Hostname: page-component-cd9895bd7-p9bg8 Total loading time: 0 Render date: 2024-12-28T06:24:39.746Z Has data issue: false hasContentIssue false
  • English
  • Français

The Legal Protection Accorded to Minority Groups in Europe*

Published online by Cambridge University Press:  07 July 2009

G. Gilbert
Get access

Extract

At the meeting of the Conference on Security and Co-operation in Europe in Moscow in September 1991, Mikhail Gorbachev, the former President of the old Soviet Union, in his opening speech, raised the problem of minority rights in the newly emerging States of Eastern Europe and the Baltics. With the movement of the many different ethnic groups throughout the former Soviet Union since 1917, the rush to independence by the various republics creates new and, in many cases, substantial minority groups. The violence seen in Azerbaijan between Azeris and Armenians may presage events throughout Europe if care is not taken to protect minority rights. Often through naïveté or in a blatant attempt to stir up national fervour in the new State, the delicate task of defusing ethnic frictions in the creation of open, stable and successful societies is being mishandled. The crisis is sufficient for the Council of Europe to have deferred the applications for membership of Latvia, Lithuania and Estonia while their constitutional provisions for minority groups are examined. The former Eastern bloc States are in a period of transition as old nationalisms buried by Stalinism are reawakened – the issue of minority groups within States created out of the collapse of the Ottoman and Austro-Hungarian empires has taken on fresh life.

Type
Articles
Information
Netherlands Yearbook of International Law , Volume 23 , December 1992 , pp. 67 - 104
Copyright
Copyright © T.M.C. Asser Press 1992

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

2. See The Guardian (11 September 1991) p. 20Google Scholar. ‘If Europe wishes to avoid a flood of refugees and inter-ethnic hatred, it must make sure that minority rights are protected across the continent.’ Often the dislike of an ethnic minority group stems from the fact that the State from which the ethnic minority originates lays claim to territory in the State in which the group now resides, e.g., the Czech dislike of ethnic Hungarians because Hungary has claimed some Czech territory. See The Times Mirror Center of Washington's survey, reported in some detail in The Guardian (4 October 1991) p. 21.Google Scholar

3. Far example, ethnic Russians comprise over 40% of the population in Estonia. The Guardian (10 September 1991) p. 7Google Scholar, and (13 February 1992) p. 10. The Estonian Government has just adopted a Constitution which only grants the right to vote in national and presidential elections to Estonian citizens, that is, those resident before 1940 and their heirs. Thus the 40 % Russian population, while guaranteed other minority rights, is not allowed to participate in the new democracy, which may sow the seeds for future inter-ethnic conflict. The Guardian (1 July 1992) p. 8.Google Scholar

4. The Guardian (11 September 1991) p. 20Google Scholar, (1 February 1992) p. 8, (6 February 1992) p. 10, and (2 March 1992) p. 6.

5. See Traynor, I., ‘Irresponsible Leaders Exacerbate Ethnic Tensions of Eastern Europe’, The Guardian (28 September 1991) p. 6Google Scholar; cf., the so far successful attempts to deal with the minority issue in the Ukraine (The Guardian (24 December 1991) p. 6Google Scholar). See also the problems faced by western States, where neo-fascist groups are stirring up violence against ethnic minority groups – see The Guardian (27 September 1991) p. 23Google Scholar, (16 October 1991) p. 23; and The Independent (1 October 1991) p. 19Google Scholar. See also Schifter, R., ‘To Hate All the People Your Relatives Hate’, 12 HRLJ (1991) p. 327Google Scholar; Wolfrum, R., ‘The Legal Status of Minorities in South-Eastern Europe’Google Scholar, in Lefeber, R., Fitzmaurice, M. and Vierdag, E. W., The Changing Political Structure of Europe (1991)Google Scholar; and Eyal, J., ‘A Framework for Handling Ethnic Minorities Issues in Eastern Europe’, unpublished paper, 1991.Google Scholar

6. Convention for Protection of Human Rights and Fundamental Freedoms 213 UNTS 221; ETS No. 5; 45 AJIL Supp. 24 (1950): hereinafter, ECHR.

