Keywords

International standards on minority rights remain by-and-large silent on minority autonomy and references to autonomy arrangements can be found mostly in legally non-binding international documents. In fact, in political discourse minority demands for autonomy are usually perceived as having a territorial dimension and states often see these as hidden claims for future secession. Thus, the question of minority autonomy is often linked to security concerns and to the interests in maintaining political stability. While non-territorial autonomy could hardly be seen as providing any basis for secessionist territorial claims, the main problem is seen in the close interrelation perceived existing between autonomy claims and peoples’ right to self-determination.

From another perspective, minority autonomy reflects the community characteristic of minorities, while minority rights are generally understood at international level as forming part of universal human rights, that are perceived as individual rights. Most states remain reluctant to recognize the collective characteristics of minority identity and for a long time, the general understanding of minority rights at international level was limited to the prohibition of discrimination and the minorities’ right to existence. This was reflected in the 1948 Convention on Genocide and in the inclusion of discrimination based on “national or ethnic origin” in the 1966 International Convention on Racial Discrimination. Even, the first international legal provision on minority rights, Art. 27 of the 1966 International Covenant on Civil and Political Rights was carefully formulated to limit the community dimension of minority rights. This restrictive approach rendered difficult to include the collective dimension of minority identity. The primary goal of minority rights is to protect the existence of minorities and their identity. A serious dilemma emerges on whether this goal can be achieved by granting individual rights only or there is also a need to recognize community rights as well. International human rights law, that is based on individual rights, regards communities as the potential beneficiaries of protection but not the subjects of rights. This restrictive interpretation of minority rights reflects indeed the cautious approach and the fears of many governments that the legal reinforcement of the community-character of minorities potentially would lead to conflict between majority and minority populations. Against this background any claim for autonomy, where decision-making competences may be transferred to the minority community is seen as a demand for recognizing collective rights that can be inevitably linked to the right to self-determination as the only true collective right under international law.

This theoretical debate was translated into first hand political debate in the early 1990s when in Central and Eastern Europe a number of ethnic conflicts emerged and many states needed to find constitutional solutions for minority-majority relations. Many international documents on minority rights, adopted after 1990 in Europe, in one way or another address this question within the context of minorities’ right to participate in public life, without linking autonomous arrangements to self-determination.

This chapter is aimed at highlighting how is NTA reflected in international documents on minority rights and how can NTA fit in the international minority rights regime.

3.1 Minority Rights as Human Rights

From a legal point of view, the actual regime of international minority protection is a relatively recent development in international human rights law. After 1945—also in reflection to the failure of the League of Nations’ system of minority protection—most states were reluctant to take specific minority protection obligations and focused more on the reinforcement of the universal protection of human rights.

Particularly relevant were the adoption of the Universal Declaration of Human Rights (UDHR) in 1948 and in a European context, the 1950 European Convention on Human Rights (ECHR) which do not provide any specific provision for minority rights, however the inclusion of the principle of non-discrimination and equality also at international level could be seen as a very important instrument also for the protection of the rights of persons belonging to minorities (Art. 2 and Art. 14, respectively).

The post-World War II pattern developed in the first place by the United Nations signalled a period of exclusive individual rights approach, and this was reflected also in the adoption of the International Covenant on Civil and Political Rights (ICCPR) which declared for the first time in a UN treaty the specific rights of minorities. Art. 27 of ICCPR reads as follows: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”. It is noteworthy that this provision essentially focuses on the right to identity but does not mention specific state obligations leaving a broad margin of discretion for States to act. However, later, the Human Rights Committee in its General Comment on Art. 27 argued that “cultural rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them”.

The most important international human rights treaties relevant for minorities 1945–1990

1948 Convention on the Prevention and Punishment of the Crime of Genocide (right to existence)

1960 UNESCO Convention against Discrimination in Education, in particular Art. 5

1965 International Convention on the Elimination of All Forms of Racial Discrimination

1966 International Covenant on Civil and Political Rights, in particular Art. 27

1989 Convention on the Rights of the Child, in particular Art. 30

1989 ILO Indigenous and Tribal Peoples Convention

The international protection of minorities started to get more attention only in the 1990s, when first the UN General Assembly adopted a declaration on the rights of minorities, and when especially in Europe the rights of minorities have become a central issue in international relations. Following the collapse of communist regimes and as a response to violent dissolution of Yugoslavia and the Soviet Union, in international documents there has been a shift towards more active engagement of the State in protecting minority cultures and promoting the political inclusion of minorities. In this perspective, international documents emphasize that the protection of minority rights is not only a consistent part of human rights protection, but may also be an important security tool in maintaining social and political stability. Against this background, it has become widely accepted that effective participation of minorities in public life requires specific guarantees and institutions, potentially even recognizing autonomy arrangements.

