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Strasbourg, 21 August 2001
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CDL (2001) 80
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
PAPER
CONTAINING THE POSITION OF THE
HUNGARIAN
GOVERNMENT IN RELATION
TO
THE ACT ON HUNGARIANS LIVING
IN
NEIGHBOURING COUNTRIES
PAPER CONTAINING THE POSITION OF
THE HUNGARIAN GOVERNMENT IN RELATION TO
THE ACT ON HUNGARIANS LIVING IN NEIGHBOURING COUNTRIES
1. Background
1.1. Since the systemic change in 1990, Hungary and its
foreign policy have always been stabilising factors in the region. Hungary has
been able to enshrine the positive effects of its successful social, political
and economic transformation through its regional policy. Successive Hungarian
governments have all recognised the importance and the indispensable nature of
bilateral and regional co-operation, in which they not only took part but often
played an initiating role. NATO membership and the good progress made in
Hungary’s accession negotiations with the EU acknowledge these endeavours and
achievements.
1.2. The Republic of Hungary attaches great importance to
the protection of national minorities. Without elaborating too much on the
historical background – which is, no doubt, well known to the Commission – it
should be pointed out that Hungary has accumulated significant experience
relating to national minorities regardless of whether they live inside or
outside its borders. These communities have always played a considerable role
in Hungarian history, their different cultures have contributed to the cultural
diversity of the country – even before this notion existed. Preservation and
integration of this diversity have been a continuous challenge for Hungarian
society, as Hungary has always been, throughout its thousand-year history, a
country receiving immigrants from across the region. Hungary will continue on
this track, taking as a point of departure the same values: preservation of
identity, no forced assimilation but rather promotion of cultural diversity and
active participation of the State in their realisation (see paras. 2.5-2.12 of
the present Paper).
1.3. This dedication of Hungary is proven not only by its
efforts in bilateral relations and active participation in the recent or
ongoing multilateral standard-setting and other related international
activities, but also by its internationally-recognised achievements in
protecting national minorities living in Hungary. The preservation and
promotion of the identity of national minorities contribute decisively to the
stability of the Central European region and – contrary to some sporadic, but
still existing arguments – do not undermine it. It is maintained that the
contemporary history of Europe and the Central European region in particular
has justified the conviction and approach of Hungary.
1.4. In this endeavour of Hungary, the political
organisations of Hungarians living in the neighbouring countries have acted as
responsible partners. In the Central European region, Hungarians constitute the
most numerous national minority communities although their numbers in the
neighbouring countries have been constantly diminishing for the last 80 years
or so (see Annex No. 1 of the present Paper). These persons or communities have
never moved away from their place of birth but due to historical changes, they
have found themselves separated from Hungary and confronted with the option of
the peace treaties: either to leave their place of birth or to be deprived of
their Hungarian citizenship. While those persons, staying in their country of
birth, lost their citizenship because of the peace treaties, Hungarians
emigrating and settling down in countries all over the world remained Hungarian
citizens or retained the possibility of claiming it. This is why the Act does
not apply to these persons. (Since the overwhelming majority of Hungarians
living in Austria falls within the second category, this was a reason why the
Act is not applicable in relation to Austria.) The will of the Hungarian
minority communities to preserve their linguistic-cultural identity must be
interpreted against this factual and historic background.
1.5. Without going
into a deeper politico-strategical analysis of the past decade in Central
Europe, a simple but still very important fact is worth mentioning. Hungarian
minority communities have never resorted to violence; they have always remained
faithful to constitutional and political tools. Political organisations of
Hungarian communities have always played a constructive role in the political
life of their home countries either in opposition or – as it was the case until
recently in Romania and still is in Slovakia – as a responsible party of the
governing coalition. They have been looking for legal, constitutional solutions
and remedies to their special situations. The Act on Hungarians living in
neighbouring countries tries to contribute to this approach, the only feasible
one in the long term. This is why persons belonging to the Hungarian national
minorities, their communities and political organisations were inspired by the
existing laws of similar purpose of some of their home countries – mainly
Slovakia and Romania (see paras. 3.5-3.8) – to encourage the Hungarian
Government to enact similar legislation in their respect. The stimulus for the
Hungarian Act arose from a proposal of the Hungarian Standing Conference, the
co-ordinating body between the Hungarian government and the political
organisations of Hungarians living outside the borders. As a common initiative
with the Hungarian government, these political organisations actively
participated in the preparation of the Act and welcomed its adoption.
1.6. The international and bilateral standard-setting – with
the active participation of Hungary – in the field of the protection of
national minorities created the necessary framework for Hungary’s consistent
co-operative policy. Hungarian governments recognised very early on that only
this approach would lead to longstanding stability in the region. Hungary is
proud to be among the initiators as well as the beneficiaries of the relevant
achievements of the Council of Europe, OSCE, CEI, UN and other bodies. These
instruments have inspired not only bilateral treaties concluded with its
neighbours, but also its domestic legislation.
1.7. The co-operation between Hungary and the neighbouring
states in the field of minority protection is mainly governed by relevant
bilateral treaties and agreements. In these instruments, the parties reconfirm
their determination to respect the related principles of international law,
such as the respect for territorial integrity and the protection and promotion
of human rights including the rights of national minorities. Bilateral
co-operation is indispensable for the implementation of these treaties. Hungary
stands ready – as it has always been – to undertake its share, be it either its
participation in the relevant joint committees or the bona fide acceptance of
the implementation of certain legislation of neighbouring states – i.e. holding
of Slovak identity cards by Hungarian citizens belonging to the Slovak national
minority or the issue of certificates by Romanian national minority
self-governments in Hungary testifying to the Romanian origin of the applicant
in order to obtain certain scholarships in Romania.
Since the protection of national minorities falls within the scope of
international and bilateral co-operation, the Hungarian Government not only
undertook a series of international and bilateral consultations and supplied
information even before the adoption of the Act (see Annex No. 2), but is ready
to continue these consultations and – where necessary – conclude bilateral
agreements concerning certain questions relating to the implementation of the
Act.
1.8. When drawing up this piece of legislation, the Hungarian Government
– and indeed the Parliament which adopted the Act by a 92% majority – set aside
all aspirations for any kind of dual citizenship for persons belonging to
Hungarian national minorities and living in the neighbouring countries, and
instead preferred a system based on co-operation (see paras. 2.1-2.4). The Act
is designed to encourage persons belonging to national minorities to stay in
their home countries, thus preserving the cultural diversity of the region: in
this way the Act provides secondary measures and benefits to support this aim.
Contrary to some accusations, the aim is not to inspire persons belonging to
national minorities to leave their home countries, but to reinforce their
special identity and their relations with the kin state, Hungary. Hungary is
convinced that this Act confirms the most apparent way the refutation of any
kind of territorial revision as a “solution” for questions raised by national
minorities.
1.9. As far as the minorities living in Hungary are
concerned, the comprehensive legislation adopted in this field as early as 1993
codified the newest achievements of the relevant international theory and
standard-setting. The establishment of self-governments of national minorities
reflects Hungary’s intention to set up a permanent structure, since it
considers the protection of national minorities as a continuous, renewing task.
Hungary continues to welcome any assistance for these efforts, especially from
those states, which share a common identity with one of the autochthon
minorities. The aim of the Act is to ensure nothing more than the same
assistance for persons belonging to Hungarian minorities living in the
neighbouring countries that Hungary, a home state of a number of minority
communities, welcomes from other states.
2. The basic purpose and features of the
Act
a) Recognition of the
territorial integrity of neighbouring states: definite refusal of territorial
revision and rejection of dual citizenship
2.1. The starting point for this discussion is Article 6(3) of the
Hungarian Constitution which provides: "The Republic of Hungary recognises
its responsibilities toward Hungarians living outside the borders of the
country and shall assist them in fostering their relations with Hungary."
