Charting the Gradual Emergence of a More Robust Level of Minority Protection: Minority Specific Instruments and the European Union
| Author | Kristin Henrard |
| Published date | 01 December 2004 |
| Date | 01 December 2004 |
| DOI | 10.1177/016934410402200403 |
| Subject Matter | Part A: Article |
CHARTING THE GRADUAL EMERGENCE OF
A MORE ROBUST LEVEL
OF MINORITY PROTECTION:
MINORITY SPECIFIC INSTRUMENTS AND
THE EUROPEAN UNION
KRISTIN HENRARD*
Abstract
Following a brief discussion concerning the concept ‘minority’, this article analyses certain
trends that can be gleaned from the supervision of minority specific instruments (or provisions)
as well as the gradual development of a minority protection paradigm within the EU. The
supervisory system of the Framework Convention for the Protection of National Minorities
(FCNM) will receive most attention, because it has developed the most extensive and most
detailed body of relevant opinions concerning minority rights. Furthermore, it reveals
remarkable developments regarding minority protection, through rather extensive and
demanding interpretations of the ensuing State obligations which significantly reduce the at
first sight almost boundless State discretion. At the same time, it seems important to discuss the
latest views of the Human Rights Committee (HRC) concerning minority protection issues, some
of which have elicited divergent interpretations among academics. While it would be far fetched
to qualify developments regarding minority protection in the EU under the heading of ‘minority
specific instruments’, they surely deserve attention. Arguably, the minority protection rhetoric is
gradually expanding to the internal policy domain, which is reflected in the explicit recognition
in the recently adopted Constitution of respect for minority rights as a foundational value of the
EC. The final part of this article analyses the repercussions of the accession dynamic, with its
attention for minority protection in the candidate countries, for both direct and more indirect
channels of ‘minority protection’ within the EU.
1. INTRODUCTION
It can hardly be denied that minority issues, minority protection and the
accommodation of population diversity have been at the forefront of the
international agenda during the last decade. The atrocious examples of the former
Yugoslavia and Rwanda demonstrated only too well the importance of an adequate
system of minority protection in order to prevent (and/or manage) ethnic conflict.
Renewed initiatives pertaining to standards setting both at the intergovernmental
Netherlands Quarterly of Human Rights, Vol. 22/4, 559-584, 2004.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 559
* Associate Professor, University of Groningen, the Netherlands. The relevant developments until 31
August 2004 are included in the analysis undertaken here.
560
and expert level
1
have been complimented by certain developments in the
jurisprudence or quasi-jurisprudence of supervisory organs of both human rights
and minority rights conventions.
Following a brief discussion concerning the concept ‘minority’, this article
analyses certain trends that can be gleaned from the supervision of minority specific
instruments (or provisions) as well as the gradual development of a minority
protection paradigm within the EU.
It is generally accepted that non-discrimination in combination with individual
human rights constitute essential elements of an adequate minority protection.
2
The need for minority specific rights or so-called special measures attuned to the
specific needs of minorities can be argued for on the basis of considerations
concerning substantive equality and the right to identity of minorities. However,
these ‘special’ rights remain rather contentious for governments. At the
international level, this tends to result in minority specific provisions that are often
not legally binding and always weakly formulated, leaving a considerable margin of
appreciation to States.
3
This margin of appreciation is positive in that it allows for
the specific circumstances to be fully taken into account. However, it can also be
abused by States that try to avoid any (meaningful) obligation. In this respect, it is to
be welcomed that supervisory organs of minority rights provisions scrutinise the
positions of the contracting States critically in order to safeguard adequate levels of
minority protection.
In this contribution the supervisory system of the Framework Convention for the
Protection of National Minorities (FCNM) will receive most attention, because it has
developed the most extensive and most detailed body of relevant opinions
concerning minority rights.
At the same time, it seems important to discuss the latest views of the Human
Rights Committee (HRC) concerning minority protection issues, some of which
have elicited divergent interpretations among academics. While it would be far
fetched to qualify developments regarding minority protection in the EU under the
heading of ‘minority specific instruments’, they surely deserve attention. Arguably,
the minority protection rhetoric is gradually expanding to the internal policy
domain.
4
The final part of this article analyses the repercussions of the accession
Kristin Henrard
1
In the Council of Europe the Framework Convention for the Protection of National Minorities was
adopted in 1995, while at the invitation of the OSCE High Commissioner on National Minorities a
group of experts has elaborated the 1996 Hague Recommendations regarding the Education
Rights of National Minorities, the 1998 Oslo Recommendations regarding the Linguistic Rights of
National Minorities, the 1999 Lund Recommendations on the Effective Participation of National
Minorities in Public Life and the 2003 Guidelines on the Use of Minority Languages in the
Broadcast Media.
2
Inter alia Benoit-Rohmer, F., The Minority Question in Europe: Towards a Coherent System of Protection of
National Minorities, Council of Europe, Strasbourg, 1996, p. 16.
3
For a more extensive discussion in this respect, see, inter alia, Henrard, K., Devising an Adequate
System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination,
KLI, The Hague, 2000, pp. 8-11 and 218-233.
4
It seems important to clarify from the beginning that when talking about minority protection within
the EU, this refers to the protection of minorities (and the related diversity) within the individual
member States (see also Von Toggenburg, G., ‘Unity in Diversity: Some Thoughts on the New
Motto of the Enlarged Union’, at www.ciemen.org, p. 4). In other words, this article is concerned
with the extent to which the Union is involved in the question how multicultural a State should be.
This obviates the need to go into the far from straightforward discussion of the identification of a
minority at EU level.
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