The Council of Europe and Minority Rights

The Council of Europe’s Framework Convention for the Protection of National Minorities (Framework Convention) ² represents the latest step taken to protect minority groups in Europe. ³ The revolution that has occurred in Europe since 1989 has reawakened many minority issues that had lain relatively dormant during Soviet domination of the eastern part of the region ⁴ and a plethora of measures, at the regional and international levels, ⁵ have been promulgated to deal with various minority situations and to reinforce the image of Europe as a collection of pluralist, multicultural states. This paper considers some of the issues surrounding the protection of minority groups in international law that have special bearing on the Framework Convention and examines the Framework Convention within that context.

I. Introduction

Any consideration of minority rights is premised on a series of problems: the definition and classification of minorities; whether minority rights belong to the minority or to its individual members; whether minority rights are human rights; and whether legally justiciable rights are adequate on their own for the protection and promotion of minority groups. These questions are addressed throughout this paper, but some initial examination of them, independent of the Framework Convention, helps reveal the issues that ought to be addressed in any international legal instrument setting out rights for minorities.

A. Definition and Classification

John Packer ⁶ has noted that defining the term “minority” has been avoided whenever possible. The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992 UN Declaration) ⁷ and the Framework Convention ⁸ contain no definition. ⁹

It has been correctly observed that international law supposes the existence of minorities both in general and of specific types. However, while the existence of human beings and states are “axiomatic” in international law, the existence of human groups is problematic. Conceptually, international law struggles with the definitions of actors beyond the “State”; indeed, the problem of defining actors has always troubled political theory in general and international relations in particular. . . . [W]hile the catalogue and content of individual human rights has become relatively clear, the specificity of protections for groups, particularly minorities, has remained largely uncertain. Paramount among this uncertainty has been the very definition of “the” or “a minority” to whom any rights may accrue. ¹⁰

It is often the case that declarations have no definitional provisions; but when there are none in a legal instrument, such as the Framework Convention, that raises fundamental questions about to whom the Convention applies ¹¹ —one cannot accord rights to wholly nebulous concepts and some definition is necessary. Packer goes on to criticize the attempts by international commentators and provides his own “general settlement” of the problem which is, in terms of theory, superior to all that have gone before. However, because this paper is looking at a specific convention, a consideration of the traditional definitions of minorities in international law, which were utilized by the convention’s drafters, provides greater assistance to the reader. ¹²

If the only limitation on qualifying for minority status were that the group was numerically smaller than the rest of the population, then states would be overflowing with minorities—bald people, cat owners, members of the armed forces. However, none of those three groups fits the standard picture of a minority group. Moreover, the numerical criterion excludes some groups. Using French sociologist Collette Guillaumin’s approach, which recognizes the relativity of the term “minority,” nondominant majorities could well be granted such status: ¹³ “[M]embership of a majority is based on the freedom to deny that one belongs to a minority, a freedom in the definition of oneself which the member of a minority cannot have!” ¹⁴ Nondominant majorities lack a similar “freedom.” ¹⁵ As such, “minority rights” might be granted to any group in a state that was dominated by another group, regardless of its relative size. In spite of the fact that Guillaumin’s definition can accommodate more subtle issues, nondominant majorities will still be excluded within the traditional understanding of minority rights. ¹⁶

International...