7. Drafted by the European Commission for Democracy through Law, CDL (1991) p. 7; adopted by the CDL 8 February 1991. The CDL is a consultative body of the Council of Europe – at the date of writing the full Council had not formally adopted the Commission's proposed Convention. See Hannum, H., ‘Contemporary Developments in the International Protection of the Rights of Minorities’, 66 Notre Dame L.Rev. (1991) p. 1431 at pp. 1443–1444.Google Scholar

Work is also taking place in the UN on the preparation of a Declaration on the Rights of Minorities, UN Doc. E/CN.4/Sub.2/L.734 (1981); see Hannum, op. cit. this footnote, at pp. 1437–1438 and UN Centre for Human Rights Fact Sheet No. 18, March 1992.

8. International Convention on Civil and Political Rights UN GA Res. 2200A(XXI), UN GAOR, 21st Sess., Supp. No. 16, 52 (1966); 999 UNTS 171; 6 ILM (1967) p. 368; 61 AJIL (1967) p. 870: hereinafter, ICCPR.

9. The paper assumes that the nation-State will continue to be the accepted norm in international law for the foreseeable future, even if the concept is so clearly little understood. Cf., Symonides, J., ‘Collective Rights of Minorities in Europe’Google Scholar, in Lefeber et al., eds., op. cit. n. 5, p. 123 a 39:

‘Some believe that only all-European citizenship and a rejection of state logic may definitively solve the minorities problem.’

10. Guillaumin's definition, as cited, though, does not take account of the position where the minority group members want a right to assert their identity, not a freedom to deny their minority status.

11. Cited by Fawcett, J., The International Protection of Minorities, Minority Rights Group Report No. 41 (1979) p. 4.Google Scholar

12. See Thomberry, P., International Law and the Rights of Minorities (1991) at p. 9.Google Scholar

13. Members of the UN Sub-Commission seem to view a definition as undesirable: see Thornberry, op. cit. n. 12, at p. 164. See also the statement by the Austrian Government in the UN study by Capotorti, F., (1977) Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (1991)Google Scholar at para. 33: (hereinafter, Capotorti 1977).

‘With respect to the theoretical question raised, it may be remarked that these problems have been under discussion in the relevant literature ever since scholars started to examine minority problems. They have not so far succeeded in formulating a generally accepted definition of the concept of minority–whether ethnic, religious or linguistic. In view of these unsuccessful efforts, it may be doubted whether a satisfactory solution of this problem is possible.’

14. PCIJ, Ser. B, Nos. 17, 19, 21, 22 and 33.

15. Cited in Thornberry, op. cit. n. 12, at pp. 164–165.

16. Supra, a 11, at p. 4.

17. Para. 568, Capotorti 1977, supra, n. 13; see also paras. 560–567. The definition assumes that the group will be loyal.

18. See UN Doc. E/CN.4/Sub.2/1985/31 para. 181. Both Capotorti and J. Deschtaes fail to accommodate the situation where a minority group is larger than several other minority groups in the State but is still technically non-dominant, although wielding great influence in matters of State policy, e.g., if the ethnic breakdown of a State were to be as follows: A-30%, B-25%, C-20%, D-15%, E-10%.

19. This non-governmental organisation campaigns an behalf of minority groups. It is based in London.

20. Supra, n. 11, at p. 4.

21. For more detail, see Tharnberry, op. cit., n. 12, pp. 164–172.

22. To avoid confusion, it should be remembered mat nationality may be used in two ways. As used here, it accords rights to members of minority groups who are nationals of the State: however, ‘nationality’ is sometimes ambiguously used to define ethnic status, e.g., ethnic Germans in Russia who are actually Russian nationals with German roots.

