of FC in respect of a State Party, in accordance with paragraph 1 of article 25, to submit
"full information on the legislative and other measures taken to give effect to the
principles set out in" FC. Additional reports are due, on a periodical basis and in
accordance with paragraph 2 of article 25, with "any further information of relevance to
the implementation of" FC. The Convention does not employ the terminology of 'State
reports', but the procedure nevertheless amounts to what is commonly so known; the use
of this term would provide ready reference to well-established treaty-monitoring
procedures employed by the United Nations.
4. In reviewing the State reports, the AC must be in a position to evaluate
information relating to both law and fact. The FC emphasises full information about
measures which are intended to give effect to its principles and which are relevant to the
implementation of these principles. In paragraph 1 of article 26, there is also a reference
to evaluating "the adequacy of the measures taken". It is important that States have in
place legislative acts and administrative measures which fall in line with the
commitments undertaken, but these are not worth much without effective remedies
leading to the corresponding realization of the principles into everyday life of the persons
concerned.
5. The AC must therefore obtain information from the States Parties about relevant
bills of rights, legislation and administrative or other measures; the incorporation of
international and regional standards and those in bilateral agreements; available
remedies with focus on judicial and administrative decisions; negotiated settlements; the
relevant activities of independent national institutions in general and of those set up for
minority issues (commissions, round tables, etc.) in particular; autonomous regimes or
other special arrangements to the benefit of minorities; relevant statistics; and so on.
These observations relate to the remarks below, under procedures, about the need for
detailed reporting guidelines.
6. Many treaties and conventions adopted under the auspices of international and
regional organizations contain standards relating to minority rights. This is true for the
fundamental rules concerning equal enjoyment of all human rights, that is civil, cultural,
economic, political and social rights, including equality before the law, equality before the
courts and equal access to public service. The prohibition of discrimination in this
enjoyment, on grounds related to such minority characteristics as national or ethnic
origin, culture, language and religion, is likewise spelled out in a long series of
instruments. In addition, many texts carry minority-specific standards, either establishing
special rights or obliging States to take special measures (also referred to as preferential
treatment or affirmative action) in order to overcome discriminatory patterns and to
guarantee equal enjoyment of the rights.
7. As far as UN treaties with reporting obligations are concerned, there are equal
enjoyment, non-discrimination and minority-specific provisions in the International
Covenant on Civil and Political Rights, the International Covenant on Economic, Social
and Cultural Rights, the Convention on the Rights of the Child, and the International
Convention on the Elimination of All Forms of Racial Discrimination. For each one of
these treaties, the respective independent monitoring bodies have adopted substantive
reporting guidelines with detailed instructions to the reporting States; the guidelines also
serve to influence the objective examination of the reports by the expert committees
concerned. To a large extent, States likely to subscribe to FC are already Parties to these
international treaties. The AC has much to learn from the existing practices of these
committees, in particular with regard to the preparation and adoption of reporting
guidelines; the lessons are contained in their annual reports and in the Manual on
Human Rights Reporting, New York: United Nations, 1991. See also below under
procedures and composition.
8. The increasing number of reporting obligations has caused some State
unhappiness. Nevertheless, ideas about a super-report or otherwise simplified reporting
procedures have not yet prevailed. There is no doubt that the FC standards and reporting
requirements overlap with those in some of the above-mentioned treaties. To the degree
possible, the AC may want to streamline its own reporting guidelines along similar
international exercises. The AC may even want to call upon the Council of Europe
Secretariat to compile the relevant portions of reports by States Parties to FC under the
corresponding UN instruments for reasons of accuracy and completeness. The AC should
never be satisfied with anything less than the highest quality of standards and the reports
thereon, even to the point of exploringly reaching beyond the FC principles (see in this
context the 10th preambular paragraph of FC).
9. Admittedly, the goals now described are ambitious, but they would serve to give
the AC, and by extension the Council of Europe, a more significant role in the supervision
of compliance with minority rights standards. In this manner, the danger of reduced
standards and conflicting reports is also reduced. AC would most definitely be unique and
useful as the only treaty-based monitoring body anywhere with a focus on and
comprehensive coverage of minority rights. These comments may be appropriate inasmuch
as the Council now finds itself in third place, with respect to both relevant standards and
implementation procedures, behind the Organization on Security and Cooperation in
Europe (OSCE) and the United Nations.
Procedures
10. In this chapter, the following issues will be addressed: guidelines to Governments
for their preparation of the State reports; the availability of additional information about
State performance from other IGOs as well as NGOs; the access of minorities and their
representatives to AC meetings; a set of possible recommendations from AC in reaction
to the examination of the State reports, with an emphasis on technical cooperation; and
practical questions like methods for handling reports in AC meetings, meeting time,
Secretariat support, and field visits.
