The FCNM is the first really functioning [1] multilateral legally binding treaty entirely dedicated to minority issues, and it is the largest contribution to minority protection in history. Indeed, the FCNM would be a big achievement even regardless of its content given that the previously existing international legal framework for minority protection was loose and incomplete. The FCNM contains a comprehensive and coherent set of major principles and guidelines for minority protection that affect ethnic policies and politics across Europe and beyond [2].

What are the deficiencies of the existing instruments, primarily the FCNM? Can the international and in particular European legal minority framework be further developed? If yes, what could and should be suggested and then hopefully done? These issues are not too often discussed even within professional communities dealing with national minorities. Most prefer to talk about the problems of implementation at domestic level; at best, some would admit that the FCNM’s major problems are its vagueness and the weakness of implementation mechanism [3].

The reluctance to discuss potential developments stems from the fact that currently they are unlikely and barely predictable. In early 1990s, there were obvious driving forces behind minority protection in Europe, and they were clearly referred to, for example, in the Declaration of the Council of Europe’s First Summit (Vienna, 9 October 1993) which led to the elaboration of the FCNM [4]. Both ‘old’ and ‘new’ democracies did not object the need to prevent and mitigate ethnic conflicts in the post-communist countries and the common interest in the expansion of liberal-democratic values and institutions eastwards. There was a common belief that minority protection was a remedy for ethnic conflicts and that it was a part of European values, and thus the elaboration and adoption of the FCNM and other instruments were relatively smooth. The developments within the CSCE had a similar basis. Further on, the FCNM was backed by the EU enlargement and neighborhood policies and the respective conditionality principle linked to the target countries’ compliance with the CoE instruments. The developments within the UN system were a bit different but to a large extent following the same logic: democracy and human rights were on the rise. Currently the situation is different; minority issues are becoming either marginal against the background of new challenges or increasingly problematic. One cannot fully deny the chances of some novelties within the EU or in bilateral arrangements, perhaps, inspired by the need to regulate outward diaspora policies, but so far these opportunities look merely speculative.

However, even a theoretical discussion about future development in minority protection makes sense, because it brings new insights and facilitates changes when they are on the agenda in practical terms. In theory, this discussion can concern two types of developments, namely inside and outside of the current consensus on what comprises minority protection.

The adoption of the FCNM as well as of other minority-related instruments was a compromise. Its content and limits are not explicitly outlined, but they are implicitly observed and have proved their stability and resilience. In legal terms, minority protection rests of a balance of values and principles; in political terms, it is a balance of the stakeholders’ divergent interests. On the one hand, the Framework Convention rejects the ideal of ethnically homogeneous society and explicitly prohibits forced assimilation. On the other hand, there is nothing that would be incompatible with ethno-nationalism and that can really bar milder ‘nationalizing’ practices which marginalize minorities. On the one hand, the FCNM rests on the idea of individual rights, and the Explanatory Report stresses that no collective rights are envisaged (items 13 and 31) [5]. On the other hand, it is implied that minority protection can and shall be achieved through the notion of group and thus the institutionalization of belonging to a group. On the one hand, the FCNM does not contain a definition of ‘minority’ and does not explicitly establish a hierarchy of groups; on the other hand, some formulations can be interpreted as privileging ‘deeply rooted’ or long-established settlers in a territory vis-à-vis relative newcomers. The rights of persons belonging to minorities must be secured, but the FCNM pays tribute to the maintenance of the larger society’s cohesiveness referring to the need for national integration and everybody’s good command of the state language. The Convention stipulates that belonging to a minority is a matter of free individual choice; along with this, the Explanatory Report contains a reservation that individual ethnic affiliation shall be based on ‘objective’ criteria (item 35) [6]. All are in favor of minority protection, but there are no clear criteria for defining the necessity and sufficiency of protective measures; the right of persons belonging to minorities shall be of low cost. The FCNM is legally binding, but it has no enforcement mechanism (it aims rather at facilitating a dialogue), and governments can easily circumvent the Convention’s requirement and ignore the Advisory Committee’s opinions.

The CSCE Copenhagen Document of 29 June 1990 and the FCNM refer to minority protection as an integral part of the international protection of human rights, and this idea has become a mantra [7]. However, minority protection demonstrates a high degree of ambiguity and inconsistency; it has both emancipatory and repressive potential. It means the detalization and adaptation of general human rights in a certain specific context and counters encroachments on human equality. Along with this, minority protection is a derivative of the idea of nation-state, and minorities are at least symbolically kept subordinate to the ‘true’ holders of the statehood and territory. An individual can enjoy his/her specific rights only through group affiliation, and this limits the choice and implies that this person must be subordinate to those who set up the rules and criteria for group belonging.

