Why the Framework Convention Should Be Ratified

by Martin Alexanderson, MA in International Relations

On 10 November 1994, the Council of Europe adopted the Framework Convention for the Protection of National Minorities. So far, it has been signed by thirty-four states and ratified by nine others (it requires twelve ratifications to enter into force).

The number of signatures and ratifications is valid as of April 1997.

The Framework Convention is the first agreement of its kind to introduce a general regime for the protection of minorities in Europe. In other words, a regime based on the equal sovereignty of states and applicable to all of the countries in the region. This is a strong reason why it should be ratified by as many states as possible - despite the controversy surrounding the convention.

The Framework Convention is not the first legally binding convention for the protection of minorities. During the interwar period, a number of minority treaties were imposed on new or enlarged states, as well as on certain states defeated in World War I. This system, established by the League of Nations, was discriminatory because it applied to only a few countries - most of them Eastern European - while other states with minorities on their territory were exempt from similar obligations. The "exceptional" nature of the League system was strongly resented by countries such as Poland, Yugoslavia and Romania. It led to uncooperative attitudes and, in general, dismal performances when it comes to the protection of minorities at the national level. Dissatisfaction with the minorities regime culminated in 1934, when the Polish delegate at Geneva, Colonel Beck, declared that "pending the introduction of a general and uniform system for the protection of minorities", his government would refuse all further cooperation with international organisations in this matter. Although no other country followed Poland's example, the unilateral denouncement of the minority treaty foreshadowed the collapse of the League system for the protection of minorities.

This example indicates that the success of an international regime for the protection of minorities depends on whether it will be general or selective in nature. Until quite recently, however, it is the latter approach which has prevailed. For instance, the United Nations Covenant on Civil and Political Rights restricts the protection of minorities to "those states in which ethnic, religious or linguistic minorities exist" (article 27). In other words, rights of minorities may not be universal, since the groups may not "exist" in all states. The truth of the matter is of course that minorities live in practically all countries of the world, with the exception of Iceland and certain micro-states (Liechtenstein, Monaco, Andorra...). Unlike the Covenant, the UN Minority Rights Declaration of 1992 is essentially universal in nature, as it does not refer to states in which minorities "exist". But it should be kept in mind that the declaration is a political document without any legally binding effects.

In the last years, most regional organisations have succumbed to the temptation of applying double standards with respect to the protection of minorities in Eastern and Western Europe. The OSCE High Commissioner on National Minorities is restricted by his mandate to consider only cases of tensions involving national minority issues which have the potential to develop into a (violent) conflict. Moreover, he is not entitled to deal with "national minority issues in situation involving organized acts of terrorism" (for instance, situations involving the PKK in Turkey, the ETA in Spain or the IRA in the United Kingdom). As a result of these limitations, the recommendations of the High Commissioner have focused exclusively on problems concerning national minorities in Central and Eastern Europe. The European Union is a strong pole of attraction for Eastern Europe and has, for this reason, been able to exert political pressure with a view to protecting minorities. In 1991, the Council of Ministers adopted "Guidelines on the formal recognition of new States in Eastern Europe and in the Soviet Union". This document specifies that the recognition of new states requires "guarantees for the rights of ethnic and national minorities in accordance with the commitments subscribed to in the framework of fee [OSCE]". Furthermore, the protection of minorities is mentioned in the association and cooperation agreements with the Eastern European states. All of these agreements provide for restrictive measures in cases of serious violations of human rights. Finally, the European Union has elaborated the Pact on the Stability in Europe (1995), which aims at encouraging Eastern European states to conclude bilateral agreements in order to settle common problems relating to borders and minorities.

Even the Council of Europe has imposed conditions with regard to the admission of new members. In recent years, the Parliamentary Assembly has requested candidates to base their policy regarding the protection of minorities on the principles laid down in its Recommendation 1201 (1993). However, this recommendation goes much further than any other political or legal document concerning the protection of minorities. According to this document, persons belonging to national minorities have the rights to use the minority language in relations with the administration; the right to learn and receive education in the minority language; and, in certain circumstances, even the right to have at their disposal appropriate local or autonomous authorities.

In principle there is nothing wrong with the protection of minorities as a condition for admission to an international organisation. The problem is that the initial members, i.e. the Western European states, have not been subject to the same requirement and few of them have taken specific measures to protect these groups. In these countries, the rights of persons belonging to minorities are admittedly guaranteed by general human rights legislation - but sometimes this is insufficient. By contrast, most Eastern European states have included provisions on the protection of minorities in bilateral agreements, constitutions and have even adopted special laws on the rights of minorities (although problems with respect to implementation have been observed).

Fortunately, the present situation is altogether different from that of the interwar period. There is no reason to call for a generalization of the minorities regime, as the Framework Convention for the Protection of National Minorities already exists. The Parliamentary Assembly of the Council of Europe has severely criticized the convention: "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 government." (Recommendation 1255(1995))

It is certainly true that much is left to be desired by the Framework Convention.

(For a critical view of the Framework Convention, see Geoff Gilbert, "The Council of Europe and Minority Rights", Human Rights Quarterly, Vol. 18, Number 1, February 1996, pp. 160-189.)

On the other hand, if the Council had not seized the momentum a few years back, a convention on this sensitive issue may not have been adopted at all. Moreover, critics tend to neglect that "vaguely defined principles and objectives" is the price one has to pay in order to reach an agreement on the protection of minorities. The difference in minority situations from one state to another makes it difficult, if not impossible, to find any ready-made solutions. In some states, where minorities represent a sizeable portion of the population, it may be appropriate to grant them collective rights and perhaps even some form of autonomous status (although such solutions are not envisaged by the Framework Convention). In other states, it may be sufficient to establish efficiently functioning advisory bodies, or take effective measures to protect minorities against racial discrimination. However, a minimum requirement is that all states recognize the existence of minorities on their territory, and that they take into account the legitimate interests of these communities.

The major contribution of the Framework Convention is not so much the substantive rights and obligations it contains. Most of these rights have already been provided for in the OSCE Copenhagen Document and the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The real interest of the convention lies elsewhere: if ratified by all member states, it will hopefully re-establish a certain equilibrium with regard to the protection of minorities in Eastern and Western Europe. As the experience of the League of Nations has shown, the uniform application of the protection of minorities is desirable for several reasons. First, because human rights are universal and should be applied equally in all of the member states. Second, because it is hardly acceptable that one category of states - those facing serious fiscal limitations - are expected to be the pioneers in a field which requires a functioning democracy and sometimes the economic resources to implement the commitments. Third, because a selective regime for the protection of minorities is likely to encounter opposition and serious difficulties with regard to implementation. As in many other cases, human rights are better served by showing a good example than by imposing conditions on other states.

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Martin Alexanderson has an MA in international relations from the Graduate Institute of International Studies (Geneva) and was previously working at the OSCE Office for Democratic Institutions and Human Rights (Warsaw).