This article is written by Sahil Aggarwal, from NALSAR University of Law, Hyderabad. The article explores the functioning of the Framework Convention for the Protection of National Minorities and emphasizes the need to address the rights of minorities in a democracy.
The Framework Convention for the Protection of National Minorities seeks to create a forum that facilitates the dialogue between national minorities and governmental agencies. It also prompts the States by obligating them to adopt new laws that are devoted to the protection of national minorities and also improve their non-discrimination legislation and practice. In this context, it becomes relevant for us to study the functioning of this forum and bring in the improvements that may, perhaps, help us to address the concerns of minorities, even if we don’t have any international body governing in that sense.
Framework Convention for the Protection of National Minorities
The Framework Convention for the Protection of National Minorities (FCNM) is a comprehensive multilateral treaty that aims to protect minority rights. It was adopted and promulgated under the aegis of the Council of Europe, which sets forth a number of principles according to which the States have to develop specific policies to protect and work for the welfare of the minorities. On 10 November 1994, the treaty was adopted by the members of the Council of Europe and later was entered into force on 1 February 1998. The Non-member States could also get invited by the Committee of Ministers (COM) to become a part of this Convention. The Convention forms the first legally binding multilateral instrument that is devoted to the protection of minorities and is deemed as the most extensive international standard in place in the field of minority rights so far. To a major extent, the FCNM modifies the political commitments of the States in the Copenhagen Document of the Organization for Security and Cooperation in Europe (OSCE) 1990, into their legal obligations.
Council of Europe
The Council of Europe is an intergovernmental council that aims to protect human rights, pluralist democracy, and the rule of law. Further, it also seeks to encourage and promote awareness of the development of Europe’s cultural diversity and identity and propose solutions to the challenges faced by the European society, including discrimination against minorities, intolerance and xenophobia, human cloning, drugs, organized crime, environmental protection, HIV-AIDS, etc. It also helps in consolidating democratic stability in Europe by facilitating and suggesting legislative, political, and constitutional reforms. Presently, the Council constitutes 47 member states. It is governed and regulated by an intergovernmental committee of Ministers and an indirectly elected Parliamentary Assembly.
Reasons for the creation of FCNM
The 20th Century saw multiple political upheavals and wars that spurred migrations to and within Europe and that led to the formation of societies that were rich in culture, ethnic, and linguistic diversity. However, this also led to discrimination and sometimes even denial of citizenship to some minorities. This is also in light of the consideration that minority situations differ greatly from country to country, that consequently requires diverse approaches to address their plight and concerns. Thus, the Convention drafters made a choice for ‘programmatic’ provisions that provided the objectives and the principles which would guide the Member States in order to protect minority populations. For this reason, the FCNM was majorly formulated as a series of States’ obligations rather than as a comprehensive list of rights of people belonging to minorities residing in member-states. The States are required to realize these principles and objectives at their own level, mostly through the formulation and adoption of legislation and policies. However, to some extent, the States may use their own discretion in designing legislation and policies which are apposite to the peculiar circumstances of their minorities. That is why the Convention is formulated in the form of a ‘Framework’.
The programmatic provisions of the FCNM are worded in general terms which often comprise qualifying phrases such as ‘a real need’, ‘substantial numbers’, ‘as far as possible’ and ‘where appropriate’. These kinds of phrases tend to introduce a level of generality which might seem to weaken the rights guaranteed under the FCNM, however, in turn, they equip the State parties with the flexibility to translate objectives of the Convention into national policies and laws that are most appropriate. However, as stated earlier, this flexibility may not relinquish states from their commitments and obligations to implement the provisions of the convention in good faith and in a manner that contributes to the effective protection and development of national minorities.
Article 1 of the Convention provides that protection of national minorities and the rights and freedoms of the members of those minorities forms an essential part of the international protection of human rights, thus comes under the scope of international cooperation. Simultaneously, Article 22 of the Convention specifically provides that the FCNM shall be interpreted without any derogation or limitation drawn on any human rights and fundamental freedoms that are ensured by the member States in some other treaty. These two articles form two key principles of the FCNM, that must be read with other human rights instruments such as the European Social Charter, that seeks to protect minorities in social and economic fronts; the European Charter for Regional or Minority Languages, that is focused on promotion and protection of languages of minorities; and the European Convention on Human Rights since its universally applicable individual rights could also be claimed by people from national minorities.
The FCNM does not provide for a definition of ‘national minority’ as there is no general or exhaustive definition that could be agreed upon by all the Council of Europe member states. Therefore, each party of the FCNM is left with the flexibility to decide which groups are to be considered for the Convention within their territory. However, the decision must be taken in good faith and according to the general principles of international law. This also includes the principle of free self-identification as proclaimed under Article 3 of the convention, which provides that every member belonging to a minority of a member-state will have a right to freely choose to be treated or not to be treated as a minority. However, no disadvantage shall result from the choice made. Simultaneously, it also provides that people of national minorities may exercise their rights and freedoms flowing from the principles laid down in the FCNM both individually as well as in society with others. Several countries like Denmark, Austria, Germany, Estonia, Slovenia, Poland, Switzerland, Sweden, and The Former Yugoslav Republic of Macedonia provided their own definitions of ‘national minority’ when they ratified the FCNM instrument. Many of these declarations by the country exclude non-citizens and migrants from the protection. Countries like Luxembourg and Liechtenstein have declared that they have no minorities within their respective territories.