A move beyond the current framework of minority protection can be thus in divergent directions and lead to different outcomes. This issue is truly interesting albeit speculative, because there are no signs there any significant political forces are able and willing to destroy the current balance [8]. Perhaps, it is not bad in itself. The three most popular suggestions allegedly aimed at enhancing minority protection, namely, the introduction of a clear definition of minority, group rights and special preferential measures, imply further state interventionism and the empowerment of ethnic activists – to the prejudice of individual autonomy and the freedom of choice. These ideas are of low relevance in Europe, and there are no forces that can really lobby for their introduction even in soft-law instruments. Would the latter happen, a real implementation of group rights and far-reaching special measures looks barely feasible; rather all talks about the rights of groups and the need for preferential treatment boost victimhood rhetoric on behalf of people whose rights are allegedly violated and provokes majority backlash. However, this topic deserves a separate consideration.

One can list a few potential progressive developments that look relevant, particularly in the light of the FCNM’s implementation record, and that are supposedly within the current silent consensus on minority protection.

(1) A huge and an old problem with minority issues is that the institute of minorities resembles too much the institute of hostages. A national minority is perceived by the government of the country where it lives as an extension of another country (the minority’s ‘kin-state’), and the rights and wellbeing of persons belonging to minority depends on interstate relations. Perhaps, it would be unrealistic to expect that such attitudes and policies can be fully eradicated in modern world. However, at least soft-law instruments could explicitly repudiate the principle of reciprocity in minority protection: the rights of persons belonging to a minority shall be observed regardless of the policies of that minority’s kin-state. So far, only the Explanatory Note to the Bolzano/Bozen Recommendations of the OSCE High Commissioner on National Minorities (2008) contain a vague reference to the inapplicability of the reciprocity principle [9].

(2) There is a need to introduce the ratchet principle, or the requirement that institutions aiming at minority protection once introduced shall not be abolished. Since a principle, being explicitly formulated, could prevent or mitigate ‘nationalizing’ practices under the banner of ‘integration’ or ‘revocation of minority privilege’.

(3) A significant shortcoming of the modern system of minority protection is that no individual complaints or communications on minority issues proper are not envisaged. Even if a weak mechanism of this kind even without obligatory decisions existed, it could bring international monitoring and dialogue closer to the ground and make them non-stop and independent of monitoring cycles or diplomatic considerations.

(4) A big challenge is that most minority claims are not justiciable. Indeed, it is not easy to set up clear assessment criteria and indicators for claims or policies related to language, culture or historical symbols. A partial solution could be in the quasi-arbitration mechanisms and public deliberations where the parties could discuss their claims and exchange arguments. In theory, this could be done under the aegis of independent human rights institutions and could help avoid both politicization and the rhetoric of rights’ violation that are in many cases counter-productive for the resolution of minority-related disputes. International soft-law instruments could encourage the creation and proliferation of such institutions. So far, only the Graz Recommendations of the HCNM on Access to Justice and National Minorities (2017) briefly touch upon the issue of minority-related dispute resolution [10].

Of course, this list is not exhaustive, and there can be other ideas that are not at odds with the modern mainstream perceptions of what is feasible and what is not in the domain of minority protection. In theory, they can be incorporated into new recommendations of the CoE (like the Thematic Recommendations of the Advisory Committee on the Framework Convention and resolutions of the PACE), the OSCE (the HCNM Recommendations) or even the European Parliament. A protocol to the FCNM or to the European Convention of Human Rights is not fully impossible [11]. There are no guarantees that such motions will take place and end up with a meaningful result. However, no progress is possible without formulating the issue, discussing it and then putting on the political agenda.

References:

[1] The first legally binding multilateral international treaty on minority protection was the Convention on Providing the Rights of Persons Belonging to National Minorities of the Commonwealth of Independent States. It was adopted in 1994 and took effect in 1997. However, it is not a functioning instrument.
[2] For more on the FCNM see: Marc Weller (ed.) The Rights of Minorities in Europe. A Commentary on the European Framework Convention for the Protection of National Minorities. Oxford: Oxford University Press, 2005.
[3] For the recent opinions of the leading European experts see: 20 Years of Dealing with Diversity: Is the Framework Convention at a Crossroads? Compiled by Stéphanie Marsal. Flensburg: ECMI, 2018.
[4] Declaration of the Council of Europe’s First Summit (Vienna, 9 October 1993): https://www.cvce.eu/en/obj/declaration_of_the_council_of_europe_s_first_summit_vienna_9_october_1993-en-d7c530b5-a7c9-43f9-95af-c28b3c8b50d3.html.
[5] The Framework Convention for the Protection of National Minorities and Explanatory Report, Strasbourg, February 1995, H (95) 10: https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016800c10cf.
[6] Ibid.
[7] 20 Years of the Framework Convention for the Protection of National Minorities (FCNM): https://www.coe.int/en/web/minorities/20-years.
[8] The general trend is rather a slow marginalisation of minority issues.
[9] Explanatory Note to the Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations; Note to item 15: https://www.osce.org/hcnm/bolzano-bozen-recommendations.
[10] The Graz Recommendations on Access to Justice and National Minorities, item 2 (iv): https://www.osce.org/hcnm/graz-recommendations.
[11] ‘The skeptics. Gudmundur Alfredsson’. In: op.cit. note 3, p.17.