797th meeting – 29 May 2002
Item 10.2
Territorial autonomy and national minorities
Draft reply to Recommendation 43 (1998) of the Congress of Local and Regional Authorities of Europe
(CLRAE Rec 43 (1998), GR-H(2001)3 revised, CM/Del/Dec(2001)747/1.1 and 796/10.7)
Decision
The Deputies adopted the following reply to CLRAE Recommendation 43 (1998) on territorial autonomy and national minorities:
“1. The Committee of Ministers has carefully studied Recommendation 43 (1998) of the Congress of Local and Regional Authorities of Europe on territorial autonomy and national minorities and the draft recommendation appended to it. The Committee also sought the opinion of the Steering Committee for Human Rights (CDDH).
2. The Committee of Ministers takes note of the ideas underlying the draft recommendation submitted for its attention. In general, it subscribes to the view, reflected in the preamble, that the principle of subsidiarity can make a positive contribution to the protection of national minorities, especially in areas inhabited by persons belonging to such minorities traditionally or in substantial numbers. It points out that measures towards decentralised or local forms of government are one of the ways of promoting the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them. In this respect, the Committee of Ministers points out that many examples for arrangement, at different territorial levels in Europe, could serve as good practices.
3. The Committee of Ministers is of the view that the appropriateness of such solutions depends to a large extent on factors such as the constitutional framework of the country and the specific situation of national minorities. It is therefore advisable that relevant factors be taken into consideration when deciding on such matters.
4. The CDDH has pinpointed a number of legal difficulties to which the text gives rise, including in terms of its consistency with existing legal instruments of the Council of Europe and made a number of other suggestions concerning this text. The Committee of Ministers therefore informs the Congress that it could not accept the recommendation proposed by the Congress and draws its attention to the Opinion formulated within the CDDH appended to this reply.
5. From a more general point of view, the Committee of Ministers recalls that the ideal of a multicultural society reposes on the harmonious co-existence of different ethnic groups, based on mutual understanding and respect, within a given societal entity. It is pleased to note that the Congress shares this view (cf. paragraph A. h. of the proposed recommendation).
6. While it is clear that under certain circumstances and through democratic decisions taken within its constitutional framework a State might also deem appropriate to address the question of the protection of national minorities through territorial subdivision, one needs to bear in mind the need to preserve the social cohesion of the population of the country as a whole and to respect the corresponding general integration policy pursued to that end, as well as to respect the territorial integrity and national sovereignty of states.”
Appendix
Opinion of the Steering Committee for Human Rights (CDDH) on
Congress of Local and Regional Authorities of Europe (CLRAE)
Recommendation 43 (1998) on territorial autonomy and national minorities
(Adopted by the CDDH at its 46th Meeting 22-25 June 1999)
1. Pursuant to the terms of reference given by the Ministers’ Deputies on 15 September 1998, the CDDH, and particularly its sub-committee on issues relating to the protection of national minorities (DH-MIN), has given in depth consideration to Recommendation 43 (1998) on Territorial Autonomy and National Minorities, adopted by the Congress of Local and Regional Authorities of Europe (CLRAE) on 27 May 1998 and the draft for a Recommendation of the Committee of Ministers appended thereto.
2. The main results of the analysis undertaken by the DH-MIN are reflected in the Appendix to this opinion.
3. On the basis of this analysis, the CDDH can but conclude, that in its current form, the draft Recommendation is not suitable for adoption by the Committee of Ministers.
Appendix to the Opinion
The DH-MIN arrived at a number of general observations concerning the draft Recommendation, which appear under part A. Part B contains the observations on the text of the draft Recommendation.
A. General observations in respect of the draft Recommendation prepared by the CLRAE
1. It was pointed out that "territorial autonomy" is not defined under international law and that this term may mean different things in different countries. Furthermore, this term is alien to, or even constitutionally prohibited in a number of countries. There is general support for the view that, if the term is to be used at all, in the context of this Recommendation, it should be understood as meaning Regional and/or Local Self Government, the latter term being defined in Article 3 of the European Charter of Local Self Government. Some delegations objected to the use of the term "territorial autonomy" or Regional and/or Local Self Government in this recommendation.