In a European context, international organizations took an active role in addressing minority rights protection in the 1990s both in the perspective of extending international human rights protection and in reinforcing international stability and security. The protection of minority rights emerged also strongly in a security perspective, signed by the adoption of Conference on Security and Co-operation in Europe (CSCE, after 1994 OSCE) Copenhagen Document and other CSCE/OSCE declarations including references to minorities. On the other hand in their legal protection under international law, the adoption of the Framework Convention for the Protection of National Minorities (FCNM) in 1995 and that of the European Charter for Regional or Minority Languages (Language Charter) in 1992 were the most determining developments, which codified the specific rights of minorities in different areas from linguistic to political rights. The FCNM was the first international treaty exclusively dedicated to the rights of minorities under international law as a legally binding document, establishing also a supervisory mechanism on its implementation. Neither the Language Charter nor the FCNM mentions minority autonomy, but in legally non-binding recommendations and commentaries both within the OSCE and within the Council of Europe, autonomous arrangements are interpreted as an appropriate tool for securing participation of minorities in political life.

Nevertheless, the focal points of international minority protection, identified in the principle of non-discrimination, and the acknowledgement of specific minority rights reflect contentious concepts of minority rights protection, the term of ‘minority’, the extension of specific rights (in language use, in political rights, etc.), the right to autonomy, are all strongly debated issues, many states have different approaches to these basic concepts of international documents on minority rights.

This theoretical debate is particularly relevant for NTA, since any minority claim for autonomy is often seen as a demand for the recognition of a collective right to self-government. That is why the question of collective or group rights is particularly important in this context.

3.2 Individual Rights vs. Group Rights

A major theoretical question is whether individual and group rights approaches to minority rights are mutually exclusive or they just reflect different dimensions of the same set of rights.

International documents in most cases acknowledge only the specific rights of individuals belonging to minorities, even if their rights can be exercised “in community with other members of the group” (ICCPR, Art. 27.), the community as such is not overtly entitled to these rights. This legal formulation does not deny the existence of minority groups as such, but nor does it offer explicit legal protection to the group either (cf. Henrard, 2000: 153–155).

A great part of literature in law and political science on minority rights focused on the issue of whether it is the individual or the community to be given priority in terms of rights recognition and protection. “Individualist” and “communitarian” approaches characterized the debate over minority rights in the past decades (cf. Kymlicka, 2001: 17–38).

Minorities with access to collective rights would come to enjoy widely assured and accepted individual rights of persons belonging to minorities. Asbjørn Eide expressed it in a deductive analysis of non-minority-specific individual human rights that are relevant to minority groups as well: “Human rights are essentially individualistic. They deal with the rights of the human person as an individual. Many persons belonging to ethnic, religious or linguistic groups feel, however, that they need a protection of their group and group identity. The core elements of that identity is the right to organize themselves as a group, to use their own language, to be able to preserve, to reproduce, and to develop their own culture and therefore to control or have a significant impact on the content of the education of their new generations. A part of this concern is to be able effectively to influence political decisions affecting themselves” [emphasis added] (Eide, 1998: 6).

3.3 The Participation of Minorities in Political Life

Fundamental political rights, as human rights, shall be accessible to people belonging to minorities without any discrimination in line with the existing individual human rights standards. The crucial international human rights documents guarantee to all citizens the right to participate in their country’s political life. However, these commitments recognize only the prohibition of discrimination without any minority-specific dimension.

At international level, there was a major concern that the exclusion of minority communities from public decision-making and from state organs may contribute to ethnic conflicts (Wimmer et al., 2010). This explains why minority participation in public life is seen as an “essential component of a peaceful and democratic society” (OSCE HCNM Lund Recommendations, para. I. 1.) and why the right to effective participation has become an important provision in minority protection instruments after 1990. States though reserved a large margin of discretion on deciding what procedures and institutions would secure minority participation. In fact, there is a broad scale how “participation” is understood ranging from lobbying to making decisions.

