Rapporteur: Gianfranco MARTINI (Italy)
Co-rapporteur: Folke ÖHMAN (Finland)

EXPLANATORY MEMORANDUM

Introduction

Paragraph 16 of Resolution No. 52, adopted during the Fourth Plenary Session of the Congress of Local and Regional Authorities [CG/GT/CIV (4) Res 52], instructed the Working Group on Federalism, Regionalism, Local Autonomy and Minorities to prepare a draft recommendation for submission to the Committee of Ministers.

In accordance with this resolution, a special working group was set up with Mr Kolumban, member of the Romanian delegation, as Chairman and Mr Cuatrecasas, a Catalonian with the Spanish delegation, as Vice-Chairman. The group held three meetings and instructed the author, a member of the Chamber of Local Authorities, to prepare a report for submission to the fifth plenary session, to be held in Strasbourg on 26-28 May 1998. Mr Folke Öhman, a member of the Finnish Delegation, was elected Co-Rapporteur for the Chamber of Regions.

The Co-Rapporteur submitted a detailed contribution paying particular attention to the situation of minorities in Finland, their rights with regards to education, administrative matters, health services, culture, mass media, religion and the voluntary sector (associations).

The Rapporteur prepared this report in the light of the Working Group's discussion; in accordance with the procedures in force in the Congress of Local Regional Authorities of Europe, he is solely responsible for its content, although its general lines and conclusions reflect the approach of the Working Group. The appended draft Recommendation to the Committee of Ministers, on the other hand, was drawn up on the responsibility of the Working Group itself.

At its meeting on 26 March 1998, the Working Group unanimously adopted in addition a draft Resolution instructing the Group to continue its work and monitor the implementation of the Recommendation addressed to the Committee of Ministers, complete its study of the development of "local law", possibly submitting a report thereon to the Congress, and organise a conference of the bodies and associations for the protection and development of regional or minority languages referred to in Article 16 § 2 of the European Charter for Regional or Minority Languages in order to inform them about the procedure for and current state of its implementation.

A draft of this report was presented to and discussed by the working group, and consequently, although the author is solely responsible for the content, the general lines and conclusions reflect the approach of the working group.

Preliminary points

Before dealing with the substance of the report, it is useful to discuss the normative context and state of thinking in Europe today, with particular reference to the crossroad activities in the field by the Council of Europe and its Congress of Local and Regional Authorities.

In fact, between the Fourth Plenary Session of the Congress (June 1997) and the forthcoming fifth session, events have occurred that have a bearing on the problems concerning us, ie those of minorities. It should be recalled that on 1 February 1998 the Framework Convention for the Protection of National Minorities entered into force with binding effect on the countries which have already ratified it (as indicated below). As of 1 March 1998, the European Charter for Regional or Minority Languages also binds a number of member states as stated below.

Moreover, on 25 June 1996, a few days before the Fourth Plenary Session of the CLRAE, the Parliamentary Assembly of the Council of Europe adopted a recommendation in which it reaffirmed its full support for Recommendation 1201 on an additional protocol on the rights of national minorities to the European Convention on Human Rights, Article 11 of which affirms: "in the regions where they are in a majority the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching the specific historical and territorial situation and in accordance with the domestic legislation of the state".

It should nevertheless be emphasised that notwithstanding the gratifying entry into force of the Framework Convention for the Protection of National Minorities and the European Charter for Regional and Minority Languages, the member States' slowness in signing and/or ratifying the two normative documents is evidence of - as expressed by the Parliamentary Assembly in the G Jellerod report of 8 September 1997 on the protection of national minorities - a lack of sufficient political resolve to accept and implement the international political and legal documents for the protection of minorities.
It is to be hoped that our Congress will take up a position on the merits of this important problem.

In December 1997 the Committee of Ministers itself took a highly important decision with the setting up of a Committee of Experts specifically responsible for the problems of minorities (CM(97)105).

Several other bodies and organisms operating within the Council of Europe which have closely examined the problems of minorities should be mentioned: the European Commission for Democracy through Law (better known as the Venice Commission), the European Commission against Racism and Intolerance (ECRI), with its "survey/questionnaire" working group, and the practical activity of some Local Democracy Embassies located in zones where the problem of the protection of minorities is often particularly acute and for which a special committee is responsible for improving co-ordination and efficiency.

