I. Setting the Stage
The radical changes that were produced by the ending of
the Cold War have determined new theoretical approaches to the issue
of reviewing the security architecture and cooperation at international
level. The "security" concept itself had a significant development,
and its content extended well beyond its traditional military and territorial
dimensions. Therefore, a view gained widespread support, that the risks
and threats to the security of a state are no more of a predominantly
military nature, but they include economic, social and political aspects.
This wide and systemic approach to the security concept
was consecrated in the United Nations Organization, after the UN Security
Council adopted the Resolution 688/1991 which explicitly linked the
respect for human rights to the need to ensure international peace and
security. Because this resolution authorized the intervention of a multinational
coalition in Iraq in order to prevent the repressive actions of the
Iraqi government against its Kurd minority, it was considered that it
contributed to the strengthening of the approach that "the human
rights issues are of international concern", whilst their infringement
does represent a threat not only to the security of the neighboring
but also to security of all states. Later in the 1990s the same approach
that linked the national minorities issue with the international security
have been the driving force for the adoption of Resolutions 1160/1998,
1199/1998 and 1244/1999 with reference to infringement of human rights
in the then Federal Republic of Yugoslavia, especially those of the
Albanian minority in the Yugoslav province of Kosovo.
Furthermore, after the upsurge of old rivalries and ethnic
tensions in international relations, with a special view to the Central
and Eastern Europe, the extension of the semantic content of the concept
of security had as a reference point the inclusion of the issues related
to the respect for human rights and the rights of persons belonging
to minorities. This approach has reflected the development of a comprehensive
concept of security, which included, together with military, political,
economic and environmental dimensions, a new component: the societal
dimension. It was there the place where appropriate attention has
been paid to the issue of human rights and minority protection.
The ethnic and nationalist disputes have been identified,
principally in Central and Eastern Europe, as possible challenges to
the territorial and political status quo of the region, with
logical consequences for the European security. Suggestively enough,
the Strategic Concept of NATO that was adopted by the Alliance's Rome
Summit in 1991considered that the "Risks to Allied security are
less likely to result from calculated aggression against the territory
of the Allies, but rather from the adverse consequences of instabilities
that may arise from the serious economic, social and political difficulties,
including ethnic rivalries and territorial disputes, which are faced
by many countries in Central and Eastern Europe...".
After a decade or so, NATO reviewed its Strategic Concept in the occasion
of the Washington Summit of 1999, but maintained most of its security
assessment, when stating that "The security of the Alliance remains
subject to a variety of military and non-military risks which are multi-directional
and often difficult to predict. These risks include uncertainty and
instability in and around the Euro-Atlantic area and the possibility
of regional crises at the periphery of the Alliance, which could evolve
rapidly. Some countries in and around the Euro-Atlantic area face serious
economic, social and political difficulties. Ethnic and religious rivalries,
territorial disputes, inadequate or failed efforts at reform, the abuse
of human rights, and the dissolution of states can lead to local and
even regional instability".
The same point of view was shared by another important
institution with relevance for European security, the Western European
Union, which stated in 1992 that "security in its broadest sense
encompasses not only military but also political aspects, respect for
human rights and fundamental freedoms, as well as economic, social and
The interrelationship between security and respect for
human rights, in particular those of persons belonging to national minorities,
has been emphasized in the Organization for Security and Cooperation
in Europe (OSCE) and the Council of Europe. The OSCE documents shared
the view that "issues concerning national minorities, as well as
compliance with international obligations and commitments concerning
the rights of persons belonging to them, are matters of legitimate international
concern and consequently do not constitute exclusively an internal affair
of the respective State".
In sharing this view, the OSCE participating states reflect the perception
that the aggressive nationalism does represent a threat to global security
and consider that "respect for human rights and fundamental freedoms,
democracy and the rule of law is at the core at the OSCE's comprehensive
The Council of Europe documents include the same comprehensive
approach to security concept, and at the highest political level, the
Council of Europe member states expressed the clear position that "the
protection of national minorities is an essential element of stability
and democratic security in our continent".
At the same time, the new trends in European security,
while determining a more acute sensitivity to the relation between security
and the respect for human rights, have generated an impulse to set new
norms and standards for the protection of national minorities. Whilst
during the 1990’s the WEU and NATO had no aim to set standards
in this field, and at the European Union level there was no special
development because the Community fora, acting in accordance with the
subsidiarity principle, entrusted the member states with the task to
ensure the national minorities protection, the main standard setting
initiatives in this particular area found appropriate environment in
the OSCE and the Council of Europe.
II. The European Norms and Standards
1. The OSCE Documents
The issue of national minorities protection represented an important
point on the agenda of the Conference for Security and Cooperation
in Europe (CSCE) from its inception in 1970’s, but following
a mixed set of reservations from both Western and Communist countries,
it did not found itself among items included in its list of priorities.
