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EA home page » Commentary » Minority Rights Protection in the EU: Contradictions and Problems
Minority Rights Protection in the EU: Contradictions and Problems
(Breton Girls; finofilka/flickr)
(Breton Girls; finofilka/flickr)
The European Union started being more active in the field of minority protection at the beginning of the 1990s, but still does not have a strong acquis with regard to these issues. The Treaties do not mandate the protection of minorities which are not even mentioned in them. The problem of the lack of effective minority rights policy in the EU became apparent after the great political changes that took place in Europe in 1989, with ethnic conflicts in the former Yugoslavia and the start of the accession process of the former Communist countries in the EU. This led the EU to impose minority rights protection as a condition of accession and to take new political measures to prevent discrimination and social exclusion of minorities. Nevertheless, it is a fact that the formulation of EU minority rights policy remained vague and most of the times not legally binding. Member States have many different minority rights policies and have been often unable to agree on more general standards in this area. Definition Problems Not only the EU began dealing with this matter after 1989, but also the Council of Europe, the United Nations and the Organization for Security and Cooperation in Europe (OSCE). The first significant problem which arose through these organisations and which has not been solved yet by scholars is a definition problem. There is a wide palette of the most various definition options from which to choose for the term minority, and none of them can in any way be considered the legally binding definition. Thus, both in international as well as in EU law, consensus concerning the definition of a minority is absent and the paradoxical situation is that international law measures and policy instruments have been created in the absence of definitional clarity. The term minority can be mainly classified into religious, linguistic, ethnic and national minority. These categories often overlap with each other and cannot always be exactly separated. A religious minority professes a religion which is different from the one practised by the majority of the population, while a linguistic minority is comprised of a group of people who use a language different from the official language of the state in which it lives, either in written as in oral form, and forms the main subcategory of cultural minorities. These types of minorities are relatively simple to identify. However, differentiation between national and ethnic minorities is more problematic. “A minority is designated as national if it shares its cultural identity (culture, language) with a larger community that forms a national majority elsewhere, that is, one which makes up the majority of the population and forms its own nation state.”[1] National minorities in this sense are, for example, the Danes in Germany, the Hungarians in Romania, the Russians in Latvia, and so forth. In contrast to this, the term ethnic minority “refers to persons belonging to those ethnic communities which do not make up the majority of the population in any state and also do not form their own nation state anywhere”,[2] such as the Frisians in The Netherlands or the Bretons in France. Another definition problem in international law is related to the difference between the concepts of “old” or “autochthonous” minorities and “new” minorities. The dispute concerns the question of whether only autochthonous minorities are to be considered minorities, and therefore to be protected by appropriate legal norms, or whether also the so-called new minorities, e.g. recent immigrants and guest workers, who do not possess the citizenship of the state which they live in should also be afforded international protection. Minorities in Europe According to Pan and Pfeil, over 300 minorities with over 100 million members may be counted in Europe, which means that every seventh citizen belongs to a minority.[3] Every European state that has more than a million inhabitants features minority groups; only “mini-states” such as Luxembourg, Malta, San Marino and so forth do not have minorities. Almost three quarters of European minorities reside in the EU, although two quarters only since the accession of Eastern countries to the Union in 2004. In the 15 old EU-Member States the situation varies from state to state. The percentage of people belonging to minorities in these states varies from 1% in Germany, to 20% in Spain. Furthermore, Belgium, with its three language communities, has a minority segment of 90%. The number of minority groups is very different in these states. Most states have between three and six groups, while in Italy there are twelve. Even France and Greece, which for the most part negate the presence of minorities on their territories, have seven. The 12 new States which became members of the EU in 2004 and 2007 have, except for Malta and Cyprus, at least four minority groups each, but most of them have ten. Some Eastern countries are relatively homogenous national states, such as Poland and Hungary, in which the percentage of people belonging to minorities is only 3-4%, but other states have a percentage of 10-20%, while Estonia and Latvia have 30-40%.  