Mention should also be made of another area of activity of the Council of Europe and the Congress which may also have positive effects on the protection of minorities: the development and comparison of experiences of various Ombudsmen who may, at local and regional level, play a role in the protection of rights, including those of minorities. The recent Messina Conference of the Council of Europe (November 1997) was important confirmation of this.

Finally, the Second Summit of the Heads of State and Government of the forty member states of the Council of Europe which took place in Strasbourg on 10 and 11 October 1997 made express reference in its Final Declaration and Action Plan to the protection of national minorities, and the Bureau of the Congress [doc. CG/BUR (4) 61] reaffirmed the commitment to contribute to the implementation of the stated priorities.

Territorial self-government and protection of minorities in various pronouncements made by European and international institutions

These many reminders may appear excessive, but they are useful for two reasons. They show that the protection of national minorities remains one of the essential elements of peace and security in Europe as well as one of the priority commitments of the Council of Europe in its various institutional expressions and, secondly, as evidence of the great complexity and variety of approaches to these problems.

Nevertheless, the question should be raised of what the actual scope and importance are of various positions taken up by the Council of Europe and other non-national bodies on the effect of real protection of minorities through the realisation of true territorial self-government.

This very important issue is related to the complex problem of international guarantees of local self-government.

It should be recalled that no charter of self-government has as yet been negotiated at international level in the framework of the United Nations: even many documents of other European organisations and of the Council of Europe itself tend to take the form of declarations lacking any binding legal force or have remained at the stage of simple drafts so as to be regarded as expressions of a "desirable right".

For example, the draft European Convention for the Protection of Minorities prepared by the European Commission for Democracy Through Law (better known as the Venice Commission) provides, in Article 14, para. 1, that "States shall favour the effective participation of minorities in public affairs in particular in decisions affecting the regions where they live or in the matters affecting them". Paragraph 2 of the same Article 14 provides that "as far as possible, states shall take minorities into account when dividing the national territory into political and administrative sub-divisions, as well as into constituencies".

Article 27 of the International Covenant on Civil and Political Rights also makes no reference to territorial self-government. However, the United Nations Commission on Human Rights of 1994 reaffirmed that the enjoyment of the above-mentioned rights must not in any way prejudice the principle of territorial integrity and sovereignty of the states. Even the declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities adopted by the General Assembly of the United Nations in December 1992 remains completely silent on the subject under study.

Only the draft Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights, proposed by the Parliamentary Assembly of the Council of Europe in its above-mentioned Recommendation 1201 (1993), puts forward a more precise proposal on the subject, which has unfortunately not yet had any concrete results.

Some studies on the protection of minorities in federal or regional states (Austria, Belgium, Canada, Germany, Spain and Switzerland) have rather emphasised the importance of guarantees given to territorially concentrated minorities by a federal structure or a broad form of regional self-government.

A particular task of the Congress of Local Regional Authorities of Europe is, however, to ascertain whether there is a link - and if there is, to examine its implications - between territorial autonomy as an instrument for protecting minorities and certain important Council of Europe texts already in force, such as the European Charter of Local Self-Government, the application of which is on the agenda of the current plenary session, the Framework Convention for the Protection of National Minorities and the European Charter for Regional and Minority Languages.

The European Charter of Local Self-Government (and the European Charter of Regional Self-Government) do not make express reference to minorities but certain principles in its contents (for example, Article 5) may be applied to the problems of minorities. Moreover, since 1992, the Standing Conference of Local and Regional Authorities of Europe - of which the present Congress is the successor - affirmed in Resolution 232 (1992) that the principle of subsidiarity (which is at the root of territorial autonomy) may, with respect to the territorial integrity of a State, be used to create a framework of reference for the effective protection of minorities.

As for the European Charter for Regional or Minority Languages, it contains no express reference to a right of those who speak a regional or minority language to benefit from the creation of a territorial (local or regional) community corresponding to the geographical area where they live. Nevertheless, this Charter has two articles (7, 1 (b) and 10) which directly or indirectly refer to territorial self-government. The framework convention, even though silent on the subject under study, contains some provisions
(Arts. 10 (2), 11 (3) and 14 (2)) in which territorial self-government is implicit as to the degree of protection proposed.

