Strasbourg, 13 May 1996
AS/Jur/DH (1996) 3 rev




on the Advisory Committee under Article 26 of the Framework Convention
for the Protection of National Minorities


Professor Gudmundur Alfredsson See footnote 1



1.     This report considers in three chapters the various options concerning the functions, procedures and composition of the Advisory Committee (AC) which is foreseen in article 26 of the Framework Convention for the Protection of National Minorities (FC), as adopted by the Council of Europe in 1994. The report is prepared for the Sub-Committee on Human Rights of the Parliamentary Assembly. Frequent references are made to comparable practices of the United Nations human rights programme, in particular the treaty-monitoring bodies, as suggested in the request addressed to the author by the Clerk of the Parliamentary Assembly.

2.     Under Article 24, the Committee of Ministers "shall monitor the implementation" of FC by the Contracting Parties. The AC will serve under the Committee of Ministers and advise them in carrying out this task. The maximum professionalism of AC as a human rights monitoring body, in terms of well-defined and precise tasks, detailed reporting guidelines and independent expertise, would undoubtedly facilitate the work of the Committee of Ministers by emphasising objectivity and impartiality, by contributing to the equal treatment of both groups and countries, by relying on the rule of law with a focus on the technical and legal aspects of FC, and by reducing the politization of many sensitive issues bound to come up for consideration.


3.     The tasks of AC center around the review of State reports, both initial and supplementary reports. Governments are expected, within a year of the entry into force

of FC in respect of a State Party, in accordance with paragraph 1 of article 25, to submit "full information on the legislative and other measures taken to give effect to the principles set out in" FC. Additional reports are due, on a periodical basis and in accordance with paragraph 2 of article 25, with "any further information of relevance to the implementation of" FC. The Convention does not employ the terminology of 'State reports', but the procedure nevertheless amounts to what is commonly so known; the use of this term would provide ready reference to well-established treaty-monitoring procedures employed by the United Nations.

4.    In reviewing the State reports, the AC must be in a position to evaluate information relating to both law and fact. The FC emphasises full information about measures which are intended to give effect to its principles and which are relevant to the implementation of these principles. In paragraph 1 of article 26, there is also a reference to evaluating "the adequacy of the measures taken". It is important that States have in place legislative acts and administrative measures which fall in line with the commitments undertaken, but these are not worth much without effective remedies leading to the corresponding realization of the principles into everyday life of the persons concerned.

5.    The AC must therefore obtain information from the States Parties about relevant bills of rights, legislation and administrative or other measures; the incorporation of international and regional standards and those in bilateral agreements; available remedies with focus on judicial and administrative decisions; negotiated settlements; the relevant activities of independent national institutions in general and of those set up for minority issues (commissions, round tables, etc.) in particular; autonomous regimes or other special arrangements to the benefit of minorities; relevant statistics; and so on. These observations relate to the remarks below, under procedures, about the need for detailed reporting guidelines.

6.    Many treaties and conventions adopted under the auspices of international and regional organizations contain standards relating to minority rights. This is true for the fundamental rules concerning equal enjoyment of all human rights, that is civil, cultural, economic, political and social rights, including equality before the law, equality before the courts and equal access to public service. The prohibition of discrimination in this enjoyment, on grounds related to such minority characteristics as national or ethnic origin, culture, language and religion, is likewise spelled out in a long series of instruments. In addition, many texts carry minority-specific standards, either establishing special rights or obliging States to take special measures (also referred to as preferential treatment or affirmative action) in order to overcome discriminatory patterns and to guarantee equal enjoyment of the rights.

7.    As far as UN treaties with reporting obligations are concerned, there are equal enjoyment, non-discrimination and minority-specific provisions in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the International Convention on the Elimination of All Forms of Racial Discrimination. For each one of these treaties, the respective independent monitoring bodies have adopted substantive reporting guidelines with detailed instructions to the reporting States; the guidelines also serve to influence the objective examination of the reports by the expert committees concerned. To a large extent, States likely to subscribe to FC are already Parties to these international treaties. The AC has much to learn from the existing practices of these committees, in particular with regard to the preparation and adoption of reporting guidelines; the lessons are contained in their annual reports and in the Manual on

Human Rights Reporting, New York: United Nations, 1991. See also below under procedures and composition.

8.    The increasing number of reporting obligations has caused some State unhappiness. Nevertheless, ideas about a super-report or otherwise simplified reporting procedures have not yet prevailed. There is no doubt that the FC standards and reporting requirements overlap with those in some of the above-mentioned treaties. To the degree possible, the AC may want to streamline its own reporting guidelines along similar international exercises. The AC may even want to call upon the Council of Europe Secretariat to compile the relevant portions of reports by States Parties to FC under the corresponding UN instruments for reasons of accuracy and completeness. The AC should never be satisfied with anything less than the highest quality of standards and the reports thereon, even to the point of exploringly reaching beyond the FC principles (see in this context the 10th preambular paragraph of FC).

