Subject: POLITICAL INITIATIVES OF THE TRANSNATION RADICAL PARTY
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(7) POLITICAL INITIATIVES OF THE TRANSNATION RADICAL PARTY
by Emma Bonino, Secretary of the Radical Party
Sofia, 15-18 July 1993, Radical Party General Council
(7) The rights of national minorities
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The role of the CSCE, the function of the High Commissioner for national
minorities and the setting up of a system to protct the rights of minority
groups.
SUMMARY: The final Act produced at Helsinki (1975) was very non-committal,
and also ambiguous, with regard to the recognition of national minorities
and their collective rights. A real step forward was taken, however, at
the second Session of the Conference on the Human Dimension, held in
Copenhagen (1990), which established that individuals "choose" to which
national minority they belong.
The CSCE Paris Conference (1990), therefore, sought to define the
Pan-European institutional situation regarding the rights of national
minorites, which appeared to be the Achille's heel of European security.
When Slovenia and Croatia declared their independence, a meeting of experts
was held at Geneva (July 1991), which declared that "national minorites do
not pertain exclusively to a State's internal affairs." It was a fitting
declaration at the time. But we had to wait until the Helsinki Summit in
1992 before the High Commissioner's Office for national minorities was
created.
It is at this level that we must take action, strengthening the instruments
for preventing and peacefully resolving disputes. In short, only the
creation of a system like the one provided for by the European Convention
on Human Rights drawn up at Strasbourg, can give the necessary importance
to the individual's legal right to belong to an ethnic minority and,
therefore, to protect this right.
The final Act produced at Helsinki in 1975 was extremely non-committal
regarding the recognition of national minorities, especially with respect
to their collective rights.
According to the VII principle of the final Act: "The States in whose
territories national minorties are present shall respect the rights of the
people who belong to these minorities who are equal before the law, giving
them every possibility to effectively enjoy the fundamental rights of man
and of freedom and, in so doing, protect their legitmate interests in this
area." The terms used do not permit the same precise interpretation as
those which govern the International Convention of Civil and Political
Rights (Art. 27).
For example, the term "ethnic, religious and linguistic minorites" in Art.
27 of the Convention is substituted with the more ambiguous "national
minorities" in the Helsinki Act.
After some futile attempts to advance the cause of rights and guarantees
for minority groups in the Seventies and the Eighties, the final document
produced by the Vienna meeting, which was adopted on 15 January 1989, made
two innovations: on the one hand, it called for the protection of"ethnic,
cultural, linguistic and religous identity of national minorities, and on
the other hand, it extended to "people belonging to national minorities or
to religious cultures" the provisions concerning benefits related to human
contact (emigration and travel abroad), information, culture and education.
In substance, the Vienna document of 1989 extends the indiviual rights
inherent in belonging to a national minority to cover the human dimension
of the CSCE (third group). It is precisely to uphold these rights that the
Vienna document, via the mechanism of said "human dimension of the CSCE",
permits intergovernmental requests for and exchanges of information on
related issues, including specific situations and individual cases.
A great step forward was taken at the 2nd Session of the Conference on the
Human Dimension, held at Copenhagen from 5 - 29 June 1990. A whole chapter
in the final document was dedicated to national minorities. The text
maintains that there is an interdependence between the rights of ethnic
minorities and a democratic political system, and also the role played by
nongovernmental organizations,"including political parties, trade unions,
human rights organizations and religious groups' in the "attempt to resolve
problems regarding national minorities" (par. 30); then it specifies that
"belonging to a national minority is a matter of personal choice. There
must be no disadvantages inherent in this choice." (par. 32) In other
words, it is not a State that determines the existence of national
minorities but the individuals who lay claim to them (here, there is an
implicit contradiction to Principle VII of the final Act produced at
Helsinki).
Furthermore, this concept avoids the very controversial issue of defining a
national minority, and makes it possible to maintain the criterion of
belonging individually to a minority group, but with collective rights.
