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The Council of Europe's Framework Convention on National Minorities

Steven Wheatley, LLB, LLM

Lecturer
University of Central Lancashire
< [email protected]>

Copyright © 1996 Steven Wheatley.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

This article considers the measures adopted by the Council of Europe in response to the perceived 'problem' of national minority groups, in particular the opening for signature, on the 1st of February, of the framework Convention for the Protection of National Minorities in 1995 and previous measures adopted under the European Convention on Human Rights. The article considers the detailed provisions in the framework Convention on the rights of members of national minority groups to non- discrimination and positive rights in the field of culture, education and language. The approach of the framework Convention is contrasted with developments in the work of the Organisation for Security and Co-Operation in Europe and in particular its High Commissioner on National Minorities scheme which has indicated a need to incorporate the demands and aspirations of national minority groups within the decision making processes of the State. The article questions whether the absence of such a scheme within the framework Convention will prove fatal to its successful operation.

Introduction
The Council of Europe and National Minorities
Section I - Fundamental Principles: Defining the 'National Minority'
Section II - The Principles: Non-Discrimination; The right to develop the culture and maintain and promote the identity of the national minority
Section III - The interpretation and application of the framework Convention
Section IV - Monitoring and Implementation: The Right to Political Participation in the framework Convention; The Organisation for Security and Co-operation in Europe's High Commissioner on National Minorities
Conclusion

Bibliography

Introduction

The 'problem' of national minorities is most clearly evidenced in the break up of the former Yugoslavia, armed conflict in Chechnya ,(1) conflict between the neighbouring Azerbaijan and Armenia States and tensions between the central authorities and national minorities in the Baltic States and in Slovakia. The Council of Europe has recognised that the,

"upheavals of European history have shown that the protection of national minorities is essential to stability, democratic security and peace in [Europe]' and considered that, 'a pluralist and genuinely democratic society should not only respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity..' in a, 'climate of tolerance and dialogue."(Preamble, framework Convention for the Protection of National Minorities.)

Whilst the international legal community provides for a prohibition on discrimination against some minority groups in Article 27 of the International Covenant on Civil and Political Rights 1966 (999 UNTS 171, UKTS (1977) 6, Cmnd 6702) ;(2) this article (and the framework Convention) is concerned with the legal protection afforded to a specific minority group, that is the national minority, a group, "which differs from [the majority] in race, language and [/or] religion [and desires] the possibility of living peaceably alongside the population and co-operating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority."(Minority Schools in Albania Case (1935) PCIJ Ser A/B. No. 64, 17). National minority groups are an integral component of the modern State, indigenous to the areas in which they live but designated minorities by the arbitrary imposition of territorial boundaries without reference to the ethnic composition of the political unit. This article will now consider the provisions adopted by the Council of Europe in the protection of the rights of individuals belonging to national minority groups.

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The Council of Europe and National Minorities

The traditional focus for the guarantee of human rights in Europe has been the Council of Europe and in particular the European Convention on Human Rights [1950] (ETS (1950) 5, UKTS (1950) 7). The Convention has no specific provisions on minority rights although, the range of provisions on individual rights and non-discrimination, connect closely with traditional concerns of minorities. In addition minority groups will be recognised as having standing in cases of violations of the rights of members of the group (Article 25(1)). Of particular significance to national minority groups are provisions on the rights to freedom of thought and conscience (Article 9), freedom of expression (Article 10), of assembly and association (Article 11) and the right to education (Article 2 of Protocol 1). Moreover, the European Commission on Human Rights has concluded that, "a minority group is, in principle, entitled to claim the right to respect for the particular lifestyle it may lead as being "private life", "family life" or "home" [under Article 8(1)]" (G& E v Norway Apps Nos. 9278 and 9415/81, (1983) 35 DR 30, 35 - 36). To advance such a claim the national minority is required to demonstrate that its needs and requirements outweigh those of the general population. This balancing of minority and majority claims whilst allowing the State to discriminate in favour of the national minority (Liberal Party et al v UK App. No. 8765/79, (1982) 4 EHRR 106, 123) places the minority group in a vulnerable position in any balancing of interests with the majority group.