2. A second general observation concerns the scope of the draft Recommendation. The Preamble (in the third recital) contains the phrase "… national minorities – meaning Europe’s historical minorities..". There is general agreement that this phrase is highly problematical because it appears to imply a definition of national minorities, whilst the Framework Convention for the Protection of National Minorities deliberately does not define the term.
3. Some delegations consider that it would be best expressly to limit the scope of the draft Recommendation to "historical minorities", as a distinct category that would have longstanding and firm ties with the country. Some other delegations expressed reluctance at the introduction of a new term or category in this domain and consider that the term "national minorities" should be used, without further precision.
4. A further general remark is that the impression must be avoided that "territorial autonomy" is the only or generally the best way to ensure the effective protection of national minorities, or that "territorial autonomy" is a concept that is only applicable to national minorities. It should be emphasised that territorial autonomy is but one of a number of ways in which the effective participation in cultural, social and economic life and public affairs and political representation of persons belonging to national minorities may be achieved, in the framework of the functioning of local democracy. It follows from this that the merits of territorial autonomy for national minorities must be considered in the light of the specific circumstances of a given situation, including the relevant provisions of domestic law and in the light of possible alternatives. Some delegations expressed the position that "territorial autonomy for national minorities" proposed in the draft Recommendation (43) 1998 does not refer to the concept of territorial autonomy in general, but to a "special territorial autonomy for national minorities based on ethnic criteria" which is not acceptable for those delegations.
5. As another general observation it is emphasised that a recommendation on territorial autonomy should make clear that territorial autonomy must not lead to a situation where the basic human rights of persons who do not belong to the minority, which may be the majority within the given territory, are denied.
6. There was general agreement that any recommendation in this area may not be interpreted as implying any right to engage in any activity or perform any act contrary to the fundamental principles of international law and in particular of the sovereign equality, territorial integrity and political independence of States.
B. Observations on the text of the draft Recommendation
7. The analysis reveals instances of imprecise and/or confusing use of terminology, serious discrepancies between the French and the English version of the draft Recommendation and, as a result, a lack of sufficient clarity as to the scope or intention of several of the individual recommendations.
Preamble
8. Concerning the use of terms "national minorities", "historical minorities" and "territorial autonomy": see A. General observations.
9. The following issues were raised by individual experts, without the committee as a whole expressing an opinion on them at this stage:
- it was suggested that the 4th recital makes an incorrect link between territorial autonomy and the protection of national minorities;
- it was suggested that the term "citizen" in English and "citoyen" in French do not have the same meaning which could lead to confusion in the 4th recital;
- it was suggested in relation to the 7th recital that it is up to each State to decide whether a certain measure would constitute a threat to the unity of the state;
- it was pointed out that in the 7th recital the French words "population européenne" had wrongly been translated into "the peoples of Europe";
- it was suggested that in certain states it would not be possible to make distinctions in the powers delegated to regional or local governments.
PART A and B: general
10. Concerning the headlines of Part A and B it was pointed out that under A reference is made to "minority" (singular) and under B reference is made to "national minorities" (plural), whilst apparently no substantive difference is intended.
11. One delegation further noted that this discrepancy exists also in A.d), A.f), A.h), A.i) (in the English version only), and B.b). It was suggested that singular form be used consistently, both for the clarity of the text and because this appears to be the general case.
12. One expert questioned whether the division into part A and B made sense, as also in states where administrative sub-divisions have been introduced, changes may be considered in the future.
13. Some experts considered that the term "substantial proportion" was too vague and would need to be clarified. Other experts considered that this would not be possible and was not necessary as such terms also appear in legally binding instruments.
