revolution’. Resorting to the ‘separatist card’ represented an attempt by the eastern Ukrainian/ elites to strengthen their bargaining position during the disputed elections. Once a compromise deal between the two sides had been agreed in early December , which paved the way for the repeat of the second round, the suggestion of a referendum was taken off the agenda. However, the reactivation of the autonomist agenda demonstrated not only how easily regional differences could be exploited but also the continued readiness of some Russian politicians to support such initiatives within Ukraine. Despite Kiev’s threats to bring perpetrators to justice for undermining Ukraine’s territorial integrity, no court case was subsequently initiated against any regional official. Undoubtedly, any prosecution would be fraught with difficulties and would carry a risk of fuelling further anti-centre sentiments in eastern Ukraine. Yushchenko emerged from the repeated second round, which was regarded as free from intimidation and fraud, as the winner with almost % of the vote, as opposed to Yanukovych’s .%. The electoral contest resulted in a realignment of political power in Ukraine. Despite the widespread use of state-controlled resources, the Kuchma regime lost its near monopoly of power due to the strength of popular support for the opposition candidate, judicial intervention and international pressure.  

Wilson, op.cit. note . See Wolczuk, op.cit. note , –.



Kataryna Wolczuk The results of that round confirmed the regional split within Ukraine. Yushchenko won in  oblasts and in the city of Kiev (comprising % of the population in total) with % of the vote. Yanukovych came first in eight east Ukrainian oblasts, Crimea and Sevastopol (comprising the remaining % of the population), where he carried approximately % of the vote. As Arel put it: “Orange conquered only half of the country and this half is highly concentrated geographically.”50 At the same time, however, while the political split deepened, its nature changed too. Central Ukraine came to resemble western Ukraine in its political profile, rather than eastern Ukraine as it once used to.51 That the elections polarized Ukraine to such an extent can be directly attributed to the electoral strategies chosen by the candidates. Mass mobilization and non-violent protests were a successful strategy of the opposition. Unable to mobilize his ‘Blue’ electorate (named after the colour of his electoral campaign) on a similar scale, Yanukovych and the eastern Ukrainian elites who backed him resorted to first playing the ‘nationalist card’ and then the ‘separatist scenario’. These developments resembled the early s, when eastern Ukrainian elites used a similar means of applying pressure on the authorities in Kiev. When in the mid-s these elites were drawn into competition for power and resources on a national level and thus less inclined to provoke a protest on a regional level, the potential for conflict was rendered dormant.52 While advancing democracy, the  presidential elections and the ‘Orange Revolution’ renewed the incentives for reactivating this policy, however. The unpopularity of the Kuchma regime and the popularity of the opposition leader Yushchenko prompted the electoral strategy of Kuchma’s successor. When he failed to overtake Yushchenko in the polls, he basically fenced off his geographical powerbase from external incursions. In this context, the ultimate win of Yushchenko and the coming to power of ‘Orange’ elites were perceived as a humiliating defeat (‘stolen elections’) by Yanukovych’s electorate. This has instilled a sense of exclusion from ‘Orange-controlled’ political processes in eastern Ukraine. The electorate that stayed loyal to Yanukovych throughout the presidential elections has refused to accept the popular uprising in Kiev, the results of the repeated round and the legitimacy of the new ‘Orange’ authorities. As far as they were concerned, Yushchenko did not—and could not—represent them. D. The 2006 Parliamentary Elections and the ‘Language Card’ The  parliamentary elections were generally regarded as ‘free and fair’ by domestic and international monitoring bodies, thereby underscoring the democratic achievements of the Orange Revolution. Headed by Yanukovych, the Party of Regions gained a plurality of votes with .%53 (see Table ). However, the ‘Regions’ (even when allied with another ‘anti-Orange force’, the Communist Party of Ukraine) did not win a 

  



Dominique Arel, “The ‘Orange Revolution’, Analysis and Implications of the  Presidential Election in Ukraine”, Lecture on Contemporary Ukraine delivered at Cambridge University, March . Ibid. Kulyk, op.cit. note . However, despite being number one on the electoral party list, Yanukovych is only the official face of the party, which mainly represents the business interest of the Donbas elites.

Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine majority. Not only did the overall balance between the ‘Orange’ and ‘Blue’ forces remain broadly the same as during the  presidential elections but so did their respective geographical powerbases. As the eastern Ukrainian electorate remained staunchly antiOrange, the  parliamentary elections were characterized by the continuation of the regional split within the country. Table 4. Results of the March 2006 Parliamentary Elections in Ukraine No           

Parties

%

Total Number of Votes

Party of Regions Bloc of Yulia Tymoshenko Our Ukraine Bloc Socialist Party of Ukraine Communist Party of Ukraine Bloc of Natalia Vitrenko ‘People’s Opposition’ People’s Bloc of Lytvyn Ukrainian People’s Bloc of Kostenko and Plyushch Party ‘Viche’ Civic Bloc of PORA and Party and Reforms Party Oppositional Bloc ‘NE TAK!’

. . . . . . . . . . .

,, ,, ,, ,, , , , , , , ,

Source: The Central Electoral Commission of Ukraine, “Elections of Peoples’ Deputies ”, at Note: parties that passed the % threshold are marked in bold.

The elections reconfirmed the regional profile of most Ukrainian parties, with Yulia Tymoshenko’s bloc enjoying the widest geographical spread of support, winning in the largest number of regions ( oblasts and the city of Kiev) and coming either first or second in all but three territorial units of Ukraine (Crimea, Luhansk and Donetsk). The fact that it won in central Ukraine confirmed the significant shift in Ukraine’s geographic politics—central Ukraine increasingly resembles western Ukraine rather than eastern Ukraine as was the case till . The Party of Regions won in ten geographically concentrated units (Kharkiv, Donetsk, Luhansk, Dnipropetrovsk, Zaporizhzhia, Mykolaiv, Odesa and Kherson oblasts, as well as in Crimea and the city of Sevastopol), the same regions in which Yanukovych had won in the  presidential elections. With the Party of Regions winning with an average of % in nine geographically concentrated regions (oblasts) of eastern Ukraine, regional polarization has persisted. This reflects the situation in Ukraine where, as Protsyk has pointed out: “The fortunes of the main political parties of Ukraine are much more dependent on parties’ abilities to cater to regionally concentrated voters than on their success in advancing political programmes based on universal ideologies.”54 After eliminating the distorting effects of the fraud and manipulation prevalent during the Kuchma era, the  election evidenced the consolidation of the anti

Oleh Protsyk, “Majority–Minority Relations in Ukraine”, in M.Weller (ed.), An Ever Diverse Union? The Future of Majority-Minority Relations in an Enlarged Europe (Palgrave Macmillian, forthcoming ).