The substantive provisions of the ECHR are complemented by Article 14 which provides that the rights in the Convention are to be enjoyed, "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" (emphasis added). The European Court of Human Rights has indicated that Article 14 prohibits any difference in treatment where that distinction has no "objective and reasonable justification...assessed in relation to the aim and effects of the measures under consideration...[and] proportionality between the means employed and the aim sought to be realised" (Belgian Linguistics Case [1969], Judgement of 23 July, 1968, Series A, No. 6, 34) and the applicant is able to demonstrate some detriment from that distinction in treatment (App. No. 10210/82, 35 DR (1983) 203, 207 K v France). Whilst of clear value, in theory, in the protection of the rights of persons belonging to national minorities the insistence that Article 14 may only be alleged in conjunction with specific rights in the Convention (i.e. to assembly, expression, etc.) prevents it being utilised to advance claims based on rights which are not found in the European Convention on Human Rights including traditional national minority demands for language rights or linguistic freedom in public (Clarfayt and Legros v Belgium, App. No. 10650/83, (1985) 42 DR 212), separate schooling - funded by the State - (Belgium Linguistics Case), respect of the separate national minority culture (App. No 7823 and 7824/77, Kalderas Gypsies v FRG and the Netherlands (1977) 11 DR 221) and the right of the group to political autonomy (Matthieu-Mohin & Clerfayt v Belgium, Judgement of March 2, 1987, Ser A, No 113. 10 EHRR 1).

The Council of Europe in recognising the deficiencies in its provisions relating to the rights of individuals belonging to national minority groups decided to adopt a Framework Convention for the Protection of National Minorities [1995] ,(3) the first legally binding multilateral instrument devoted specifically to the protection of national minorities. Apart from the preamble, the Framework convention is split into four main operative parts:

Section I contains the fundamental principles which underpin the convention and may serve to elucidate the substantive provisions
Section II contains the specific principles to be implemented by participating States into their national legislation
Section III contains provisions relating to interpretation and application of the framework Convention
Section IV contains the provisions on monitoring.

This article will now consider each of the sections in turn in an attempt to examine the potential impact of the framework Convention on the effective protection of the rights of members of national minority groups and in the protection of the cultural identity of the group itself.

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Section I - Fundamental Principles

The framework Convention in identifying the protection of national minorities and the rights and fundamental freedoms of persons belonging to minorities, as, "an integral part of the international protection of human rights...[falling] within the scope of international co-operation" (Article 1), removes any claims of exclusive domestic jurisdiction to the national minorities question by the State parties and recognises a need to deal with such issues on the basis of internationally agreed human rights provisions and in accordance with the principle of good neighbourliness, friendly relations and co-operation between States (Article 2).

The rights within the framework Convention are to be accorded to members of national minority groups, that is members of a group that is numerically less than half of the population with some ethnic, cultural linguistic or religious cohesion. However, not all cultural, religious and ethnic differences create national minorities and the framework Convention provides no definition of 'national minority', leaving the identification (or not) of the status of 'national minority' group to the State concerned, reflecting both the difficulties inherent in any definition and the failure of the participating States to agree one. Whilst the drafters of the framework Convention, and all other international legal instruments on the issue, have avoided providing a definition of a national minority group, in the operation of the framework Convention a jurisprudence will develop as States establish criteria for the recognition of those groups who may be termed 'national minority' groups for the purpose of according rights with such criteria required to be consistent with existing accepted principles on the issue.

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Defining the 'National Minority'

At the most basic level, a 'national minority' group must encompass less than half of the population of the State (i.e. be a 'minority'), and members of the group must be nationals of the State (i.e. a 'national' minority), sharing some ethnic, linguistic or cultural factor which distinguishes them from the majority. As the framework Convention requires States promote such conditions as are necessary for national minorities to, "maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage" (Article 5(1)), it is suggested that a national minority group be defined - in the absence of a more generally agreed definition - in accordance with that proposed by Deshenes (Deshenes 1985, p 30) of a,

"...group of citizens of a State, consisting of a numerical minority and in non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact and in law."

