States; States that are, de facto, multi-ethnic, multi linguistic and multi-religious in
character, but whose politics can be ethno-nationalist.
Articles 24 inter alia provide for the Committee of Ministers to monitor the implementation of the Convention. While Article 25 records the following:
"Within a period of one year following the entry into force of this Framework Convention in respect of a contracting party, the latter shall transmit to the Secretary General of the Council of Europe full information on the legislative and other measures taken to give effect to the principles set out in this Framework Convention.
Thereafter, each party shall transmit to the Secretary General on a periodic basis and whenever the Committee of Ministers so requests any further information of relevance to the implementation of this Framework Convention.
The Secretary General shall forward to the Committee of Ministers the information transmitted under the terms of this Article."
The Advisory Committee of the Framework Convention is specifically referred to in Article 26, it is to assist the Committee of Ministers in evaluating the adequacy of the measures taken by States Parties.
3. PHILOSOPHY UNDERLYING THE ADVISORY COMMITTEE
The Preamble to the Framework Convention is telling in revealing the objectives of the Convention and the environment in which it was constructed. They are central to the philosophy of its implementation and to the approach the Advisory Committee should adopt in interpreting the detail of the Convention.
The tenor of the Preamble is proactive, with the emphasis on "further realisation of human rights and fundamental freedoms" and with the use of language such as "development of identity" and "creating a climate of tolerance".
It also emphasises the importance of the issues with strong wording that the protection of national minorities is essential to stability, democratic security and peace. It is difficult to envisage any stronger language referring to issues that go to the raison d'être of the Council of Europe.
A failure therefore to have effective implementation mechanisms and relevant further information would question the competence of the Council of Europe on an issue that it is agreed is crucial to its existence and for the people of Europe. This is pioneering new territory for a legal instrument, but not for the political processes of the OSCE, from which certain methodology should be borrowed.
The OSCE regards the full implementation of all the (consensus) agreements as mandatory for security, no State would be allowed to openly flout the agreements, while close inspection and monitoring was encouraged, particularly in the security arena as a confidence building measure. The price of failure could have been war, the price of failure to respond positively to national minorities today could also be war, but more likely major social tensions, new claims for asylum, a reluctance to build closer unity between Council of Europe member States, and insecurity that inhibits trade and investments.
The reference to the relevant CSCE commitments reflects the desire expressed in
Appendix II of the Vienna Declaration that the Council of Europe should apply itself to
transforming, to the greatest possible extent, these political commitments into legal
obligations. The Copenhagen Document in particular provided guidance for drafting the
Framework Convention. It is argued by some that the Framework Convention places
lesser responsibilities on States than some of the language of Copenhagen, e.g. Education,
but of course States are always expected to meet their maximum commitments under
In looking at the Framework Convention and the Advisory Committee it is important to retain the concept that it is a means to an end, and certainly not the only means to the end, the aims that the Council of Europe set out in the preamble. Furthermore the Advisory Committee will not be the only actor that will wish to use the Framework Convention to promote stability, democratic security and peace by protecting national minorities.
The Committee of Ministers decided that a Framework Convention and Advisory Committee were necessary and it is clear that this was meant to add a legal regime to other political and economic regimes to promote stability. Furthermore it should add to other standards and in no way diminish them if they are already higher.
4. ADVISORY COMMITTEE MANDATE
Article 26 of the Framework Convention stipulates that:
"In evaluating the adequacy of the measures taken by the Parties to give effect to the principles set out in this Framework Convention the Committee of Ministers shall be assisted by an Advisory Committee, the members of which shall have recognised expertise in the field of the protection of national minorities.
The composition of this advisory committee and its procedure shall be determined by the Committee of Ministers within a period of one year following the entry into force of this Framework Convention."
The Explanatory Report that was closely negotiated also determined that:
"The monitoring of the implementation of this Framework Convention shall, in so far as possible, be transparent. In this regard it would be advisable to envisage the publication of the reports and other texts resulting from such monitoring."
Some of this language is deliberately open using the expression ' assisted by an advisory committee' which could even imply that the Committee of Ministers will essentially do the work. It is of course unrealistic to expect the busy Committee of Ministers to provide an expert view on 32 States reports. Indeed if it did, this would have substantial political implications. The Committee of Minister's role must be in elect a good Advisory Committee and, as matter of principle, support them. The adage why get a dog and bark yourself is true, though the Advisory Committee must then be given a free reign and not be muzzled.