The Director of Local Authorities in the Council of Europe, Ferdinando Albanese, in a report for a UNIDEM Seminar in Lausanne in April 1996, rightly emphasised that both in the European Charter for Regional or Minority Languages and in the framework convention the territorial principle is used to ensure the protection of minorities and that, for protective and promotional measures, application is envisaged in the territory where the said languages are spoken. In other words, the territory is the geographical area and the legal and administrative framework in which protection must be provided; therefore, the "local and regional self-government" instrument is one of best means of guaranteeing effective protection of minorities. This territorial self-government assumes two factors: the creation of real, intrinsic territorial authorities with adequate competencies and the establishment of transfrontier co-operation between them. The present author is in full agreement with the conclusions reached by Mr Albanese.

The reasons for drawing up a recommendation for submission to the Committee of Ministers

Lengthy examination (even if not in sufficient depth) of the historical, political and legal characteristics provides an understanding of the reasons why the Congress was asked to draft a recommendation for submission to the Committee of Ministers.

The resultant draft recommendation, which I have the honour to submit to the Congress for consideration, has a very specific purpose as envisaged in Resolution 52, namely that of closely examining the necessary relationship between the protection of minorities on the one hand and the various forms of territorial and cultural autonomy in relation to the different structures of national systems on the other.

The attached draft recommendation contains a preamble and two hypotheses.

The preamble appropriately recalls a number of general principles that have long been at the heart of the work of the Council of Europe and of its Congress of Local Regional Authorities of Europe and that were already reaffirmed in the Cividale Declaration of 26 October 1996 and in Resolution 52 (1997).

These general principles are: the close, natural connection between the protection of national minorities - understood as being Europe's historical minorities - and respect of human rights; subsidiarity, which finds one of its highest forms of expression in local and regional self-government: the possible differences in the powers assigned to the same level of territorial autonomy; compatibility of the protection of national minorities with unity, cohesion and solidarity within the State, which must not, however, be relied on in order to disregard the rights of minorities.

As to the two hypotheses, the first (A) relates to those states where a division already exists between various institutional levels of local and regional democracy. In such cases, the states in which the minorities form a substantial part of the population are invited to make appropriate arrangements in their favour, as specifically stated in the draft recommendation; whether it be a case of leaving the existing situation unchanged while making it more compact and therefore more capable of being protected, or a case of safeguarding legal rules, maintaining linguistic, educational, cultural and health conditions in everyday life, ensuring participation in public life, providing adequate financial resources and establishing a basis for elected representation. Mediation and collaboration mechanisms must also be provided to promote understanding between the majority and the minority.

By contrast, the second hypothesis (B) relates to those member states which foresee changes to the existing system of administrative sub-divisions and, in particular, the creation of a regional institutional level. In point of fact, at the above-mentioned Cividale Conference, various solutions were suggested for degrees of territorial autonomy reaching as far as regionalism and federalism.

In such cases, the arrangements covered by hypothesis (A) still stand, namely that these new institutions should be given appropriate competencies for the adequate protection of minorities, which must in any case be consulted on the geographical limits of the new institutions, in accordance with Article 5 of the Charter of Local Self-Government.

Naturally, as Mr Öhman, my Co-Rapporteur, has rightly pointed out, regard must always be had to the extreme diversity of situations obtaining in the various States where minorities live, which means that solutions must be sought that always respect their historical, cultural and political specificity while conforming to common basic principles. Furthermore, in protecting minorities we must avoid referring separately to this or that Council of Europe text, since there is a risk of thereby masking the substantial similarity of the problems.

Finally, although this report and the draft Recommendation focus primarily on "territorial" autonomy, it should not be forgotten that the protection of minorities is also guaranteed by cultural autonomy.

Once the Committee of Ministers has accepted the recommendation, a system of monitoring and supervision of the actual implementation of its contents must be put into place. The Congress of Local and Regional Authorities would have considerable responsibility for this.

Final considerations

The following final observations, may be made in line with the studies already done with regard to the relationship between the protection of minorities and territorial self-government:

The geographical boundaries of the self-governing region may not be based on exclusively ethnic criteria but must also take into account historical and economic ones. The forms of territorial self-government may be highly diverse, ranging from federalism to regionalism as well as to special status combining the principle of self-government with the principles of participation and interdependence.

Territorial self-government is not the answer to every problem: it may, for example, require integration with a system of cultural autonomy. It is up to the minorities themselves to make the most appropriate choices.