This 'recognition' of a group as a 'national minority' will involve the self-identification by the group itself that it is a minority with a national or ethnic, cultural, religious and linguistic identity; that distinction between the majority and minority having some 'objective' basis in fact. Secondly, as the purpose of advancing a claim of national minority status is to demand a preferential or proportionate claim on the political, economic and social resources of the State, the relevant national government must be involved in the process of recognition, granting much discretion to the State, although that decision must be consistent with the practice and provisions of international law and does not allow the State to arbitrarily deny the existence of national minority groups within its territory. (4) Once the State has identified the appropriate national minority groups within its territory, the framework Convention provides a number of principles which the participating States must apply in their dealings with members of the group which will now be considered.

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Section II - The Principles

As a framework Convention, creating general principles and not directly applicable without enactment into domestic law, implementation is the prerogative of the State. The Convention allows a large margin of appreciation to the State in the application of many of the provisions (particularly those on education and language rights) and, moreover, permits the State to impose, "such restrictions or derogation's which are provided for in international legal instruments, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms, in so far as they are relevant to the rights and freedoms flowing from the said principles" (Article 19), although the Convention may not be construed as limiting or derogating from any other human right or fundamental freedom which may be ensured under the laws of the State, or under any other agreement to which the State is a Party (Article 22). The rights of members of national minority groups are, therefore, additional to the universal human rights provisions accepted by the State and not an alternative to such provisions. The substantive provisions provided by the framework Convention will now be examined.

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Non-Discrimination

Recognising that members of national minority groups are often the subject of discrimination and hostility by the State authorities and the majority population at large, the framework Convention obliges Parties to take appropriate action to protect persons belonging to a national minority group from being subject to acts of hostility or violence on the basis of their ethnic, cultural or religious identity (Article 6(2)) and prohibits discrimination against an individual on the basis of that person 'belonging to a national minority' group (Article 4(1)). Article 4 prohibits all direct discrimination on the basis of a persons belonging to a national minority and any indirect discrimination which has no 'objective and reasonable justification', or is not proportionate to the aims sought to be realised (Belgian Linguistics Case). The Explanatory Report on the Framework Convention (Council of Europe 1994, para 40), notes that it was not felt necessary to provide separate provisions dealing specifically with equal opportunities or other freedoms, including that of movement, as such rights would be implicit within Article 4.

The framework Convention, recognising that the mere imposition of an obligation of non- discrimination will not deal with past and institutionalised discrimination within society, permits Parties to:

"adopt, where necessary, adequate measures in order to promote...full and effective equality between persons belonging to a national minority and those belonging to the majority." (Article 4(2))

Whilst such measures of positive discrimination will have most impact in the context of access to employment, particularly in access to public sector employment, the right to positive discrimination in Article 4 is applicable in all areas and may, arguably be mandated where institutionalised discrimination against the national minority group is apparent. Such positive discrimination must be proportionate and limited, as appropriate, in time and scope to avoid violating the rights of the majority but it is the responsibility of the State to determine the necessity and extent of such measures.

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The right to develop the culture and maintain and promote the identity of the national minority

The framework Convention provides a general obligation on the parties to, "foster knowledge of the culture, history, language and religion of their national minorities and of the majority" (Article 12(1)) for the promotion of mutual understanding and respect and to promote such conditions as are necessary for the national minority to, "maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage" (Article 5(1)). Beyond this general obligation, the right of the national minority group to preserve and promote its identity is guaranteed through the provision of language rights, rights in the context of education and the right to maintain and develop contacts with other members of the national minority group outside of the State. These will be examined in turn.

Language rights

It has been a common practice for States to deny a national minority the right to utilise and express themselves in the minority language as part of a programme of assimilation of the minority group into the majority. The Kurdish minority population in Turkey has been a particular victim of this policy. Recognising the importance of this issue, the framework Convention demands that every person belonging to a national minority be allowed the right to use his or her minority language both in private and in public and the right not to be discriminated against in equal access to the media. The framework Convention requires that each person belonging to the national minority has the right to recognition of their minority name, the right to display signs in the minority language, and in areas inhabited by substantial numbers belonging to the national minority, and subject to limitations, the right to have local names and street signs displayed in the minority language (Article 11).