9.    Admittedly, the goals now described are ambitious, but they would serve to give the AC, and by extension the Council of Europe, a more significant role in the supervision of compliance with minority rights standards. In this manner, the danger of reduced standards and conflicting reports is also reduced. AC would most definitely be unique and useful as the only treaty-based monitoring body anywhere with a focus on and comprehensive coverage of minority rights. These comments may be appropriate inasmuch as the Council now finds itself in third place, with respect to both relevant standards and implementation procedures, behind the Organization on Security and Cooperation in Europe (OSCE) and the United Nations.


10.    In this chapter, the following issues will be addressed: guidelines to Governments for their preparation of the State reports; the availability of additional information about State performance from other IGOs as well as NGOs; the access of minorities and their representatives to AC meetings; a set of possible recommendations from AC in reaction to the examination of the State reports, with an emphasis on technical cooperation; and practical questions like methods for handling reports in AC meetings, meeting time, Secretariat support, and field visits.

11.    The AC should draft and adopt guidelines for each substantive article of FC, explaining in considerable detail the legal and factual information needed and wanted for the examination of State reports. In so doing, the AC will make the reporting task easier for Governments; the reports and their consideration by AC will be harmonized; and different countries will be asked identical questions resulting in similar treatment with the same expectations across the continent. In this manner, the universality of the standards and the rule of law will be strengthened. In preparing the guidelines, as mentioned above, the AC can draw many lessons and precedents from the practices of the UN treaty-monitoring bodies.

12.    There is plenty of information on the market about the situation of minorities in all of the likely States Parties. Reference has already been made to State reports under UN treaties with minority-specific standards; relevant information appears also in the case-law of the treaty-monitoring bodies, in the reports of the Special Rapporteurs and working groups of the UN Commission on Human Rights and in the reports of research rapporteurs and working groups of the Sub-Commission on Prevention of Discrimination and Protection of Minorities. Additional information about State performance in this field is also available from other IGOs (UN Secretariat entities like CHR, DHA and DPA,

UNHCR, UNDP, UNU, UNRISD, UNESCO, ILO, the World Bank, OSCE, EU, etc.) and NGOs (the Minority Rights Group, the International Helsinki Federation, Amnesty International, Human Rights Watch, etc.).

13.    There is a clear trend at the United Nations to grant minorities or their representatives direct and easy access to human rights meetings where issues of concern to them are debated. This is the case for both the Working Group on Minorities (established in 1995) and the Working Group on Indigenous Populations (established in 1982), both expert bodies which are answerable to the Sub-Commission. In addition, several groups have obtained consultative status as NGOs with the Economic and Social Council which opens the doors to most UN human rights meetings (see in this context paragraph 2 of article 17 of FC). The UN High Commissioner for Human Rights has received a mandate from the General Assembly authorizing him to deal directly with minorities. At least two cases have been made public where the UN Secretary-General has exercised his good offices on behalf of and in close cooperation with groups in trouble.

14.    At the OSCE, contacts with minorities and their representatives are an essential component of creating and maintaining dialogue for preventing conflicts and protecting human dimension standards. The High Commissioner on National Minorities has set an excellent example. The overall experience of IGOs with increased access by groups and frequent encounters with groups has been positive and productive.

15.    As far as the UN treaty-monitoring bodies are concerned, groups and their representatives are increasingly making use of complaints procedures (when available). Information from NGOs is also a major factor in the consideration of State reports, either officially, like in the case of the Committee on the Rights of the Child, or unofficially for some of the other committees. In both settings, such information contributes to supplementing or even correcting what is sometimes self-serving and uncritical information received from the States. It is both desirable and natural that the AC, relying on equality and the rule of law and seeking all the necessary facts, follow these participation trends which so clearly appear in the work of other IGOs, by giving minorities and NGOs an opportunity, orally and/or in writing, to present pertinent information and any other relevant points of view.

16.    If Government representatives were to think that proposals of this kind are going too far, they should be reminded that State sovereignty, political independence, national unity and territorial integrity are amply protected under international law in general and article 21 of FC and other international human rights instruments in particular. A monitoring procedure with minority access merely wants to hear the intended beneficiaries, living in democratic societies, with a view to establishing that the States are obeying the rules of the game.

17.    When the AC comes across instances where State performance falls short of FC principles, it should have resort to a well-defined variety of recommendations which the Committee of Ministers may want to use in their dealings with a State Party. These recommendations, to mention only a few, could range from calls or demands for:

- the adoption of, amendments to and/or implementation of new or existing legislation and administrative measures in light of FC principles;

- the setting up of independent national institutions, in particular those dealing specifically with minority issues and with minority participation;

- the necessary educational and training facilities, including trainers and teaching materials, for creating the mutual respect and understanding required for the realization of FC principles;

- the translation of relevant instruments, as well as State reports under FC and AC recommendations, into the respective national and minority languages;

- the enhanced cooperation with or use of any international or regional human rights implementation body which is or could be dealing with the situation in the country in question;

- technical cooperation, by way of expert assistance and advisory services, with the Council of Europe Secretariat, the Venice Commission, other IGOs as appropriate, or non-governmental and academic institutions. One of the aims of such cooperation would be the prevention of violations and violence through improved legislation and dialogue between the parties; and, finally,

- when everything else fails, the condemnation of obvious lack of State compliance with the FC principles.