2.2. This provision sets a general framework for Hungarian
policy towards Hungarians abroad of which the current Act is a more considered
expression. The Act, like the whole of Hungarian law, recognises the
territorial integrity of the neighbouring states: it contains no recognition
either of the idea of territorial revision or of the concept of dual
citizenship (see also para. 1.8).
2.3. In fact, the
Act recognises that Hungarians abroad are citizens of the relevant states and
clearly rejects the idea that the self-identification as Hungarians can be
based on dual citizenship. The Hungarian assistance to Hungarians abroad has
always been and will continue to be carried out according to the practice of
other European states, taking European norms into consideration in good faith
and giving due attention to the spirit of co-operation between neighbouring
states. In the expression of its kin-state role, Hungary has always
acknowledged that it has no citizen-like relationship whatsoever with
Hungarians living in the neighbouring countries when dealing with them.
2.4. In fact, as
laid down in the legal bases justifying the passing of the Hungarian Act, the
aims are, on the one hand, to promote and facilitate the remaining of the
Hungarian minorities in the neighbouring countries by preventing their possible
emigration to Hungary; and, on the other hand, to contribute to the
conservation of the common cultural patrimony between Hungary and their kin
minorities in those countries. Consequently, the Act is evidence of the
Hungarian intention to put paid – once and for all – to any alleged irredentist
claims over areas outside the country populated by persons of Hungarian
national origin or the need to grant dual citizenship to such persons. The
tenor and construction of the Act aim to keep persons of Hungarian national
origin linked to each other through cultural and educational ties.
b) Promotion of
cultural identity and contribution to cultural diversity
2.5. The maintenance and promotion of cultural diversity is
the main point of principle of the Act. Cultural rights have long been
recognised in international and particularly European law. Hungary wishes to
contribute positively to the development of cultural diversity, a fundamental
European value without which Europe could not exist. “No diversity without
identity” as it has been put before.
2.6. As a starting point, the 1954 European Cultural
Convention of the Council of Europe recognised the need not only to promote the
common heritage of the continent but also to foster among nationals of the
contracting parties “the study of the languages, history and civilisation of
the others.” By the time of the 1995 Framework Convention for the Protection of
National Minorities, cultural diversity had become to be expressly regarded as
playing a fundamental role in underpinning a free, democratic Europe, as stated
in the Preamble:
“Considering that a pluralist and
genuinely democratic society should not only respect the ethnic, cultural,
linguistic and religious identity of each person belonging to a national
minority, but also create appropriate conditions enabling them to express,
preserve and develop this identity;
Considering that the creation of a climate of tolerance and dialogue is necessary
to enable cultural diversity to be a source and a factor, not of division, but
of enrichment for each society….”
2.7. Reference can also be had to several soft law-type instruments of the Committee of Ministers which seek
to support the rich cultural diversity of Europe, e.g., Recommendation (99)2 on secondary education
which states:
“Among
such activities, the following should be started or developed: language
teaching, which plays a central role in this connection, not only by assisting
mobility and mutual understanding but also by highlighting Europe’s treasures
and diversity, in particular as regards minority languages.”
2.8. In 1999, the
Council of Europe launched the campaign entitled "Europe, a common
heritage" which translated into action the declarations of the Heads of
State and Government who, at the two Council of Europe Summits,
stressed the contribution of "a common cultural heritage enriched by its
diversity" in the construction "of a vast area of democratic security
in Europe" and the importance attached to "the protection of our
European cultural and natural heritage and to the promotion of awareness of
this heritage." The campaign aimed to make all Europeans “more aware of
the wealth and importance of heritage as a vector of tolerance, knowledge and
mutual recognition.”
2.9. Turning more particularly to the process of European
integration as regards the European Union, this has historically been concerned
with economic and commercial benefits. Increasingly, however, the aim has been
to take it further, starting with a broader base capable of involving citizens
to a greater degree and strengthening the feeling of belonging to the European
Union, while respecting the diversity of national and regional traditions and
cultures.
2.10. Cultural
co-operation is recognised under Article 3 of the EC Treaty as one of the
objectives of Community action, to make "a contribution to education and
training of quality and to the flowering of the cultures of the Member
States". The specific aims and fields of intervention listed in EC Article
151 cover all aspects of culture and include the objective of contributing “to
the flowering of the cultures of the Member States, while respecting their
national and regional diversity.” Thus Community action is based on
co-operation and respects and promotes cultural diversity and the principle of
subsidiarity.
2.11. Finally, the EU recognises that enlargement will
enhance cultural and linguistic variety and diversity within the EU. This will
give rise to new requirements in terms of promoting and respecting linguistic
and cultural identity, a common heritage of cultural values and a common
European identity. The protection of cultural minorities will also become more
important in an enlarged Union. As President of the European Commission, Romano
Prodi, said at the inauguration of the EMCR in Vienna 7 April 2000: “We must
never forget that Europe is all about diversity. Therefore it needs us to
respect and reap the rewards of diversity. European integration has always been
about diverse peoples with varied cultures…Diversity is one of Europe’s
greatest treasures.”
2.12. This respect for cultural diversity has been clearly
recognised as a fundamental right by the European Union in Article 22 of the EU
Charter of Fundamental Rights which states: “The Union shall respect cultural,
religious and linguistic diversity.” Consequently, within this broad European
context, it is the aim of the Hungarian Act to support cultural diversity, and
in so doing promote one of the fundamental principles underpinning the
continuing process of European integration.
c) The Act does not
use ethnicity as a basis for eligibility for claiming benefits under it
2.13. The Hungarian Act does not have any direct or
indirect/implied reference to “ethnie”
as a basis for receiving benefits from the Hungarian state. Ethnic ties are
based blood relationship (ius sanguinis)
and on association with a "homeland" and on the myths of the past. In
contrast, the aim of the present Act is to promote and preserve the well-being
and awareness of the national (language, cultural) identity of Hungarians
within their home (neighbouring) country (see Preamble to the Act).
2.14. Paragraph 32 of the Document of the Copenhagen Meeting on the
Human Dimension of CSCE and Article 3(1) of the Framework Convention guarantee
the right of an individual the freedom to choose to belong to a national
minority. The Hungarian Act is in full harmony with this fundamental right
because, according to sections 1 and 20 of the Act, the two documents
(beneficiary card and card on the basis of family relationship) depend on three
conditions: the basic condition is the personal declaration of a person having
no Hungarian citizenship and living in Romania, Ukraine, Slovakia, Yugoslavia,
Croatia and Slovenia on his belonging to the Hungarian community. This
declaration can be conceived as the manifestation of the free choice of
national identity, enshrined in Copenhagen, UN and Council of Europe documents.
The document is issued by Hungarian authorities upon the recommendation of
Hungarian community organs, established and legally recognised in the
respective countries. The card issued on the basis of family relationship is
issued to an applicant of non-Hungarian national origin if his/her husband
(wife) is entitled to the beneficiary card.
2.15. The documents are not based on any ethnic consideration: not only the existence of the card issued on the basis of family
relationship proves it but the fact that the personal declaration is only
registered by the so-called recommendatory organ which is not entitled to
challenge the content of the declaration. The requirement of the declaration on
the belonging to the Hungarian community is conceived as a condition because
all the basic facilities and services granted by the Act are linked to the use
of Hungarian language and the promotion of Hungarian culture.
2.16. A further evidence is a letter written by Dr. Zsolt Németh State
Secretary of the Hungarian Ministry for Foreign Affairs to Mr. József Krasznai,
a Hungarian Roma leader (see Annex No. 3). According to this letter, Romanian
citizens of Roma ethnic background but of Hungarian cultural and linguistic
identity, are entitled to claim benefits and assistance as provided for by the
Act.
2.17. This also reinforces the idea that one person is not
bound to one identity: persons may therefore variously consider themselves as
having two or more identities at the same time: a person is free to choose
whether he or she identifies him- or herself as English or British or European
or a combination of any or all of them. The concept of the Act accepts the
existence of dual identity and, in this way, recognition of one identity does
not exclude a second identity or other identity. Such combination of identities
does not confuse an individual of the sense of where he or she belongs, nor
does it engender a feeling of being deprived of a “homeland.”