In criminal matters, members of the national minority have the right to be informed, in a language which they understand, of the reasons for any arrest. Moreover, members of the national minority have the right to defend themselves in the same language - which could include the majority language - but if necessary with the assistance of an interpreter (Article 10(3)).

More generally, in areas inhabited traditionally, or in substantial numbers, by the national minority, if such persons so request and where such a request corresponds to a real need, the State may allow members of the national minority group to use the minority language in their relations with the administrative authorities (Article 10). The framework Convention deliberately provides no definition of 'substantial numbers' or 'real need' granting a large margin of appreciation to the State permitting the authorities to take into account financial and technical problems (involved in interpretation) relating to the provision of language rights, and making any challenge to a State's provision of language rights difficult to sustain in all but the most extreme of circumstances.

The provisions on national minority language rights in the framework Convention appear vaguely defined and limited in contrast with those measures adopted by the Council of Europe's own European Charter for Regional or Minority Languages in 1992. The Charter recognises that the minority language is an integral part of the expression of the cultural wealth of the minority group and calls for resolute action for the promotion of such minority languages. To this end, the use of the minority language in public and in private is to be facilitated and encouraged and appropriate provision made available for the teaching and study of the minority language. No distinction, exclusion or restriction relating to the use of the minority language is permitted where such a restriction is intended to discourage its development (Article 7). It is clearly disappointing that the drafters of the framework Convention felt unable to outline, in greater detail, the specific obligations required of a State in the protection and promotion of the national minority culture through that groups' spoken and written language.

Educational rights

The right of the national minority group to preserve its identity requires that characteristics of the group in terms of religion, culture and language be passed on to the children of the members of the group so as to ensure that the majority culture does not supplant, for those children, the minority one. In this context the right of the national minority group to appropriate education for its children is essential. Recognising this fact, to a somewhat limited extent, the framework Convention obliges Parties, where appropriate, to take measures in the field of education to foster knowledge of the culture, history, language and religion of the national minority and the majority (Article 12(1)). Appropriate opportunities for teacher training and access to textbooks are to be provided and contacts between both staff and students of different communities is to be facilitated by the State. The framework Convention does not, however, attempt, to force cross cultural understanding by the establishment of a unitary and homogeneous education system - which has been the primary mechanism by which States have attempted to assimilate national minority groups - recognising the right of the national minority to establish separate private education institutions (Article 13) to enable the preservation and promotion of the national minority culture.

More generally, where there is sufficient demand, the framework Conventions requires that Parties endeavour to ensure that members of the national minority have adequate opportunities in the education system (at primary, secondary and University level) to be taught in the minority language and the right to learn the minority language. In areas inhabited traditionally, or in large numbers, by the national minorities, if there is sufficient demand, as far as possible and within the framework of their education system, State parties shall ensure that persons belonging to the national minority have the opportunity to be taught in the minority language without prejudicing the learning of the majority (State) language, which is stated to be a factor of social cohesion within the State (Article 14). Such ambiguities in the posited obligations grant almost absolute discretion to the State concerned in deciding the appropriate level of minority language provision and, again, it would be difficult for any national minority group or other interested party to allege bad faith on the part of the State in its implementation of the framework Convention, reflecting a continuing reluctance on the part of States to surrender exclusive domestic responsibility for dealings with national minority groups to international concern and supervision.

The right to connections with citizens in third States

Recognising that a national minority will often have ethnic connections with a third state, the Framework Convention obliges Parties, "not to interfere with the right of persons belonging to national minorities to establish and maintain free and peaceful contacts across frontiers with persons lawfully staying in other States, in particular those with whom they share an ethnic, cultural, linguistic or religious identity, or a common cultural heritage" (Article 17(1)). States are encouraged, where necessary, to conclude bilateral and multilateral agreements with other States, in particular neighbouring States, in order to ensure the protection of persons belonging to the national minorities concerned (Article 18).