The Helsinki Final Act, that was signed on 1 August 1975 by
the Heads of State or Government of 35 countries in Europe and North
America, stipulated few references to minorities. The most important
one was included in Principle VII from the "Declaration on Principles
guiding relations between Participating States", and stated that
"The participating States on whose territory national minorities
exist will respect the right of persons belonging to such minorities
to equality before the law, will afford them the full opportunity
for the actual enjoyment of human rights and fundamental freedoms
and will, in this manner, protect their legitimate interests in this
The documents that were adopted by this security institution
reflected an ever-growing interest for the issue of national minorities
protection, but tangible results were not possible until the fall of
the Communist regimes in Central and Eastern Europe. The post-1989 accomplishments
of the pan-European forum were directed both to norm setting and the
monitoring of the States' compliance with the commitments that were
undertaken. In this respect, the most important developments were the
documents adopted by the 1990 Copenhagen meeting of the CSCE
Conference on Human Dimension and the 1991 Geneva meeting of
experts on national minorities issues. After the transformation of the
CSCE into an organization, following the decisions of the 1994 Budapest
summit meeting, there were no major normative developments. However,
a special mentioning should be made to the relevant provisions of the
Charter for European Security, that was adopted in the occasion
of the 1999 Istanbul summit meeting, as well as the efforts for conceptual
redefinition that have been undertaken by the OSCE High Commissioner
on National Minorities.
a) The Copenhagen Document
The OSCE made an important breakthrough when the Copenhagen
was adopted, on 29 June 1990, by the second meeting of
the OSCE Conference on Human Dimension. An entire chapter – Section
IV, articles 30-40 – of this document has been devoted to the
protection of national minorities. The result was a remarkable set of
provisions "as far as the quality and the quantity of the concepts
It was reaffirmed that "respect for the rights of
persons belonging to national minorities as part of universally recognized
human rights is an essential factor for peace, justice, stability and
democracy in the participating States".
The document stated that "persons belonging to national minorities
have the right freely to express, preserve and develop their ethnic,
cultural, linguistic or religious identity and to maintain and develop
their culture in all its aspects, free of any attempts at assimilation
against their will". In particular, a number of rights have been
recognized for the persons belonging to national minorities, namely:
- the right to use freely their mother tongue in private
as well as in public;
- the right to establish and maintain their own educational, cultural
and religious institutions, organizations or associations;
- the right to profess and practise their religion;
- the right to establish and maintain unimpeded contacts among themselves
within their country as well as contacts across frontiers with citizens
of other States with whom they share a common ethnic or national
origin, cultural heritage or religious beliefs;
- the right to disseminate, have access to and exchange information
in their mother tongue;
- the right to establish and maintain organizations or associations
within their country and to participate in international non-governmental
- the right to effective participation in public affairs, including
participation in the affairs relating to the protection and promotion
of the identity of such minorities.
The Copenhagen document did not attempt to adopt a definition of
"national minorities" and reflected the approach specific
for the post-Second World War period, in which the rights are granted
to the individuals, to the persons belonging to national minorities,
and not to the groups as such. However, some of the articles were
well beyond the limits of the international law. In particular, an
example is given, despite its vague formulation, by article 35, which
stated that "The Participating States note the efforts undertaken
to protect and create conditions for the promotion of the ethnic,
cultural, linguistic and religious identity of certain national minorities
by establishing, as one of the possible means to achieve these aims,
appropriate local or autonomous administrations corresponding to the
specific historical and territorial circumstances of such minorities
and in accordance with the policies of the State concerned".
The Copenhagen Document had a further importance by the
way it evoqued, for the first time in an international document, the
special problems related to the Gypsi/Roma population, which in the
same period were equated as "the new Jews" of the post-Communist
The standards included in the Copenhagen Document do continue
to represent a landmark in any action aimed at assuring the protection
of national minorities and a reference point for any new endeavour in
the field. It is a proof in itself the very fact that Romania explicitely
indicated the Copenhagen Document in the bilateral treaties with Germany
and Hungary – article 15 in both cases –, when specifying
the enforcement, as legal commitments, of the provisions which define
the rights of persons belonging to national minorities as they are stipulated
in the pertinent documents of the UN, the OSCE and the Council of Europe.
b) The Report of the Geneva Meeting of Experts
The way to approach the issue of national minorities protection remained
virtually unchanged after the Geneva meeting of experts on National
Minorities, that was organized on 1-19 July 1991. The Geneva Report
reiterated the rights that were mentioned in the Copenhagen Document,
underlined a number of principles (for instance, non-discrimination)
for defining the behaviour towards national minorities, and insisted
on actions to be undertaken for giving substance to these principles.
Special attention was devoted to the participation of persons belonging
to national minorities in public life, dialogue and consultation,
special measures for these persons on a non-discriminatory basis with
regard to the other citizens of the State, and taking into account
the historical and territorial aspects relevant for national minorities.
Aware that there was no widely accepted approach on the issue, the
Geneva report took note of the measures adopted by some participating
States for the promotion of national minorities protection and listed
fourteen measures of this sort – the so-called "shopping
list" –, for instance the representation in the decision
making and administrative bodies, local administration and autonomy,
the setting up of joint permanent commissions for facilitating the
dialogue in the trans-border regions etc.
The Geneva meeting of experts has identified no solution to the definition
of "national minorities", and any attempt to promote the
"collective rights" was bound to be immediately rejected
by the vast majority of states, on the assumption that they can feed
the danger of separation of national minorities from the state where
they currently live.