In the culturally pluralistic Europe which is emerging, people are assuming
differentiated levels of identity without rejecting the country of their home.
2.18. It thus remains the free choice of the individuals
concerned whether or not to claim the use of the facilities provided by the
Act. The so-called "certificate" is not an
"ethnicity-certificate", but a materialisation of the will of the
interested persons to require the benefits guaranteed by the Act. It has a
limited validity, it cannot serve as a basis for a request to Hungarian
citizenship or refusal of legal duties as citizens of their states of origin.
As noted above, under certain conditions provided by the Act, persons who do
not consider themselves as Hungarians, can be granted such a certificate upon
request.
d) Secondary nature
of the Act and the rejection of Schutzmacht principle
2.19. Furthermore, Hungary recognises the primary role to be
played by the home states themselves together with the legitimate role played
by the international community. This is evidenced by its own legislation in Act
LXXVII of 1993 on the Rights of National and Ethnic Minorities, section 56
which states that “domestic and foreign organisations, foundations, and
individuals may contribute to the aid provided to minorities.” Thus Hungary’s
primary role in protecting and providing for national minorities within its territories
does not deprive the relevant kin state of playing a subsidiary role in
providing for the minority. The Hungarian behaviour is in harmony with the
academic recommendations for a kin state.
2.20. Throughout international instruments concerned with minority
rights protection, the protection afforded by the home state of the minority or
the person belonging to the minority is naturally paramount. The pre-eminent
responsibility of the neighbouring countries in addressing minority rights,
through the provisions of their respective Constitutions and laws, is not
impinged upon by the Act.
2.21. The Hungarian
Act can be considered as a legitimate way as to how, post-Cold War, the
emerging concept of kin state is put into practice. This concept is far removed
from being a reincarnation of the old theory of protecting power or
“Schutzmacht.” A protecting power irrespective of whether it was self-appointed
or agreed upon, tried to provide a guarantee that the mother state respects its
legal obligations on the protection of that minority which has common national
origin with its majority population. A kin state, by contrast, recognises the
primary role to be played by home state (and the international community) in
minority protection. Further, the kin state regards mutual co-operation in the
field of minority protection as a pre-requisite for friendship and co-operation
and provides additional infrastructural assistance to the minority, which
enjoys common origins with its majority population, in order to preserve their
language and culture identity.
2.22. The kin state may indicate its role in constitutions
like those of Hungary, Slovenia, Croatia or Romania
or in its policy statements as France has done. French Foreign Minister Hervé
de Charette stated in the French Parliament: "(We) have cared for the fate
of Quebec for generations and generations, and I can assure we will keep
maintaining and developing the very warm ties we enjoy with Quebec.”
The practice of acting as a kin state in post-Cold War Europe is evidenced by
other types of state behaviour, e.g., the conclusion of bilateral treaties,
issuing joint declarations having a section or at least a reference to the
minority issue as a legitimate subject of common interests.
2.23. As a result it is not possible, according to its international
commitments and this Act, to term the relationship between Hungary and the
minorities of Hungarian national origin in the neighbouring
countries as one as between Schutzmacht and protected minority.
3. The non-unique
nature of the Hungarian Act: laws and practices of other countries.
3.1. It is not the purpose of this present submission to
provide an analysis of all laws and practices of European states regarding
relations between kin states and their kin minority living in neighbouring
countries. However, it is necessary to refer to certain aspects of some of
these laws and practices in order to provide the context within which the
Hungarian law was formulated and drafted. The various measures taken by the countries
described below are states which are – in the main – bound by the same
provisions of international and European treaties for the protection of
minority rights as the Republic of Hungary. Such measures of kin states for
their kin minority in neighbouring countries were therefore designed and put
into effect within the same international minority rights protection matrix as
their Hungarian counterpart.
3.2. One of the most striking examples is the Parliamentary
Resolution of the Slovene National Assembly, adopted on 27 June 1996, on the
situation of native Slovenian minorities living in neighbouring countries, and
on the duties relating thereto of the national and other agents of the republic
of Slovenia. Under Section 1(III), Slovenia recognises that, in respect of its
national minority in the neighbouring countries, its actions are bound by the
relevant international treaties.
3.3. Under Section 4(II), Slovenia identifies a lasting and
strategic interest in bolstering the economic position of Slovene nationals in
the neighbouring states. The minority economic component has to be built into
the strategic documents of Slovenian economic development and into
inter-regional and transfrontier co-operation projects, co-funded, inter alia,
by the European Union. Slovenia provides special assistance to the employment
in Slovene companies of members of the Slovene national minority from the
neighbouring states. This also applies to the introduction of a temporary
regime to subsist until EU accession, allowing minority enterprises to carry
out services in Slovenia. These benefits are much broader in scope than those
provided for under the Hungarian Act.
3.4. In respect of education and culture, under Section 4(III), the
Slovene Government acknowledges that the Slovene national minority from abroad
has the right to carry out studies – at all levels – in all the schools in
Slovenia and devotes special attention among others to developing autonomous
scholarship programmes. Moreover, irrespective of the situation that academic
institutions of the Slovene minorities have achieved in the neighbouring
countries, Slovenia shall furnish constant funding for the basic functioning of
these establishments. In this way, as with Hungary, Slovenia intends to play a
secondary or subsidiary role to the home state in supporting the maintenance of
educating Slovene nationals, either in Slovenia or abroad. Moreover, the aim of the Parliamentary
Resolution is similar to that of the Hungarian Act – the promotion of culture
and educational matters, the support and maintenance of cultural diversity, and
the acceptance of this instrument as being legally permitted by international
treaties in this field.
3.5. Turning now to the Slovak law regulating the field of
the status of foreign Slovaks, their rights and duties in Slovakia, Law
70/1997. This Law determines, under section 2(2), a “foreign Slovak” as being a
person who is not a citizen of the Slovak Republic, but who possesses Slovak
nationality or ethnic origin and Slovak cultural and linguistic awareness. Under section 2(5), in the absence of
relevant documentation, a person applying for the status of a foreign Slovak
may prove his nationality by the written testimony of an ethnic organisation
acting at the place of residence or, if no such organisation exists, then by
the written testimony of two foreign Slovaks living with him in the same state.
Further, under section 3, the applicant for status as a foreign Slovak is to
submit the application, accompanied by the necessary documents confirming his
status as a Slovak national, to the Slovak Ministry of Foreign Affairs or to a
Slovak embassy or consulate abroad. The certificate of foreign Slovak is valid
indefinitely but only if presented with the holder’s passport or identity card.
3.6. In addition, the Slovak law (under section 5) provides
visa-free entry for foreign Slovaks to the Slovak Republic together with the
right to long-term stay there. Under section 6, the foreign Slovak has the
right to education, to apply for employment without the usually required
permits, to an old-age pension as well
as the right to buy and own property and to receive certain travel benefits.
Finally it should also be noted that the Slovak Ministry of Foreign Affairs is
empowered to grant or withdraw the status of foreign Slovak (section 7).
3.7. These two countries are not the only ones which provide
preferential treatment or positive action for their kin minority abroad. One
may refer to a Common Ministerial Decree 4000/3/2001 of 6 June 2001 on the
procedure and the conditions of stay and employment of Albanian citizens having
Greek national origin and on the length of the validity of permission to stay
and work. According to paragraph 3 of the Decree, the length of such validity
is three years compared to the three months under section 15 of the Hungarian
Act.