23. See however, the First UN Convention on Migrant Workers 1990, in 9 NQHR (1991) Appendix 1. Hune, S. and Niessen, J. have examined the Convention in ‘The First UN Convention on Migrant Workers’, 9 NQHR (1991) p. 130Google Scholar. See also Art. 22, CSCE (CHD) Copenhagen Document, 11 HRLJ (1990) p. 232, and Buergenthal, T., ‘A New Public Order for Europe’, 11 HRLJ (1990) p. 217.Google Scholar

24. E.g., Basques in France and Spain. See Thornberry, op. cit. n. 12, at pp. 7–8 and 170–171.

25. See for example, App. No. 7823 & 7824/77, Kalderas Gipsies v. FRG and the Netherlaruis, 11 D&R (1977) p. 221.

26. The Dutch Government thought there was:

‘a bottom limit … in the sense that there would have to be a group, so that an individual could not constitute a minority within the meaning of Article 27 … Within these limits, the size of the group would not seem to be relevant to the question of whether there was a minority within the meaning of that Article or not.’

See Capotorti 1977, supra, n. 13, at para. 38. See also though, at the same reference, the view of the Swedish Government, which stated that it presumed the group would consist of at least 100 members. For greater depth on this matter, see Thornberry, op. cit. a 12, at p. 168.

27. Supra, n. 11, at p. 4.

28. Thornberry, op. cit. n. 12, at p. 166.

29. See Art. 1(1) ICCPR, supra, n. 8; and Sohn, L.B., ‘The Rights of Minorities’, in Henkin, L., ed., The International Bill of Rights: The Covenant on Civil and Political Rights (1981) p. 270 et seq., at p. 276.Google Scholar

30. Symonides, loc. cit n. 9, at p. 123.

31. The Yugoslav province of Macedonia has sought international recognition as an independent State, but Greece has claimed that ‘Macedonia’ is part of its history and territory (The Guardian (18 February 1992) p. 8)Google Scholar. Are the Yugoslav Macedonians a ‘people’ or a ‘minority group’?

32. Does this mean that Slovenians in Austria were a ‘people’ with a right to self-determination before Slovenia's independence and are now a minority? Cf., Isop, infra, n. 70.

33. See the statement by Yugoslavia at the Geneva 1991 meeting of the CSCE Meeting of Experts on National Minorities, infra, n. 130, regarding the question as to whether the Croats had the right to self-determination. See also Hannum, H., ‘The Limits of Sovereignty and Majority Rule: Minorities, Indigenous Peoples, and the Right to Autonomy’, in Lutz, E., Hannum, H. and Burke, K., eds., New Directions in Human Rights (1989) pp. 3–24, at pp. 7–9Google Scholar; Marks, S., ‘Self-Determination and Peoples' Rights’, King's Coll. LJ (1992) p. 79.Google Scholar

34. See Sohn, loc. cit. n. 29, and Hannum, loc. cit n. 33.

35. See Capotorti 1977, supra, n. 13, at paras. 82–242, and Thornberry, op. cit n. 12, Chapters 2 and 3. Early references to minority protection are to be found in the Augsburg Treaty 1555 and in the Treaty of Westphalia 1648 – see Symonides, loc. cit. n. 9, at p. 107 and Hannum, loc. cit n. 33, at p. 10.

36. See Thornberry, loc. cit. n. 12, Appendix 1 at p. 399. See also the Germany-Poland Upper Silesian Treaty of May 1922.

37. See also the UN Study of the Legal Validity of the Undertakings Concerning Minorities, E/CN.4/367 (1950) especially at p. 47 et seq.