The most significant achievement of this meeting was the general
acceptance that "problems related to national minorities, as
well as the respect of obligations and international commitments with
reference to the rights of persons belonging to them, are issues of
legitimate international concern, and therefore do not constitute
an exclusively domestic issue of the respective State".
c) Recent OSCE Standard Setting in the Field
The normative acquis established in Copenhagen and Geneva
found itself reaffirmed by the subsequent OSCE documents, including
the ones that were adopted by the OSCE Istanbul Summit, on
17-19 November 1999. As far as the Charter on European Security
is concerned, while reasserting that the protection and promotion
of the rights of persons belonging to national minorities are essential
factors for democracy, peace, justice and stability within, and between,
participating States, it is worth mentioning one further normative
development concerning the issue of national minorities. In Paragraph
19 of the Charter,
the OSCE governments recognized that respect for human rights, including
the rights of individuals belonging to national minorities, is not
just an end in itself but also a means to strengthen the territorial
integrity and sovereignty of states. They also acknowledged that one
way to preserve and promote the ethnic, cultural, linguistic and religious
identity of national minorities within an existing state is to provide
them with a degree of autonomy.
It is not here the place for an in-depth discussion about this development.
However, these provisions should be approached in line with the open
debate at the time of Istanbul OSCE Summit – and still today!
– on the search for a solution to the crisis in Kosovo, a crisis
that was fundamentally related to the Yugoslav authorities failure
in handling the problems specific for national minorities.
d) Mechanisms for the Trotection of National Minorities
The norms setting activity in the OSCE for the protection of national
minorities went hand in hand with the concern to ensure compliance
with the commitments that the Participating States assumed in this
field. A first attempt, that was promoted prior to 1989, was the creation
of a "Human Dimension Mechanism", which consisted of a complicated
system of independent expert missions and rapporteurs.
It was specifically a Cold War envisaged instrument and remained mainly
as a theoretical construction.
The most important mechanism created by the organization
– and the most effective institution that was imagined by this
pan-European structure – is the one expressed by the activity
of the OSCE High Commissioner on National Minorities.
with its mandate, as approved by the 1992 Helsinki summit
High Commissioner can provide "early warning" and as appropriate
"early action" at the earliest possible stage in regard to
tensions involving national minority issues
On the other hand, the mandate made clear that the High Commissioner
will not consider "violations of OSCE commitments with regard to
an individual person belonging to a national minority"
which implies that the High Commissioner deals with the problems related
to national minorities as such, the possible implication being a tendency
to approach the “national minority” as a collective entity.
The activity of this OSCE institution was and continue
to be based on “quiet diplomacy”, and is dedicated to a
balanced approach, that is capable enough to highlight its main role
as the “early warning” instrument of the organization. In
real terms, the core philosophy of the High Commissioner on National
Minorities is contained in the general approach on the relationship
between the State and the minorities, as explicitely expressed, in October
1995, during the OSCE Human Dimension Implementation Meeting in Warsaw,
by the then OSCE High Commissioner, the Dutch Ambassador Max van der
"... it is in my view the duty of the state to see
what it can do to help if other groups in society face problems they
cannot solve on their own. The minority, on the other hand, has to realise
that it cannot claim a privileged position. In formulating its demands,
it also has to take into account that poorer states can often not afford
what richer countries can provide without much effort.
The state, in turn, will have to realise that its interests
are better served by following a generous policy towards minorities
than to stick to a minimalist approach. If persons belonging to a national
minority feel that the state takes their interests into account, they
will develop a more positive attitude towards it. Feelings of loyalty
will prevail over any tendency towards separatism.
But let us not forget that minorities also have an important
role to play in helping to prevent conflicts. If a minority refuses
to recognize that it shares a common destiny with the majority in the
state within which it is living, if it constantly seeks to isolate itself
from the rest of society and insists on institutional arrangements,
which would promote such isolation, the reaction on the other side might
be increasingly suspicious and negative. And thus a process of polarisation
can develop, which can ultimately lead to confrontation and conflict.
On the other hand, the minority can also try to follow a policy,
which combines efforts to safeguard its identity with the recognition
that living together on one territory and consequently sharing so
many common interests inevitably requires a certain degree of integration
into society. By rejecting isolation, by recognizing that the fates
of minority and majority are linked, the minority will also be able
to create more understanding for the vital need it feels to maintain
its own identity".
The efforts undertaken by the OSCE High Commissioner in late 1990s
were concentrated mainly on certain recurrent issues and themes, which
have become the subject of his attention in a number of States in
which he was particularly involved. With a view to achieving an appropriate
and coherent application of some relevant minority rights in the OSCE
area, the High Commissioner elaborated, together with the internationally
recognized experts from the (Hague) Foundation on Inter-Ethnic Relations,
three sets of recommendations: the Hague Recommendations regarding
the Education Rights of National Minorities (1996), the Oslo
Recommendations regarding the Linguistic Rights of National Minorities
(1998) and the Lund Recommendations on the Effective Participation
of National Minorities in Public Life (1999). In the occasion
of the 1999 OSCE Istanbul Summit, these recommendations have not been
accepted by the Participating States as common standards for the entire
OSCE community of states, and therefore any specific reference to
the above mentioned recommendations was not able to meet the consensus
rule. However, it is to be noted that the Istanbul Declaration,
after commending the essential work of the High Commissioner, underlined
"the requirement that laws and policies regarding the educational,
linguistic and participatory rights of persons belonging to national
minorities conform to applicable international standards and conventions"
and emphasized the importance of increasing the "efforts to implement
the recommendations of the High Commissioner on National Minorities".