3.8. Romania has also passed a statute in 1998 on Giving
Assistance to Romanians of the World. According to section 1 of the Romanian
law, Romanian nationals abroad should receive financial assistance from
Romania. In order to secure this, a fund is to be established at the disposal
of the Prime Minister. Further, under section 2, Romanian budgetary resources
are to be used in such a way so as to give priority to assist schools or
teaching in Romanian; to cultural, artistic, or youth actions; to individuals
in exceptional situations regarding health; to help Romanian nationals abroad
in their civic education; and in addition to other assistance agreed upon in
co-operative programmes. In order to give an opinion on the actions to be
financed in order to achieve such goals, an interministerial committee is to be
set up (section 3). The executing body of such actions – which has the duty to
put the agreed upon actions into practical effect – is a new centre set up
under the auspices of the Ministry of National Education (section 5). The
centre is able to assist Romanian national students from abroad in Romania with
certain types of free accommodation and services, depending on the action
concerned (sections 7-10). Under section 9, the Government is empowered to make
decisions on other types of assistance. It can be seen therefore that the
Romanian law provides for a plenitude of rights regarding education as well as
a social right (to health care in certain circumstances) and specifically
allows the Government to expand the area of support without recourse to
Parliament, something which is absent from the Hungarian Act.
3.9.
There are further examples of ways in which other countries variously support
their kin minority living outside the kin state (inter alia Germany, Italy, Spain, Portugal and Ireland), e.g., in
the field of education through scholarships as well as other benefits and
facilities, or in the social and economic fields. While on the one hand
recognising that differences exist between the Hungarian Act and the law and
practices of these other states, nevertheless, on the other hand, it seems to
be an accepted kin-state practice to legislate domestically in favour of
granting certain benefits to the kin minority living abroad.
4. Preferential or
differential treatment of minorities in international law
4.1. Criticism has been put forward by certain political
actors claiming that a “preference linked to ethnic criteria” is in itself illegal
or at most only admissible on a temporary basis. According to these critics, as
a political consequence of such positive discrimination, the emergence of
social or inter-ethnic tensions will be the eventual result.
a) Preferential
treatment and international law
4.2. One of the greatest achievements of today’s
international minority-related law-making is the acceptance of the so-called
concept of positive or affirmative action, even if the concept was already
admitted by the Permanent Court of International Justice in the case of
minority schools in Albania and the European Court of Human Rights in the
famous Belgian Linguistics case.
4.3. The PCIJ
proclaimed that the equality of persons belonging to a minority is not
guaranteed if they do not have “moyens appropriés pour la conservation des
caractčres ethniques, des traditions et de la physionomie nationales (…) ce qui
constitue l’essence męme de sa vie en tant que minorités.”
4.4. As regards
the latter case, the ECtHR underlined in the same style that “l’article 14
n’interdit pas toute distinction de traitement dans l’exercice des droits et
libertés reconnus, mais l’égalité de traitement est violée si la distinction
manque de justification objective est raisonnable (…) L’existence d’une pareille justification doit s’apprécier par
rapport au but et aux effets de la mesure considérée eu égard aux principes qui
prévalent généralement dans les sociétés démocratiques. (…) Une distinction de
traitement dans l’exercice d’un droit consacré par la Convention ne doit pas
seulement poursuivre un but légitime: l’article 14 est également violé
lorsqu’il est clairement établi qu’il n’existe pas de rapport raisonnable entre
les moyens employés et le but visé.”
4.5. These dicta
emphasised the admittance of the affirmative action concept, proposed also by
the draft European Convention for the Protection of Minorities, elaborated by
the Venice Commission.
The concept was later also confirmed by UN General Assembly Resolution 47/135
and the European Charter for Regional or Minority Languages.
4.6. Resolution 47/135 is clear and short in article 8(3):
“Measures taken by States to ensure the effective enjoyment of the rights set
forth in the present Declaration shall not prima
facie be considered contrary to the principle of equality contained in the
Universal Declaration of Human Rights.”
4.7. In article 7(2), the Charter provides: “The Parties
undertake to eliminate, if they have not yet done so, any unjustified
distinction, exclusion, restriction or preference relating to the use of a
regional or minority language and intended to discourage or endanger the
maintenance or development of it. The adoption of special measures in favour of
regional or minority languages aimed at promoting equality between the users of
these languages and the rest of the population or which take due account of
their specific conditions is not considered to be an act of discrimination
against the users or more widely-used languages.”
4.8. Confirmation of this non-discriminatory aspect of the
provisions of the Hungarian Act can be adduced from the Framework Convention
which will be further analysed below. Further jurisprudence from the ECtHR
supports this contention. As Judge Pettiti explained it in his dissenting
opinion in the case Buckley v. United
Kingdom (25.9.1996) “the only acceptable discrimination under Article 14 is
positive discrimination which implies that in order to achieve equality of
rights through equality of opportunity it is necessary in certain cases to
grant additional rights to the deprived members of the population such as the
underclass of developed countries and the Gypsy and Jenische communities.”
Further in Chassagnou v. France,
the ECtHR held in relation to what was necessary in a democratic society that
“a balance must be achieved which ensures the fair and proper treatment of
minorities and avoids any abuse of a dominant position.”
4.9. Referring to the international treaties for the
protection of human rights, even the European Court of Justice has never excluded
the possibility of minority rights being declared to be general principles of
European Community law. In the Bickel/Franz
case the ECJ upheld the position that the protection of a minority might
constitute a legitimate aim for the state behaviour. Furthermore, and more
importantly for the present argument the ECJ seemed to consider the possibility
of accepting the protection of minorities as a ground for the justification of
an infringement of a principle of non-discrimination on the grounds of nationality.
4.10. Asbjřrn Eide, rapporteur of the sub-committee for the
protection of national minorities and the prevention of discrimination,
produced a report in 1993 on “Possible
ways and means of facilitating the peaceful and constructive solution of problems,
involving minorities.” On the issue of affirmative
actions, he stated:
Ҥ 172. Affirmative action is preference, by way of
special measures, for certain groups or members of such groups (typically
defined by race, ethnic identity or sex) for the purpose of securing adequate
advancement of such groups or their individual members in order to ensure equal
enjoyment of human rights and fundamental freedoms….
§ 178. There
are ‘soft’ and ‘strong’ versions of affirmative action. The ‘soft’ versions are
extensions of the principle of non-discrimination: latent social discrimination
creates obstacles to members of groups affected by such discrimination. In
evaluating their qualifications, some preference shall be given in order to
compensate for such latent discriminatory attitudes.
§ 179 Stronger
versions of affirmative action are aimed at an accelerated creation of a
balanced society. (…) Such approaches to affirmative action suspend or modify
traditional criteria of merit as a basis for access but can be justified when
there were, in the past, discriminatory practices which deprived members of
those groups of equal opportunity and blocked for them the application of
criteria of merit.
§ 193
Affirmative action shall not lead to the maintenance of separate rights for
different racial groups. (…) It is therefore different from those kinds of
positive action which are intended to ensure, for minority groups, on a basis
of equality with other groups, the preservation of their separate identity, if
they so wish.
§ 210.
Transfrontier ethnic, religious and linguistic groups need close contacts in
order to preserve and develop their language, culture and spiritual concerns.
An essential counterbalance to respect for territorial integrity is the right
of members of minorities to have as free and unimpeded contacts as possible
with related populations on the other side of the border.”
4.11. More recently, the European Union, in Council
Directive 2000/43/EC implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin, has recognised the concept of
positive action. Article 5 of the Directive states: “With a view to ensuring
full equality in practice, the principle of equal treatment shall not prevent
Member States from maintaining or adopting specific measures to prevent or
compensate for disadvantages linked to racial or ethnic origin.”
4.12. The Hungarian Act, in providing the possibility for
persons of Hungarian national origin in the neighbouring countries to claim
certain benefits, falls within the remit of the general standards of
international law related to minorities protection. The benefits granted by the
Act are exclusively aimed at the protection, the development and the
transmission to the off-spring of the identity of the individuals concerned, as
members of Hungarian minorities living abroad. These benefits have no effect on
their citizenship, or on their belonging to the minorities concerned. In other
words, the Act has no legal effect on their existing rights and duties as
members of these minorities, and as citizens of the respective states.
Therefore, the positive measures provided by the Act cannot be regarded as
discriminating against either Hungarian citizens, or the citizens of the states
concerned. The Framework Convention, to be discussed below (see paras.