38. Kunz, J.L., ‘The Present Status of the International Law for the Protection of Minorities’, 48 AJIL (1954) p. 282 at p. 282.CrossRefGoogle Scholar

39. See also the International Convention on the Elimination of All Forms of Racial Discrimination 1966, 660 UNTS 195, 5 ILM (1966) p. 352, which defines, in Art. 1, racial discrimination to include distinction based on ‘national or ethnic origin’: Hannum, loc. cit. n. 7, at p. 1437.

40. See Thombeny, op. cit. n. 12, at p. 178 et seq.

41. ‘No-one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’

42. ‘No-one shall be held in slavery …’

43. Minorities do not fit neatly into the classical international law analysis of the nation-State, see Hannum, loc. cit. n. 7, at p. 1445. Art. 27 of the ICCPR adds afurther twist to this particular issue. The provision commences with the words ‘In those states in which ethnic, religious or linguistic minorities exist,’ which were inserted at the behest of the Chilean representative seemingly to limit the article's application to long-established minority groups and to prevent it encouraging new minority groups from amongst groups previously assimilated into the community. However, some States have argued that the phrase means that minorities only have rights under Art. 27 where they have been recognised by the State. Capotorti, however, categorically denies the idea that minority recognition is a subjective matter and states that objective criteria determine whether Art. 27 rights are to be accorded to a group; see Capotorti 1977, supra, n. 13, at paras. 202–205.

44. Capotorti 1977, supra, n. 13, at paras. 213 and 217. See also the positive obligations in Arts. 13 to 15 of the International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, 6 ILM (1967) p. 360.

45. Hannum, loc. cit. n. 7, at p. 1436 et seq.

46. UN GAOR, 36th Sess., Supp. No. 40, 166 (1981). See McGoldrick, D., The Human Rights Committee (1991) at p. 159Google Scholar; and Thomberry, loc. cit. a 12, at pp. 207–211.

47. Supra, n. 8.

48. See Thomberry, op. cit. n. 12, at p. 178 et seq.

49. Of course, the ICCPR, supra, n. 8, contains such a measure in Arts. 2(1) and 26:

‘2(1). Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

‘26. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

Moreover, while France accepts Art. 26, it has entered a reservation to Art. 27 questioning the concept of collective rights.

50. La Deuxieme Sexe (translation by Trudeau).

51. Capotorti 1977, supra, n. 13, at para. 236, citing E/CN.4/52 sec. V.

52. However, it is difficult to draw a strict line between assimilation and integration, see Thornbeny, op. cit. n. 12, at p. 276 et seq.

53. The Guardian (17 October 1991) p. 10.Google Scholar

54. Minority Schools in Albania, Advisory Opinion of 6 April 1935, PCIJ Ser. A/B, No. 64 (1935) at pp. 19 and 20; quoted in Uibopuu's Comments on Symonides, loc. cit. n. 9, at p. 128.

55. Capotorti 1977, supra, n. 13, at para. 241. See also Hannum, loc. cit n. 33, pp. 20–22.

56. Sohn, loc. cit n. 29, at p. 274.

57. 78 UNTS 277, with annotations, 28 ILM (1989) p. 754 at p. 763 et seq.

58. See Capotorti 1977, supra, a 13, at paras. 206–210, and Sohn, loc. cit n. 29, at pp. 274–275.

59. See Sohn, loc. cit. n. 29, at p. 274.

60. Supra, n. 7.

61. However, it imposes obligations on the State vis-a-vis the minority in Arts. 13 and 14. See Malinvemi, G., ‘The Draft Convention far the Protection of Minorities’, 12 HRLJ (1991) p. 265 at p. 268Google Scholar. Malinvemi's piece is an abridged version of his article, ‘Le projet de convention pour la protection des minorités élaboré par la Commission européenne pour la démocratic par le droit’, 3 Revue Universelle des droits de l'homme (1991) p. 157Google Scholar