18.    The technical cooperation avenue, mentioned in the preceding paragraph, is gaining ground with the UN treaty-monitoring bodies; it is currently the fastest growing branch of international and bilateral human rights work. For maximum use of limited resources and better results, technical assistance activities would benefit from improved cooperation and coordination between the various IGOs and other actors; again, here is a possibility for AC and the Council of Europe to assume a leading role in the field of minority rights supervision. The AC may accordingly request the Council of Europe Secretariat to compile information about relevant projects of this kind being rendered to FC States Parties, with the aims of avoiding unnecessary duplication of efforts and of directing assistance to where it is most needed.

19.    The Committee of Ministers should have to explain its reasons for a decision not to follow AC recommendations. Such a requirement will serve to further move minority rights from the realm of politics to the rule of law.

20.    State reports should be due a few months prior to the AC meeting where they will come up for discussion, so that AC members and other interested parties can review them and compare them with other available source materials, including Council of Europe Secretariat compilations as suggested above. Representatives of the Government concerned should be present at these meetings in order to answer questions and provide clarifications. Representatives of minorities, other States, IGOs and NGOs (drawing on the accreditation experience of the Council of Europe and/or the United Nations) should have the right to speak. The meetings should be public, although the AC may want, in exceptional circumstances, to keep the option open for certain matters to be considered behind closed doors if quiet diplomacy is deemed more likely to produce results. Dialogues between Governments and groups, for example, could be better conducted in private.

21.    The State reports should be public documents of the Council of Europe. The reports and any additional information, as well as the debates thereon (except for closed meetings), should also be made available in the respective countries in both national and minority languages (see comment on transparent monitoring in paragraph 97 of the Explanatory Report to FC).

22.    It is reasonable to expect that the examination of each State report would take a minimum of 1-2 meeting days. With twelve States Parties, for example, the AC would require meeting time of 3-4 weeks per year. At the outset, for the preparation of reporting guidelines and rules of procedures (conduct of meetings, election of officers, voting, etc.), additional meeting time would be needed. Later on, moving on to periodical reports, meeting time requirements might go down. Strong Secretariat support, in terms of information gathering, analysis and drafting work, would also reduce the number of necessary meeting days.

23.     As a matter of preference, decisions should be taken by consensus. If that is not possible, the members should be able to take decisions by a majority vote. A dissenting voice may (or should even be expected to) explain his/her vote.

24.    States Parties should be encouraged to invite the AC to meet in their countries for obtaining first-hand information and making direct contacts with the people involved. Likewise, it would be desirable if AC members with Committee endorsements, Secretariat support and Government approval were to visit countries on fact-finding and/or needs assessment missions, as is now done by the Committee on the Elimination of Racial Discrimination.


25.    In article 26 of the FC, paragraph 1, it says that AC members "shall have recognized expertise in the field of the protection of national minorities". Such expertise exists in many places: in governmental offices, with the minorities themselves, in academia and at NGOs. The wording of article 26 indicates expertise in human rights and minority rights; it should also be read to mean different professional disciplines, knowledge of country situations, political wisdom, and practical experience.

26.    There is good reason to insist also upon the independence of AC members which is even more important than their expertise. The members of the UN treaty-monitoring bodies, as well as those of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and its working groups on minorities and indigenous populations, are as a rule designated as independent experts. They are not all perfect, some are more independent and expert-oriented than others, but there is nevertheless a marked difference between the debates and decisions of such expert bodies and organs composed of governmental delegates. With reference to the independent experts serving on its Commission and Court of Human Rights, the Council of Europe has a distinguished record to build on.

27.     The choice between an AC with one member for each State Party or a fixed number (5, 7, 9 or 11 members) is not really important, as compared with the qualifications. Cost considerations would speak in favour of a fixed number. Likewise, the duration of terms is not all that important (3, 4 or 5 years), but the possibility of reelection would help build up AC expertise.

28.    Decisions to be made about the functions and procedures of AC will inevitably influence its composition. Independent persons with recognized expertise are more likely to want to serve on a monitoring body with serious and significant functions, to which the Committee of Ministers and States Parties are bound to listen. At the same time, such a body of prestige will also prompt a number of Parties, even more eagerly than otherwise would be the case, to nominate their own loyal functionaries as candidates for AC membership. Perhaps both Governments and minorities could nominate experts (one or

more), and these could be evaluated by the Parliamentary Assembly and/or the Secretary General, while the final choice, on the basis of merits, would rest with the Committee of Ministers. It might also be desirable if the qualifications were to be described in positive terms (what is necessary) or negative terms (excluding certain categories of people). The wise choice of members may well be crucial for the success of AC in its role of monitoring measures taken to give effect to the FC principles.

Footnote: 1 Cand. jur., University of Iceland 1975; M.C.J., New York University School of Law 1976; and S.J.D., Harvard Law School 1982. The author worked in the UN Centre for Human Rights 1985-95; he is now Professor and Co-Director of the Raoul Wallenberg Institute for Human Rights and Humanitarian Law at the University of Lund, Sweden.

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