Kataryna Wolczuk Orange electorate. The Party of Regions capitalized on—and indeed fuelled—the sense of exclusion from the ‘Orange project’ prevailing in eastern Ukraine, something that the ‘Orange coalition’—preoccupied with internal conflicts—had failed to counteract. If anything, Yushchenko’s rhetoric further alienated the eastern Ukrainian electorate, as he consistently used the term ‘natsiia’ whenever he spoke about the “Ukrainian people’, despite the fact that ‘natsiia’ has strong ethnic connotations in Ukraine. Yushchenko’s systematic use of this term in his speeches may be easily interpreted as an attempt to emphasize the ethnic underpinnings of the ‘Ukrainian people’ and thereby deliberately shift the discourse and practices towards Ukrainization, although more likely it reflects his lack of appreciation of the contested nature of the very concept of ‘people’ in Ukraine. The Orange coalition forces, especially Yushchenko’s Our Ukraine, rallied around the Maidan (the central square in Kiev and the main site of protests), which has subsequently become the symbol of the battle of democratic forces against authoritarianism, political pressure and rigged elections, which was embodied in the Party of Regions. However, the Party of Regions once again successfully ‘defended’ itself in eastern Ukraine by framing the contest in terms of ‘irreconcilable differences’ between different regions of Ukraine. The party once more highlighted the supposed fault line that exists between western and eastern Ukraine, in terms of foreign policy orientation towards Europe versus integration within the former Soviet Union, Ukrainian language use versus Russian and the lack of industralization in western and central Ukraine versus the industrial might and potential of eastern Ukraine.55 The framing of electoral contestation between the political forces in Ukraine perpetuates the regional division of Ukraine along the lines of language, history and foreign policy orientation, thereby confirming the undiminished divisive potential of the ‘Ukrainian–Russian nexus’ in Ukraine. If the  elections brought the spectre of separatism, the  elections reintroduced ‘the language card’—a backlash against the status of Ukrainian as the sole state language in Russian-speaking regions of Ukraine. As pointed out above, the language issue has been regularly and conveniently raised during electoral campaigns only to be put on the backburner after the elections. As Shevchuk argued, the “protection of the Russian language” became a mandatory attribute of the political platform of the opposition in post-Soviet Ukraine.56 The difference between  and previous elections was the unprecedented prominence of the ‘language question’. Significant tensions occurred in the Autonomous Republic of Crimea (ARC), where the situation started to resemble the efforts to instigate separatism in Crimea in the mid-s. As noted above, the Crimean peninsula is the only region of Ukraine with an ethnic Russian majority; it also has strong historical links with Russia.57 During   



“Forming a Coalition Means Forming an Opposition”, () ICPS Newsletter,  April . Shevchuk, op.cit. note . Crimea was incorporated into Ukraine in  as an administrative-territorial unit (oblast) after the Crimean Autonomous Soviet Republic was abolished in  (following the deportation of the Crimean Tatars in ). The change of administrative subordination of Crimea as a result of ‘giving it to the Ukrainian SSR’ did not matter much at the time, since it remained part of the Soviet Union and, in practice, it preserved its ‘Russian’ character,

Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine the  parliamentary campaign, Crimean elites challenged central authorities’ power over the republic in the realm of language. The Party of Regions collected , signatures demanding a local referendum on the status of the Russian language. Following that, in February , the parliament of the ARC adopted a resolution on a non-binding referendum to be held concurrently with legislative elections on  March  to determine the degree of popular support for making the Russian language a second official language. The  Constitution of the ARC followed the  Constitution of Ukraine in defining Ukrainian as the state language but, at the same time, proclaimed that “the functioning, development, utilization, and protection of Russian, Crimean Tatar, and the languages of other nationalities shall be assured”.58 Despite a nominal reference to Ukrainian as a state language, Russian has remained the de facto language of bureaucracy and education on the peninsula.59 The resolution was immediately criticized in Kiev as “illegitimate and aimed at destabilizing the situation in the country”, on the grounds that “no problem with using the Russian language” exists.60 The Central Electoral Commission banned the Crimean authorities from holding the referendum on the same day as the elections. Even though the Crimean referendum was cancelled, a string of decisions on upgrading the status of Russian were adopted by the authorities in a number of eastern Ukrainian cities and oblasts, including Kharkiv (oblast), Sevastopol (city), Yalta (city), Kryvyi Rih (city), Donetsk (oblast), Luhansk (oblast), Dnipropetrovsk (city), Zaporizhzhia (city) and Mykolaiv (city), either prior to or soon after the elections. These resolutions have in common not only a temporal factor but also a number of other characteristics. First, they all occurred in predominantly Russophone cities and

 