62. Galenkamp, M., ‘Collective Rights: Much Ado About Nothing? A Review Essay’, 9 NQHR (1991) p. 291.Google Scholar

63. Art. 27 is included in the ICCPR which is otherwise concerned with individual human rights.

64. Galenkamp, loc. cit. n. 62, at p. 299.

65. Galenkamp, loc. cit. n. 62, at pp. 294–296.

66. Supra, n. 6.

67. App. No. 8142/78 X. v. Austria, 18 D&R (1979) p. 88 at pp. 92–93Google Scholar. Nor does the American Convention on Human Rights, 9 ILM (1970) p. 673Google Scholar, refer to minority rights. A Protocol to the ECHR was proposed in 1959 that would have provided protection to ‘national minorities’ as such, but it was never proceeded with, see Capotorti 1977, supra, n. 13, at para. 51; and Thornberry, loc. cit. n. 12, at pp. 305–306.

The difficulties mat the lack of an express minorities provision creates are evident from the Belgian Linguistics case, infra, n. 72, at p. 7, where what is in effect a claim to mother-tongue education had to be couched in six complaints alleging discrimination in the provision of and access to state education and funding. Since there was an educational system provided, although teaching was in Dutch, there was no effective discrimination: nonetheless, the cultural identity of the group was threatened.

68. App. No. 8765/79, The Liberal Party et al. v. United Kingdom, 4 EHRR (1982) p. 106 at pp. 120–121.

69. App. No. 10210/82, 35 D&R (1983) p. 203 at p. 207.

70. He may still not have been granted an interpreter, but he may have been able to address the court using the Breton language. See also App. No. 2333/64, Isop v. Austria, 8 Yb.ECHR (1965) p. 338, and Cadoret & Le Bihan v. France, Comm. Nos. 221/1987 and 323/1988, Adoption of Views 11 April 1991, cited in 6.2 Interrights Bulletin (1991) at p. 36 – in that case, the Human Rights Committee surprisingly held that the right to use Breton in court and the failure to provide interpreters did not even raise an issue under Art 27 ICCPR.

71. App. No. 10316/83, M. v. United Kingdom, 37 D&R (1984) p. 129 at p. 134; see also App. No. 788/60, Austria v. Italy, 4 Yb.ECHR (1961) p. 166 and 6 Yb.ECHR (1963) p. 796.

72. Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits), Judgment of 23 July 1968, Series A, Vol. 6.Google Scholar

73. Since the case was decided back in 1968, the United Kingdom has passed legislation applying indirect discrimination and some limited affirmative action measures, see ss. 1 and 35 Race Relations Act, 1976.

74. Supra, n. 72, at p. 34.

75. See X. v. Austria, supra, n. 67.

76. App. No. 8317/78, 3 EHRR (1981) p. 161 at pp. 214–215. The test crystallised in McFeeley comes from the Court's decision in the Belgian Linguistics case, supra, n. 72, at pp. 34–35.

77. 13 Yb.ECHR (1970) p. 928 at p. 994, 3 EHRR (1981) p. 76. See also Thomberry. loc. cit. n. 12, at p. 303.

78. App. No. 6741/74, 5 D&R (1976) p. 83 at p. 85.

79. The lack of certainty on this matter flows from the fact that the report is extremely sketchy, the French and English versions taking up less than three full sides of the volume.

80. The case also raises problems in that it failed to refer to Art. 17:

‘Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.’

Nor did it refer to the leading authority on the rights of fascists, De Becker, 2 Yb.ECHR (1958-1959) p. 214.Google Scholar

81. Supra, n. 72, at p. 70.

82. See Belgian Linguistics case, supra, n. 72, at pp. 61–71.

83. App. No. 8440/78, 21 D&R (1980) p. 138 at p. 152; hereinafter, the CARAF case.

84. Series A, Vol. 139, 13 EHRR (1988) p. 204 at p. 210.

85. Cf., CARAF, supra, n. 83, and App. No. 8191/78, Rassemblement Jurassien & Unité Jurassienne v. Switzerland, 17 D&R (1979) p. 93.