It is no doubt that the OSCE made great progress in its endeavours
to protect the national minorities. At the same time, it was confronted
with two main difficulties: on the one hand, there is the vague language
in which the documents are drafted (see for example article 35 of
the Copenhagen Document); on the other hand, the political –
and not legal – character of its documents became one of its
main weaknesses. In reference to this latter aspect, it is however
worth mentioning a widespread view on the activity of the OSCE that
"it is not obligatory for a commitment to be legally binding
to have binding force".
Despite the fact that the OSCE norms and commitments were well beyond
the present framework of the international law, they do essentially
reflect the traditional approach in accordance to which the rights
are granted to the "persons belonging to national minorities"
and in no case to the national minorities as such. The normal consequence
of this aspect is the very fact that the OSCE had no solution for
identifying a definition to the concept of "national minority",
as well as for the relationship between individual and collective
approach in defining its rights.
These problems have also been the critical point for the other pan-European
institution: the Council of Europe.
2. The Council of Europe Documents
Since its foundation in 1949, the Council of Europe had
a special and constant interest for the safeguarding of human rights
and fundamental freedoms, which in fact does constitute the underlying
mission of the Strasbourg organization. This particular interest was
reflected in the promotion of the European Convention for the Safeguarding
of Human Rights and Fundamental Freedoms,
that was opened for signature
on 4 November 1950 and entered into force in 1953. It is important to
note that the Convention was in line with the prevalent mood in the
aftermath of the Second World War and therefore did not include clear
and direct provisions with reference to national minorities issue. But
without specially mentioning the national minorities, it is worth signaling
that art. 14 specified that "the enjoyment of the rights and freedoms
set forth in this Convention shall be ensured without discrimination
on any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national
minority, property, birth or other status"
During the Cold War period there were attempts to pass
an additional protocol to the European Convention on the rights of persons
belonging to minorities. A first attempt was blocked in 1968 by the
European Court on Human Rights
and afterwards the Council of Europe, in particular its Parliamentary
Assembly, expressed in different instances its interest on the minorities
situation in the then Communist countries (for example, resolutions
or recommendations on minorities issue in Romania, Bulgaria or the USSR)
In the years when the Cold War came to an end, the resurgence of
inter-ethnic conflicts in the area of former Yugoslavia and former
USSR, as well as the increasing internal tensions within some European
states that have had national minorities on their territory, have
stimulated the Council of Europe member states to launch a review
of the practices and the relationships that were between and within
states, in order to codify new legal norms and commitments for the
protection of minorities. The initiatives were directed towards the
elaboration of a European Charter for Regional or Minority Languages,
but in particular to the creation of a legally binding document for
ensuring the national minorities protection (be it a distinctive and
separate Convention or an additional protocol to the European Convention
on Human Rights).
a) European Charter for Regional or Minority Languages
This document was adopted by the Committee of Ministers on 22 June
1992, then opened for signature on 2 October 1992 and entered
into force on 1 March 1998. Its specific relevance for the measures
aimed at protecting the minority groups is provided, for instance,
by article 1, in which there is a definition of the terms used in
the Charter. Thus, the "Regional of Minority languages"
were considered the ones "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 "different
from the official language(s) of that State". Furthermore,
by "territory in which the regional of minority language is used",
the Charter specified "the geographical area in which the said
language is the mode of expression of a number of people justifying
the adoption of the various protective and promotional measures provided
for in this Charter".
The Part III of the Charter stipulates the measures to promote the
use of regional or minority languages in public life, which refer
to the use of those languages in education, public services, media,
cultural activities, economic and social life, trans-border cooperation
between the states parties to the Charter. The implementation of these
measures was entrusted to a mechanism (articles 15 to 17) that involved
reports from the states parties and the functioning of a "committee
of experts", working in close cooperation with the Secretary
General of the Council of Europe and reporting to the Committee of
Ministers on the problems identified.
b) First Endeavours for an International Legal Instrument
for the Protection of National Minorities
The first initiative to elaborate a legal instrument was carried
forward by the European Commission for Democracy through Law (the
Venice Commission), when adopting in February 1991 a proposal for
a "European Convention for the Protection of Minorities".
In article 1 of the proposed Convention it was emphasized that "the
international protection of the rights of ethnic, linguistic and religious
minorities, as well as the rights of persons belonging to those minorities,
as guaranteed in this Convention, is an essential component of the
international protection of human rights and therefore is an area
for international cooperation". It is within this approach a
clear distinction between "the rights of minorities" and
"the rights of persons belonging to minorities", the former
being an obvious expression of the "collective rights".
At the same time, the Convention proposed a definition of the protected
groups and included procedures of implementation that were centered
on a "European Committee for the Protection of Minorities".
After the rejection of this proposal by the Council of Europe's Committee
of Ministers, the efforts were channeled in the Strasbourg organization
for the setting up of an additional protocol to the European Convention
of Human Rights on the rights of minorities. The text of the Additional
Protocol was adopted on 1 February 1993 by the Parliamentary Assembly
of the Council of Europe through the Recommendation 1201 (1993),
and submitted for approval to the Committee of Ministers. The proposed
Protocol included a definition of "national minority" as
a "group of persons in a state who:
a. reside on the territory of that state and are citizens
b. maintain longstanding, firm and lasting ties with that state;
c. display distinctive ethnic, cultural, religious or linguistic
d. are sufficiently representative, although smaller in number than
the rest of the population of that state or of a region of that
e. are motivated by a concern to preserve together that which constitutes
their common identity, including their culture, their traditions,
their religion or their language".