but after Ukraine’s independence the belonging of Crimea became a hot political issue. In recognition of Crimea’s distinctive profile and history, already on the eve of Ukrainian independence in the spring of  the status of the Autonomous Republic of Crimea was renewed by the Supreme Council of Ukraine. However, these measures failed to placate the Crimean elites and, after the  Ukrainian referendum on independence, separatist tendencies intensified, exacerbated by support from Russian political elites, who viewed Crimea as rightfully belonging to Russia. In , these separatist tendencies peaked with the election of the pro-Russian Crimean President Yurii Meshkov. This surge of separatist and pro-Russian attitudes in Crimea resulted in a concerted effort by Kiev to bring Crimea ‘under control’. A compromise solution was found in the Constitution of the Crimean Autonomous Republic of . Part  of Section , Constitution of the Autonomous Republic of Crimea. Out of nearly  schools in Crimea, Ukrainian is the language of instruction in seven (the language of the Crimean Tatars is used as a language of instruction in another ), whereas in all remaining schools the language of instruction is Russian. The limited extent of Ukrainization reflects the lack of support for the Ukrainian language within Crimea. See “Pro Referendum u Krymu I Komu Tse vyhidno”, Analiz, BBC Ukrainian Section,  February , at . Around the time of the elections, however, the issue attracted public attention when people’s names (regardless of their ethnic background and preference) were recorded in Ukrainian on voting lists, something that was subsequently explained by the lack of training and experience of language students employed to compile the lists. “Pro Referendum u Krymu I Komu Tse vyhidno ...”



Kataryna Wolczuk oblasts, which have not undergone systematic Ukrainization and where the Russian language remains dominant in public life. However, as argued above, precisely because of the attempted restriction of the role of Russian to that of the language of the Russian minority, according to the existing legal framework in Ukraine, these regions’ sense of vulnerability and of ‘being at Kiev’s whim’ has been heightened. Second, the resolutions were adopted in localities where the Party of Regions enjoyed the strongest support and won in the March  parliamentary and local elections. Undoubtedly, the local elections held on the same day as the parliamentary elections encouraged oblast and municipal councillors to increase their popular appeal by taking the decision to upgrade the status of Russian. The fact that the Party of Regions is well represented at the local level and not only supported the decisions but promised to raise the issue during the first session of the new parliament creates a direct link between the national and substate level political developments. Third, most of the resolutions refer to the EChRML as a basis for approving decisions designating the Russian language as regional. Regional Council Deputy Vladimir Alexeyev in Kharkiv argued that: “We are not giving any status to the Russian language. It has existed since the ratification of the charter by [parliament] anyway.”61 In other words, regional and municipal councils recognized Russian as a regional language in their territorial units (but without any references to other languages listed in the ratification law). The central authorities, while unwilling to clamp down on the dissenting regions, did not intend to leave these regional initiatives unchallenged. The Ministry of Justice of Ukraine criticized the resolutions and, in particular, their reliance on the EChRML on two grounds.62 Firstly, according to Ukrainian legislation, the regional and municipal authorities have no authority to adopt normative acts in the sphere of language as, according to the  Constitution, this matter is the exclusive prerogative of the legislature. Secondly, the Ministry raised the issue of the incorrect translation of the EChRML, which accounted for an interpretation that differs from that intended in the document (see above). The question of authority has been particularly contested. The Party of Regions argued that the Ministry of Justice exceeded its authority by issuing a statement that the decisions of the municipal councils of Kharkiv, Sevastopol and Luhansk oblast were unconstitutional on the grounds that in accordance with Article  of the Ukrainian Constitution, the Constitutional Court is the only institution of constitutional jurisdiction in Ukraine able to offer an official interpretation of the Constitution and the laws.63 However, the Constitutional Court could not provide a binding ruling due to the fact that the parliament had failed to appoint some of the judges. The Party of Regions was  





Interfax-Ukraine,  June . “Legal Interpretation of the Ministry of Justice Concerning the Decisions of Certain Organs of Local Administration (Kharkiv City Council, Sevastopol City Council, and the Luhansk City Council) with Respect to the Status and Rules Governing the Use of the Russian Language within the Boundaries of the City of Kharkiv, Sevastopol, and Luhansk oblast” of  May , at . “Declaration of the Political Council of the Party of Regions on the Protection of Constitutional Rights of the Russian-speaking Citizens of Ukraine”, Party of Regions Official Website,  May , at .

Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine one of the parties that had blocked the appointment of judges in , rendering the Constitutional Court inoperational until the summer of . If during the ,  and  national elections the language issue played a minor role, it was brought back onto the political agenda in  and, especially, in . During previous elections, other than the Community Party of Ukraine, only marginal groups and candidates campaigned for the official status of Russian. During the  elections, the frontrunner—the Party of Regions—not only made elevating the status of Russian a key promise but also supported a number of resolutions in eastern Ukrainian regional and municipal authorities on this issue.64 This suggests that the opposition parties, supported in the east, can readily resort to the language issue to mobilize their electorate and/or exert pressure on the authorities in Kiev, owing to the discrepancy between the de jure and de facto statuses of the Russian language in Ukraine. The greater salience of the language issue during the  parliamentary elections was undoubtedly related to the tensions and uncertainties surrounding the formation of a new parliamentary coalition and government, the result of the compromise between the Kuchma regime and the opposition during the ‘Orange Revolution’ (see above). According to constitutional amendments, the government is nominated by and accountable to the parliamentary coalition. This meant that control over the cabinet was not determined by the voting results alone but ultimately depended on coalition negotiations, from which the ultimate ‘winner’ and ‘loser’ of the electoral contest emerged. In March , five parties crossed the % threshold required to obtain seats in the Verkhovna Rada (see Table ). However, none of them achieved the majority needed to form a new government under the amended constitutional rules. Even though the Party of Regions obtained a plurality, its result ( seats out of ) was insufficient to form a majority, even after adding the seats held by the KPU ( seats). With  seats, the post-Orange coalition could command the simple majority ( votes) needed to adopt most decisions within the Rada. Coalition negotiations following the elections have been protracted and cumbersome, as post-Orange forces have argued bitterly over the distribution of posts. To increase pressure on the bloc of Yulia Tymoshenko (Blok Yulii Tymoshenko) and the Socialist Party of Ukraine (Sotsyalistychna Partiya Ukrainy), Our Ukraine started parallel negotiations with the Party of Regions, thereby keeping their options open as long as possible. In the meantime, the Party of Regions kept the language issue as one of the means of exerting pressure on the ‘Orange elites’.65 In this





Oleg Varfolomeyev, “Ukrainian Opposition Campaigns for Russian Language: Will Russian Become a Second State Language in Ukraine?”, () Eurasia Daily Monitor,  March . One of the leaders of the ‘Orange’ parties (a native of Dnipropetrovsk) and a candidate for prime minister (and thus a strong opponent of the Party of Regions), Yulia Tymoshenko, has condemned the Kharkiv Regional Council for giving Russian the status of a regional language in a characteristically bold manner: “I strongly oppose the anti-constitutional decisions on language issues. The spread of language separatism across Ukraine means that [our] very statehood is at issue and that an anti-constitutional mutiny is under way and should be stopped immediately.” Interfax-Ukraine,  June .



Kataryna Wolczuk context, the initial emergence of the new ‘Orange coalition’66 in June and exclusion of the parties representing eastern Ukraine from the coalition government in Ukraine carried a risk of continued contestation and emphasis on regional differences, including the language issue, as an instrument of political competition and pressure in national politics. Yet, in June , the painfully created coalition fell victim to clashes of personality, ideas and interests. Following the ‘defection’ of the Socialist leader, Oleksandr Moroz, to the Party of Regions, the latter had accumulated sufficient parliamentary numbers to command a majority and form the government. After the last minute inclusion of Our Ukraine in the Regions-led coalition, Yushchenko reluctantly agreed to the nomination of Yanukovych as prime minister. The formation of the new broad-based coalition government was preceded by the signing of a Pact of National Unity, containing a list of declarative statements to guide the policy-making of the coalition government. The difficulties that arose in agreeing the text of the Pact of National Unity, including, amongst others, on the substance of language issues, means that coherent language policy-making will be difficult to deliver. This is especially the case as, having secured its dominant position in the executive branch, the Party of Regions aspires to acquire national status and widen its appeal without losing its powerbase in eastern Ukraine. Thus, newly appointed Prime Minister Yanukovych played down the language issue without clarifying the exact strategy of the party: This [language] question always becomes more pronounced during electoral campaigns. And this is not accidental as the language issue exists not only at the level of politicians but also average people. They feel the various inconveniences created by officials, who, when it comes to using Ukrainian in Russian-speaking regions, ‘go over the top’. However, I would say that in the south-eastern regions of Ukraine, there is no problem for the Russian language. There is a problem for the Ukrainian language. And here for the development of Ukrainian a state programme is needed. And a [new] language law is needed which would regulate the use of languages. I can say firmly that as soon as politicians stop reigniting this problem, people will easily find a common language. It is a long time till the next elections and I expect that politicians will not focus their attention on this issue.67