The latter are specified as follows: "The individuals belonging to an
ethnic minority have the right to express, to conserve and to develop their
ethnic, cultural, linquistic and religious identity, in complete freedom;
and to maintain and develop their culture in all its forms, while being
protected from all attempts at assimilation against their will."
The Paris Conference held by the CSCE from 19 - 21 November 1990, sought to
define the situation with regard to Pan-European institutions. The
question of national minorities appeared be the Achille's heel of European
security. The Paris Charter for a New Europe, which was adopted on this
occasion, affirms under the heading "A New Era of Democracy, Peace and
Unity", that "the ethnic, cultural, linguistic and religious identity of
national minorities shall be protected, and persons belonging to these
minorities have the right to express, to preserve and to develop this
identity without being subject to any form of discrimination, and all being
equal before the law." The participating States further recognize "the
valuable contribution mmade by national minorities to social life" and they
express, once again, their "determination to combat all forms of racial or
ethnic hatred, anti-Semitism, xenophobia or discrimination against anyone,
and also all forms of persecution for religious or ideological motives."
A meeting of experts summoned at Geneva from 1 - 19 July 1991 to discuss
ethnic minorities, after Slovenia and Croatia had declared their
independence on 25 June 1991, proved to be most opportune and urgently
needed. On this occasion, a fundamental principle of international law was
upheld: national minorities "do not appertain (...) exclusively to a
State's internal affairs." In the second place, the Geneva Report
requested all necessary information to be supplied and the monitoring of
free elections held in the CSCE, with observers being sent to public
elections, at both a regional and local level, and particularly in areas
inhabited by national minorities.
Nevertheless, it was not possible to adopt a specfic process of protection,
even though three propsals were put forward by neutral and nonaligned
countries, the Pentagon and the US.
A process was finally adopted during the 3rd Session of the Conference on
the Human Dimension held at Moscow from 10 September to 4 Ottobre 1991, on
occasion of which the human dimension process itself was considerably
strengthened, and deliberately extended to include "the protection and
promotion of the rights of persons belonging to national minorities."
The Office of the High Commissioner for national minorites was proposed by
the Dutch and set up on occasion of the 1992 Helsinki Summit. It was
conceived as a new CSCE institution and as "an instrument for preventing
conflict in the very early stages." Its function is directly linked to the
security aspect of the national minorities problem, as it intervenes "when
tension created by problems regarding national minorities risks
degenerating into a conflict in the territory of the CSCE, and threatening
peace, stability and relations between participating States." The human
dimension and the legitimation of denouncements made by individuals
benefits from the structures of the Office of the Democratic Institutions
and of Human Rights, in Warsaw.
Tension involving ethnic minorities can escalate into conflicts that
endanger peace, stability and diplomatic relations between member States.
The High Commissioner must intervene when the conflict threatens to extend
beyond the borders of the State inhabited by the national minority;
however, he must refrain from intervening when the conflict is marked by
acts of organized terrorism.
The High Commissioner's functions include early warning and early action.
Early warning entails a careful examination of the situation and the
gathering of necessary information, also by visiting the territory in
question, with the State's approval.
These preventive instruments are still very ineffective for dealing with
the challenge constituted by national minorities. From the point of view
of their overall size and their effect on security, the CSCE institutions
could ideally be strengthened on the following three levels:
- by appointing a Secretariat which is equipped with real powers and the
means for taking action;
- by establishing processes for rapid peacekeeping actions, with decisions
being made by a majority vote or by a small security council with this
specific responsibility;
- by developing new instruments for the prevention and peaceful settlement
of controversies, such as a Pan-European Court of Arbitration or of
Conciliation, which is also authorized to judge on territorial issues, and
those pertaining to internal borders and national minorities. It is a
question of developing the process of peaceful settlement of controversies,
created at La Valletta in February 1991, which has still not yet been
adopted.