Moreover, the text of the proposed additional protocol, despite making
use of the widely accepted formula of "persons belonging to national
minorities" – that implies the individual rights for the
persons concerned –, included explicitely in Article 12, for
the first time in a draft international legal document, the concept
of "collective rights": "Nothing in this protocol may
be construed as limiting of restricting an individual right of persons
belonging to a national minority or a collective right of a national
minority embodied in the legislation of the contracting state or in
an international agreement to which that state is a party".
On the other hand, another part of that text – Article 11 –
aroused controversy by making an eventual connection between autonomy
and ethnicity: "In the regions where they are in a majority the
persons belonging to a national minority shall have the right to have
at their disposal appropriate local or autonomous authorities or to
have a special status, matching the specific historical and territorial
situation and in accordance with the domestic legislation of the state".
The draft additional protocol was dismissed by the First Summit of
the Council of Europe – that was held in Vienna, on 8-9 October
1993 –, on the grounds that there was no consensus on the interpretation
of the term "national minority".
Consequently, the Vienna Summit decided to elaborate two legal instruments
on the protection of national minorities: a Framework Convention
for the Protection of National Minorities and an Additional
Protocol "complementing the European Convention on Human Rights
in the cultural field by provisions guaranteeing individual rights,
in particular for persons belonging to national minorities".
c) The Framework Convention for the Protection of National Minorities
This Convention opened for signature on 1 February 1995 and came
into force on 1 February 1998. It is the first legally-binding multilateral
European text it the field of national minorities protection. Contrary
to the Recommendation 1201, it does not provide for a definition for
the “national minorities”, neither identifies the rights
to be protected. But it sets out, in programme-type provisions, the
principles to be respected by the states parties to it. "These
provisions, which will not be directly applicable, leave the States
concerned a measure of discretion in the implementation of the objectives
which they have undertaken to achieve, thus enabling them to take
particular circumstances into account".
Among other things, the Framework Convention aims to:
- Combat discrimination and promote full and effective
- Promote the conditions necessary to preserve and
develop the culture of national minorities;
- Guarantee their freedom of assembly, freedom of association
and freedom of conscience and expression;
- Not to hinder, but even encourage, transfrontier
- Promote participation in public life and prohibit
- Foster access to the media;
- Allow the use of the minority language and provide
opportunities to learn it etc.
Despite the fact that a Framework Convention does not require
a specific mechanism to supervise its implementation, in this case it
provides for the monitoring of compliance with its provisions. The Convention
entrusts this task to the Committee of Ministers of the Council of Europe,
with the assistance of an "advisory committee". In accordance
with the Convention, the contracting parties are obliged to present,
within one year from the entry into force, a complete report on legislative
and other measures to implement its provisions. After that, each party
submits reports periodically and at the request of the Committee of
The adoption of the Framework Convention triggered immediately the
reaction of the Parliamentary Assembly of the Council of Europe, the
body that produced the Recommendation 1201. On 31 January 1995, the
day before the Framework Convention was opened for signature, the
Parliamentary Assembly reiterated its position by adopting the Recommendation
1255 (1995) on the protection of the rights of national minorities.
Welcoming the adoption of the Framework Convention, the Recommendation
1255 stated (in its para 7) that "The convention is weakly worded.
It formulates a number of vaguely defined objectives and principles,
the observation of which will be an obligation of the contracting
states but not a right which individuals may invoke. Its implementation
machinery is feeble and there is a danger that, in fact, the monitoring
procedures may be left entirely to the governments".
It proposed a list of twelve rights, covering the substantive provisions
of the Recommendation 1201, to be taken into consideration in the
drafting exercise for the Additional Protocol on cultural rights.
The proposal had no follow-up.
As for the Additional Protocol on cultural rights, it has never been
completed, remaining a dead letter from the decisions of the 1993
Vienna Summit Declaration of the Council of Europe.
d) Current Developments
The Parliamentary Assembly of the Council of Europe continues its
efforts aimed at making accepted a legally binding treaty, that defines
the "national minority" and specifies the rights to be protected
in this context. The rapporteur of the Committee on legal affairs
and human rights, Rudolf Bindig prepared since 1995 a report on "the
rights of national minorities" that was presented and adopted
in the occasion of the winter session of the Assembly in January 2001.
The Bindig Report relaunched the initiative to elaborate an Additional
Protocol to the European Convention on Human Rights, based on the
text of the Recommendation 1201 (1993), with a larger definition for
the concept of "national minority" and retaining the full
content of its very disputed articles 11 and 12. The rapporteur underlined
that this draft protocol has become part of the international law
by means of its inclusion in the bilateral treaties concluded between
Romania and Hungary (1996), Hungary and Slovakia (1995), and Romania
and Ukraine (1997), but he didn't mention the interpretation included
in the Appendix of the Romanian-Hungarian Treaty.
The Bindig Report recommends also the adoption of an additional
protocol to the Framework Convention for giving the European Court of
Human Rights or a general judicial authority of the Council of Europe
the power to give advisory opinions concerning the interpretation of
the Framework Convention. Furthermore, it asks the Committee of Ministers
to attach to the Council of Europe Commissioner for Human Rights a person
with special responsibility for issues concerning the protection of
minorities’ rights, making suitable financial provision for this
The Bindig Report was adopted by the Parliamentary Assembly on 23
January 2001 and the Recommendation 1492 (2001) that it formulated
was submitted to the Committee of Ministers.
