Strasbourg, 2 June 2006 Study no. 294/ 2004	Restricted CDL(2006)052 Engl Only.

 

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION)

 

 

ROUND TABLE ON “NON-CITIZENS AND MINORITY RIGHTS”   Geneva, 16 June 2006 09.00 a.m.-1.00 p.m.   University of Geneva Law Faculty - Department of Constitutional Law Room 3050 40 Bd du Pont d’Arve 1211 Geneva 4 Tel + 41 22 379 85 30 /22

 

 

 

Identification, relevance and admissibility of

criteria other than citizenship

 

 

 

I.          Introduction

 

1.  The issue of whether and to what extent non-citizens should benefit from specific minority protection is a long-debated one. The controversial approach to it depends largely on the absence of a legally-binding and even generally accepted definition of the term “minority”. In the light of recent trends and developments in the international protection of human rights as well as the recurrent discussions on this subject, a Working Group composed of members of the Venice Commission(Messrs. van Dijk, Matscher and Malinverni) was established in early 2004 with a view to carrying out further reflection on the legal and practical significance of the citizenship requirement and possible alternative criteria.

 

2.  Aware of the importance and complexity of this matter, the Working Group considered that it would be extremely useful to have an exchange of views on this matter, together with representatives of the other main international bodies dealing with minority protection. Consequently, the Working Group held a meeting in Strasbourg on 28 May 2004 which was attended by the members of the Working Group, members of the Advisory Committee on the Framework Convention for the Protection of National Minorities, the Working Group on Minorities within the UN Sub-Commission on Human Rights and the Committee of Experts of the European Charter for Regional or Minority Languages. Furthermore, the meeting was attended by representatives of the Secretariat of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe and the Office of the OSCE High Commissioner on National Minorities.

 

3.  The reflection process was pursued further in the context of the 19^th meeting of the Sub-Commission on the Protection of Minorities, which took place on 9 June 2005 in Venice. Following a discussion based on various written submissions prepared by participants and a background note prepared by the Secretariat (CDL-MIN(2005)001), the Sub-Commission asked the Working Group to pave the way for a general study through the preparation of working documents aimed at identifying specific minority rights and the criterion/a (such as long-standing lawful residence) which could, if appropriate, replace the citizenship one. It was agreed that this work would be carried out in consultation with the above-mentioned international bodies.

 

4.  Before finalising a draft study and transmitting it to the plenary, the Working Group decided to organise a round table in Genevaon 16 June 2006 with the participation of representatives of the other main international bodies concerned, as well as external experts. The present document (CDL(2006)052) has been prepared by the Secretariat with a view to helping focus the discussions of the roundtable on other, possible alternative criteria to the citizenship one. Its content could be reflected in the proposed general study, which will also include other chapters drawing on the previous discussions and various written materials prepared for the round table.

 

II.                Identification, relevance and admissibility of criteria other than citizenship

A.                Existence of alternative criteria

5. The relevance of the citizenship criterion as a precondition for enjoying minority rights has been both a long-debated and a controversial issue. Moreover, international standards and practice have been under significant evolution in recent decades. While the question of citizenship has regularly featured prominently in the debate, it should be borne in mind that other elements, often considered constitutive of a minority, have also been proposed, analysed and even implemented in practice. Such elements can be found in various international standards - legally binding or not – and/or in their corresponding explanatory reports. National legislation and practice offer further evidence of the relevance of such criteria.

 

6. It may be argued that the relationship between such elements and the citizenship criterion has often remained unclear: in other words, one would have difficulty to contend that these criteria have been specifically developed in order to replace the reference which is often still made to citizenship. While this may be true, it is equally pertinent to stress that they have not been developed in a way that would exclude this possibility. In any event and for the purpose of this study, it is important to underline that the relevance of other criteria has already been analysed and their “workability” has often been tested in various national contexts.