11. The AC should draft and adopt guidelines for each substantive article of FC,
explaining in considerable detail the legal and factual information needed and wanted for
the examination of State reports. In so doing, the AC will make the reporting task easier
for Governments; the reports and their consideration by AC will be harmonized; and
different countries will be asked identical questions resulting in similar treatment with
the same expectations across the continent. In this manner, the universality of the
standards and the rule of law will be strengthened. In preparing the guidelines, as
mentioned above, the AC can draw many lessons and precedents from the practices of the
UN treaty-monitoring bodies.
12. There is plenty of information on the market about the situation of minorities in
all of the likely States Parties. Reference has already been made to State reports under
UN treaties with minority-specific standards; relevant information appears also in the
case-law of the treaty-monitoring bodies, in the reports of the Special Rapporteurs and
working groups of the UN Commission on Human Rights and in the reports of research
rapporteurs and working groups of the Sub-Commission on Prevention of Discrimination
and Protection of Minorities. Additional information about State performance in this field
is also available from other IGOs (UN Secretariat entities like CHR, DHA and DPA,
UNHCR, UNDP, UNU, UNRISD, UNESCO, ILO, the World Bank, OSCE, EU, etc.) and
NGOs (the Minority Rights Group, the International Helsinki Federation, Amnesty
International, Human Rights Watch, etc.).
13. There is a clear trend at the United Nations to grant minorities or their
representatives direct and easy access to human rights meetings where issues of concern
to them are debated. This is the case for both the Working Group on Minorities
(established in 1995) and the Working Group on Indigenous Populations (established in
1982), both expert bodies which are answerable to the Sub-Commission. In addition,
several groups have obtained consultative status as NGOs with the Economic and Social
Council which opens the doors to most UN human rights meetings (see in this context
paragraph 2 of article 17 of FC). The UN High Commissioner for Human Rights has
received a mandate from the General Assembly authorizing him to deal directly with
minorities. At least two cases have been made public where the UN Secretary-General has
exercised his good offices on behalf of and in close cooperation with groups in trouble.
14. At the OSCE, contacts with minorities and their representatives are an essential
component of creating and maintaining dialogue for preventing conflicts and protecting
human dimension standards. The High Commissioner on National Minorities has set an
excellent example. The overall experience of IGOs with increased access by groups and
frequent encounters with groups has been positive and productive.
15. As far as the UN treaty-monitoring bodies are concerned, groups and their
representatives are increasingly making use of complaints procedures (when available).
Information from NGOs is also a major factor in the consideration of State reports, either
officially, like in the case of the Committee on the Rights of the Child, or unofficially for
some of the other committees. In both settings, such information contributes to
supplementing or even correcting what is sometimes self-serving and uncritical
information received from the States. It is both desirable and natural that the AC, relying
on equality and the rule of law and seeking all the necessary facts, follow these
participation trends which so clearly appear in the work of other IGOs, by giving
minorities and NGOs an opportunity, orally and/or in writing, to present pertinent
information and any other relevant points of view.
16. If Government representatives were to think that proposals of this kind are going
too far, they should be reminded that State sovereignty, political independence, national
unity and territorial integrity are amply protected under international law in general and
article 21 of FC and other international human rights instruments in particular. A
monitoring procedure with minority access merely wants to hear the intended
beneficiaries, living in democratic societies, with a view to establishing that the States are
obeying the rules of the game.
17. When the AC comes across instances where State performance falls short of FC
principles, it should have resort to a well-defined variety of recommendations which the
Committee of Ministers may want to use in their dealings with a State Party. These
recommendations, to mention only a few, could range from calls or demands for:
- the adoption of, amendments to and/or implementation of new or existing legislation and
administrative measures in light of FC principles;
- the setting up of independent national institutions, in particular those dealing
specifically with minority issues and with minority participation;
- the necessary educational and training facilities, including trainers and teaching
materials, for creating the mutual respect and understanding required for the realization
of FC principles;
- the translation of relevant instruments, as well as State reports under FC and AC
recommendations, into the respective national and minority languages;
- the enhanced cooperation with or use of any international or regional human rights
implementation body which is or could be dealing with the situation in the country in
question;
- technical cooperation, by way of expert assistance and advisory services, with the
Council of Europe Secretariat, the Venice Commission, other IGOs as appropriate, or
non-governmental and academic institutions. One of the aims of such cooperation would
be the prevention of violations and violence through improved legislation and dialogue
between the parties; and, finally,
- when everything else fails, the condemnation of obvious lack of State compliance with
the FC principles.