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Section III - The interpretation and application of the framework Convention

The express intention of the framework Convention is the achievement of, preservation and promotion of, the national minority culture within the existing State, that is the granting of the right of self- realisation not self-determination. In particular, in Article 21, the framework Convention rejects any right of the national minority group to external self-determination, that is a right to secession and independence or the (re) joining with what Mullerson describes as the ethnically similar "Motherland" States (Mullerson 1994, pp 113-4). In return for the granting of such a right to self-realisation by the State (in the context of education, language and cultural rights), persons belonging to the national minority are required, in return, to obey the national legislation of the State and respect the rights of other citizens. In particular, in areas in which the national minority forms the majority, it must respect the rights of individuals belonging to the majority or other national minorities - the oppressed may not become the oppressor (Article 20).

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Section IV - Monitoring and Implementation

As a framework Convention, the responsibility for the implementation of the rights and obligations within the instrument lies primarily with the relevant State Party who must implement the rights in good faith. The rights within the framework Convention may not be relied upon by individual members of the national minority group themselves who must rely on the internal provisions adopted by the State to challenge the implementation of the framework Convention's principles.

The Committee of Ministers of the Council of Europe (Article 24) enjoys a limited monitoring role with no potential role of oversight for the European Court on Human Rights. The framework Convention adopts a reporting mechanism by way of implementation and does not allow the possibility of individual petition or petition by a national minority group alleging violation of the provisions. State parties are required to submit a first comprehensive report on legislative and other measures undertaken in the implementation of the framework Convention within one year of becoming a party, thereafter, Parties are obliged to submit reports on a periodical basis and whenever the Committee requests information to enable that information to be kept up to date (Article 25). The Committee of Ministers is assisted by an advisory committee of recognised experts in the field whose composition and procedure is to be determined by the Committee of Ministers one year after the Convention's entry into force (Article 26). The function of the Committee of Ministers is to review the implementation of the rights and obligations created by the framework Convention but the exact nature of its role is unclear and will only become apparent in the operation of the reporting system. The monitoring of the implementation of the framework Convention is intended, as far as possible, to be transparent with consequential publication of reports and other texts resulting from the monitoring expected (Council of Europe 1994, para 97). Such mechanisms for review of implementation, where utilised by other human rights instruments have tended to avoid direct confrontation with the State Parties, with the body charged with reviewing implementation of the rights preferring to make general comments rather than directed individual criticisms. If the experience of the workings of the Committee of Ministers in relation to the European Convention on Human Rights is indicative, the Committee will tend to defer to the expert legal opinion of the body of experts except where the issue is one of emergency or highly political (likely in cases involving national minorities) when the Committee will be paralysed by indecision. The monitoring of the framework Convention is clearly inadequate reflecting the political tensions involved in any re-ordering of the internal political structure of the State between the national minority and the central authorities. This is disappointing, but unsurprising in the context of the Council of Europe, as the European Court on Human Rights has, itself, consistently refused to consider the internal political arrangements of member States (Marquand 1994, p 362).

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The Right to Political Participation in the framework Convention

The framework Convention grants rights to individual members of national minority groups and not to the national minority groups themselves, although it is recognised that the individual rights may be enjoyed, "in community with others" (Article 3(2)). The framework Convention gives each individual the right to associate or not with the national minority, with no disadvantage resulting from the exercise of that choice (Article 3(1)). As well as the right to promote and preserve the identity of the national minority group through education, language and cultural rights the framework Convention requires that:

"The Parties shall create the conditions necessary for the effective participation of persons belonging to the national minorities in cultural, social and economic life and in public affairs, in particular those affecting them." (Article 15)