5.1.-5.14.), represents an even more clear affirmation both of the particular
benefits claimable under the Hungarian Act as well as the general
non-impugnability of the Act according to international law.
b) Preferential
treatment not ground for invalidity under international law because of putative
negative consequences
4.13. It is completely unfounded to claim that whatever
difference of treatment may subsist should be a priori banned in order not to provoke eventual tensions.
4.14. The proper attitude of a state was recently expressed
by the famous judgement of the European Court of Human Rights delivered in the
case Serif v. Greece:
“Although the Court recognises that it is possible
that tension is created in situations where a religious or any other community
becomes divided, it considers that this is one of the unavoidable consequences
of pluralism. The role of the authorities in such circumstances is not to
remove the cause of tension by eliminating pluralism but to ensure that
competing groups tolerate each other.”
4.15. This need to promote pluralism and
cultural diversity in Europe (as noted above at paras. 2.5.-2.12.), has been
acknowledged and pursued by a publication of the Venice Commission itself:
“Plus que les rčgles sur le
partage des compétences ou la représentation des minorités au sein de l’État
central, c’est l’acceptation, par l’ensemble de la population, de la réalité
plurinationale, plurilinguistique et pluriculturelle d’un pays qui permettra la
coexistence pacifique de plusieurs communautés au sein d’un męme État. Accepter
des cultures diverses, et admettre que leur existence constitue une source
d’enrichissement réciproque; respecter les différentes langues. Telles sont les
conditions de la coexistence de groupes différents sur un męme territoire.”
4.16. Fears of conflict between the majority and minority as
grounds for justifying a particular course if action by the home state are not
unfamiliar in the region.
In late 1995, Romania's National Audio-Visual Council, responsible for
media licensing in the country, threatened to withhold authorisation for
certain cable TV companies to broadcast Hungary's Duna TV. It was alleged that
such broadcasts "foment suspicion among ethnic groups and promote the
creation of artificial tensions." Although the decision was later
reconsidered, the original evaluation was later shown to lack real
justification in the first place when, a few years later, Duna TV received
UNESCO’s Best Cultural Television of the World Prize in 1999.
c) For human rights
violation, legal system itself must be discriminatory not merely one act
4.17. It is also a generally recognised principle in modern
countries that this is the general legal system as such which should
manifest the correct balance between different obligations of the state.
Individual acts and other judicial instruments can contain preferences,
differently formulated target groups, different ways to achieve the aims: the
balance should be realised on the level of the system and not forcibly in each
individual act.
4.18. Both the International Court of Justice or the
European Court of Human Rights consistently refuse to adopt the so-called
“abstract interpretation.” The latter tribunal, in its jurisprudence, has
always followed the line that its jurisdiction does not consist of judging a
given domestic legal act; its duty is to decide whether or not the applicant’s
particular right enshrined in the ECHR and its protocols was violated. (Incidentally,
the very few interstate applications concerned particular cases and not
abstract problems.) In order to decide a case, the European Court of Human
Rights has very often had to examine an application in the context and in the
interaction of several acts and other normative instruments.
4.19. There is thus the need for a complex analysis of all
the factors involved. This means that one cannot artificially separate the
Hungarian Act from the whole matrix of domestic constitutional and legal
provisions as well as the contents of international and bilateral treaties
which bind it, in this case on the protection of national minorities. More
particularly, within its bilateral relations, Romania and Slovakia have
so-called Basic Treaties with Hungary which include clauses concerning minority
rights. In addition to these international treaty provisions, both countries
have seen fit to promote the rights of their kin minorities further with
various benefits and concessions provided by domestic legislation of the kin
state (see above at paras. 3.1.-3.9.).
d) Claims of
discrimination against majority in neighbouring state unsustainable
4.20. The case for discrimination against the majority is per se difficult to construct (although
not impossible). The travaux
préparatoires of the Framework Convention confirm that the actual intention
of the drafters was not to exclude special measures destined to minorities. The
issue was discussed at the 5th meeting of the CAHMIN committee:
“The Committee agreed on a change
in the wording of paragraph 1 as compared to that in CAHMIN (94)16 Appendix
III, in order to make clearer what is meant by ‘equality’ and
‘non-discrimination’. This change does not intend to realign this provision
with article 14 ECHR. Some linguistic changes were made to paragraph 2 of this
Article…. The Committee retained the text of Article 4 which is reproduced in
Appendix IV. A proposal for an additional fourth paragraph (protection
against discrimination of persons who do not belong to a national minority),
was not retained. [The above mentioned stylistic change was due to a UK
proposal. The referred rejected proposal was submitted by Bulgaria and backed
by Romania – ed.]”
4.21. This shows
that neither the letter, nor the spirit of the Framework Convention require a
mechanical equality between minority and majority. The aim is the achievement
of effective equality. The proposal for Article 4(4) was apparently rejected
because it could not be considered operational – it would have created an
exceptional situation with the burden of proof put on those who alleged
discrimination against the majority. Since the aim of provision was the
prohibition of discrimination on minority, the proposed fourth paragraph was
rejected because it would have shifted the balance in the whole of Article 4.
4.22. Moreover, its reason was recently explained by the
European Court of Human Rights, inter
alia in the case Beard v. United
Kingdom: “The Court observes that there may said to be an emerging
international consensus amongst the Contracting States of the Council of Europe
recognising the special needs of minorities and an obligation to protect their
security, identity and lifestyle, not only for the purpose of safeguarding the
interests of the minorities themselves but to preserve a cultural diversity of
value to the whole community.”
5. Framework
Convention on the Rights of National Minorities
a) Introductory
remarks
5.1. The focus of the discussion in this section concerns
the obligations provided for in Article 4 of the Framework Convention, which
states in its relevant paragraphs:
“(2) The Parties undertake to
adopt, where necessary, adequate measures in order to promote, in all areas of
economic, social, political and cultural life, full and effective equality between
persons belonging to a national minority and those belonging to the majority.
In this respect, they shall take due account of the specific conditions of the
persons belonging to national minorities.
(3) The measures adopted in accordance with paragraph
2 shall not be considered to be an act of discrimination.”
5.2. The interpretation of these two paragraphs is crucial
to the Hungarian argument in the present matter. Guidance on interpretation was
provided by the Explanatory Report annexed to the Framework Convention which
states in the relevant parts:
“38. The purpose of this article
is to ensure the applicability of the principles of equality and
non-discrimination for persons belonging to national minorities. The provisions
of this article are to be understood in the context of this framework
Convention.
39. Paragraph 1 takes the classic approach to these
principles. Paragraph 2 stresses that the promotion of full and effective
equality between persons belonging to a national minority and those belonging
to the majority may require the Parties to adopt special measures that take
into account the specific conditions of persons concerned. Such measure need to
be ‘adequate’, that is in conformity with the proportionality principle, in
order to avoid violation of the rights of others as well as discrimination
against others. The principle requires, among other things, that such measures
do not extend, in time or in scope, beyond what is necessary in order to
achieve the aim of full and effective equality.
40. No separate provision dealing specifically with
the principle of equal opportunities has been included in the framework
Convention. Such an inclusion was considered unnecessary as the principle is
already implied in paragraph 2 of this article. Given the principle of
non-discrimination set out in paragraph 1 the same was considered true for the
freedom of movement.
41. The purpose of paragraph 3 is
to make clear that the measures referred in paragraph 2 are not to be regarded
as contravening the principles of equality and non-discrimination. Its aim is
to ensure to persons belonging to national minorities effective equality along
with persons belonging to the majority.”