The inconsistencies in proclamations on the language issue thus far suggest that the Party of Regions is keeping ‘all of its options open’, in order not to foreclose any avenue that may become politically expedient. Significantly, however, as of September , the ‘Regions’ lack the required constitutional majority ( votes) to amend the  Constitution to make Russian a state language.68 In contrast to previous electoral cycles, however, the language issue is unlikely to lose its political salience after the  Ukrainian elections.

  



The coalition was meant to consist of the Bloc of Yulia Tymoshenko, Our Ukraine and the Socialist Party of Ukraine. Interview with Viktor Yanukovych for BBC Ukrainian,  August . Interfax-Ukraine,  August .

Whose Ukraine? Language and Regional Factors in the  and  Elections in Ukraine VI. Conclusion A simplistic minority–majority nexus does not offer an appropriate framework for the analysis of ethnic relations in Ukraine. Due to the size, history and beliefs of the Russian ethnic group in Ukraine, they do not perceive themselves—and are not regarded by most representatives of the titular majority—as a minority. Even though Ukraine’s legislation on minority rights has not attracted international criticism on the grounds of discrimination against the Russian minority (apart from such criticisms emanating from Russia), the very act of defining Russians and the Russian language as a minority and minority language, respectively, has undoubtedly meant a demotion from the Russians’ former privileged status. Yet, outside Crimea, ethnic Russians have not emerged as a self-conscious and politically mobilized group within Ukraine. This can be explained not only in terms of the lack of systemic discrimination against ethnic Russians, despite the pursuit of an active, albeit slow, process of Ukrainization, but also in terms of the close links between the titular majority and ethnic Russians, especially in Russian-speaking regions of Ukraine, to the extent that ethnicity does not constitute a significant factor in social and political interactions. The presence of a significant number of predominantly or solely Russian-speaking members of the titular majority diminishes the sense of difference between the majority and largest minority. Despite these non-conflictual ethnic relations (with the exception of Crimea), the issue of the Russian language and position of the Russian-speaking regions (where the Russian minority is concentrated) within Ukraine has turned into a salient political issue during the  and  elections. This is because the regional nature of the political divide has encouraged those regionally-based parties that are in opposition to exploit regional differences as a ‘bargaining card’ in national politics. In particular, eastern Ukrainian elites have emphasized the distinctiveness of their part of Ukraine in order to counteract the weakening of their standing at the national level. This was significantly facilitated by the ongoing controversies regarding the formal status of the Ukrainian and Russian languages, state policies and population’s actual preferences. As a result, the broadly defined east–west political polarization of Ukraine did not fade away with the demise of the ideological parties, the communist and national democratic parties, whose opposing ideological platforms fuelled political confrontation in the s. Rather than diminishing, the confrontation has metamorphosed into a different political configuration of parties and elites. While there is no clear single cleavage, the political contest in Ukraine is still fought along geographical, linguistic and cultural lines, rather than along the lines of socioeconomic welfare or corruption, despite the unifying potential of these issues according to most public opinion surveys. Ukraine emerged from the Soviet Union with strong regional differences but the ramifications of the lack of effective and systematic efforts to address this issue for Ukraine’s political cohesion became fully apparent during the  and  elections.



Appendix

List of International Norms ACHR

American Convention on Human Rights, concluded on  November , entered into force on  July , O.A.S.T.S. No. , 

AfrCh

African Charter on Human and Peoples’ Rights, concluded on  June , entered into force on  October , O.A.U. Doc. CAB/ LEG// Rev. 