Minority Protection in the European Integration Process Contrary to the Council of Europe, the European Union is much less engaged in the field of minority rights protection. The European integration process has primarily been an economic project at the beginning. For this reason, the need to transfer powers to the supranational realm of the European Community in order to intervene in political and cultural affairs of the Member States concerning their minorities has not been felt for long. As already mentioned, only at the beginning of the 1990s did the EU become involved in the field of minority protection due to the prospective enlargement. The wars in the former Yugoslavia and the EU’s weak policy response raised the spectre of severe and spreading instability. Nevertheless, despite its lack of substantial minority rights regulation in the acquis communautaire, the EU became involved with other international organisations during the accession process in influencing minority policy in prospective of the new Member States. The European Council held in Copenhagen in June 1993 decided that the countries of Central and Eastern Europe that had applied could become members of the EU through the fulfilment of certain conditions. The so-called “Copenhagen criteria” included a passage relevant to the issue of minorities: It was stipulated that all applicant states must achieve “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.”[4] It is noteworthy that all political accession criteria were transferred into EU primary law with the Treaty of Amsterdam with the only exception of the clause on minority protection. As a result, the protection of minorities was not granted binding force and a clear internal dimension. It remained an accession criterion and, therefore, relevant in the external EU policy only. Although the Treaties do not contain norms which specifically protect minorities, primary law offers through Article 13 TEC on anti-discrimination policy a prominent competence base which is central for protecting minorities in the context of EU law. Using this legal basis, which is the most far reaching as regards the protection of minorities, the Union could develop more initiatives in its minority policy. In addition to discrimination based on nationality, which is forbidden by the old anti-discrimination clause in Article 12 TEC, the Amsterdam Treaty introduced through Article 13 TEC a provision for combating discrimination on the basis of eight further listed grounds: sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The problematic aspect of both articles is that they constitute what scholars call “negative minority rights”. Through them, minorities are protected by the general principle of non-discrimination included in traditional international human rights law which prohibits any discrimination. The non-discrimination principle is the necessary basis of the protection of minority rights. However, scholars often argue that it is only a first step in the protection of minorities, but it is not sufficient in itself to deal with the question, since the equal treatment implied by the non-discrimination principle often leads to (or compels) assimilation. Democracies need therefore a “positive” addition in the protection of minorities through specific measures called “affirmative actions”. This means that a particular disadvantaged group of persons may be directly favoured through certain measures in order to eliminate the disproportion between the advantaged and the disadvantaged group. Typical examples of positive rights are the right to the use of one’s native language in public life, the right to instruction of and in one’s native language, the right to the establishment of separate organisations including political parties, and so on. Through the Treaty of Lisbon the word “minorities” finally was inserted into a text of EU primary law. In fact, “the rights of persons belonging to minorities” was added in Article 1a as one of the values on which the Union is founded. Moreover, the EU Fundamental Rights Charter, which does not contain rights that specifically protect minority groups but again insists on the non-discrimination principle and encourages Member States to respect cultural, religious and linguistic diversity, becomes a legally binding part of EU primary law. This means that with the Treaty of Lisbon the protection of rights of persons belonging to minorities will finally not only be an EU accession criterion, but will also be a value on which the EU is founded and that is common to the Member States. However, how far this protection will go is left open, since the Lisbon Treaty does not provide the EU with an explicit competence in the area of minority rights, it does not add any new policy area relevant to the protection of minorities and it does not oblige Member States to introduce affirmative actions in order to protect their minorities. With the accession of the former Soviet countries, the EU has doubled the number of minority groups living on its territory and therefore absolutely needs to take this fact and the specific rights of these new EU citizens into account, which needs to be reflected into its policies.
[1] C. Pan, B.S. Pfeil: National Minorities in Europe. Handbook, Braumüller, Ethnos 61, Wien 2003, p. XVIII. [2] Id. [3] C. Pan, B.S. Pfeil: Minderheitenrechte in Europa. Handbuch der europäischen Volksgruppen. Band 2. Springer, Wien 2006, p. 1. [4] J. Haaland Matláry: Intervention for Human Rights in Europe, Palgrave Macmillan, Basingstoke 2002, p. 77.
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