Europe's Ethnic Mosaic

A Short Guide to Minority Rights in Europe

Thomas Benedikter (ed.)

Bolzano/Bozen, 10. October 2008

Thomas Benedikter (ed.): Europe's Ethnic Mosaic. A Short Guide to Minority Rights in Europe.

Europe is an ethnic and cultural mosaic, not a melting pot. Some non-Europeans are wondering about so many states on such a relatively small continent. But under the stratum of national diversity there are further layers: regional identities strongly rooted in history, religious pluralism and a large number of ethnic or national minorities in almost every country. Distinct from the dominating national cultures, they wish to preserve their identity, cherish their traditions, use their languages in all spheres of life.

For this purpose not only recognition is required, but a complete set of minority rights has to be ensured. In the last decade various European institutions have paved the way towards the creation of a common legal space for national minorities. This has been the reason for the EURAC to elaborate an introduction in ethnic (or national) minority issues in Europe.

This short guide, edited by Thomas Benedikter and published by the European Academy of Bolzano EURAC (August 2008, 140 pages) offers an introduction in Europe's world of ethnic minorities and some of its major issues of ethnic conflict and minority discrimination.

Then a brief assessment is given of the minority situation in some of its single states, followed by an overview on Europe's international conventions for the protection of national minorities, allowing a conclusive judgement whether Europe is on the right track to safeguard its "ethnic mosaic" or not.

TABLE OF CONTENTS

Introduction

1. MINORITIES IN EUROPE - AN OVERVIEW
1.1 Defining minorities
1.2 A typology of Europe's minorities
1.3 Some empirical background on Europe's ethnic minorities
1.4 A brief history of minority rights in Europe
1.5 Nation states, human rights, democracy: the general political framework for minority rights

2. MINORITY ISSUES IN EUROPE TODAY - SOME EXAMPLES
2.1 Threatened languages and the linguistic rights of minorities
2.2 Autonomy, secession or a multinational state? Viable solutions to open ethnic conflicts
2.3 Scattered and discriminated: the Roma (Gypsies)
2.4 Europe's indigenous peoples: the Sami and the Inuit
2.5 The Balkans: the challenge of national minorities after the splitting up of Yugoslavia
2.6 Europe's Muslims: a "religious minority"?
2.7 Nationality-based exclusion: the Russians in the Baltics

3. A ROUNDLOOK ON MINORITY RIGHTS COUNTRY BY COUNTRY
3.1 Italy
3.2 Romania
3.3 Finland
3.4 Hungary
3.5 France
3.6 Greece
3.7 The Russian Federation
3.8 Macedonia
3.9 The United Kingdom
3.10 Poland
3.11 The diversity of minority rights standards

4. INTERNATIONAL INSTRUMENTS FOR THE PROTECTION OF MINORITY RIGHTS IN EUROPE
4.1 Why international instruments for minority rights are needed
4.2 The Framework Convention for the Protection of National Minorities
4.3 The European Charter for Regional or Minority Languages
4.4 The OSCE mechanisms and institutions for national minorities
4.5 The EU and ethnic minority rights
4.6 Bilateral agreements for minority protection
4.7 An interim balance sheet on the protection of national minorities in Europe
4.8 Instruments of "soft law": sufficient guarantees for minority rights?

5. CONCLUSION
Some way ahead to achieve the minorities' "right to identity"

APPENDIX
1 Bibliography
2 Documents
3 Institutions
4 Scientific Institutes and useful links
5 List of organisations of minorities and of Human Rights NGOs dealing with minority issues

Introduction

Cultural, ethnic and linguistic diversity is a fact of life in Europe. Not only in terms of states, but also in terms of regions, cultural and ethnic communities, national minorities and peoples, Europe is a mosaic, not a melting pot. European countries and peoples cherish their regional identity, cultural heritage, values and traditions, languages and ways of life, although globalisation seems to level down local peculiarities and to unify habits, lifestyles and cultural consumption patterns. On the other hand, the stronger global exchange mounts, the more Europeans appear to need cultivating and expressing their regional identity. National and ethnic minorities fit in this evolution, as they always sought to preserve their cultural features against a dominant culture. The open borders of enlarged markets, the unlimited access to information and media products round the clock, the increased mobility of people in terms of migrant workers, commuters of all kind and tourists, and the steady process of political integration of the continent seem to put the national minorities under pressure. But despite facing new threats and problems, Europe's economic and political integration offers more positive chances for minorities which they are called to actively capture.