Article 15 of the Convention builds upon a more general right to popular participation, evidenced in Article 25 of the International Covenant on Civil and Political Rights [1966] .(5) However, for a national minority group - numerically disadvantaged in terms of the electorate - it is insufficient to restrict the right to political participation to a periodic right to vote in free and fair elections. An effective right to political participation requires formal inclusion of the national minority within the decision making process of the State to enable it to make direct representation. On this continuing aspect of the right to political participation, the framework Convention recognises the right of members of a national minority group to play an active part in the work of appropriate non-governmental organisations (Article 17(2)) whilst the Explanatory Report to the framework Convention issued by the Council of Europe (1994) suggests the measures which a State may adopt in its implementation of Article 15. These include, inter alia, consultation by the State with members of the national minority group through representative institutions when the State is contemplating administrative or legislative measures likely to have a direct effect on the national minority; involving the national minority in the preparation and implementation of regional development activity likely to affect them; allowing effective participation by persons belonging to the national minority into the decision making process at national and regional level; and decentralised or local forms of government (Council of Europe 1994, para 80).

It would be insufficient to simply grant such a right to political participation to individual members of the national minority group (as suggested by Article 15) and the measures suggested by the Explanatory Report would inevitably involve the State in the recognition of representatives of the national minority in the granting of the right to political inclusion and dialogue - such a right would, consequently be collective not individual. Whilst the framework Convention has undertaken only tentative steps in the recognition of a collective human right to political inclusion and dialogue reflecting the political nature of the emerging right, the Organisation for Security and Co-Operation in Europe has gone further, in this context, advocating:

"appropriate democratic participation of persons belonging to national minorities or their representatives in decision-making or consultative bodies [as constituting] an important part of effective participation in public affairs." (OSCE, Geneva Meeting of Experts Report 1991, Section III)

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The Organisation for Security and Co- operation in Europe's High Commissioner on National Minorities

Pre-eminent in the New-Europe's attempt at preventing and containing ethnic conflicts has been the Organisation for Security and Co-Operation in Europe (OSCE) process begun with the signing of the Helsinki Final Act in 1975. Whilst the OSCE and its subsidiary organs, notably the High Commissioner on National Minorities, is a political organisation, issuing non-binding provisions, its decisions and recommendations have a strong normative value influencing the development of international practice and the developing general international law. Initially the process was not concerned with the protection of national minorities (as it was preoccupied with preventing the Cold War in Europe escalating into conflict and ensuring respect for universal human rights in Eastern Europe) until the second meeting of the Conference of the Human Dimension at Copenhagen in 1990 (29 ILM (1990) 1318) moved the issue to the OSCE agenda. The Copenhagen Meeting was followed by a Meeting of Experts in Geneva and the Moscow meeting of the Human Dimension 1991 which established a system of fact-finding missions of independent experts and rapporteurs, to include consideration of national minority issues (30 ILM (1991)1670). The OSCE process culminated in the Helsinki Follow-Up Meeting in 1992 where a High Commissioner on National Minorities was established to address national minority issues in a constructive manner, by peaceful means and through dialogue among all parties on the basis of OSCE principles and commitments. Formally, the High Commissioner's function is to provide an early warning in situations which exhibit:

"tensions involving national minority issues which have not yet developed beyond an early warning stage, but, in the judgement of the High Commissioner, have the potential to develop into a conflict within the OSCE area, affecting peace stability or relations between participating states."([O]SCE Helsinki Document [1992], Para II(2), 31 ILM (1992) 1385).

The High Commissioner may collect and receive information regarding national minority issues from any source (including the parties involved, the media and non-governmental organisations), assess the various roles of the parties involved, the nature of the tensions and any potential consequences of the escalating tensions. If, on the basis of the information received and following meetings with the parties involved, the High Commissioner believes there to be a prima facie risk of potential conflict he may issue an early warning which will be communicated to the appropriate OSCE political body. The OSCE may then, at its discretion, undertake further measures.

The formal role of the High Commissioner is complemented by an informal function as an independent outsider with an international mandate able to play a significant role in the early resolution of problems involving national minorities, possibly leading to a resolution of the underlying issues in the conflict. The High Commissioner has published a number of reports on national minority issues in a variety of States, in particular in Central and Eastern Europe. In these reports, the High Commissioner has recommended that States undertake similar measures to those required for compliance with the provisions of the framework Convention but has gone further in the context of the right to political participation calling for the establishment of:

"specialised organ[s] with adequate minority representation and participation....[with] real competencies with regard to legislation touching upon minority issues...specifically of the competence to discuss legislative concepts before they are submitted to parliament, to suggest amendments to existing legislation, and also to advise on or even propose themes and concepts for new legislation." (Letter of [O]SCE High Commissioner on National Minorities to Slovak Republic, CSCE Communication No. 36, Vienna, 14 November 1994).

