THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES: A USEFUL PAN-EUROPEAN INSTRUMENT?

Transcription

1 THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES: A USEFUL PAN-EUROPEAN INSTRUMENT? A. VERSTICHEL A. ALEN B. DE WITTE P. LEMMENS (editors) intersentia Antwerp - Oxford - Portland

2 TABLE OF CONTENTS PREFACE ABOUT THE EDITORS LIST OF PRINCIPAL ABBREVIATIONS v vii xv INTRODUCTION: EXPLORING A CENTRAL PILLAR OF THE EUROPEAN MINORITY RIGHTS SYSTEM BRUNO DE WITTE 1 TOWARDS A PAN-EUROPEAN INSTRUMENT? ASBJ0RN ElDE 5 1. The Questions to Be Discussed 5 2. On the Expanding Pattern of Ratification 6 3. 'Empty' Ratifications - For International Solidarity Only? 7 4. The Essence of Minority Protection in the Framework Convention 9 5. On the Personal Scope of Application On the Effectiveness of the Monitoring by the Council of Europe Concluding Remarks 16 CONSTITUTIONAL RECOGNITION OF ETHNIC DIFFERENCE - TOWARDS AN EMERGING EUROPEAN MINIMUM STANDARD? JOSEPH MARKO State-Nation or Nation State: Two Opposing Concepts? Equality and Difference: The Need for Reconceptualisation The Jurisprudence of the ECtHR - An Emerging European Minimum Standard for Minority Protection? 28 'X

3 MINORITY PROTECTION AND CONSTITUTIONAL RECOGNITION OF DIFFERENCE. Reflections on the Diversity of European Approaches JULIE RINGELHEIM 33 Introduction The Modes of Recognition of Difference in European Constitutions Constitutional Recognition of Difference and International Protection of Minorities Belgium and Spain: The Principle of Territoriality and the Fate of Regional Minorities Slovenia: the Situation of Non-Constitutionally Recognised Groups Cyprus: The Right Not to Belong to a Community Constitutional Recognition of Difference and the Place of Minorities in the Political Community 43 Conclusion 48 TERRITORIALITY VERSUS PERSONALITY JAN CLEMENT Introduction The Language Problem in Belgium The Principle of Territoriality under Pressure? The FCNM and the Identification of Minorities in Belgium The FCNM and Territorial Autonomy The Lund Recommendations A Preference for Personality? The Theory of Personality Human Rights and Personality Conclusion 68 THE ADDED VALUE OF THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES (I) SIA SPILIOPOULOU AKERMARK Added to What? Was the Framework Convention on National Minorities Intended Only or Mainly for the Former Communist Countries of Eastern Europe? What is the Relation between the Framework Convention and the European Convention on Human Rights? 77 X

4 4. What is the Function of the FCNM? 87 Conclusion 89 THE ADDED VALUE OF THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES (II). The Two Pillars of an Adequate System of Minority Protection Revisited KRISTIN HENRARD Introduction The FCNM is 'Not Adding Anything': Two Nuances The Framework Convention's Special 'Position' in Terms of the Two-Pillar Story Nuances to the Two-Pillar Structure: Shifts in Relative Importance Developments in Relation to the First Dimension of the First Pillar: Non-Discrimination Developments in the Jurisprudence in Relation to the Second Dimension of the First Pillar: Individual Human Rights (of Special Relevance to Minorities) 113 The Right to Respect for an Own Way of Life Conclusion 116 SUBSTANTIVE CHALLENGES TO THE PROTECTION OF RELIGIOUS FREEDOM UNDER THE FRAMEWORK CONVENTION DlLEK KURBAN Who are the "European" Minorities that the Framework Convention Aspires to Protect? Substantive Scope of Freedom of Religion under the Framework Convention Substantive Challenges Awaiting the Advisory Committee 125 PERSONAL SCOPE OF APPLICATION: AN OPEN, INCLUSIVE AND DYNAMIC APPROACH - THE FCNM AS A LIVING INSTRUMENT ANNELIES VERSTICHEL Introduction Which Groups Constitute a Minority under the FCNM? Absence of a Definition Rules of Interpretation and the Authority to Interpret XI