Cultural pluralism needs to be firmly based on the respect of differences, which implies equal opportunities, non-discrimination and active protection. The acceptance of diversity, interaction between cultures and promotion of the sense of belonging to a community are becoming more important as physical and legal borders are fading, as the European and world economy become increasingly borderless. It is not the denial, but rather the recognition of differences that keeps a community together. Several examples in Europe show that different ethnic communities can peacefully share the same region or state if diversity is appreciated.

Nevertheless, modern Europe shows two faces with regard to the respect of differences. Non-discrimination and equality are enshrined in national laws and international conventions. On the other hand there are scores of examples of complete absence of responsible public action to meet the needs of minorities, of grave violation of international standards of minority protection and even active persecution and oppression of such minorities. Despite progress in many directions, Europe is not yet a "heaven" for minorities. The discrimination of national minorities and smaller peoples brings about various reactions, from silent suffering to violent resistance, and is however a source of social and political conflict. But if peace, stability and harmonious relations between majorities and minorities are to be achieved, European politicians and citizens have to be actively committed to the respect of diversity and protection of minorities. Ethnic conflicts - from the Basque Country, Northern Ireland, Corsica, parts for the former Yugoslavia, Moldova, Georgia and Cyprus - persisting patterns of direct and indirect discrimination, popularity of right-wing nationalist movements and the shrinking cultural and economic space of ethnic minorities have posed some blatant affronts to the political players and the international community, too. The European institutions have responded with various legal instruments, social and political programmes, but still a lot needs to be done.

In this "Short Guide", after giving the fundamental definitions and basic terms, we try to offer a brief overview on the figures and features of national minorities, and the major issues and problems of ethnic diversity in Europe. What is this 'ethnic mosaic' about? We would like to give an idea about some major conflicts involving national minorities and grievances expressed by them. Then we pass on to illustrate succinctly how the single states, still the decisive actors in minority policies, act to tackle the needs and interests of minorities and smaller people. The international instruments on minority protection, 'hard law' and 'soft law', established and enforced by European organisations and institutions, are of utmost importance to pressure national parliaments and governments. They are cornerstones for improving the general standards of protection of national minorities, but they are not enough. Due to historical, cultural and political developments, Europe has become a colourful mosaic, but the challenge to preserve that variety with substantial equal rights and fairness lies ahead.

1.1 How can minorities be defined?

How can minorities be identified and recognised as such? Which group of people is a minority and who belongs to such a group? The general issue of minorities has always triggered a controversy about the identification of minorities of different kinds. The very term 'minority' has been an issue of contention among scholars, politicians and minority activists. From the point of view of international law two basic questions are to be solved: is there a definition and which one can be generally accepted? Is it possible to determine its scope of application?

There is no clearly formulated definition contained in an international treaty which is generally accepted, due to the difficulty in identifying common elements which could grasp the plurality of existing relevant communities living within the states. There have been various initiatives at different international forums in order to clarify the concept of a minority. The importance of a definition, however, lies at a practical and theoretical level: namely in its capacity to delimit the subjects who should benefit from protection and for the fundamental requirement of clarity and foreseeability of law. When it comes to determining the contemporary international legal concept of minority, there are two options to be considered:

1) Pointing out special features of a minority group, such as citizenship, stability, traditional areas of settlement, in its relation with the state;
2) A broader and dynamic approach to the protection of minority groups in modern societies.

With regard to the special features under 1) the traditional position refers basically to the stable ethnic, religious or linguistic peculiarities of a group, which should be "markedly different" from the majority population. The group should be in a non-dominant position in the state it belongs to and it should be willing to preserve its identity. This concept is reflected in one of the most widely accepted definition provided by Capotorti in 1978 with regard to Article 27 of the ICCPR:
"A minority is a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the State - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only explicitly, a sense of solidarity, directed towards preserving their cultures, traditions, religion or language."