Any misunderstanding should be avoided in relation to the concept of self-government, which is not synonymous with independence and succession.

Above all, if the above institutional arrangements are to have some effect, they require citizens to have a strong and motivated sense of pluralism and respect for the value of diversity; civil society must accept the multinational, multilingual and multicultural reality of the territory in which it lives and accordingly act in a spirit of tolerance, pluralism, democracy and respect of human rights. This is a political, legal and cultural problem closely bound up with questions of ethics, education and the proper formation of public opinion.

Abstract equivalence between national rules applied to very different situations can result in injustices and violations of the rights of minorities.

Minorities and the process of European unification

Europe, in its quest for political and economic unification, finds itself confronted with the challenges arising from the need to strike a balance between two trends: on the one hand, a temptation to maintain or create homogeneous nation-states founded on the consensus of the national majority and, on the other hand, a desire to become full partners and participants in the process of European unification, with all the adjustments that this entails to the traditional concepts of sovereignty. In this context of the creation of a European area that is both unitary and united, the question of the minority community is different from the current one. The problems of minorities, when classified separately in the limits of their respective national boundaries, are often insoluble and confrontational; when considered in a wider context, involving more countries and directly connected with the process of European unification involving not only governments but also civil society, peoples and citizens, they seem amenable, despite the obvious, persistent difficulties, to more harmonious solutions and a more flexible, diversified approach and therefore offer a more positive outlook.

Even when tackling so complex a question as this one, the Congress of Local and Regional Authorities of the Council of Europe will clearly find the means of reaffirming its essential contribution to a united Europe which respects human rights, democracy and fundamental freedoms.

Predrag Matvejevic, writer and lecturer at Rome University, stated a number of points in a recent paper which in our view should always be borne in mind in addressing the complex problems of minorities. They concern the three inter-related concepts of “identity” “individuality” and “difference”. Moreover, the concept of “identity” is tied in with the human rights issue and ultimately with the rule of law.

Advanced civilisations are home to and nurture multiple identities. But – and this we feel is one of the most interesting points Matvejevic makes in his paper – a distinction must be made between “existential identity” and “operative identity”. In attempting to understand this distinction, we too often find, not only in central and eastern Europe, that the manifestations and assertions of identity are almost exclusively focused on a historical past and established traditions (existential identity) whereas there is no or little attempt to look to the future in which a new - European - identity (not necessarily conflicting but more comprehensive) can become established (operative identity).

From the point of view of European unification – which is the reason for the foundation and activities of both the Council of Europe and the European Union – it is logical to view Europe as becoming a structure and institutional framework in which each “nation” will clearly not cease to exist but will to a certain extent become a minority within a larger community of peoples. Accordingly, the vision of the nation state would be radically changed and the very position of groups which are currently minorities within a single state would similarly be transformed.

I have often reflected on the history of my own country, Italy, which in the middle ages and at the beginning of the contemporary period comprised a vast number of local and regional allegiances whereas other countries, such as France, Great Britain and Spain, developed, along with the attendant structures, concepts of civil awareness reflecting a strong feeling of belonging to a larger community. Perhaps the rest of Europe envied Italy and the Italians their heritage of ideas, philosophies and lifestyles, which were to leave traces that are still visible today, but it was a very ambiguous situation. Clearly it reflected a significant intellectual influence but, as stated above, there was also a certain lack of institutional cohesion and an undoubted weakness from the European point of view because it proved impossible to develop an institutional model common to the whole country and to unite it.

Notwithstanding the essential and obvious differences, Europeans are today in a similar situation. They have succeeded in making autonomy a principle that can no longer be called into question and one that must be further developed, but at the same time an opportunity must also be given to the forces of European unification (not to be confused with European centralisation) without foregoing the wealth of advantages that could be afforded by new circumstances that allowed unity and pluralism to cohabit.

The problems of minorities are a major factor in this essential approach: the challenge is knowing how we can all get together and construct a European civil society whose components enjoy a strong degree of independence but are nevertheless part of a common institutional framework and a democratic entity in which power is shared.

Only in the context of a new relationship of this kind will it be truly possible to pick up the thread of the vital connection between the identities of small individual nations and the fact of belonging to a larger political and cultural entity that spans the entire continent.