Bigotry Monitor: Volume One, Number 18: content and comment on the Venice Commission's view on "kin state's protection of minorities"
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Subject: Bigotry Monitor: Volume One, Number 18: content and comment on the Venice Commission's view on "kin state's protection of minorities"
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Bigotry Monitor: Volume One, Number 18: content
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For the full text, see
http://www.fsumonitor.com/stories/bigotrymonitor.htm
Boris
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Volume One, Number 18
Friday, November 9, 2001
BIGOTRY MONITOR
A Weekly Human Rights Newsletter on Antisemitism, Xenophobia, and
Religious Persecution in the Former Communist World and Western Europe
EDITOR: CHARLES FENYVESI
(News and Editorial Policy within the sole discretion of the editor)
Published by UCSJ: Union of Councils for Jews in the Former Soviet
Union
_____________________________________________________________
PUTIN MOVES AGAINST EXTREMIST GROUPS
EYEWITNESS TALKS ABOUT OCTOBER 30 RAID
FSB UNINTERESTED IN FIGHTING EXTREMISM AMONG THE YOUNG, DAILY SAYS
GOVERNMENT DAILY BLASTS POLICE FOR MINIMIZING ATTACKERS' CRIME
POLICE RAIDS ANTISEMITIC MAGAZINE; EDITOR TO STAND TRIAL
EXTREMIST VIOLENCE 'SERIOUS,' MOSCOW MAYOR LUZHKOV ACKNOWLEDGES
YOUNG RADICALS TAKE OVER NOVEMBER 7 COMMEMORATION
RUSSIAN MUFTI THREATENS RUSSIA AND U.S.
ISLAMIC ACTIVISTS ARRESTED IN CENTRAL ASIA
JEWISH GRAVESTONES DESECRATED IN BAKU
LUKASHENKO IMPLIES EXISTENCE OF A DEATH SQUAD
U.S. REPORT ON RELIGIOUS FREEDOM LESS THAN TRUTHFUL
SLOVAKIA THREATENS TO DE-REGISTER PROTESTANT FELLOWSHIP
* * * QUOTE OF THE WEEK * * *
'KIN-STATES': WHAT CAN THEY DO FOR 'THEIR' MINORITIES ABROAD?
Europeans Seek to Balance a Different Type of Conflict Between
Majority and Minority Rights
A respected legal institution under the aegis of the Council of Europe
gave its blessings to a new term, "kin-state," and offered a series of
guidelines on how far a state may go in offering preferential
treatment to members of its "kin" minority who are citizens of another
state. In a report released on October 23, the Council of Europe
Commission for Democracy Through Law - known as the Venice Commission
- examined the recent practice of some European states to adopt
unilateral legislative or administrative measures that confer on
persons belonging to their kin-minorities abroad certain preferences
and assistance. These measures range from scholarships and training
for teachers to travel assistance and exemptions from residence
permits required of foreigners. Some kin-states issue documents
certifying the kin-identity of the bearer and entitling that person to
preferential treatment and assistance.
The Venice Commission's report approved such unilateral measures,
calling them "legitimate." On the other hand, the devil of discord may
lurk in the thicket of small details and broad generalities that the
commission added. The report specified that kin-states adopting such
unilateral measures must make sure that the measures respect certain
principles including the territorial sovereignty of the other state,
existing agreements, friendly relations, human rights, and fundamental
freedoms. Perhaps the commission's key warning is that the states
concerned should avoid "taking measures with extraterritorial effects
without prior consent of the affected countries, unless such consent
can be assumed in the light of an international custom or such
measures are authorized under a bilateral treaty. When such a treaty
exists, it must be enforced and interpreted in good faith." The
commission argued that kin-states should not issue documents verifying
kin-identity abroad, as such action infringes on the sovereignty of
the state in which the kin national resides. In a judgment balanced on
a pinhead, the commission allowed kin-states to extend preferential
treatment "in the fields of culture and education and, under
exceptional circumstances, in other fields, as long as [the
preferential treatment] pursues a legitimate aim and is
proportionate." In the future, negotiations, local court actions, and
appeals to the European Court of Human Rights may have to determine
which preferential treatment is "legitimate" and "proportionate" and
which may have harmful "extraterritorial effects."
While the commission originally responded to requests of the Romanian
and Hungarian governments, in dispute over a new Hungarian law
designed to assist members of the Hungarian minority in Romania, the
guidelines the commission produced apply to any minority assisted by
majority - or minority - kinfolk residing in other states. Strangely
enough, the governments of both Romania and Hungary welcomed the
report as a vindication. Romania cited the commission's disapproval of
an ID that Hungary planned to produce for kin-nationals in Romania.
(The reasoning cited the infringement of Romanian sovereignty.) On the
other hand, Hungary pointed to the commission's legitimation of
unilateral measures on behalf of kin-states. (Some experts thought
that surprising.) At the moment, the guidelines are non-binding, but
observers expect the Council of Europe to turn them into law. When
that happens, kin-nationals charging discrimination or persecution may
make use of that law as a shield against xenophobia and bigotry.
Three days after the commission released its report, another balancing
act between the two sets of rights was performed by Rolf Ekeus, the
high commissioner on national minorities, in the Organization for
Security and Cooperation in Europe. "Although a state with a titular
majority population may have an interest in persons of the same
ethnicity living abroad," he argued, "this does not entitle or imply,
in any way, a right under international law to exercise jurisdiction
over these persons. At the same time it does not preclude a state from
granting certain preferences within its jurisdiction, on a
non-discriminatory basis. Nor does it preclude persons belonging to a
national minority from maintaining unimpeded contacts across frontiers
with citizens of other states with whom they share common ethnic or
national origins." Ekeus seemed to give almost equal weight to two
principles. The first, emphasized by human rights activists, he
defined as "the necessity of respect for the rights of persons
belonging to national minorities freely to express, preserve and
develop their cultural, linguistic or religious identity free of any
attempts at assimilation." But he tilted slightly in favor of the
second principle, which bows to the needs of central government - and
the majority: "While maintaining their identity, a minority should be
integrated in harmony with others within a state as part of society at
large."
One hopes that judges from those parts of Europe eager to join the
European Union will work hard to set aside prejudices and strike a
fair balance between the two principles. But if they fail to satisfy
members of minorities with a powerful kin-state (such as Russia or
Germany) - or without - a European court will be there to listen to a
final appeal.
* * * *
_____________________________________________________________
Copyright (c) 2001. UCSJ. All rights reserved.
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