It is relevant to point out here that the Convention is applicable only to the ‘national’ minorities, unlike the 1992 UN Declaration on the Rights of Persons Belonging to Minorities, that is applicable to both to ‘national’ as well as ‘ethnic, religious and linguistic’ minorities. It is uncertain how much difference this makes, but it is suggested that the Convention’s scope in that regard is deliberately narrower than that of the UN Declaration.
Major provisions of the Convention
Article 4.1 of the FCNM lays down the fundamental principles of equality and non-discrimination. Simultaneously, Article 4.2 makes it significantly clear that a State’s obligations might also require affirmative actions on the part of their respective government. It means that merely abstention from discrimination is not enough. States have to adopt where they find it necessary, the measures to promote complete and effective equality between persons from a national minority, and those from the majority while taking due account of the specific situations and conditions of the minorities. The provision is important because it provides the basis for the succeeding provisions that provide measures in greater detail that the member-states should exercise in specific areas belonging to minorities. Article 4.3 clarifies that the measures taken to promote effective and complete equality are not to be considered themselves.
Following this, Article 5 provides for the promotion of conditions essential for minorities to maintain, regulate and develop their own cultures and identities. Subsequently, Article 6 obligates states to promote mutual respect, tolerance, and understanding among all people living in their respective territories. Article 7, 8, and 9 protect the rights of minorities to freedom of association, assembly, thought, conscience, expression, and religion. Article 9 also provides for facilitation for minorities for access to mainstream media and promotion of the creation and use of minority media. Articles 10 and 11 recognize the right to use a minority language in private as well as in public and exhibit information in the minority language and endeavour to ensure the right to use the minority languages even before the administrative authorities and to exhibit bilingual topographical indications in minority languages in areas of minority inhabitants. Article 12 provides for fostering knowledge of the history, culture, religion, and language of both the majorities and the minorities. Article 13 and 14 providers for the rights of minorities to set up and regulate their own establishments for education and promote their own languages. Article 14 also provides that member-states should ensure that there are adequate opportunities to be taught in the minority language, in the areas either traditionally inhabited by minority groups or are found in substantial numbers. Article 15 provides for creating the conditions essential for the effective participation of people of the minority communities in social, cultural, and economic lives, and in public affairs. Article 16, subsequently, provides for refraining from measures that change the proportion of the minority population in the areas inhabited by minorities. Article 17 holds that the States cannot interfere with the rights of minorities to maintain contacts across frontiers and to participate in the activities of national and international NGOs.
Monitoring and implementation
Articles 24, 25 and 26 of the FCNM of the Convention provide for the monitoring mechanisms. The States are essentially required to submit periodic reports for examination. Then the COM is responsible for the examination of the reports, with the assistance of the Advisory Committee of experts. Unlike ECHR, there is nor provision that allows for individual complaints in the FCNM. Resolution 97(10) of the Committee of Ministers provides for specific monitoring arrangements. State reports are examined by the Advisory Committee first, which evaluates the adequacy of the measures taken by the member-states and gives its opinions. The Committee of Ministers then considers the reports and the opinions of the Advisory Committee to draw conclusions on the Convention’s implementation. The committee may also adopt the recommendations, and then it publishes its observations.
As we saw, the Advisory Committee has a major role in monitoring the implementation of the Framework Convention by member-states. Its task is to assure that the standards of the Convention are met by all the concerned countries, in the various fields of interest for people belonging to national minorities. The Committee is composed of 18 members by the CoM from candidates proposed by the Member States. Since not all member States can have their members on the committee, those candidates who did not get elected, are placed on a reserve list of the additional members. The composition of the Advisory Committee gets changed overtime on the basis of a rotation system.
The members of the Advisory Committee are proclaimed experts in the field of minority protection. They work in their individual capacities and are impartial and independent. The fact that they do not represent their country or its respective government becomes important because CoM is a political body of government representatives itself.
Examination of the State reports
The Member States are required to file their first report within one year and every five years thereafter, or whenever they are requested to do so by the CoM. The Advisory Committee may invite the CoM to request ad hoc reports regarding the situations that might arise in the interval between periodic reports of a State. Once the reports are received, the same is made public by the Council of Europe.
The Advisory Committee is also authorized to receive information from the sources other than the State reports, for example, it may organize meetings with the government representatives and independent sources like NGOs, etc. The Advisory Committee may also conduct on-site visits to member-states while considering their reports, during which the Committee meets with the government, minority communities, NGOs, academics, and other parties. This enables the Committee to assess the situation better and provide precise results. NGOs and communities are also free to submit information on their own.
NGOs’ role becomes significantly important since they can send any relevant information at any time to the Secretariat of the Framework Convention at the Council of Europe. This information is forwarded to the members of the Advisory Committee. It is also most effective to submit such information at the time when the Committee is actively considering the State’s report. Therefore, not only the NGOs should study the report made public by the MoC and supplement or challenge such reports, but also supply their comments to the Committee in time for them to add them in the reports themselves.
The FCNM uplifts the cause of minorities residing in multiple countries and brings it to the forum of the public so that the States and the populace together can take measures to achieve the goals as envisaged in the Convention. Their principle mainly deals with promoting complete and effective equality of people belonging to the minorities in all areas of social, economic, public, political, and cultural life together with the conditions that will allow them to express, protect and develop their culture, religion, language, and traditions. They have to ensure their freedom of association, assembly, thought, conscience, expression, religion, and their access to and use of media. It is pertinent to point out that in democracies, the majority dominates the Legislature, and this tends to overlook the interest of the minorities substantially. In this context, the international arrangement like the FCNM obligates the European member States to strive for the benefits of the unseen communities too and uphold the democracies in true sense.
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