It is worthy mentioning that on 13 June 2002 the latter structure
of the Council of Europe – the Committee of Ministers –,
after analyzing the Recommendation 1492 (2001), adopted a reply to
the Parliamentary Assembly which included the following assessment:
“With regard to the proposal for an additional protocol to the European
Convention on Human Rights concerning the rights of national minorities,
which would include the definition of national minority contained
in Assembly Recommendation 1201(1993), the Committee of Ministers
considers that it is somewhat premature to reopen the debate on this
project. The Committee of Ministers would stress in this connection
that, when Protocol No.12 to the European Convention on Human Rights
comes into force, any discrimination against a member of a national
minority, including discrimination based on association with such
a minority, will be covered by the general prohibition on discrimination”.
In this context, it is important to note that a further development
in this field, with specific relevance for the aim to ensure the protection
of national minorities, was the adoption of the 12th Additional
Protocol to the European Convention on Human Rights on non-discrimination,
which was opened for signature and ratification in Rome, on 4 November
* * *
The work for a definition of rights and freedoms in order to ensure
the protection of national minorities is continously carried forward
within the Council of Europe, together with a clear support for the
indivisibility of human rights. In this context, it is worth mentioning
there are rights - to profess a religion or belief, to participate
in free and fair elections, freedom of assembly, of association -
that are being considered as implying a collective dimension by way
they are exercised. They are the expression of a trend in international
affairs that consider the collective rights as not necessarily representing
a challenge to the state's sovereignty and territorial integrity.
It is, in fact, in the philosophy of the Strasbourg organization the
belief that the group rights are not directed against the individual
rights, but they are "nothing else than the right of the individual
to receive from groups the means he needs for his self-fulfillment…
Since the group derives its own rights from serving the individuals
who compose it, it has no rights against the rights of the individual.
In the hierarchy necessitated by the plurality of persons, the individual
takes precedence over the group, and the groups themselves can organize
themselves only according to the closeness of their relationship with
3. Central and South-East European Regional/Subregional
All the regional/subregional structures that were formed in Central
and South-Eastern Europe after the ending of the Cold War - the Central
European Initiative (CEI), the Visegrad Group, the South-East European
Cooperation Process (SEECP), the South-East Cooperation Initiative
(SECI), different trilateral or quadrilateral forms of cooperation,
and recently the Stability Pact for South East Europe – have
paid a special attention to the relationship between the strengthening
of security and the protection of national minorities. All their political
declarations and other documents reflect this specific concern for
the security in the region. But they were not able - with one exception
- to agree on a document specifically aimed at assuring the protection
of minorities on their respective countries. The exception was the
Central European Initiative.
From the very outset of their cooperation, the member states of the
Central European Initiative devoted particular attention to questions
related to national minorities. Such an approach reflected their intention
to give political cooperation a higher profile within the CEI scope
of activities with a special regard to the problem of national minorities
in the Central European region. It was expected that a positive solution
of national minorities issue at regional level could offer a model
to be applied within a greater European framework.
At their meeting in Turin, on 18-19 November 1994, the Foreign Ministers
of the CEI countries welcomed the drawing up of the CEI Instrument
for the Protection of Minority Rights, which was opened for signature
to CEI Member States, the EU Associated Countries and other interested
countries. Up to date, 11 out of the 16 current CEI member states
signed the Instrument. Romania signed the CEI Instrument in 1997.
The CEI Instrument is a political document, reflecting the internationally
accepted norms and principles. As well as the Framework Convention
for the Protection of National Minorities of the Council of Europe,
the CEI Instrument is based on the rights of persons belonging to
national minorities to be exercised either individually or in common
with others. In the CEI Instrument the minorities are also considered
as an integral part of the State and society where they live.
The CEI Instrument does not provide for a formal control mechanism.
The task to follow the observance of its objectives was intrusted
to the CEI Working Group on Minorities, which therefore has the functions
of an implementation mechanism. The implementation is thus monitored
through regular exchanges of information and opinion, the member states
being encouraged to share their experiences in the field for their
It is worth noting that since the launching in 1999 of the Stability
Pact for South Eastern Europe, the Working Group on Minorities –
which is one of the components of the Stability Pact Regional Table
– decided to pay more attention in its work to the provisions
of the CEI Instrument which are at the same time priorities of the
Stability Pact Working Table on Democratization and Human Rights.
III. Preliminary Assessment
1. After this brief analysis of the international/European approach
to the protection of national minorities, one could emphasise that:
- the issue of national minorities is no longer an
internal problem of a State, it is an issue of international concern;
- the protection is ensured for the national minorities
as entities, but the rights are granted to individuals;
- no definition for national minorities was accepted
by the Governments, despite the proposals contained in the draft
of the European Convention for the Protection of Minorities
forwarded in February 1991 by the European Commission for Democracy
through Law, the Recommendation 1201/1993
of the Parliamentarian
Assembly of the Council of Europe and the subsequent similar texts
adopted by the Parliamentary body of the organization.
2. The approach included in the documents adopted by the OSCE and
the Council of Europe is the one defining the post-Second World War
period, which places the national minorities issue in the wider context
of the problem of respect for human rights and fundamental freedoms.