The purpose of such a body would be to establish a visible policy of dialogue to ensure that rumours and speculation about prospective administrative and legislative decisions can be prevented from causing friction and dispute and to achieve the effective inclusion of the national minority group into the political life of the State. This explicit recommendation by the OSCE's High Commissioner is in direct contradiction to the vague requirements of Article 15 of the framework Convention and reflects to some extent the political, aspirational and programmatic nature of such a right were it to evolve and the fact that such a right is more easily provided within the context of political rather than legal institutions.

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Conclusion

The framework Convention and its limited provisions on linguistic, educational and cultural rights has been described as, "a weak first attempt [for the guarantee of minority rights in Europe]" (Gilbert 1996, p 189) with vaguely defined provisions and inadequate enforcement mechanisms. It is unlikely that such a minimalistic approach to the granting of national minority rights and exhortation of the inclusion of the national minority into the public life of the State will provide the basis for the solution of long standing ethnic disputes, particularly given the refusal of the drafters of the framework Convention to recognise an explicit collective right of national minority groups to political participation and the establishment of procedural mechanisms to inculcate the minority demands and aspirations into the decision making processes of the State. The absence of such a requirement and of an effective system of review and monitoring will ensure that the framework Convention remains largely ineffectual in the resolution of disputes between the State and the national minority. It is to be hoped that such a missed opportunity is not regretted.

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Bibliography

Council of Europe (1994), Explanatory Report on the framework Convention for the Protection of National Minorities, Council of Europe H(94)10, Strasbourg, November.

Crawford, J (ed.) (1988), The Rights of Peoples (Oxford: Clarendon)

Deshenes, J (1985) United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities Proposal concerning a definition of the term "minority" submitted by Mr. Jules Deshenes, UN Doc E/CN.4/Sub.2/1985/31 & Corr. 1

Gilbert, G (1996) 'The Council of Europe and Minority Rights' 18 Human Rights Quarterly 160.

Marquand, C (1994) 'Human rights protection and minorities' Public Law 359.

Mullerson, R (1994) International law, Rights and Politics (London; Routledge)

Wright, J (1996) 'The OSCE and the Protection of Minority Rights' 18 Human Rights Quarterly 190.

(1) Which Russia fears will become a more generalised conflict between Russians and Muslims on its southern border, notably in conflict with Kazakhstan, Uzbekistan, Kirghizia, and Azerbaijan. Back to text

(2) "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of the group, to enjoy their own culture, to profess and practice their own religion, or to use their own language." Back to text

(3) 34 ILM 351 [1995] +; The Framework Convention is open to signature by any member state of the Council of Europe and any state invited to become party by the Committee of Ministers [of the Council of Europe] (Article 27) and will come into force on the first day of the month after the date on which twelve members of the Council of Europe have expressed their consent to be bound (Article 28(1) emphasis added) Any Party may denounce the framework Convention by means of a notification to the Secretary General of the Council of Europe. The denunciation becomes effective following a period of six months.(Article 31). As of 31st October 1996, 33 States had signed the Framework Convention (including the United Kingdom), but only Cyprus, Hungary, Romania,the Slovak Republic and Spain had actually ratified the instrument. (Myhanks to the Treaty Section of the Foreign and Commonwealth Office, London, for the figures) Back to text

(4) Cf. France's Reservation to Article 27 of the International Covenant on Civil and Political Rights to the effect that, 'France is a country in which there are no minorities' quoted in Alfredsson and de Zayas, Minority Rights Protection by the United Nations [1993] 14 HRLJ 1, 7. Back to text

(5) Article 25 of the ICCPR reads, "Every citizen shall have the right and the opportunity....(a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic elections...guaranteeing the free expression of the will of the electors." Back to text

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