 

B.                 Complex nature of minority rights

7. The protection of persons belonging to minorities in international law is generally viewed as a combination of classical individual rights and freedoms on the one hand and “enhanced” or “core” minority rights on the other. The first category includes basic rights such as freedom of association, freedom of expression, freedom of peaceful assembly, freedom of thought, conscience and religion, respect for private life and of course the prohibition of discrimination. These rights, which are enshrined in a number of international treaties such as the ECHR, the ICCPR and the ICERD, are universal in nature and can be invoked by every human being, irrespective of his or her affiliation with a minority.[1] It has nevertheless been found indispensable to repeat them in most if not all international standards dealing specifically with the position of minorities since they represent essential and perhaps even foundational guarantees for persons belonging to minorities: without unimpeded exercise of these basic rights and freedoms coupled with a particular sensitivity for their key role in enabling the affirmation of a specific identity, state schemes, policies and strategies intended to support minorities could never be fully operational.[2]

 

8. The second category is made up of “enhanced” or “core” minority rights. Although this notion is not legally defined, it embraces a set of States’ obligations and principles which in turn result in rights, facilities and concrete measures taken on behalf of persons belonging to minorities. These enhanced minority rights can in principle not be inferred from the catalogue contained in the ECHR as they are more demanding.[3] They are entrenched in instruments or provisions dealing specifically with minorities, such as the FCNM[4], the ECRML[5], the CSCE/OSCE commitments and Article 27 ICCPR.

 

9. Although human rights and fundamental freedoms were originally meant to place an obligation on States not to interfere with their exercise (i.e. an essentially negative obligation), subsequent interpretation and especially ECHR case-law have inferred positive obligations on the part of the states: the latter now have a duty to protect human rights and fundamental freedoms against violations which do not emanate from them. The possibility of such positive obligations has also been recognised in different contexts by the ECtHR, including that of persons entitled to a protection under minority instruments.[6]

 

10.  While each person belonging to a minority enjoys all individual human rights and freedoms, the exercise of such rights “in community with others”, in particular through the freedom of association, is often indispensable for a minority to be able to preserve and develop its specific identity. This is however not sufficient: the exercise of basic freedoms and enhanced minority rights by members of a minority - even in community with others - but without any State involvement whatsoever would most probably mean nearly insurmountable difficulties for many minorities to maintain their identity.

 

11.  It follows that organised State action aimed at helping minorities preserve and develop the essential elements of their identity is crucial and actually even dictated by both the letter and the spirit of relevant international standards, such as the FCNM[7] and the ECRML.[8] Although initially somewhat controversial, a State duty to take positive action is now also widely accepted in relation to Article 27 ICCPR, as attested by the HRC itself[9] and corroborated by academic legal opinions.[10] The 1992 UN Declaration on Minorities makes it clear that the rights it spells out often require action, including protective measures and encouragement of conditions for the promotion of their identity and specified, active measures by the State.[11]

 

C.                Need to target state action through adequate criteria

12.  Given the particular nature of minority rights and the corresponding importance to take positive action, most if not all state policies aimed at protecting minorities provide for and regulate cultural support through specific legislation, assistance programmes, budgetary and other measures.[12] Furthermore, enhanced minority rights such as language rights and participatory rights almost inevitably necessitate the setting up of specific infrastructures and/or the adoption of special measures to ensure that those concerned can make an effective use of their rights in practice.

 

13.  Against this background, States are confronted with the need to design schemes to support minority language and culture. In doing so, they may legitimately look for certain guarantees to make sure the impact of their (often long-term) efforts will be maximised and will meet the real needs of persons belonging to minorities. States therefore often identify - or in practice make use of - certain criteria which are meant to attest the viability of the services offered and the representativity of the (group of) persons submitting specific requests for linguistic services or other cultural support. In this context, a number of alternative criteria can be envisaged, such as the requirement of a lawful residence, the size of a minority, the length of time on a given territory, the existence of kin-state support or even other criteria able to attest the existence of strong and lasting ties coupled with real needs.