On the one hand in this definition there is the objective peculiarity of a group, on the other its subjective self-awareness. However, the existence of the group is premised on individual freely chosen membership.

Which is the scope of application of such a definition of minority? In most legal texts in Europe, the concept of minority refers to "a historical minority group, which has long acquired a permanent status within a state and whose members are citizens and desire to preserve their ethnic-cultural traits that distinguish them from the rest of the population." Thus 'national minority' in a European context always means a group (regardless of the size: the Livs in Estonia are barely more than 100 people, the Catalans in Spain more than 6 million) rooted in the territory of a state whose ethno-cultural features are markedly different from the rest of the society. Some other categories of "differences", notably migrant people, refugees and social groups such as castes or tribes, are not covered by this definition. In the case of religious communities, which by number are minorities with regard to the major religion practised in a given state, often they are not referred to as 'minority', but mostly as 'smaller religious communities'.

According to the prevailing view, the above definition is the most common in European law, where minority rights are equivalent to the rights of ethnic-linguistic minorities, but only exceptionally including also religious minorities, especially in such particular cases where religion is an important marker of cultural and ethnical distinctiveness of a group. Conversely, according to the aforementioned broader approach to the concept of minority, there are definitions which abandon the requirement of citizenship and ease the necessity of a long stay on the territory of the state, thus including categories previously excluded such as foreign nationals and immigrants with newly acquired citizenship. This new approach focuses on the demand to protect the cultural identity of all minority groups within a given society.

Pentassuglia rightly remarks that two fundamental aspects have to be considered: citizenship and the degree of permanency on the territory of the state. In Europe almost all national legal provisions reporting the formula "persons belonging to minorities" refer always to citizens of the state in question. Also during the debate about Article 27 ICCPR it emerged that the provision should be limited to well-defined and long-established groups, whereas stateless persons and foreign citizens did not fall under the scope of Article 27. Thus immigrants as generally accepted in principle in current European law are still not considered as "ethnic or national minorities". Finally, national minorities themselves also strongly oppose this broader interpretation of the minority concept, out of the fear that the protection standards could be levelled down by state parties. Summing it up, the prevailing interpretation and legal terminology exclude newly settled groups on the territory from the protection as "national or ethnic, linguistic or religious minorities".

Unlike Asia, no European state does accept such a social category or minority defined as 'castes' or 'tribes'. Even if a few national minorities such as the Inuit and the Sami qualify as 'indigenous peoples', there are no 'scheduled castes' or 'scheduled tribes' in any European legislation. Religion also plays a quite secondary role in the definition of a national minority, much less important in the construction of individual and collective identity than in Asia.

The development of a general concept under the existing international legal instruments appears unlikely. Sure, neither the FCNM nor the ECRML, nor the UN-Declaration on the rights of persons belonging to national minorities of 1992 prevents state parties from extending rights and benefits to individuals other than those who comprise traditional groups hitherto exclusively considered as national minorities (e.g., UK has adopted a relatively wide notion of 'ethnic minorities'), www.unhchr.ch/html/menu3/b/d_minori.htm. Thus, generally states are free to encompass also so-called new minorities in the definitions determined in domestic law.

Indeed, also in Europe there are political tendencies to include into the notion of "ethnic minority" also other minority groups traditionally not included in the common international legal understanding, especially due to migration movements or political refugees. This new approach conceives the minority rights regime as aimed at meeting the particular needs of an increasing number of disadvantaged groups. As a matter of fact, international law provides different responses to the protection of different categories of individuals and groups. Both the protection of foreigners, and more specifically, of migrant workers and refugees, rest on premises different from those applying to minorities. The international legal protection of the latter is animated by concerns for maintaining 'autochthonous' cultural identity rather than for safeguarding equality and non-discrimination, which is simply a starting point for a protective regime. By contrast, when it comes to the international legal protection of newly immigrated groups, socio-economic and/or political aspects is the main concern for the prohibition and prevention of discrimination, rather than the safeguarding of cultural identity as such.