86. Supra, n. 68, at p. 123.

87. App. No. 8364/78, Lindsay and others v. United Kingdom, 3 CMLR [1979] p. 166 at pp. 170–171.

88. App. Nos. 9278 and 9415/81, 35 D&R (1983) p. 30 at pp. 35–36.

89. cf., The Art. 27 ICCPR case, Kitok v. Sweden, CCPR/C/33/D/197/1985, 10 August 1988: cited in Thornberry, loc. cit. n. 12, at pp. 211–213.

90. Supra, n. 88, at p. 35.

91. Supra, n. 88. The application was declared inadmissible.

92. Supra, n. 72, at p. 43.

93. Supra, n. 72, at p. 50.

94. Supra, n. 72, at p. 51. Unofficial statistics suggested that by 1968 that figure had risen to 65%.

95. Supra, n. 72, at p. 56. The dissenting judges issued a separate opinion which was even stricter in relation to demographic changes, ibid. at p. 89 et seq.

96. See McFeeley, supra, n. 76.

97. Supra, n. 25.

98. Supra, n. 25, at pp. 232–233.

99. Supra, n. 72.

100. Although the Court did state the obvious proviso that it ought to be one of the national languages.

101. Supra, n. 72, at pp. 31 and 35.

102. See above, section 3.1.

103. Supra, n. 72, at p. 44. On the other hand, the Court's assumption was based on demographic data from over twenty years earlier, see supra, n. 94.

104. See also the Isop case, supra, n. 70.

105. App. No. 10650/83, 42 D&R (1985) p. 212. The case finally turned on whether the Commission had jurisdiction over the procedural affairs of the various assemblies — at p. 222.

106. Supra, n. 105, at p. 221.

107. Supra, n. 105, at p. 222.

108. Supra, n. 71.

109. It might be noted that until 1980 councillors could use both Dutch and French; supra, n. 105, at p. 219.

110. App. No. 9267/81, Mathieu-Mohin and Clerfayt v. Belgium, Series A, VoL 113, 10 EHRR (1988) 1.

111. Supra, n. 110, at p. 18. How ‘incomplete and provisional’ can be seen from the feet that Belgium is increasingly decentralising its powers to regional councils to such an extent that the Kingdom will soon be effectively divided in two — see The Guardian (22 November 1991) p. 10Google Scholar, and (11 February 1992) p. 7.

112. Supra, n. 110, at p. 20.

113. Supra, n. 83.

114. Supra, a 85.

115. The CARAF case, supra, n. 83, at p. 152.

116. Supra, n. 84.

117. See the Preamble to the European Commission for Democracy through Law's 1991 Proposal for a European Convention for the Protection of Minorities, supra, n. 7.

118. Supra, n. 7. See also, Malinverni, loc. cit. n. 61.

119. Supra, n. 7.

120. 14 ILM (1975) p. 1292. See also the Madrid Concluding Document of 1983, 22 ILM (1983) p. 1395.

121. 28 ILM (1989) p. 527.

122. Document of the Copenhagen Meeting of the Conference of the Human Dimension of the CSCE, Part IV; see 11 HRLJ (1990) p. 232. See Hannum, loc. cit. n. 7, at p. 1440 et seq.

123. Hannum, loc. cit. n.7, at p. 1440.

124. Copenhagen, supra, n. 122, para. 32.1; see also para. 32.5 on the dissemination of information in the mother-tongue of the group.

125. ‘The effectiveness of the system of protection of minorities in Europe will not be determined exclusively by legal means, but also by other factors: the international climate, the economic possibilities of interested states, the success of democratization in Central and Eastern Europe and progress in the construction of a common European home.’

Symonides, loc. cit. n. 9, at p. 123. See also the German-Danish Declaration of 28/29 March 1955, which gives the Danish minority group in Schleswig-Holstein reserved seats in the Länder assembly. Cf., the new Estonian Constitution, supra, n. 3.