 

D.                Lawful residence

14.  International standards specifically designed for persons belonging to minorities do not explicitly mention the requirement of a (lawful) residence. The notion of residence had been included in the draft additional protocol on the rights of national minorities to the ECHR adopted by the PACE.[13] Moreover, several declarations/reservations entered upon ratification of the FCNM make mention of it.[14] In both contexts though residence is envisaged as a constitutive element of various attempts to define the term national minorities, rather than as a particular criterion to be relied upon for certain specific minority rights and facilities.

 

15.  State practice, however, suggest that the notion of (lawful) residence is often used or referred to as a condition, even implicitly, for being entitled to certain rights and measures. For example, States often set up minority consultation structures with a view to identifying regular interlocutors who can express the needs of persons belonging to minorities and submit requests for financial or other support for their initiatives. Channelling positive measures, such as support for cultural initiatives, through such structures is indeed meant to ensure a well-targeted impact on those concerned. A wide range of consultation mechanisms coexist in European practice, such as ad hoc consultative commissions, advisory bodies to the parliament and/or the government, to systems of cultural autonomy involving the setting up of minority councils through free and secret ballot.

 

16.  States usually try to ensure a certain representativity of the minority consultation structures they establish and may therefore adopt legislative provisions governing their legal status. In this context, the requirement of a minimum number (or percentage) of persons who belong to a given minority and reside in the country – or in a given administrative division of it - is commonly prescribed among the conditions laid down in such regulations.[15]

 

17.  In principle the requirement by a State wishing to establish consultation mechanisms and/or provide support for cultural and other initiatives, namely that a sufficient number of persons belonging to a minority are legal residents, is justifiable and does not seem to have met with objections from human treaty bodies.[16] Lawful residence actually testifies to the existence of a factual and legal link between a group of persons and the State. The latter may therefore legitimately ask for some evidence of such a link, including through the requirement of a lawful residence,[17] before creating new consultation structures, taking positive measures and thereby committing public money for minority groups.

 

18.  It should be stressed, however, that an additional requirement such as the citizenship criterion has often been criticised in the same context by different international bodies in that it could not be reasonable or might in some cases lead to arbitrary exclusions.[18] The Venice Commission itself has already questioned the admissibility of restricting certain cultural and linguistic rights to citizens only and highlighted in this regard the exclusion of non-citizens from membership in a system of cultural autonomy as well as in associations established to promote and protect the identity of minorities.[19]

 

E.                 Numerical size of a minority

19.  The qualification as a minority shall not depend on the numerical strength of a group. Indeed even tiny groups are to be considered covered by the instruments protecting minorities, provided they meet the necessary objective elements and express the wish to cohere as a minority with a view to preserving their specific identity. This is attested both by state practice, which contains numerous examples of protection granted to tiny minorities[20], and findings adopted by international bodies.[21]

 

20.  While numbers may not per se justify the exclusion of a group from the general protection any minority is entitled to, they are not without relevance when it comes to determining the level of protection granted to a minority. General human rights can of course not be subject to restrictions based on numbers but enhanced minority rights can. This is especially the case for those language rights and facilities which go beyond the mere personal right to use one’s language freely in private and in public, which is already guaranteed by articles 8 and 10 ECHR. Most frequently quoted examples include the right to make use of a minority language in official dealings, the right to minority language education and the display of bilingual topographical indications.

 

21.  Different expressions can be found in the corresponding international standards, such as “substantial numbers”, “sufficient demand”, “numerical strength”[22] or “number considered sufficient/justifying measures”.[23] At least some forms of limitation - based on numbers - in the enjoyment of language rights and facilities must therefore be regarded as compatible with these expressions. It is no coincidence that international standards do not specify further which proportions or percentages should trigger the rights and facilities at issue since the assumption is that flexibility is needed in this respect to adequately cope with the variety of national situations.[24]

 