18. The technical cooperation avenue, mentioned in the preceding paragraph, is
gaining ground with the UN treaty-monitoring bodies; it is currently the fastest growing
branch of international and bilateral human rights work. For maximum use of limited
resources and better results, technical assistance activities would benefit from improved
cooperation and coordination between the various IGOs and other actors; again, here is
a possibility for AC and the Council of Europe to assume a leading role in the field of
minority rights supervision. The AC may accordingly request the Council of Europe
Secretariat to compile information about relevant projects of this kind being rendered to
FC States Parties, with the aims of avoiding unnecessary duplication of efforts and of
directing assistance to where it is most needed.
19. The Committee of Ministers should have to explain its reasons for a decision not
to follow AC recommendations. Such a requirement will serve to further move minority
rights from the realm of politics to the rule of law.
20. State reports should be due a few months prior to the AC meeting where they will
come up for discussion, so that AC members and other interested parties can review them
and compare them with other available source materials, including Council of Europe
Secretariat compilations as suggested above. Representatives of the Government
concerned should be present at these meetings in order to answer questions and provide
clarifications. Representatives of minorities, other States, IGOs and NGOs (drawing on
the accreditation experience of the Council of Europe and/or the United Nations) should
have the right to speak. The meetings should be public, although the AC may want, in
exceptional circumstances, to keep the option open for certain matters to be considered
behind closed doors if quiet diplomacy is deemed more likely to produce results. Dialogues
between Governments and groups, for example, could be better conducted in private.
21. The State reports should be public documents of the Council of Europe. The reports
and any additional information, as well as the debates thereon (except for closed
meetings), should also be made available in the respective countries in both national and
minority languages (see comment on transparent monitoring in paragraph 97 of the
Explanatory Report to FC).
22. It is reasonable to expect that the examination of each State report would take a
minimum of 1-2 meeting days. With twelve States Parties, for example, the AC would
require meeting time of 3-4 weeks per year. At the outset, for the preparation of reporting
guidelines and rules of procedures (conduct of meetings, election of officers, voting, etc.),
additional meeting time would be needed. Later on, moving on to periodical reports,
meeting time requirements might go down. Strong Secretariat support, in terms of
information gathering, analysis and drafting work, would also reduce the number of
necessary meeting days.
23. As a matter of preference, decisions should be taken by consensus. If that is not
possible, the members should be able to take decisions by a majority vote. A dissenting
voice may (or should even be expected to) explain his/her vote.
24. States Parties should be encouraged to invite the AC to meet in their countries for
obtaining first-hand information and making direct contacts with the people involved.
Likewise, it would be desirable if AC members with Committee endorsements, Secretariat
support and Government approval were to visit countries on fact-finding and/or needs
assessment missions, as is now done by the Committee on the Elimination of Racial
Discrimination.
Composition
25. In article 26 of the FC, paragraph 1, it says that AC members "shall have
recognized expertise in the field of the protection of national minorities". Such expertise
exists in many places: in governmental offices, with the minorities themselves, in
academia and at NGOs. The wording of article 26 indicates expertise in human rights and
minority rights; it should also be read to mean different professional disciplines,
knowledge of country situations, political wisdom, and practical experience.
26. There is good reason to insist also upon the independence of AC members which
is even more important than their expertise. The members of the UN treaty-monitoring
bodies, as well as those of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities and its working groups on minorities and indigenous populations,
are as a rule designated as independent experts. They are not all perfect, some are more
independent and expert-oriented than others, but there is nevertheless a marked
difference between the debates and decisions of such expert bodies and organs composed
of governmental delegates. With reference to the independent experts serving on its
Commission and Court of Human Rights, the Council of Europe has a distinguished record
to build on.
27. The choice between an AC with one member for each State Party or a fixed number
(5, 7, 9 or 11 members) is not really important, as compared with the qualifications. Cost
considerations would speak in favour of a fixed number. Likewise, the duration of terms
is not all that important (3, 4 or 5 years), but the possibility of reelection would help build
up AC expertise.
28. Decisions to be made about the functions and procedures of AC will inevitably
influence its composition. Independent persons with recognized expertise are more likely
to want to serve on a monitoring body with serious and significant functions, to which the
Committee of Ministers and States Parties are bound to listen. At the same time, such a
body of prestige will also prompt a number of Parties, even more eagerly than otherwise
would be the case, to nominate their own loyal functionaries as candidates for AC
membership. Perhaps both Governments and minorities could nominate experts (one or
more), and these could be evaluated by the Parliamentary Assembly and/or the Secretary
General, while the final choice, on the basis of merits, would rest with the Committee of
Ministers. It might also be desirable if the qualifications were to be described in positive
terms (what is necessary) or negative terms (excluding certain categories of people). The
wise choice of members may well be crucial for the success of AC in its role of monitoring
measures taken to give effect to the FC principles.