Although the operations and practice will work out a modus vivendi and the membership and interpretation of the first Advisory Committee will be crucial, as can be seen by the outstanding job that Max van der Stoel has done as High Commissioner, some
recommendations on the responsibilities will be needed and a recommendation would be
helpful from the Parliamentary Assembly.
One key question asked later in this paper is whether the Advisory Committee's reports and recommendations would be taken as read by the Committee of Ministers or whether debate would be encouraged on the report and recommendations for action.
5. COMPOSITION OF THE ADVISORY COMMITTEE
The composition of the Advisory Committee demands members with expertise in the field, but beyond this the language is delightfully vague, while the procedures must be determined within a period of one year following the entry into force of the Convention, to ensure that the Convention can be monitored from the outset.
There is no clarification in the Framework Convention or in the Explanatory report on a number of key issues. These include the type of expertise required, the number of members, the form of nomination and the method of election as well as the length of service and the role of members. Some suggestions are given below to stimulate debate.
A target date of January 1997 might be realistic for establishing the Advisory Committee on current trends. This presumes that 12 States will ratify the Convention by the end of 1996.
1. Job Description
A job description is evidently required for potential members of the Advisory Committee, based on the earlier descriptions and decisions. So too is a candidate specification to help those involved with the selection process.
2. Experts on National Minorities
All members of the Advisory Committee should be of high moral character. Additionally the person must be an expert on national minorities. The second criterion is not quite as easy to fulfil as may appear initially; although there are many who have expertise in their own country, the number who have a breadth of experience is not high.
Minority Rights work demands a multi disciplinary team and approach to some of the most intractable issues that involve interpersonal relationships. Members should range from International lawyers to Linguistic scholars and Educationalists, from Political analysts to Anthropologists and Psychologists. All have their part to play in achieving an understanding of how the Convention has been implemented. There may also be a different kind of role for members from minority communities, who have experienced discrimination individually and collectively themselves.
Similarly it might be hoped that the Committee's membership would include a balance of ages, experiences, regions of Europe, sexes, religions, language and cultural groups. It will be necessary to use considerable wisdom and subtlety to achieve a balance such as this.
3. Number of members
The Advisory Committee needs to be sufficiently large to have a breadth of experience, and sufficiently numerous for a pool of country rapporteurs if an approach
similar to the Committee monitoring the UN Convention on the Elimination of Racial
Discrimination is adopted. However, it should be small enough to be cohesive and
dynamic. The experience of the UN indicates that a number between 10 and 20 is
appropriate. The suggestion that there might be one person from every ratifying State
would be unmanageable when 32 States ratify the Convention. Suggestions that there
should be nominees from non-ratifying States would be unacceptable to UN Treaty bodies.
4. Availability for Nomination
Quite clearly the availability of good people is always problematic, while the length a frequency of the meetings may make membership only possible for Diplomats, Scholars and retired persons. One way of widening potential candidates is to offer an honorarium for the work over and above the travel and subsistence costs.
5. Nomination Process
In order to identify the best people and to encourage transparency, the members of the Advisory Committee should be elected by the Committee of Ministers but be nominated by the Parliamentary Assembly. It is suggested that there could be up to three nominees who are citizens of the same State Party. The Parliamentary Assembly must be entrusted to devise formal or informal ways of achieving a balance of experience and expertise, while candidates would not be regarded as being representatives of their States.
6. Elections and length of service
The approach of the European Commission of Human Rights towards the election of their members may help. The form of election will need to be precisely determined but it should offer, via the Parliamentary Assembly, real choices of potentially expert candidates.
Not more than one person should be elected and serve on the Advisory Committee at any time from the citizens of any State to help achieve a geographic balance. It is suggested that each member may serve on the Advisory Committee for up to 6 years but that no member should be eligible for re-election. On the one hand, this would guararantee a reasonable degree of continuity and change, on the other hand, the absence of any re-election ensures that the prospect of re-election cannot affect a member's independence.
A system of phasing the elections would be needed to ensure some continuity but also some change. One possible method is to structure the arrangements, so that one third of the members retire every second year.
7. Membership in Individual Capacity
Each member of this Advisory Committee of the Council of Europe, like members of the European Court of Human Rights, should serve in their individual capacity. During the term of office they should not hold any position, which is incompatible with their independence and impartiality as member of the Committee or the demands of this office.
An expert from a particular State should be excluded from involvement when his own State is discussed. This is to ensure that the Committee is seen to be impartial and that there is little to be gained by an unscrupulous State placing pressure on "their" expert to speak favourably on "their" situation.