22.  Practice suggests that several States have set more precise conditions pertaining to numbers in their legal order, including through the entrenching of numerical minimum thresholds in relevant statutory provisions. This is a useful step as the absence of a legal basis in domestic law for the use of minority languages or even a complete discretion left to the authorities to decide on the admissibility of such a use do not seem acceptable.[25] Numerical thresholds, albeit permissible and regularly used, should not be demanding to such an extent as to impair the very essence of language rights for persons belonging to minorities or deprive these rights of their effectiveness.[26] Furthermore, it seems preferable not to base decisions on the maintenance or closure of minority language classes exclusively on minimum numbers but rather balance such numbers with other criteria equally useful to determine needs and assess the level of demand.[27] More generally and without questioning the practice of adopting thresholds or percentages, States may also opt for less automatic criteria which would reserve a real margin of appreciation for the authorities, thus making it possible to take into account the numerical size of a minority as one element in a general balance of interests before reaching a decision.

 

23.  In view of the foregoing, it seems justifiable for States to rely on the numerical size of a minority - often in combination with other criteria – when confronted with a choice to be made on the extension of language rights. As part of core or enhanced minority rights, language rights indeed involve significant (financial and other) effort by the State, mainly through positive measures, in order to be fully operational in practice. For example, to be able to process requests received in a minority language or even to respond in such a language certainly requires from the authority or public service concerned a minimum infrastructure, qualified staff members and/or translators, language training for civil servants, etc. The argument is all the more valid as concerns the creation of real opportunities to receive minority language teaching within the education system. In this context, it is legitimate for the State to take into serious account the capacity of a minority to contribute to the durability of such services and facilities over time, notably by looking at its numerical size.

 

F.                 Time factor and link with a territory

24.  “Minority area” provisions are to be found in international standards. This is mostly - if not exclusively - the case in relation to core minority rights, i.e. essentially language rights. Illustrative examples include the expression “in areas inhabited by persons belonging to national minorities (…) traditionally (…)” used in Articles 10 §2, 11 §3 and 14 §2 FCNM, which respectively deal with the use of minority languages in relation with administrative authorities, bilingual topographical indications and minority language teaching. Such clauses clearly allow for some form of territorial limitations by the States. Indeed it would not seem reasonable to oblige them to make, for example, minority language education systematically available across the whole country, including in areas where there is no evidence of the presence of a minority, at least for a significant period of time. The ECRML proceeds from the same assumption in that most of its provisions contain a territorial clause (“within the territories in which such languages are used”).[28]

 

25.  The question of the length of time the presence of a minority in a given area is needed cannot receive a general, abstract answer. A “traditional” settlement may probably require a continuous presence over years, perhaps even generations although it is not possible to articulate any precise time limit.[29] This question needs to be distinguished from that of the requirement of longstanding and lasting ties with the state of residence, which is often considered a constitutive element in various attempts to define the term minority.[30] the purpose of the latter is to require a traditional (or even historic) presence of a minority group in the territory of the State, not in a specific area of it. It is thus not used as a criterion to decide on the activation of enhanced language rights in specific areas, but rather as a general test to decide on the granting of minority protection status.[31]

 

26.  In view of the foregoing, territorial limitations - coupled with time requirement - in the availability of linguistic rights and facilities seem in principle admissible. They should, however, be based on reasonable and objective criteria. For example, States may check the traditional presence of a minority in a given region using inter alia census results, although in this case they must not base themselves exclusively on the latest census figure but rather consider such results over a longer period of time.[32] Moreover, the designation of certain zones for the purpose of applying these “minority area” provisions should not be made in too a rigid way so as to exclude any possibility for a more flexible application in justified, individual cases.[33] What essentially matters eventually in the use of territorial restrictions is that persons belonging to minorities do not lose their status – and thereby all protection – when they take residence outside their traditional area of settlement. It should therefore be accepted that the range of rights and facilities at their disposal can be reduced, provided the authorities ensure that the specific needs of these persons living outside their traditional areas of settlement are being catered for.[34]

 

G.                Existing kin-state support

27.  Support provided by kin-states for their kin-minorities abroad is a common feature in Europe, as illustratedinter alia by the dense network of bilateral agreements dealing with this issue. Such support focuses on education and culture, which are the most relevant areas in this context. For example, bilateral co-operation often encourage foreign support in order to secure adequate textbooks and qualified teachers for minorities. This has proven to be instrumental for the quality of minority language education.

