The Framework Convention for the Protection of National Minorities

Minority Rights Standards by the Council of Europe

by Günther Rautz

The Framework Convention for the Protection of National Minorities, drawn up within the Council of Europe by Ad Hoc Committee for the Protection of National Minorities (CAHMIN), was adopted by the Committee of Ministers of the Council of Europe on 10 November 1994 and opened for signature on 1 February 1995. It has been signed so far by 36 member-States (one non-member State - Armenia), and as of 28 October 1998, 23 member States of the Council of Europe and Armenia have ratified the Convention. Although not the first instrument relevant to the protection of national minorities, the Framework Convention is certainly the first ever legally binding multilateral instrument devoted to the protection of national minorities in general.

The Council of Europe, headquartered in Strasbourg (France) was founded in 1949 as an organisation for co-operation between the governments and parliaments of Europe. The aim of the Council of Europe is to achieve greater unity between its members in order to facilitate their economic and social progress and to safeguard principles as pluralistic democracy, respect for human rights and the rule of law. All the forty member States must embrace these principles and undertake to ensure for all persons within their jurisdiction the enjoyment of human rights and fundamental freedoms. The European Convention on Human Rights is undoubtedly the best known and arguably the most effective of regional standards in the human rights field. Subsequent protocols have extended the initial list of rights, and the case law of the European Court and Commission of Human Rights has reinforced and developed these still further. In response to the rapidly increasing number of States parties and a need to reduce delays in cases being heard, on 1 November 1998 a new single permanent European Court of Human Rights was established to replace the Commission and Court.

By its nature, a framework convention is different from a "normal" convention. While it is a convention in the sense that it is a legally binding instrument under international law, the word "framework" indicates that the substantive principles it enshrines are not directly applicable in the domestic legal orders of the States, but will have to be implemented through national legislation and appropriate policies. It is also envisaged that these principles can be implemented through bi- and multilateral treaties. In elaborating the substantive principles, therefore, special emphasis was given to provisions of a programme-type.

The Framework Convention which entered into force on 2 February 1998 contains no definition of the notion of "national minority". It was decided to adopt a pragmatic approach, based on the recognition that on this stage, it is impossible to arrive at a definition capable of mustering general support of all Council of Europe member-States. It is up to the individual Contracting parties to determine the groups to which it shall apply after ratification. Therefore many States made a declaration: Austria designated those groups which live and traditionally have had their home in parts of the territory of the Republic of Austria and which are composed of Austrian citizens with non-German mother tongues and with their own ethnic cultures. Germany, as another example, declared that the Danes of German citizenship and the members of the Sorbian people with German citizenship are national minorities and that the Convention will also be applied to members of the ethnic groups traditionally resident in Germany, the Frisians of German citizenship and the Sinti and Roma of German citizenship. It should also be pointed out that the Convention does not imply the recognition of collective rights. The emphasis is placed on the protection of persons belonging to national minorities, who may exercise their rights individually and in community with others. In this respect, the Convention follows the approach of texts adopted by other international organisations. Following the general principles, the protection of national minorities and of persons belonging to national minorities is part of the international protection of human rights. The operative part of the Convention contains the substantive provisions, which cover a wide range of issues, inter alia: promotion of effective equality; promotion of the conditions necessary for the preservation and development of the culture and preservation of religion, language and traditions; freedoms of assembly, association, expression, thought, conscience and religion; access to and use of media; linguistic freedoms (private and public use, use before administrative authorities, use of one's own name, topographical names); education (learning of and instruction in the minority language, freedom to set up educational institutions); transfrontier contacts; participation in economic, cultural and social life; participation in public life and prohibition of forced assimilation. A number of these principles are already covered by the European Convention on Human Rights. Their inclusion is particularly important because the Framework Convention is open to signature by non-member States at the invitation of the Committee of Ministers.

The Committee of Ministers of the European Council, assisted by an Advisory Committee, will evaluate how adequately the States parties have implemented the Convention. The States who have ratified the Convention are obliged to submit their initial reports on the legislative and other measures taken in order to give effect to the principles set out in it within 12 months after the entry into force of the Convention in respect of them. The first State reports are due on 1 February 1999 and by 1 December 1999 the Advisory Committee should have received a report from each of the current States parties. Thereafter according to Resolution (97)10 periodic reports are to be submitted every five years and the Advisory Committee may invite the Committee of Ministers to request ad hoc reports in order to address situations which may arise between two periodic reports of a Party concerned. The Resolution provides also that the Advisory Committee will be composed of a minimum of 12 and a maximum of 18 ordinary members. Concerning the qualifications of the members of the Advisory Committee (16 members, by October 1998) the Resolution states that they need to have recognised expertise in the field of protection of national minorities, serve in the individual capacity, be independent and impartial. Some of the experts are international lawyers as Prof. Rainer Hofmann (President of the Advisory Committee, University of Kiel), Prof. Joseph Marko (University of Graz, European Academy of Bolzano) or Prof. Sergio Bartole (University of Trieste). The duty of the Advisory Committee is to examine the State reports and to prepare an opinion on the measures taken by that Party. For the examination of the reports it may make use of additional information in order to be in a better position to assess the actual situation of the Party concerned. It may request the Party concerned for further written information or hold meetings with governments. The Advisory Committee may also actively seek information from other sources. It may receive or invite information from NGOs, academic institutions, individuals or minority communities and may undertake fact-finding missions to obtain firsthand information. Having received the opinion of the Advisory Committee, the Committee of Ministers shall take the final decisions (conclusions) concerning the adequacy of the measures taken by the State party and may also adopt recommendations. The State reports, conclusions and recommendations of the Committee of Ministers shall be made public upon their adoption, together with any comments of the State party and the opinion delivered by the Advisory Committee.