6. ADVISORY COMMITTEE PROCEDURES
1. Organisation of Business
The Committee should be left to determine its own precise standing orders and detailed method of conducting its business.
2. Frequency of Meetings
The volume of work, the frequency of meetings and their duration is impossible to judge clearly. Advice should be taken on this from the experience of the UN. Clearly the work will take longer as the first reports are received and until the Committee establishes the most efficient and effective way of working in practice. It is likely that at least two meetings a year of 4 weeks duration each will be needed. This is calculated on the basis of up to three days being allocated to consider each State report, while the progress of each ratifying State will need to be reviewed not less than once every three years.
3. Sources of Information
It is suggested that the Advisory Committee collect information and receive advice from whatever sources it chooses and in whatever way that it can. Military intelligence would demand nothing less, though in this case all information would have to be transparent and collected in a legal and proper way. Information should be presented by Governments, by Intergovernmental bodies (e.g. UNHCR), by persons from national minorities, academic bodies, and by local and international NGOs.
The Committee will need to use its experience to filter manifestly spurious and ill intended data, not least of all from politicians. The Advisory Committee must not become a political platform but a locus for substantive monitoring of achievements. It will want to have a methodology of careful double checking to verify data, and always to give Governments an opportunity to respond to criticisms. A dialogue should be encouraged to assist governments to be more effective in their implementation, whereever possible.
The information and advice must be essentially on laws, policies and practices that specifically affect national minorities, rather than the whole of society.
4. State Parties' reports
After the initial transmission of full information to the Secretary General on the legislative and other measures taken to given effect to the Convention, on a periodic basis further information of relevance will be transmitted. A cycle of three yearly reports may be appropriate, except where the Advisory Committee expresses special concern and requests through the Committee of Ministers a need for more regular reporting. The Framework Convention itself defines the areas of its competence and this will give the skeleton of how to organise state reports.
A model report and guidance notes would probably be very helpful to officials, recognising that some State will have genuine concerns that this may increase their bureaucratic work load. Although this may pale into insignificance when compared to the stability that this may give Europe, it is important that this is not too onerous and it recognises that officials will attend in person, as necessary, to provide supplementary data. Officials in interior/home affairs ministries are not staffed and judged on these criteria at present.
5. Presentation of Reports
Much can be learnt from the good practices established by the UN Treaty bodies. The dates of meetings and their agenda should be well publicised and a fund should be considered to enable members of national minorities (especially from Eastern Europe) and involved NGOs to come and make presentations.
Where possible, written communications should be received in advance so that the materials can be studied carefully by the Advisory Committee.
The Committee should also be prepared to take oral evidence from all serious parties in a similar way to the UN Working Group on Minorities. A dialogue should ensue with the relevant government, drawing on the best practices of the Ad Hoc Committee of Experts on the implementation procedure under the Convention on the Elimination of Racial Discrimination. This should be enhanced, for the reasons already given, to allow ad hoc representation on a specific situation, if conditions have changed considerably since the last detailed review.
Selected members of the Committee, possibly nominated rapporteurs, should be encouraged to make visits to States parties and be able to call on bodies at short notice to identify what is happening in situ. Governments should be encouraged to give whatever help is reasonably requested. These visits should be designed as confidence building measures to promote the Framework Convention and should not be targeted at problematic situations alone.
The explanatory report on the Framework Convention that was specifically agreed by the Committee of Ministers states that the monitoring of the implementation of this Framework Convention shall, in so far as possible be transparent. Consequently, it must be expected that the reports and other texts resulting from such monitoring will be published (para 97). It will probably be in the interest of its independence that, when conclusions and recommendations are being drawn up, the Advisory Committee meets in camera.
8. Outcomes of Deliberations
The Advisory Committee will evaluate the adequacy of the measures taken by parties and should make recommendations thereon.
The format of their report should ensure that it includes successes, failures, and recommendations for action. The report should as far as possible be by consensus, votes may be called by secret ballot if requested by any two members. These will be transmitted as advice to the Committee of Ministers, who should in normal circumstances take the advice and convey it directly onwards to States without comment. In exceptional circumstances where the Advisory Committee has identified and drawn the attention of the Committee of Ministers to a serious breach of the Convention, a discussion of the Committee of Ministers should be held with the possibility of the issue being presented to the Parliamentary Assembly for a wider discussion.
