The most important Council of Europe document concerning sensitive issues such as centralism vs. regionalism, nationalism vs. ethnicity is the Framework Convention for the Protection of National Minorities. Opened for signature on 2 February 1995 and ratified by 12 of the 40 member states of the Council of Europe, this convention entered into force on 1 February 1998. By June 1999, 26 states had ratified the convention plus the non-member State Armenia. Albania had also ratified the convention but had not submitted the appropriate documents yet). The convention, although late in coming, is the result of changes in Eastern Europe from 1989 to 1990 when the CSCE adopted its Copenhagen Document. The participating States of the CSCE agreed that "to belong to a national minority is a matter of a person’s individual choice and no disadvantage may arise from the exercise of such choice." In June 1990, everything seemed possible but this changed considerably by 10 November 1994 ,when the Committee of Ministers of the Council of Europe adopted the Framework Convention. Now, governments in Western and Eastern Europe were again much more careful not to give away too many rights to their national minorities.

By its nature, a framework convention is different from a formal convention. It is a legally binding instrument under international law. However, the addition of the word "framework" indicates that the principles contained in the instrument are not directly applicable in the domestic legal orders of the member States . They will have to be implemented through national legislation and appropriate government policies. In doing so, member States can fill the framework with much more content than the convention provides.

Strictly speaking, the convention is the first legally binding international instrument devoted to the rights of national minorities in general. And yet, this aspect does not seem that important in practical terms for the following reasons.

First, its weak wording should be highlighted. In fact, the entire text is packed with escape clauses in favor of the member States and to the disadvantage of their national minorities. An already classical case, is article 11, paragraph 3, which in a single sentence dealing with the relatively uncontroversial topic of street signs contains as many as seven escape clauses. Formulations concerning topics that can be financially straining for governments are even more cautious.states. For example, article 10, paragraph 2, on the use of minority languages on the administrative level. "States, in areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if those persons so request and where such a request corresponds to a real need, the Parties shall endeavor to ensure, as far as possible to use the minority language in relations between those persons and the administrative authorities."

Not surprisingly, the Parliamentary Assembly of the Council of Europe criticized the convention, which "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."

Secondly, the deficiencies of signing, ratifying and implementing the convention have to be mentioned. It does not contain a definition of the term "national minority" as in, e.g., Recommendation 1201 (1993). This gives governments the possibility to impose their own definitions by way of interpretative declarations. Moreover, it does not mention collective rights of national minorities, but sticks to the UN principle of individual rights of "persons belonging to national minorities." Apart from Andorra and the non-member State Belarus, three other Council of Europe and NATO members, namely Belgium, Turkey and France, have not signed the convention and obviously have no intention of doing so.

Countries such as Austria, Denmark, Estonia, Germany, Macedonia and Slovenia have added interpretative declarations by listing those ethnic groups that in the eyes of the governments in question are to be labeled "national minorities." In this way they explicitly patronize some communities and implicitly exclude others from benefiting from the convention.

Still, there are others, which have ratified the Convention without making declarations. This holds even for countries with severe minority problems such as Croatia, Cyprus, Great Britain, Moldova, Romania, Slovakia, Spain and Ukraine. The Russian Federation even combined its ratification on 21 August 1998 with a strong ‘anti-declaration.’ "The Russian Federation considers that no one is entitled to include unilaterally in reservations or declarations, made while signing or ratifying the Framework Convention for the Protection of National Minorities, a definition of the term ‘national minority,’ which is not contained in the Framework Convention."

While this is targeted, of course, to Russians and Russian-speakers in the "Near Abroad", (i.e., the other successor states of the Soviet Union), it can apply also to the successor states of Tito’s Yugoslavia.

Whatever the declarations, it is still up to the governments themselves to decide who belongs to a minority. Almost all Council of Europe members agree that citizenship is a precondition - although it is not mentioned in the Framework Convention. And most governments think it is up to them to recognize real national minorities. The 1935 decision of the Permanent Court of International Justice on Minority Schools in Albania stated that "the existence of minorities is a question of fact, not of law." This, once again, is not reflected in the Framework Convention.