It seems to be clear that political rights are essential for the protection and promotion of group interests. The specific right to participation in the public life of minorities was formulated in the international documents on minority rights since the 1990s. This implies that people belonging to minorities should not only have the right to full equality before the law in their political rights without any form of discrimination, but it also sheds light on their special needs in influencing public affairs. “Having a voice” in public affairs may be interpreted on a broad scale from presence, and consultative rights, to other forms of weak or strong influence on public affairs, including also different forms of “self-government” (see Ghai, 2010). Yet “effective participation” does not necessarily imply any form of autonomy. As modern nation-states are organized on a territorial and ethno-cultural basis, the question of minorities’ participation in public life raise important questions on the role of the state and its relation to the political community. Majority community usually tends to prefer “representation” as it does not affect its control over the entire territory of the state and its own members outside the majority areas would not suffer discrimination. Even NTA may be deemed by the majority as giving up decision-making powers. On the other hand, for minority communities participation without self-government would be a limitation of their political rights, especially of their equality in controlling affairs that deeply matter for minority communities, such as culture, language. Both approaches may be threatening one or the other group, as either the majority or the minority may fear that its fundamental rights would be jeopardized.

There are two key documents which may help in interpreting minorities’ rights to participation: in 1999, the OSCE High Commissioner on National Minorities (HCNM) published the Lund Recommendations and the FCNM Advisory Committee also issued a detailed commentary on the question in 2008. Both expert documents stress the importance of “effective participation” in public life: i.e. minorities should have more participatory rights than just having the right to express their political opinions openly (either through freedom of speech or via voting rights). Effective participation in public life can be guaranteed by the state in very different forms, such as: special representation in organs of the state (executive, legislative, public service, etc.); electoral systems which ensure adequate representation; institutions for consultation; control or dominance of decision-making processes; participation through sub-national forms of government; participation through autonomy arrangements, etc. Based on these two expert documents we may draw the conclusion that international standards mention the effective participation of “persons belonging to minorities” in a broad sense, the range of possible solutions thereby definitely comprising territorial and non-territorial autonomy.

Lund Recommendations on the Effective Participation of National Minorities in Public Life in 1999

The OSCE High Commissioner on National Minorities (HCNM), following broad consultations with international experts, issued the Lund Recommendations on the Effective Participation of National Minorities in Public Life in 1999. The recommendations offer guidelines on principles participation in decision-making, at the central, regional, and local levels, elections, advisory, and consultative bodies; self-governance, autonomy covering territorial and non-territorial arrangements; and guarantees, including constitutional and legal safeguards, and remedies.

The HCNM’s recommendations are legally non-binding and only offer advice, guidelines to States on how to interpret and implement international minority rights standards.

3.4 The Right to Autonomy in International Law

“Collective rights may encompass a wide range of issues important for minority life. If collective rights amount to some form of essential self-determination (political, cultural or other) they become an autonomy” (Brunner & Küpper, 2001: 19). In line with this definition, the most important criteria of any form of minority autonomy is that it shall be vested with specific jurisdiction over a substantial number of minority issues and shall be able to exercise this jurisdiction in its own responsibility. The various legal arrangements guaranteeing autonomy in national legislations can be divided along their finality, whether they provide autonomy for a group of people on a personal basis or for a territory and the people living on that territory.

Most international documents remain silent on autonomous arrangements and if not, make reference to minority self-government conditional on the existing legislation and policies of the State concerned. At universal level Art. 2. para. 2. of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities stated: “Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life”. In addition to that, Art. 2. para. 3 adds that “persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate on the regional level concerning the minority to which they belong or the regions in which they live”. It shall be noted that while Art. 2 (2) speaks about participation in “public life”, Art. 2 (3) recognizes the right of persons belonging to a minority to participate effectively “in decisions concerning the minority to which they belong”. In this sense, participation “in decisions” imply that States are expected to grant special political rights for persons belonging to minorities with regard to issues that directly affect the minority group to which they belong. UN Declaration, however, leaves open for different interpretations the procedures and institutions of participation. In practice the important question is whether a minority group in a society has the right to control its own affairs through its own decision-making bodies, or its participation in public life is limited to the existing State organs, like the parliament or the government. Considering that in principle States should offer special measures for securing “effective participation” of minorities, individuals, and groups may find different levels of organizations appropriately, so there should not be any contradiction between autonomy and political participation (Thornberry, 1993: 134).