5.3. It is submitted that the wording of the Framework Convention
allowed for the passing of the Hungarian Act in its current form. Although the
term “the Parties” in a mere grammatical interpretation should cover all
Parties and not only home states, the word “undertake” is commonly understood
to refer to home states: it would be considered unreasonable to impose
obligations on states other than home states. However, what can be drawn from
this, is that the concept of giving is a legitimate concept for all states
under the Framework Convention: it would be wrong that “giving” could only be
fulfilled by some Parties (i.e.
home states) vis-ŕ-vis persons of national minorities while other Parties (i.e.
kin states) are prohibited from giving. The duty of the home state under the
Framework Convention does not accordingly exclude the legally-secured
possibility of kin states to support their kin minorities in the home state. Sufficient scope
still remains in the wording and aims of the Framework Convention to allow kin
states to enact legislation such as the Hungarian Act. Indeed, it would appear
that several states have already passed legally-binding measures similar to the
Hungarian Act on that basis (see paras. 3.1.-3.9.).
b) The conditions to
be fulfilled for the provisions of the Act to amount to adequate measures under
the Framework Convention
5.4. It is clear from the Framework Convention, Article 4
and the case-law of the ECtHR, that three conditions must be fulfilled by the
Hungarian Act in order for its provisions to amount to adequate measures in accordance with the Convention. These
are: (1) the existence of a legitimate goal; (2) the measure can be objectively
and reasonably justified; and (3) the existence of proportionality between the
goal and the means used.
(1)
Legitimate goal
5.5. By legislating to assist in the preservation of the
linguistic and cultural self-identity of the Hungarian minorities living in the
neighbouring states, the Hungarian Act attempts to contribute to the
accomplishment of the general and collective goals of the Framework Convention
of Council of Europe. As the main purpose of this Convention (and other
international instruments on minorities) is, according to the Preamble, the
creation of the appropriate conditions to enable each person belonging to a
national minority to express, preserve and develop inter alia their cultural and linguistic identity, the Hungarian
legislation consequently pursues a legitimate goal.
(2) Objective and
reasonable justification
5.6. The European Court of Human Rights comes to the
following conclusion in its decision in the Belgian Linguistic Case: "the
principle of equality of treatment is violated if the distinction has no
objective and reasonable justification".
As far as the objective and reasonable nature of the justification is concerned
in this context, it is generally accepted that living in a minority –
regardless to the minority policy of the home state – limits the
cultural-educational possibilities to preserve the self-identity of the
individual in comparison with possibilities existing in that state where the
population having the same linguistic-cultural origin lives in majority.
5.7. Thus, although
the primary role in minority issues is taken by the home state and the
international community, as observed above (see paras. 5.1.-5.3.), the kin
state may contribute to the realisation of those rights which are recognised
and protected in international agreements in order to promote the full and
effective equality demanded by the Framework Convention. The differentiated
treatment under the Act is reasonable as it contributes to the achievement of
the goal of preserving the cultural and linguistic identity of the Hungarian
minority in the neighbouring states, and renders the protection of their rights
to language, education and culture effective.
(3) Proportionality
5.8. The European Court on Human Rights goes on the
following way in Belgian Linguistic Case: "A difference of treatment (…)
must not only pursue a legitimate aim" but there should be "a
reasonable relationship of proportionality between the means employed and the
aim sought to be realised."
Consequently, an objective balance is to be struck between the means embodied
in the Hungarian Act and the otherwise legitimate goal to assist the
preservation of the linguistic-cultural identity of Hungarians in the
neighbouring countries.
5.9. By looking through the content of the Hungarian Act,
one could easily accept that the Hungarian side simply tries to contribute to
and support the preservation of the linguistic-cultural identity of Hungarian
minorities in the neighbouring states and it leaves the main responsibility of
the home states as it comes from domestic and international law (see above at
para. 5.3.). The UN Committee on Economic, Social and Cultural Rights in its
definition of discrimination speaks of the effect "nullifying or impairing
the recognition, enjoyment or exercise of equality of opportunity."
It cannot be argued that the Hungarian Act discriminates against the majority
populations in the home states since it does not nullify or impair the equality
of opportunities of the majority population to preserve its linguistic-cultural
self-identity.
5.10. If one looks at the provisions of the Hungarian Act on
the benefits and assistance for persons falling within its scope, it is clear
that the entitlements are proportionate to achieving the cultural, linguistic
and educational goals contained in the Framework Convention and which form the
fundamental aim of the Act. Such matters as using libraries (section 4) and
assigning limited travel benefits (section 8), as well as allowing attendance
at higher educational institutions in Hungary (sections 9 and 10), and
cross-border training for Hungarian teachers (sections 11-12) clearly aim at
ensuring free communication between the kin state and persons of Hungarian
national origin in the neighbouring countries and represent an expression of
cultural and linguistic identity.
5.11. Further, the provisions on social security and health
services (section 7) and on employment (section 15) do not give a
disproportionate advantage to the putative beneficiaries under the Act. Section
7 is subject to rules under relevant international treaties and section 15
workers are treated like any other foreign nationals in Hungary except that
their work permit can be issued for a maximum three months without prior
assessment of the situation in the labour market. In effect – for a maximum of
three months – a person of Hungarian national origin from a neighbouring
country, fulfilling all the other criteria under the laws relating to the
authorisation of employment of foreign nationals, can work in Hungary: the
result is that the employee will be engaged in seasonal work of a temporary
nature, which possibility may only be permitted once a year (the limited nature
of this employment reinforces Hungary’s intention that such employee is to have
“contact” with the kin state, the encouragement of which is one of the main
aims of the Hungarian Act). In other words, while the Act enables a persons of
Hungarian national origin to come to Hungary for a short period of time, it
does not represent the opening up of the labour market to persons of Hungarian
national origin based in the neighbouring states or a free movement for workers
benefiting under the Act. The advantages in practical reality are circumscribed
by international treaty and domestic legislation: the general quotas granted by
Hungary to citizens of neighbouring countries seeking jobs in Hungary are
independent from the present Act. In this sense the facilitated work permit is
proportionate to the goal to be achieved.
5.12. Also in proportion to the goal is the educational
assistance of pupils in their native countries (section 14 of the Act). This
payment for the education of children in neighbouring states needs to be
applied for: no one has a right to claim this benefit or assistance. The only
purpose of this provision is to help children to be educated in their mother
tongue, and to compensate for any handicaps or inconveniences stemming from
such situation. This is not to suggest that the Act implicitly denigrates the
support already received by the Hungarian minorities abroad from their home
state: as already observed elsewhere, the role of the kin states is secondary,
and this provision is also secondary to any support already provided by the
home state in the education field.
5.13. The
proportionality of the Hungarian Act’s provisions for the facilitated work
permit and educational assistance must also be viewed in the context of
measures already described as being in force in other European states vis-ŕ-vis
their kin minorities in other countries. In Greece, for example, the law and
practice there is apparently accepted by the European Union: the Greek Decree
provides very clear positive action and a three-year validity period while the
Hungarian Act only facilitates the possibility of employment and provides a
maximum three months’ permit before the person of Hungarian national origin
from a neighbouring state has to comply with the full rigour of Hungarian law and
procedure. Moreover, any economic effect is mitigated by the fact that the
quotas continue to exist regarding other countries’ citizens.
5.14. The provisions of the Slovak law in respect of
employment in Slovakia of foreign Slovaks is also of a broader scope and
effectiveness than the provisions of the Hungarian Act. However, the
extraterritorial effect of the Slovak legislation has not been challenged by
Romania (where there is a Slovak national minority) and from this silence it
must be concluded that the Romanian Government accepts as proportionate the
measures taken by Slovakia under its domestic legislation in order to secure
the cultural, educational, social and economic well-being of its kin minority in Romania: for example, the
certificates issued in accordance with the Slovak law have been accepted by
Romanian authorities. From the foregoing, then, the Hungarian Act may be said
to be more circumscribed both in its procedural and substantive provisions than
those of other states (e.g. the countries identified above).