Therefore the emphasis is on individual rights and the concept used
refers to the "rights of persons belonging to national minorities".
However, it came soon to the fore the idea that the simple protection
of national minorities by means of ensuring respect for human rights
and fundamental freedoms does not suffice.
3. On the other hand, it is already a common place to say that observance
of human rights, fundamental freedoms and democratic principles are
a precondition for a stable and peaceful Europe. The same also applies
to observance of international standards concerning national minorities.
Lasting peace and stability in Europe can only be achieved if the
provisions of the most relevant instruments – mainly the OSCE
Copenhagen Document and the Council of Europe Framework Convention
for the Protection of National Minorities – are fully implemented.
The implementation of these international norms and standards is
essential for the protection of the identity of national minorities,
but will often not be able to provide an adequate solution to specific
problems a particular minority has to cope with. Therefore, in
such cases, a positive dialogue has to be developed between the state
and the minority.
4. The provisions included within the documents adopted by the European
institutions went much further in terms of quality and quantity than
the similar ones that were produced in the UN system or within the
regional structures on the other continents. This is in itself the
reflection of the actual importance of the national minorities issue
and at the same time the recognition that their protection is not
only a mere humanitarian issue, but also a political one, that pertains
to the specificity of the historical development of Europe.
These provisions set the standards on the protection of national
minorities. Being the product of negotiations among states, which
are less tempted to make concessions in this field, these standards
should be understood as a minimal approach, and therefore as starting
point for the States' actions to build up a system for the protection
of national minorities, and in no case the final end of this activity.
It is in fact a widespread belief that nothing prevent the States
to enact legislation and to implement it in a more generous way, thus
going beyond the limits of the European standards.
5. As far as the concept of "collective rights"/"group
rights" is concerned, it was advanced by some in the international
debate on the protection of national minorities, but it was also rejected
on historical grounds by the vast majority of states. This rejection
was motivated on the fact that past experiences witnessed the opposition
of the group rights to the individual ones, and in recent history
the call for group rights led to war and interethnic conflict. It
is in fact a line of thinking that considers that, legally speaking,
the concept of "collective rights" is a non-sense in itself,
as long as the bearer of the rights has no legal personality, and
therefore it has not the capacity to exercise certain rights and to
be subject to certain duties.
However, the present development of the relationship between individual
rights and collective rights is no more defined by an exclusive approach.
The rights that were identified in the Council of Europe as having
a collective dimension by way they were exercised, have been perceived
as not being directed against the individual rights and thus capable
to be used for the benefit of the individual, if he/she is to be a
complete human being. It was rightly argued that the so-called collective/group
rights would have a weak significance if the group members were not
in a position to enjoy them individually. Consequently, the collective
rights seem to be promoted by their supporters as a corollary to the
individual rights, which will stay as the fundamental reference of
the modern democratic society.
But a positive approach to collective rights within the documents
specific to the European organizations is not likely to be promoted
in the foreseeable future, and the main difficulty is still produced
by the lack of a generally accepted definition of the concept of "national
minorities". In the meantime the need for supplementary and special
measures to ensure an effective protection of national minorities
has already been highlighted, so that the way for new developments
in this particular field is open.
* * *
After this brief outline of the conceptual and institutional developments
to the protection of National Minorities within the main European
institutions, it is appropriate to see how the Romanian authorities
formulated their approach in this field after the ending up of the
Communist regime in December 1989. But a closer look to this issue
will be the topic for a further study.
Buzan, "New patterns of global security in the twenty-first century",
in International Affairs
, 67, 3, 1991, p. 431-451; and by the
same author, People, States and Fear. An Agenda for International
Security Studies in the post-Cold War era, Harvester-Wheatsheaf,
Buzan, "New patterns of global security in the twenty-first century",
communique, NAC S-1 (91) 85, The Alliance's New Strategic Concept
agreed by the Heads of State and Government participating in the meeting
of North Atlantic Council in Rome on 7th - 8th
Communique, NAC- S(99)65, The Alliance's Strategic Concept. Approved
by the Heads of State and Government participating in the meeting of
North Atlantic Council in Washington D.C. on 23rd and 24th
of the Extraordinary Meeting of the WEU Council of Ministers with States
of Central Europe
, Bonn, 19th June 1992.
of the Meeting of Experts on National Minorities
, CSCE, Geneva,
for European Security
, OSCE, Istanbul, November 1999, para. 19.
, Council of Europe Summit, 9 October 1993. See also
Catherine Lalumiere, Speech on the occasion of the Interregional
meeting organized by the Council of Europe in advance of the World Conference
on Human Rights, "Human Rights at the Dawn of the 21st
, Strasbourg, 28 January 1993, in Human Rights at
the Dawn of the 21st Century
, Council of Europe Press,
Strasbourg, 1993; the same for Daniel Tarschys, “The Council of
Europe: towards a vast area of democratic security”, in NATO
, Vol. 42, No. 6/1995-1/1996.
Bloed, “The CSCE and the Protection of National Minorities”,
in ODIHR Bulletin
, vol.I, no.3, 1993, p.1.
Final Act of the Conference on Security and Cooperation in Europe
Bloed, op. cit.,
of the Copenhagen Meeting of the Conference on the Human Dimension
CSCE, Copenhagen, 1990.