Later, in its Commentary to the Declaration the UN Working Group on Minorities stated that “while the Declaration does not provide group rights to self-determination, the duties of the State to protect the identity of minorities and to ensure their effective participation might in some cases be best implemented by arrangements for autonomy in regard to religious, linguistic or broader cultural matters”. The Commentary also added that “the Declaration does not make it a requirement for States to establish such autonomy” but it made clear that “good practices of that kind can be found in many States”. The Commentary also recognized the broad variety of possible autonomous arrangements, that can be territorial (local or regional) and cultural (non-territorial), and can be more or less extensive. An interesting new example for recognizing a comprehensive approach combining territorial and non-territorial elements of minority autonomy is reflected in the draft Nordic Sami Convention, adopted in 2017.

In a European context state practices offer various examples that autonomous arrangements may be one form of exercising control over and taking decision on issues specifically relevant for minorities. The legally non-binding CSCE Copenhagen Document (1990) reflects a cautious approach on coupling minority participation rights with establishing autonomy in specific circumstances “as one of the possible means” to protect minority identity. The Copenhagen Document stated that the CSCE States “will respect the right of persons belonging to national minorities to effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identity of such minorities”. However, the text does not recognize a minority right to autonomy, it just takes note that such autonomies exist in some states: “The participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned” (para. 35). In 1991, the CSCE Meeting of Experts on National Minorities followed this cautious approach, when it listed the different approaches and mechanisms that the participating states introduced to secure the effective participation of minorities, noting “that positive results have been obtained by some of them in an appropriate democratic manner by, inter alia (…) self-administration by a national minority of aspects concerning its identity in situations where autonomy on a territorial basis does not apply (…)”. The 1999 Istanbul Document, the Charter for European Security, following previous CSCE/OSCE documents also recognized that “various concepts of autonomy” and other approaches “constitute ways to preserve and promote the ethnic, cultural, linguistic and religious identity of national minorities within an existing State” (para. 19.).

The OSCE HCNM in the Lund Recommendations underlined that autonomy is a useful means to preserve minority identity against majority pressures in democracies and also highlighted that NTA, i.e. “personal or cultural autonomy” may represent a division of power in cultural issues, allowing members of minorities to exercise control over issues relevant for their group identity. Nonetheless, there are no clear standards on how should these autonomous bodies be elected and function. The term “cultural” autonomy is really flexible; there are many states that apply the term without offering any decision-making or self-governing competence to the “autonomous” institutions (Osipov, 2013: 7). Even if we talk about an elected body, an operational cultural or non-territorial autonomy arrangement can secure “effective participation” of persons belonging to minorities in political life, if it has influence in special policy areas relevant for minorities, like culture or education.

Within the Council of Europe, the Parliamentary Assembly made important contribution to the recognition of minority political rights, including their eventual right to autonomy. In its Recommendation 1201(1993) the Parliamentary Assembly stated that “[i]n 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” [emphasis added]. Later, in 2003 the Parliamentary Assembly adopted a separate resolution on the positive experiences of autonomous regions in Europe. This resolution recognized the positive role of territorial and cultural (i.e. non-territorial) autonomy arrangements in resolving internal conflicts.

The legally binding FCNM does not make any reference to autonomy when it formulates the importance of political participation under Article 15: “The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them”.

Yet the Advisory Committee of the FCNM highlighted in its commentary that while FCNM Art. 15 does not provide a right to autonomy, still “cultural autonomy arrangements, whose aim is inter alia to delegate competences to persons belonging to national minorities in the sphere of culture and education, can result in increased participation of minorities in cultural life”. Relevant competences may include maintaining cultural institutions or schools, the authority to decide minority language school’s curricula, etc.

Although this provision does not mention autonomy, but State Parties report on their domestic developments related to minority autonomy under this article and also the FCNM monitoring body, the Advisory Committee formulates its opinions on autonomy in relation to Art. 15.

While one may not find any explicit normative provision on minorities’ right to autonomy, the existing international standards on minority rights do not exclude that, both the OSCE HCNM and the FCNM Advisory Committee encourage States to consider autonomy arrangements as an institution securing minority participation. Obviously, whether states create or not the conditions for minority autonomy within their constitutional settings remains a question of domestic competence.