Am. Decl.

American Declaration of the Rights and Duties of Man, adopted in , O.A.S. Res. XXX, O.A.S. Off. Rec. OEA/Ser.L/V/I. Rev. ()

Am. Decl. Ind. P.

Proposed American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights on  February  at its rd Session, th Regular Session

Budapest Summit Declaration

Budapest Summit Declaration and Decisions, adopted by the CSCE on  December , reprinted in  I.L.M.  ()

CAT

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concluded on  December , entered into force on  June , GA Res. /

CCPR

International Covenant on Civil and Political Rights, adopted on  December , entered into force on  March , 

CCPR Opt. Prot.

(First) Optional Protocol to the International Covenant on Civil and Political Rights, adopted on  December , entered into force on  March , 

CEDAW

Convention on the Elimination of All Forms of Discrimination Against Women, concluded on  December , entered into force on  September , 

CERD

International Convention on the Elimination of All Forms of Racial Discrimination, concluded on  March , entered into force on  January , 

Appendix CESCR

International Covenant on Economic, Social and Cultural Rights (CESCR), adopted on  December , entered into force on  January , 

CRC

Convention on the Rights of the Child, concluded on  November , entered into force on  September , GA Res. /

CSCE Charter of Paris

Charter of Paris for a New Europe, adopted by the CSCE on  November , reprinted in  I.L.M.  ()

CSCE Copenhagen Document

Second Conference on the Human Dimension of the CSCE,  June July, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Copenhagen 

CSCE Final Act

Final Act of the Conference on Security and Cooperation in Europe, adopted on  August , reprinted in  I.L.M.  ()

CSCE Vienna Document

Concluding Document of the Vienna Meeting  of Representatives of the Participating States of the Conference on Security and Cooperation in Europe, adopted on  January 

Directive //EC

European Union Council Directive //EC of  November , Establishing a General Framework for Equal Treatment in Employment and Occupation, Official Journal L  ( December ), 

ECHR

European Convention on Human Rights and Fundamental Freedoms, dated  November , ETS No. 

ECHR Protocol 

Protocol No.  to the European Convention on Human Rights and Fundamental Freedoms, adopted on  November , E.T.S No. 

EChRML

European Charter for Regional or Minority Languages, adopted on  November , entered into force on  March , ETS No. 

ECPT

European Convention For the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, adopted on  November , entered into force on  February , ETS No. 

ESC

European Social Charter, adopted on  October , entered into force on  February , ETS No. 

FCNM

Framework Convention for the Protection of National Minorities, adopted on  February , entered into force on  February , ETS No. 

Hague Recommendations

OSCE High Commissioner on National Minorities, Hague Recommendations Regarding the Education Rights of National Minorities, October 

ILO Convention  International Labour Organisation Convention (No. ) concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, concluded on  June , entered into force on  June ,  

Appendix ILO Convention  International Labour Organisation Convention (No. ) concerning Indigenous and Tribal Peoples in Independent Countries, concluded on  June , entered into force on  September , reprinted in  I.L.M.  () Lund Recommendations

OSCE High Commissioner on National Minorities, Lund Recommendations on the Effective Participation of National Minorities in Public Life, September 

Olso Recommendations

OSCE High Commissioner on National Minorities, The Oslo Recommendations Regarding the Linguistic Rights of National Minorities, February 

PACE Recommendation 

Parliamentary Assembly of the Council of Europe, Recommendation  () on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights, dated  February 

UDHR

Universal Declaration of Human Rights, adopted by the UN GA on  December , GA Res. A

UN Charter

Charter of the United Nations, concluded on  June , entered into force on  October 

UN Decl. Min.

Declaration of the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the UN GA on  December , GA Res. /

UN Draft Decl. Ind. P.

Draft Declaration on the Rights of Indigenous Peoples, adopted by the UN Commission of Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities on  August , UN Doc. E/CN.//; E/CN./Sub.//

VCLT

Vienna Convention on the Law of Treaties, concluded on  May , entered into force on  January 

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