126. See Galenkamp, loc. cit. n. 62.

127. Infra, n. 130. At the time of writing, July 1992, the CSCE is meeting in Helsinki and has just agreed to appoint a High Commissioner for Minorities; see The Guardian (10 July 1992) p. 8.Google Scholar

128. See Roth, S.J., ‘Comments on the CSCE Meeting of Experts on National Minorities and its Concluding Document’, 12 HRLJ (1991) p. 330 at p. 331.Google Scholar

129. Ibid.

130. Cf., The Report of the CSCE Conference of Experts on National Minorities, Geneva, 1991 (CSCE/REMN.20) noted in the final paragraph of Section II that: ‘not all ethnic, cultural linguistic or religious differences necessarily lead to the creation of national minorities.’ The comment is unhelpfully vague and is open to abuse by States. Several States submitted an interpretative statement to the effect that it must not be seen as preventing a person from choosing to belong to a national minority; Geneva Conference, Journal No. 15. See also Roth, loc. cit. n. 128, at p. 331.

131. See also para. IV which again ‘notes’ that local and autonomous administrations have proved useful.

132. See the Moscow Final Act, CSCE/CHDM.49/Rev. 1, and The Guardian (5 October 1991) p. 8.Google Scholar

133. See The Guardian (18 June 1991) p. 7Google Scholar, (21 June 1991) pp. 10 and 22. Cf., Symonides, loc. cit. n. 9 at p. 115.

‘The CSCE documents cannot be qualified technically as international treaties but they are in fact political decisions adopted by consensus. Nevertheless, they are now recognized by all participants as binding and as having important legal consequences.’

134. See Brett, R., Paper for the Geneva Meeting of Experts, 1991, ‘Some Comments on the Implementation Procedures’, unpublished; and Malinvemi, loc. cit. n. 61, at pp. 268–269.Google Scholar

135. The European Committee for the Protection of Minorities, Art.18.

136. Art. 22(2) obliges States to provide the Committee with all necessary facilities, including access to their territories and open communication with anyone from whom it can obtain relevant information.

137. See Art. 24, which oddly requires that the Committee shall forward the reports and its observations to the Committee of Ministers of the Council of Europe rather than the equivalent CSCE body.

138. Arts. 25 and 26, the violating State must have declared that it recognises the competence of the Committee to receive complaints.

139. See Capotorti 1977, supra, n. 13, at paras. 552–558.

140. See Brett, supra, n. 134.

141. See Malinverni, loc. cit. n. 61. at p. 269.

142. Breitenmoser, S. and Richter, D., ‘Proposal for an Additional Protocol to the ECHR Concerning the Protection of Minorities in the Participating States of the CSCE’, 12 HRLJ (1991) p. 262.Google Scholar

143. Ibid. at p. 262. They give the example of German Länder using mayors, officials of the city or town, to carry out responsibilities of the Länder.

144. Viz., Art. 4 of the Breitenmoser and Richter Proposed Additional Protocol to the ECHR, loc. cit. n. 142, at p. 264.

145. Supra, n. 122.

146. Breitenmoser and Richter, loc. cit. n. 142, at p. 263.

147. The Preamble to the Proposed Convention, supra, n. 7, refers, inter alia, to Art. 14 of the ECHR and Art. 27 of the ICCPR and states that:

‘… an adequate solution to the problems of minorities in Europe is an essential factor for democracy, justice, stability and peace.’

Therefore, there is nothing inherent in the Proposed Convention mat goes against it being adopted as a Protocol to the ECHR; moreover, draft Arts. 25 and 26 allow for inter-State complaints and individual petition in line with ECHR practice. Since most of the CSCE States not yet members of the ECHR are applying to join, this suggestion should not overly restrict its scope. The Parliamentary Assembly of the Council of Europe recommended that the Proposed Convention be adopted as a Protocol to the ECHR and the Austrian Minister submitted a draft of such — Rec. 1177 (92).