 

28.  The question then arises as to whether States can legitimately rely on the existence of kin-state support to determine the actual level of their assistance for cultural and other initiatives put forward by various minorities and, more generally, their level of commitment to promote the conditions enabling minorities to preserve and develop the essential elements of their identity.

 

29.  The reply seems to be necessarily a nuanced one. First, it has to be recalled that the main responsibility always lies with the home-State as concerns commitments and obligations towards minorities. Intervention by kin-states, which have subsidiary character, can therefore not entirely replace home-State support. Secondly, in order to comply with international principles of minority protection, support provided by kin-states must respect certain principles, identified by the Venice Commission and relating both to the form and to the substance of the measures.[35]

 

30.  Bearing in mind these important caveats, there seems to be room for home States to invoke an existing kin-state support to moderate the level of their cultural support and target more specifically those minorities which do not benefit from such a support.[36] Roma in particular frequently benefit from an enhanced state support aimed at promoting equal opportunities for their access to education. This seems justified and compatible with the equality and non-discrimination principles, as in most countries Roma, who cannot rely on the support of a kin-state, find themselves in a disadvantaged position as compared to the rest of the population.

 

III. Concluding remarks

 

31. The term “minority” has not been given a legally binding definition in international law. Furthermore, different categories may be covered by this term: in the UN system, the beneficiaries of the rights under Article 27 ICCPR are persons belonging to “ethnic, religious or linguistic” minorities and the 1992 Declaration adds the category “national” minorities. In the European context, the category “national minority” is preferred and can be found in the FCNM and in the OSCE documents. Although terminology and concepts are unlikely to be defined and unified in international law, common features can be identified as regards state action needed to enable persons belonging to minorities to assert their specific identity.

 

32. Minority rights should not be regarded as a distinct category, nor interpreted and analysed in isolation from the human rights family. It is rather a combination of classical (universal) human rights – whose exercise is often collective - and enhanced minority rights/facilities. While the former may occasionally entail positive obligations from the States, the latter undoubtedly and inherently necessitate a concerted, coherent and sustained state action aimed at offering adequate opportunities and providing a range of linguistic rights and facilities. Such positive action is essential to enable persons belonging to minorities to assert their specific identity, which is the objective of every minority protection regime. Hence due regard must be given to this complex set of rights and obligations in any attempt to determine the exact scope of a state’s action through the use of relevant criteria.

 

33. Even though human rights and fundamental freedoms are universal in nature, it is legitimate for States to try and circumscribe the circle of those who will directly benefit from its special measures designed to promote the specific identity of minorities. Bearing in mind the need to respect the principle of equality and the prohibition of discrimination, it seems useful and even necessary to rely on objective criteria in this regard. Criteria such as residence, size, kin-state support and time factor coupled with link with a territory are amongst those which can be found most frequently in relevant international standards and often matched by concurring state practice. They should not be considered exhaustive as other criteria may also prove useful and workable in practice. While citizenship undoubtedly indicates a strong link, these alternative criteria also bear witness – at least to an extent – to genuine ties between persons belonging to minorities and their home-state.

 

34. The relationship between these other criteria and the citizenship is not finally settled. On the one hand, the use of other criteria may appear preferable in certain contexts such as enhanced linguistic rights, especially in the field of education and use of minority languages in the public realm. On the other hand, the use of the citizenship criterion remains perfectly admissible - and perhaps more suitable - in certain limited contexts, in particular as concerns some political rights and access to certain public functions. What seems increasingly problematic from the point of international law is the general and systematic use of the citizenship criterion made by certain States, irrespective of the aforementioned complex nature of the set of individual’s rights and state’s obligations concerned. A more nuanced use of the citizenship criterion, together with other relevant criteria, would certainly avoid the risk of arbitrary exclusions while preserving the state’s capacity to target its effort and channel its resources to those who most need it.[37]