Clearly debate cannot be prohibited, as the Advisory Committee is subservient to
the Committee of Ministers, but members can be discouraged from reopening an
investigation unless there were major procedural flaws. In such rare cases the report
might be referred back. Conversely there will be occasions when the Advisory Committee
will want to seek the advice, support or concern of the Committee of Ministers to exert
substantial pressure but in general the form of persuasion will essentially be through the
spotlight of publicity.
9. Confidence building - Dissemination of findings
The report and any recommendations will go via the Committee of Ministers to the relevant State, while the Explanatory Report to the Framework Convention makes clear that the publication of the report is envisaged. This is essential for transparency. Too often international instruments and States compliance are treated as confidential offering no opportunity for civic society to be informed and to participate in a democratic manner.
Consequently it will be important to look at ways of disseminating the findings within a country, possibly with the help of NGOs, while the need to translate the report into minority languages, as well as the main official language, must not be forgotten.
7. COUNCIL OF EUROPE SUPPORT
This is one of the most critical areas, where the competence, commitment, experience, and seniority of the Council of Europe staff will affect the effectiveness of the Committee. It will be important for there to be translation, interpreting and secretarial support while good notes and advice on how to make best use of the system will be found invaluable by minorities.
Links will need to be developed and maintained with other parts of the Council of Europe and outside to maximise the contacts and outreach of the promotional work. Committed, unbureaucratic, efficient and effective staff are essential and always at a premium.
A substantial budget will be essential. There are a number of essential costs apart from staff, interpreting and translation costs,it should include all costs and an honorarium for Committee members, the possibility of monitoring visits, funds to enable minorities to attend, the publication of effective advice, training on the Framework Convention throughout Europe etc.
The Committee of Ministers will also have another indirect but important role in agreeing to financial and staffing resources to undertake the work.
If the intention is to see that the Framework Convention is not implemented then the easiest way to do so and avoid criticism from others is probably to starve the Committee and the Secretariat of money. The arguments can already be predicted on growing bureaucracy and the need for tight financial discipline. The crucial argument here
is did the Committee of Ministers mean to refer to the protection of national minorities
being essential to stability, democratic security and peace.
I suggest that costs are compared to those of buying just one new military fighter aircraft at over $30 million or the cost of the peace keeping mission in Yugoslavia today.
8. PROMOTIONAL ACTIVITIES
1. Exchange of Information
Other actors and other mechanisms are in place and indeed should be encouraged to meet such an important common goal. Governments and indeed the electorates do not like duplication without added value and do not like inefficiencies through poor information and communication. Consequently it is essential that there is a good exchange of information both within the Council of Europe and between it and the OSCE and the UN.
2. Education and Technical Assistance
Where possible Intergovernmental bodies (e.g. the OSCE High Commissioner on National Minorities), Parliaments (including the Council of Europe Parliamentary Assembly), Governmental bodies (e.g. Ministries of Justice, Local Authorities, Quasi Governmental bodies (e.g. Minority Commissions), Academic Institutes (e.g. Human Rights and Ethnic relations studies), and Non Governmental bodies (e.g. International Helsinki Federation, Minority Rights Group) should be enjoined by The Council of Europe to help make this Convention a success .
It implies information, education and technical assistance activities that explain in different languages, to different cultures, to different educational and social groups the substance of the convention so that it may be popularly known and respected. Too often under communist systems in Eastern Europe Rights were treated as a state secret.
It would need to go beyond this to be constructive identifying ways and means by which States and other have successfully developed models of good practice within the context of the Framework Convention. These may include sharing the curricula of training courses for public official, legal training, multicultural education within the curriculum, language and culture activities and their enhancement through effective laws, policies and practices.
The Advisory Committee should be kept abreast of these activities and ensure that its experiences are of benefit to others working to the common objective of protecting national minorities.
The author of this paper is the Director of Minority Rights Group International (MRG) based in London. The organisation has considerable experience of promoting standards for minorities in different fora including the CSCE (as it was) at Copenhagen, Geneva and Helsinki as well as at the UN with the UN Declaration on the Rights of Person belonging to National or Ethnic, Religious and Linguistic Minorities. MRG has also participated in
CSCE implementation meetings, provided information to UN Treaty Bodies, and
contributed to the UN Working Group on Minorities.
However this paper has been prepared at comparatively short notice and must be regarded as a personal contribution. The views here do not necessarily represent the views of MRG as an organisation, as full consultations have not taken place in the comparatively short time available. Nevertheless, as the author, I would like to thank those who commented on the first draft very speedily and gave me considerable help in improving the text, which of course remains my responsibility.