Yves Ghebali, “Les valeurs de Grande Europe, produit du laboratoire
politique de la CSCE”, Relations Internationales
, 73, printemps
1993, p. 73.
of the Meeting of Experts on National Minorities
, CSCE, Geneva,
full content of Paragraph 19 reads as follows:
"We reaffirm that respect for human rights and fundamental
freedoms, democracy and the rule of law is at the core of the OSCE's
comprehensive concept of security. We commit ourselves to counter such
threats to security as violations of human rights and fundamental freedoms,
including the freedom of thought, conscience, religion or belief and
manifestations of intolerance, aggressive nationalism, racism, chauvinism,
xenophobia and anti-semitism. The protection and promotion of the rights
of persons belonging to national minorities are essential factors for
democracy, peace, justice and stability within, and between, participating
In this respect we reaffirm our commitments, in particular
under the relevant provisions of the Copenhagen 1990 Human Dimension
Document, and recall the Report of the Geneva 1991 Meeting of Experts
on National Minorities. Full respect for human rights, including the
rights of persons belonging to national minorities, besides being an
end in itself, may not undermine, but strengthen territorial integrity
and sovereignty. Various concepts of autonomy as well as other approaches
outlined in the above-mentioned documents, which are in line with OSCE
principles, constitute ways to preserve and promote the ethnic, cultural,
linguistic and religious identity of national minorities within an existing
State. We condemn violence against any minority. We pledge to take measures
to promote tolerance and to build pluralistic societies where all, regardless
of their ethnic origin, enjoy full equality of opportunity. We emphasize
that questions relating to national minorities can only be satisfactorily
resolved in a democratic political framework based on the rule of law.
We reaffirm our recognition that everyone has the right
to a nationality and that no one should be deprived of his or her nationality
arbitrarily. We commit ourselves to continue our efforts to ensure that
everyone can exercise this right. We also commit ourselves to further
the international protection of stateless persons."
Paragraph 19 provisions were perceived by some as “unexpected”.
See Victor Yves Ghebali, "The OSCE's Istanbul Charter for European
Security", in NATO Review
, no. 1, Spring-Summer 2000, p.
Bloed, The CSCE and the Protection of National Minorities...
p. 1. In 1990’, this type of missions have been sent in Estonia,
the Republic of Moldova and in the area of former Yugoslavia.
Helsinki Document 1992, The Challenges of Change
, Helsinki, 1992,
chap. II (3).
chap. II (5c).
of Max van der Stoel, the OSCE High Commissioner on National Minorities,
OSCE implementation meeting on human dimension issues
, Warsaw, 2-19
, November 1999, para. 30.
van Dijk, "The Final Act of Helsinki - Basis for a Pan European
System?", in Netherlands Yearbook of International Law
1980, p. 110, apud Arie Bloed, Two Decades of the CSCE Process...,
Thornberry, Minorities and Human Rights Law
, Minority Rights
Group, 1991, p. 30.
Convention for the Protection of Human Rights and Fundamental Freedoms
Charter for Regional or Minority Languages
, Strasbourg, 1992.
P. Thornberry, op. cit.,
1201 (1993) on an additional protocol on the rights of national minorities
to the European Convention on Human Rights
, Strasbourg, 1993.
paragraph 4 of the Explanatory Report to the Framework Convention
for the Protection of National Minorities
(doc. H (95) 10).
the relevant decisions in Vienna Declaration
, Council of Europe
Summit, 9 October 1993.
paragraph 11 of the Explanatory Report to the Framework Convention (doc.
H (95) 10).
7 of the Recommendation 1255 (1995).
a critical approach, see Heinrich Klebes, "The Council of Europe's
Framework Convention for the Protection of National Minorities",
in Human Rights Law Journal, [Strasbourg], 28 April 1995, Vol. 16,
No. 1-3, p. 92-116.
Contracting Parties agree that Recommendation 1201 does not refer to
collective rights, nor does it obligate Parties to grant those persons
the right to a special territorial autonomy status based on ethnic criteria".
of National Minorities
, Report, Committee on Legal Affairs and Human
Rights, Rapporteur: Rudolf Bindig, Germany, Socialist Group, Doc. 8920,
29 January 2001 revised.
1492 (2001) on the rights of national minorities
Committee of Ministers, 799th
meeting, 13 June 2002, Rights
of national minorities - Parliamentary Assembly Recommendation 1492/2001
(REC 1492 (2001), GR-H (2002) CB8).
Protocol no. 12 to the European Convention on Human Rights, which provides
for a general prohibition of discrimination, was adopted by the Council
of Europe Committee of Ministers on 27 June 2000 and opened for signature
by member States on 4 November 2000 in Rome, on the occasion of the
European Ministerial Conference on Human Rights. This Protocol overcomes
the current non-discrimination provision of the European Convention
(Article 14), which is of a limited kind, because it only prohibits
discrimination in the enjoyment of one or the other rights guaranteed
by the Convention. The new Protocol removes this limitation and guarantees
that no-one shall be discriminated against on any ground by any public
the introductory speech delivered by the then Secretary General of the
Council of Europe, Catherine Lalumiere at the “Interregional meeting
organized by the Council of Europe in advance of the World Conference
on Human Rights”, Human Rights at the Dawn of the 21st
, Strasbourg, 28 January 1993, in loc. cit