Thirdly, the implementation of the convention by countries, which have ratified it, must be monitored. Unlike the European Convention on Human Rights, the Committee of Ministers, and not an independent body, is to monitor its implementation, with the assistance of an Advisory Committee. This is where monitoring mechanism can be developed further and the implementation of the convention could be expected. Provided the Advisory Committee is able to emancipate itself from the tutelage of the Committee of Ministers. Unfortunately, the rules on the monitoring arrangements in general, and on the composition, election and appointment of the Advisory Committee in particular (Resolution #97/10 of the Council of Europe of 17 September 1997) do not give much hope for such an optimistic development. Two recent sets of recommendations on the implementation of the convention -by the London-based NGO Minority Rights Group International and by the European Centre for Minority Issues (ECMI) in Flensburg- state that the Adviso ry Committee is blindfolded by the Committee of Ministers, i.e., by the governments.

Basically, the Framework Convention for the Protection of National Minorities of the Council of Europe resembles a net, which is not only very wide-meshed but contains a great number of large holes. If a government intends to slip through this net, it will no doubt succeed. By naming the document a "framework convention" its legal weight is diminished. In addition the wording is vague and the monitoring mechanism weak. For these reasons, the convention is labeled "the worst of all worlds."

In knitting this net for purely selfish reasons, some governments have succeeded in eliminating provisions which they considered contrary to their own interests and which one day can prove to be of great use. These include the question of citizenship, which is not addressed at all. Theoretically speaking, governments like Estonia must apply the provisions of the convention not only to those few Russian-speakers residing on the territory of Estonia who are presently in the possession of an Estonian passport, but also to the large numbers of Russophone non-citizens.

Another topic is the problematic distinction between "traditional national minorities" and so-called "new minorities" of labor migrants, political _migr_s, etc. While in some articles reference is made to "areas traditionally inhabited" by minorities, the convention does not require a longstanding link with the territory of the State in question for a community to be considered a national minority. Poles in Germany or Finns in Sweden are, or could one day be, such cases. This is a stepping stone for improving the impact of the convention in the future by considerably broadening its meaning.

Finally, the Framework Convention is a significant step in the right direction, because it has successfully avoided double standards. Thus what applies to the newly independent states in Central and Eastern Europe, as well as in the CIS area must also apply to longstanding NATO and EU members. These include not only the notorious "bad guys" as Greece and Turkey, but also allegedly "good" ones such as Belgium and France. So there is hope that, in the not too distant future, the Council of Europe’s Framework Convention for the Protection of National Minorities will turn "from paper to practice."

Stefan Troebst, Professor of East European Cultural Studies at the

University of Leipzig, Germany

 

---

1. An updated and shorter version of a paper given at the 30th National Convention of the American Association for the Advancement of Slavic Studies, Panel 5-28: "Europe and the Protection of National Minorities", Boca Raton, Florida, 24 to 27 September 1998. The author is grateful to Mariana Lenkova for her contribution to the preparartion of this version.

2. Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE. Copenhagen, 29 June 1990, pt. IV, art. 32.

3. Recommendation 1255 (1995), quoted by Alexanderson, Martin, "Why the Framework Convention Should Be Ratified," in: Mare Balticum [Copenhagen], no. 3, August 1997, pp. 22.

4. Cf. Capotorti, Francesco and Rainer Hofmann, "Minorities," Encyclopedia of Public International Law, vol. 3, Amsterdam etc.: Elsevier, 1997, pp.410-424, as well as Packer, John, "On the Definition of Minorities," in: The Protection of Ethnic and Linguistic Minorities in Europe. Eds. Packer, John and Kristian Myntti. Turku: Institute for Human Rights. _bo akademi, 1997, pp.23-65.

5. Framework Convention for the Protection of National Minorities, Strasbourg, 1. II. 1995. Reservations and Declarations. Council of Europe, European Treaties, ETS No. 157, at http://www.coe.fr/tablconv/reservdecl/ dr157e.htm.

6. Minority Schools in Albania (1935), Permanent Court of International Justice, Ser. A/B, No. 64, 17.