6. Conclusion
6.1. In conclusion, then, the Hungarian Act recognises the
territorial integrity of neighbouring states and amounts to a definite refusal
of territorial revision and a rejection of dual citizenship (paras. 2.1-2.4.). In
its tenor and construction, the Act aims at promoting cultural identity and
represents a positive contribution to the principle of cultural diversity,
regarded as fundamental to the stability and prosperity of Europe by both the
Council of Europe and the European Union (paras. 2.5.-2.12.). Moreover, the Act does not use
ethnicity as a basis for eligibility for claiming benefits under it, it being
left to the free choice of individuals whether or not to claim the facilities
so provided (paras. 2.13.-2.18.). Hungary
recognises its kin state role in respect of Hungarian minorities living in
neighbouring countries as being secondary or subsidiary to that of the home
state and thus rejects as inapplicable the Schutzmacht theory to the present
situation. In fact, the Hungarian Act cannot be understood as a kind of
criticism of the treatment of the Hungarian minorities in the neighbouring
states – it simply assists the realisation of the generally accepted goals of
international minority protection in case of persons of Hungarian national
origin in neighbouring states standing beside those of the home states and the
international community (paras. 2.19.-2.23.).
6.2.
The Hungarian Act is not unique: it is one of a number of domestic laws and
practices existing throughout Europe. While on the one hand recognising
that differences exist between the
Hungarian Act and the law and practices of these other states, nevertheless, on
the other hand, it seems to be an accepted kin-state practice to legislate
domestically in favour of granting certain benefits to the kin minority living
abroad (paras. 3.1.-3.9.). Moreover, the positive action or preferential
treatment promoted by the Act is permissible under the general standards of
international law related to minorities rights protection and does not amount
to discrimination against the majority of a neighbouring state (paras.
4.1.-4.22.).
6.3. Hungary reiterates that the main responsibility for
minority protection lies with the home state and that Hungary does not attempt
to take over such responsibility but rather plays a contributory or secondary
role. While measures following from the responsibility of the home state are
expressly provided for by international law, i.e., they are obligations, this
type of additional contribution of the kin state set out in the Hungarian Act
is a legitimate possibility (see paras. 5.1.-5.3.). Nothing prevents kin states
taking such measures which meet the three criteria of legitimate goal,
objective and reasonable justification, and proportionality. The aim of the
Act, in promoting linguistic and cultural identity and diversity, thereby seeks
the creation of full and effective equality between persons belonging to
minority and to the majority, without using methods which are disproportionate
to achieving these goals (paras. 5.4.-5.14.).
7. No intention to
give extraterritorial effect to Hungarian Act
a) Introduction
7.1. Some observers consider that the Hungarian Act shows
the characteristics of extraterritorial legislation because:
- it
concerns foreign citizens; and
- in
the issue of the document entitling the beneficiary to certain services
and facilities, organisations representing Hungarian communities are to
play a certain role. Even if this role is of recommendatory nature, these observers
consider this transborder co-operation as analogous to central and
delocalised branches of the administrative structure a foreign state.
b) The issue of
facilities and services proposed outside Hungary
7.2. While most provisions of the Hungarian Act apply ex lege in an evident and exclusive way
in the territory of the Republic of Hungary, some provisions are partly
realised in the home state (the country of citizenship): promotion and
delocalisation of branches of Hungarian institutions of higher education
(section 13), financial help for parents of pupils studying in institutions
where the teaching language is Hungarian (section 14), promotion of media
contacts (section 17) and promotion of cultural institutions of the Hungarian
language (section 18).
7.3. Since the persons entitled to the benefits granted by
the Hungarian Act are citizens of certain neighbouring countries, it is
therefore inevitable that the Act has some transboundary aspects. Similar
transboundary aspects are unavoidable in each and every case when a kin state
provides any assistance to its kin minorities living abroad, whether in the
form of financial or cultural assistance, including radio or TV broadcast,
scholarships, bursaries etc. This is a fact of life, and a consequence of the
globalising world.
7.4. To reject this type of imminent transboundary aspect
would mean to reject as unlawful any assistance, facilities, etc. granted by
states to foreign citizens, whether in matters of identity protection, or other
issues. For instance recommendations requested by foreign educational
institutions for those applying for scholarships, or granting of awards, etc.)
d) The status and the
role of the recommendatory board
7.5. The fact, however, that organisations registered in neighbouring
countries, set up and run by their citizens, are delegated by the Hungarian Act
to assess the real needs and recommend the persons entitled to benefits granted
under the law, is a positive aspect and demonstrate the openness of the
Hungarian government and its will to cooperate with the states concerned and
involve them in the implementation of the Act. There is no basis to regard
these recommending organisations as agencies of the Hungarian government:
1)
because the government itself does not regard them as such,
2)
these organisations are constituted in accordance with the law
of the respective state, and
3)
they have full autonomy of action in achieving their goals,
while their recommendations are not binding in any way on either government.
7.6. We can find a number of international and national
instruments based partially on the participation of a foreigner (or several
foreigners) in the decision-making procedure of a given state or another
subject of international law.
a) the procedure of
nomination of Nobel Prize, Charles the Great (Carolus Magnus) Prize etc. when different prominent personalities
and especially former winners become habilitated to nominee: up till now,
nobody considered these persons as being “agents” of the country issuing the prize.
b) the functioning of
different mixed committees of selection of scholarships: e.g. the scholarships
of the French government for Hungarian is attributed for years on the proposal
of mixed committees composed of two French scholars, two Hungarian scientists
and the representative of the French embassy.
c) the Romanian practice referred
to earlier (para. 1.7.) the issue of certificates by Romanian national minority
self-governments in Hungary testifying to the Romanian origin of the applicant
in order to obtain certain scholarships in Romania.
7.8. In summary, it is clear that in the world of science,
it is admitted by states to allow their citizens to co-operate in the
distribution of different awards, scholarships, etc. Such co-operation is
considered neither as felony, nor as a de
facto status of agent of the state administration of another country.
Certain forms of such co-operation are backed by an interstate agreement, but
most of them function by tacit consent or even by custom in certain cases.
7.9. This means
that it would be an unjustified exaggeration to claim that the express approval
of the home state is needed for a kin state to have such a contact of
co-operation with a foreign citizen. Today’s transboundary co-operation cannot
be limited to classic interstate co-operation. The acceptance of this
phenomenon is certainly facilitated by background treaties – but this does not
exclude the possible existence of a direct relationship of kin state to kin
minority.
7.10. The Hungarian Act is in conformity with the scope and
the provisions of both international treaties and acts on minorities rights
protection as well as the bilateral treaties signed by Hungary and her
neighbours in the nineties, which provide for co-operation and recognise as legitimate
the mutual interests of the parties in protecting their kin minorities living
on the territory of the other party.
Annex No. 1: Kin states and kin minorities in home states of
the Carpathian Basin (around 1990)
|
Hungarians
in Slovakia
|
567.296
(653.000)
|
Slovaks in Hungary
|
10.459
(80.000)
|
|
Hungarians
in Ukraine
|
163.111
(200.000)
|
Ukrainians
in Hungary
|
657
(1000)
|
|
Hungarians
in Romania
|
1.627.021
(2.000.000)
|
Romanians
in Hungary
|
10.740
(15.000)
|
|
Hungarians in Serbia
|
343.942
(365.000)
|
Serbs in Hungary
|
2.905
(5.000)
|
|
Hungarians in Croatia
|
22.355
(40.000)
|
Croats in Hungary
|
13.570
(40.000)
|
|
Hungarians
in Slovenia
|
8.499
(12.000)
|
Slovenes in Hungary
|
1.930
(5.000)
|
|
Hungarians
in Burgenland
|
6.763
(7.000)
|
Germans
in West-Hungary
|
1.531
(17.000)
|
Source: Census data /Ukraine 1989, Hungary 1990, Slovakia,
Serbia, Croatia, Slovenia, Austria 1991, Romania 1992/ according to the
ethnicity (in Austria: everyday language). In parentheses are the estimates –
according to the language knowledge and ethnic origin – of the organisations of
the minorities and the calculations of K. Kocsis (1988). Hungarians in
Transylvania include the Székely- and Csángó-Hungarians
Annex No. 2
Consultations with
the neighbouring countries
1) Multilateral
consultations
On 11 December 2000, Political State Secretary Zsolt Németh
informs the ambassadors accredited to Budapest of the EU member states and the
countries adjacent to Hungary on the concept of the projected legislation.