148. Cf., Malinverni, loc. cit. n. 61, at p. 268.

149. E.g., Art. 14(2) of the Proposed Convention.

150. See supra, section 2.1.

151. See the intrusive monitoring system established in the CSCE Moscow Final Act, supra, n. 132.

152. Especially, sovereignty, territorial integrity and political independence of States. There is no right to secede in international law, see Malinverni, loc. cit n. 61, at p. 266, and Marks, loc. cit. n. 33.

153. Cited in Capotarti 1977 at supra, n. 17. And see supra, section 2.1, generally.

154. Art. 5, however, provides that States are obliged to allow members of minority groups to associate and maintain contacts, ‘including across national borders’.

155. Oddly, the loyalty provision is set out in Art. 15 among the substantive rights.

‘1. Any person who belongs to a minority shall loyally fulfil the obligations deriving from his status as a national of his State.’

156. Assuming an overall Ruricadian population of 10 million, there might in 1991 be 4.5 million Ruritanians and 5.5 million Arcadians; originally the Ruritanians outnumbered the Arcadians, but over the years, possibly due to different religious teaching on birth control, the Arcadians have outstripped Ruritanians in terms of population growth. Nevertheless, just over 0.5 million ethnic Arcadians speak the Ruritanian language due to earlier policies of regional assimilation. Fortunately, Ruricadia is a representative democracy and there is little inter-ethnic conflict. However, it could be that 88% of the Arcadian ethnic majority constitute a linguistic minority. Balancing the needs of the different majorities and minorities might give rise to problems in terms of trying to correct previous assimilation policies.

157. Supra, n. 8.

158. However, it is sometimes difficult to distinguish between assimilation and integration, Thornberry, op. cit. n. 12, at p. 276 et seq.

159. ‘States shall refrain from pursuing or encouraging policies aimed at the assimilation of minorities or aimed at intentionally modifying the proportions of the population in the regions inhabited by minorities.’

The second prohibited form of conduct is designed to prevent a recurrence of policies used in Ceauscescu's Romania towards ethnic Hungarians.

160. Malinverni, loc. cit n. 61, at p. 267.

161. See also Art. 15.2.

162. Iran and neighbouring States in the Commonwealth of Independent States have agreed that family visits of up to 15 days may be made up to 45 miles into each other's territories.

163. See for an interpretation of the substantive terms the European Court of Human Rights' decisions in Handyside v. United Kingdom, Series A, Vol. 24 (1976); and The Sunday Times case, Series A, Vol. 30 (1979).Google Scholar

164. Supra, n. 83.

165. Supra, n. 85.

166. Supra, n. 84.

167. That is, Arts. 3, 7, 8, 9 and 14.

168. As such it seems unlikely that, for example, either France or the United Kingdom would be prepared to ratify it. Both States, expressly or by their acts, refuse to acknowledge that there are collective rights. The view of such States is mat the guarantees extended towards minorities attach to individual members rather man the group as a legal person – it was seen in the Liberal Party case, supra, n. 68, that the organs of the ECHR at least recognise the locus standi of groups.

169. Supra, n. 72; but see below.

170. Supra, n. 70.

171. Supra, n. 105.

172. Supra, n. 110.

173. Supra, n. 68.

174. Supra, n. 87. See also, Malinverni, loc. cit. n. 61, at p. 266.

175. Although it is not clear what obligations are placed on a State where it is a case of a substantial national minority, the presence of which is insignificant within a particular region.

176. Supra, n. 72, at pp. 71–87.

177. Viz., Art 13 ECHR.

178. ‘As far as possible, States shall take minorities into account when dividing the national territory into political and administrative sub-divisions, as well as into constituencies.’

See Galenkamp, loc. cit n. 62.

179. Supra, n. 46.

180. Galenkamp, loc. cit. n. 62, at p. 301.