Even though considerable progress has been made regarding the human
dimension of the rights of national minorities, it cannot be denied that
the CSCE has adopted an ambiguous attitude in at least two areas, the
complexity of which has been fully revealed by the work done earlier by the
UN and that which is now being effected by the European Council. On the
one hand, the CSCE has never once attempted to define the term "national
minority":, preferring a more practical approach. On the other hand, its
intergovernmental, and extremely political nature has prevented it from
thoroughly exploring ways of reconciling the principles of the Decalogue
regarding the inviolability of borders (principle II), the territorial
integrity of States (principle IV), the non-intervention in domestic
affairs (principle VI) and the self-government of peoples (principle VIII).
Only the introduction of a system, like that of the Strasbourg European
Convention on Human Rights, could give major importance, once again, to
the individual's legal right to protect his right to belong to a minority
group.
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High Commissioner for National Minorities (Helsinki Act 1992)
The Council wil appoint a High Commissioner for National Minorities. The
High Commissioner will ensure a "warning signal" being given and, where
opportune, a "timely action" being taken as quickly as possible,with regard
to outbreaks of tension involving national minority-related problems, which
could escalate into conflicts within the territory of the CSCE, endangering
peace, stability or diplomatic relations between participating States. The
High Commissioner will avail himself of the structures available at the
Office for Democratic Institutions and Human Rights (ODIHR) in Warsaw.
- Mandate
The High Commissioner will act under the aegis of the CAF and, for this
reason, will constitute an instrument for preventing conflicts in their
earliest stage.
The High Commissioner will ensure a "warning signal" being given and, where
opportune, "timely action" being taken as quickly as possible, with regard
to outbreaks of tension involving national minority-related problems which
have still not gone beyond the early warning stage but which, according the
the High Commisioner, could degenerate into open conflict within the
territory of the CSCE, endangering peace, stability or diplomatic relations
between participating States, and requiring the attention and intervention
of the Council of Ministers of the CSCE or the CAF.
While remaining within the limits of this mandate, based on the principles
and commitments of the CSCE, the High Commissioner shall act according to
his own discretion and operate independently of all parties directly
involved in the outbreaks of tension.
The High Commissioner will take into consideration national
minority-related issues that arise in the State where the High Commissioner
is a citizen or a resident, or which involve a national minority to which
the High Commissioner belongs, on condition that all the parties directly
involved, including the interested State, are in agreement.
The High Commissioner will not take into consideration national
minority-related issues in situations which involve organized terrorist
attacks.
Neither will the High Commissioner take into consideration violations of
CSCE commitments concerning only one individual belonging to a national
minority.
In considering a situation, the High Commissioner shall take full note of
available democratic and international instruments for dealing with same,
and ensure that they are used for the benefit of the interested parties.
In the event that a particular problem relating to a national minority is
drawn to the attention of the CAF, the involvement of the High commissioner
will require a specific request and mandate from the CAF.
- Sources of Information for Problems Related to National Minorities
The High Commissioner can:
- gather and receive information regarding the situation of the national
minorities and the role of the participants involved from any source,
including mongovernmental information processes and organizations,
excluding those listed in paragraph (25);
- receive specific reports from the parties directly involved regarding
developments concerning issues related to the national minorities. These
reports can include information on the violations of CSCE commitments with
regard to national minorities, as well as on other violations carried out
within the context of issues related to national minorities.
These specific reports addressed to the High Commissioner must fulfil the
following requirements:
- they must be written reports sent to the High Commissioner, as such, and
signed with full name and address;- they must contain a factual account of
the developments concerning the state of persons belonging to national
minorities; and of the role of the parties involved in these developments
which have recently become manifest, in principle, not more than 12 months
previously. The reports must contain factual information of which there is
sufficient proof.
The High Commissioner will not communicate and will not accept
communications from any person or organization that practises or publicly
justifies terrorism or violence.
(more)