On 5 April 2001, Foreign Minister János Martonyi informs the
ambassadors of the EU member states and the countries adjacent to Hungary on
the draft legislation submitted to Parliament by the Government.
2) Hungarian-Romanian
consultations
On 5-6 February 2001, Deputy State Secretary of the Foreign
Ministry Csaba Lőrincz holds discussions in Bucharest with Foreign
Minister Mircea Geoana, State Secretary Cristian Diaconescu and General
Director of the Foreign Ministry Mihail Dobre.
On 20-21 February 2001, Political State Secretary Zsolt Németh holds discussions in Bucharest with
Foreign Minister Mircea Geoana, State Secretary Cristian Diaconescu, Minister
for European Integration Hildegard Puwak and Vasile Puscas, the EU Chief
Negotiator of Romania.
On 2 March 2001, Tibor Szabó, the President of the Office
for Cross-Border Hungarians, Co-Chairman of the Hungarian-Romanian Expert
Committee for Minorities, sends to the Romanian side - at the request of his
Romanian partner - the draft of the legislation.
On 4 April 2001, Romanian Foreign Minister Mircea Geoana
holds talks in Budapest with Prime Minister Viktor Orbán and Foreign Minister
János Martonyi.
On 2 May 2001, Ambassador István Íjgyártó holds
consultations in the Romanian Ministry of Foreign Affairs.
On 24 May 2001, a consultation of experts is held in Budapest.
The Romanian delegation is led by Bogdan Aurescu, the head of the Department
for International Law of the Romanian Ministry of Foreign Affairs; the
Hungarian delegation is led by Mátyás Szilágyi, the General Director of the
relevant regional department.
On 30 May 2001, as part of the Budapest meeting of NATO
foreign ministers, Foreign Minister János Martonyi and Foreign Minister Mircea
Geoana hold bilateral discussions.
On 22 June 2001, Foreign Minister János Martonyi and Foreign
Minister Mircea Geoana meet in Milan, at the foreign ministers’ conference of
the CEI.
On 12-13 July 2001, János Martonyi holds talks in Bucharest
with Prime Minister Adrian Nastase and Foreign Minister Mircea Geoana.
On 28 July 2001, Prime Minister Viktor Orbán meets the Romanian
Prime Minister Adrian Nastase.
In September 2001, the Hungarian-Romanian Inter-Governmental
Joint Commission and its expert committees meet in Budapest.
3) Hungarian-Yugoslav
consultations
On 7-8 May 2001, the Yugoslav Federal Minister for Minority
Affairs Rasim Ljajic holds talks in Budapest with Foreign Minister János
Martonyi, Political State Secretary Zsolt Németh, János Báthory, President of
the Office for National and Ethnic Minorities, and Kinga Gál, the Deputy
President of the Office for Cross-Border Hungarians.
On 15-16 May 2001, Political State Secretary of the Foreign
Ministry Zsolt Németh holds talks in Belgrade with President of the Republic
Vojislav Kostunica and Federal Minister for Minority Affairs Rasim Ljajic.
On 20 June 2001, President of the Republic Ferenc Mádl and
his (Yugoslav) counterpart Vojislav Kostunica hold talks in Budapest. On the
initiative of Foreign Minister Goran Svilanovic, separate bilateral discussions
are held with Foreign Minister János Martonyi.
On 5 July 2001, Administrative State Secretary Iván Bába
holds talks in Belgrade with Foreign Minister Goran Svilanovic.
4)
Hungarian-Ukrainian consultations
On 18-19 January 2001, a Hungaraian-Ukrainian consultation
of Foreign Ministry General Directors is held in Budapest.
On 3-4 April 2001, the 10th session of the
Hungarian-Ukrainian Joint Commission for Minorities is held in Kiev.
On 18 June 2001, Tibor Szabó. President of the Office for
Cross-Border Hungarians, holds consultations in Ungvár with Grigoriy Sereda,
the Director of the Office for Minorities and Ethnic Groups of the Ukrainian
Ministry of Justice.
On 27 July 2001, Deputy State Secretary Lőrincz Csaba
holds talks in Kiev on question to do with the application of the Act.
5) Hungarian-Croatian
consultations
On 28 May 2001, György Csóti, Hungary’s ambassador to
Zagreb, briefs the Croatian Deputy Foreign Minister Nenad Prelog.
On 10 July 2001, Deputy State Secretary Lőrincz Csaba
and Deputy Foreign Minister Nenad Prelog hold consultations in Budapest.
6) Hungarian-Slovak
consultations
On 23 April 2001, Prime Minister Viktor Orbán and his
(Slovak) counterpart Mikulas Dzurinda hold talks in Budapest.
On 15 May 2001, Administrative State Secretary Iván Bába
holds talks with State Secretary of the Slovak Ministry of Foreign Affairs Ján
Fígel at the 3rd session of the joint commission dealing with integration
affairs and other foreign-policy questions, held in Bratislava.
On 5 June 2001, the Hungarian Ambassador to Bratislava
Miklós Boros holds talks with Milan Sloth, the General Director of the
Department responsible for bilateral relations of the Slovak Ministry of
Foreign Affairs.
On 15 June 2001, Foreign Minister János Martonyi and
Political State Secretary Zsolt Németh hold talks in Budapest with State
Secretary of the Slovak Ministry of Foreign Affairs Jaroslav Chlebo.
Annex No. 3
Mr József Krasznai
Deputy Chairman
Roma Parliament of Hungary
Budapest
Dear Mr Krasznai:
I hereby gratefully acknowledge your 25 April 2001 telefax
message asking about the relationship between the draft legislation on
Hungarians living in neighbouring countries and Hungarian Roma living beyond
the borders. I was genuinely delighted to learn that the Roma communities of
Hungary, as well as those living in neighbouring states, are giving serious
consideration to the bill prepared by the civic Government, which - according
to our plans - will be enacted yet before the end of the year.
The draft legislation - the parliamentary debate on which is
currently underway - is of an inclusive nature: it says he is Hungarian who
describes himself as being Hungarian.
Those who wish to avail themselves of the benefits and
assistance provided by the Act should have the so-called “Hungarian
Certificate”, which will be issued on the basis of the recommendation of an
organization operating in a neighbouring state and recognized by the Hungarian
Government. According to the plans, for the recommendation to be issued, one
will have to provide a written declaration stating that he belongs to the
Hungarian nation, an application for the recommendation, with a knowledge of
the Hungarian language as another prerequisite. Provided certain supplementary
conditions are present, an exemption may be granted from this latter condition.
If the applicant meets these criteria, the recommendation must be granted
regardless of origin, religion or political affiliation.
Given that the parliamentary debate on the legislation has
not been completed yet, any assistance can, for the moment, be regarded only as
a draft. The grants recommended for adoption - including the educational
assistance which may be granted in the birth-place - will, naturally, apply to
all those who come under the ruling of the Act and meet the conditions for the
awarding of the assistance concerned, i.e. ensure that their underage child or
children living in their own household are educated, and receive instruction,
in a Hungarian-language kindergarten or Hungarian-language educational
establishment located in a neighbouring state of their domicile. But the grants
- the amounts of which depend on the country’s ability to shoulder burdens -
will not be due automatically, - an application will, invariably, have to be
submitted for them.
The Act currently under preparation deals with Hungarian
communities living beyond the frontiers, which naturally include, also, the
Roma communities living in neighbouring states which define themselves as
Hungarian. Thus the bill might serve as a model also in the sense that it has
an inclusive character; it does not discriminate, on the contrary: it
endeavours, by all possible means, to advance the minorities’ sense of
belonging together, helping ensure that they have a chance for a decent life.
Should you need any further detailed information, I will be
glad to be of help in future as well.
--------------------------------------------------------------
Budapest, 9 May 2001
Yours sincerely,
Zsolt Németh