Part A
A.a
14. Some experts considered the words "geographical boundaries" inappropriate in relation to local or regional authorities. Rather, reference should be made to administrative or political boundaries. In its current form A.a would not be compatible with Article 16 of the FCNM. Other experts considered the current text compatible with the latter provision.
15. It was pointed out that the French "collectivité" had been translated by "authority" in English.
A.b
16. One delegation considered that the recommendations under A.a and A.b. were inconsistent, as the latter advocates changing boundaries, which would in the end change the proportion of the population, and the former advocates not doing so.
17. One expert pointed out that the merging of local authorities would require the involvement of higher authorities as they would not have the right to do so on their own.
18. It was remarked that there is a difference between "partnership" and "association".
19. It was pointed out that there was a difference between the French and the English in that the former speaks of "la minorité" and the latter of "a national minority".
20. Several experts expressed the view that this recommendation was completely in line with Article 15 and 16 of the FCNM.
A.c
21. A number of experts would be in favour of replacing the word "wide-ranging powers" by " (the) powers required".
22. One expert expressed reservations as to whether powers in the area of use of language could be delegated to local or regional authorities.
23. For the French version it was suggested to include the word "effective" after the word "protection", to bring it into line with the English version.
A.d
24. It was pointed out that in the English version the word "existing" occurs, which leads to confusion in relation to the element of "legitimacy". This confusion does not arise in the French version. Nonetheless, the word "légitimité" could be replaced by "légalité".
A.e
25. It was pointed out that this recommendation should clarify that "to join together" is not the same as "to merge" and that A.e. pertains to co-operation on specific issues.
26. One expert would be in favour of replacing "the right" by "the power".
27. Some experts would be in favour of using terms as " facilitate co-operation" rather than maintaining the terms of recognition of rights.
A.f
28. It was pointed out that the word "regrant" in the English does not make sense and should be brought in line with the French.
29. Some experts expressed concern that the wording did not make clear that the aim is to make possible the additional use of a minority language and not to exclude the use of the official (state) language.
30. One delegation pointed out that the competence of terrritorial authorities to rule on the use of languages should be defined by national law.
A.g
31. One expert considered that the text should not just speak of enabling authorities to spend resources on national minorities but should oblige them to do so. Another expert considered this would not fit in very well.
32. One expert would be in favour of the text stating expressly that this would not entail an obligation to provide public funds for private education in minority languages.
A.h
A.i
33. A number of experts considered it was inappropriate to use the word "guarantee" as this would imply a system of quotas and/or reserved seats in elected bodies. It was also pointed out that such a system would require registration of minorities, which is contrary to the principles of a number of member States. They would prefer to see wording along the lines of "..provide the means to enable national minorities to secure …".
34. One expert expressed a preference for the current draft text because it allowed for flexibility.
35. One expert questioned the need for having a provision on this subject at all.
Part B
B.a
36. Some experts would be in favour of replacing the word "to guarantee" by " to seek to create".
37. It was suggested to bring the English version in line with the French version where there is currently a discrepancy between "make this impossible" and "ne s’y opposent".
38. Some experts considered that the text did not express clearly what it was aiming to provide for, namely the protection against dispersal of minorities.
39. One expert expressed the point of view that the territory of a State cannot be reorganised according to the geographical deployment of national minorities with the consequence of dividing it into administrative and political subdivisions based on ethnic criteria.
B.b
40. One expert suggested this recommendation was not needed.
41. One expert pointed out that it should be clarified that this recommendation pertains to situations where states are reconsidering their constitutional arrangements.
42. It was suggested to include the word "national" before minorities in both language versions.
B.c
43. One expert expressed objections in relation to the use of the term "geographical boundaries" (see also under A.a).
B.d
44. One expert would favour the replacement of the word "substantial" by "necessary" or "appropriate". Some experts considered that the words "regional development" should be clarified in order to make clear whether it pertained primarily to economic issues or regional identity.
45. One expert would be in favour of including a reference to the aspect of language knowledge as an available resource.
46. In the French version the last word "confère" should read "confèrent"