5 State Practice and General Approach of the ACFC Elements of a Definition 'National' Minorities Ethnic, Cultural, Linguistic and Religious Characteristics different from 'the Rest of the Population' - Numerical Minority Position - 'Minority-in-minority' Durable Ties with the Territory and the Citizenship Requirement Dominant or Co-dominant Position Implicit ACFC Definition Conclusion 156 IMPLEMENTATION OF THE FCNM: SUBSTANTIVE CHALLENGES RAINER HOFMANN Introduction The Contents of the Substantive Provisions of the FCNM The Right to a Distinct Identity (Self-Identification, Protection and Promotion of the Distinct Identity, Prohibition of Forced Assimilation) Right to Self-Identification and Prohibition of Forced Assimilation Obligation to Protect and Promote the Distinct Identity of National Minorities Including through the Use of Positive Measures Non-Discrimination and Effective Equality Inter-Cultural Dialogue and Tolerance Freedom of Religion and Political Rights (Freedom of Assembly, Association, Expression, Thought, and Conscience) Media Rights Linguistic Rights Educational Rights Participatory Rights Free Cross-Border Contacts Concluding Remarks Summary 182

6 DOMESTIC ENFORCEMENT AND DIRECT EFFECT OF THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES. On the Judicial Implementation of the (Soft?) Law of Integration FRANCESCO PALERMO Introduction A 'Pan-European Instrument' Within the Framework of the 'Geo-Juridical' Spheres of European Integration The FCNM in the Comparative Light of Judicial Interpretation Methodology The FCNM as a Source of Rights and Obligations and as 'European Standard' The 'Soft' Approach The FCNM as a Parameter The FCNM as a 'European Standard" The FCNM as an Interpretative Support in Minority Issues Definition of Minorities Interpretation of the FCNM The Core of the FCNM: Language, Education, Political Representation Concluding Remarks 209 List of Cases 212 THE FRAMEWORK CONVENTION AS A PAN-EUROPEAN INSTRUMENT. A Perspective of the OSCE High Commissioner on National Minorities KRZYSZTOF DRZEWICKI Introduction The Framework Convention for the Protection of National Minorities The OSCE High Commissioner on National Minorities Positivisation of Minority Issues at the Universal Level Positivisation of Minority Issues at European Levels The HCNM's Normative Position From Normative Permeation to Mutual Feedback Ratification of the Framework Convention Declarations and Reservations in Relation to the Framework Convention Consultation on Interpretation of the Framework Convention Extending Outreach of the FCNM by the High Commissioner 226

7 9. Concluding Remarks 228 THE FRAMEWORK CONVENTION ON THE PROTECTION OF NATIONAL MINORITIES AND THE LAW OF THE EUROPEAN UNION OLIVIER DE SCHUTTER Introduction The Potential Role of European Union Law in Contributing to the Implementation of the FCNM The Legal Bases for a Minority Rights Policy of the EU The Anti-Discrimination Strategy of the EU and the Principles of the FCNM The Other Contributions of the EU to the Implementation of the Principles of the FCNM The Promotion of Regional and Minority Languages The Regulation of Audio-Visual Services The Obligation not to Violate the Rights of the FCNM in the Field of Application of European Union Law The Components of the Negative Dimension of the EU Approach to Minority Rights The Limitations of the Negative Dimension of the EU Approach to Minority Rights Conclusion 268 A PAN-EUROPEAN INTERPRETATION AND APPLICATION OF THE FRAMEWORK CONVENTION. Statement at the International Conference on the Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument? PlETER VAN DlJK 273 CHALLENGING THE QUESTION MARK: THE FRAMEWORK CONVENTION AS AN INCREASINGLY USEFUL PAN-EUROPEAN TOOL ANTTI KORKEAKIVI 277 XIV