This also explains the existence of specific conventions, resolutions, etc., for such groups. These instruments provide a minimum, mainly social and economic, guarantee against discrimination. Respect for general cultural rights of "new" groups only serves as one of the logical implications of this broad approach. National minority rights go beyond such a vision in that they recognise the objective existence of groups whose members need clearly established guarantees because of their ethno-cultural, territorial and personal situation.

In conclusion, the Capotorti definition given above still reflects the prevailing understanding of minority in international law in Europe. Minority status under this definition is accorded on the "historical" national minorities. Also in this text we will stick to this approach and just exceptionally include a chapter on religious rights of immigrants in Europe.

There are some more reasons for establishing a clear definition of minority, because often legal implications are linked to the recognition of minorities as a group or its individual members: e.g., how is the individual's membership to a minority determined? Can "self-definition" as a minority be acceptable for legal purposes? The existence of minority members and minorities themselves does not depend on domestic legal acts of recognition. At the same time individuals may not be forced to embrace membership of a minority by the group. Thus, the main criterion is free self-identification and self-declaration, which encompasses the right of each individual, formerly member of a minority, to quit this position. The profession of membership to a minority is free and must not be challenged by the authorities. Minority treaties, nevertheless, stress the necessity that individual declaration of affiliation with a minority group should reflect a fact, not just an intention or wish. In other terms there should be objective elements to prove the membership to a minority group of an individual. The explanatory Memorandum of the FCNM is rather clear on this point, the "choice on belonging" principle given in Article 3 "does not imply a right for an individual to choose arbitrarily to belong to any national minority. The individual's subjective choice is inseparably linked to objective criteria relevant to the person's identity (http://conventions.coe.int/Treaty/EN/Treaties/Html/157)." Hence, minority status may not be enjoyed only on the basis of a purely subjective perception or feeling, but has to rely on a proper combination of subjective and objective components.

Eventually, does a person belonging to a national majority population qualify as a 'minority member' within a given region, be it autonomous or not, where a national minority constitutes a majority? This has been generally dismissed. Should a distinction be made between nationality, national and ethnic minorities? Which is the difference between an ethnic and a linguistic minority? In European research and debate on minority protection these terms are commonly used with different connotations.

a) The term 'nationality', historically often used to designate membership of a national community, rather refers to the citizenship of a country and is mostly come across in the context of minority rights issues.
b) A minority is designated as a 'national minority' if it shares its cultural identity (culture, language) with a larger community that forms a national majority elsewhere. National minorities in this sense are, for example, the Germans in Denmark, the Danes in Germany, the Hungarians in Romania, the Romanians in Hungary, etc.
c) 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, such as the Raetoromanians in the Alps, the Celts or the Gaelic-speakers in North-western Europe, the Friesians in the Netherlands, the Catalans in South-western Europe and a major number of peoples in Eastern Europe, especially in Russia. Such smaller communities or peoples in official texts are sometimes referred to as "groups speaking lesser used languages" to downplay their self-perception as smaller peoples.
d) In some European countries the term 'linguistic group' or 'linguistic minority' is also used in legal terminology referring to minorities (Belgium, Switzerland, France). As in the European context language (not religion) is the decisive feature of an ethnic group or people, 'linguistic' and 'ethnic' are mostly used as synonymous terms. But it can be observed that 'linguistic' is also used when the problem of ethnic groups and their multifaceted nature is to be politically downplayed and differentiation of an ethnic group is to be reduced to language.
e) Even the term 'minority' itself includes disadvantages and is sometimes considered inappropriate, not only due to the fact that in all societies there is a wide range of different kinds of minorities, but also because the concerned groups in several cases do perceive themselves as a people (e.g. the Catalans, the Basques, the Scots, the Tatars.
f) The term "indigenous people" in Europe has much less importance and refers only to the way of livelihood of 2-3 semi-nomadic herders and fishermen in Greenland and in Northern Scandinavia.

Summing it up, it has to be acknowledged that the issue of 'minority rights' in Europe generally refers to ethnic or national minorities. Since in Europe the principal distinctive single cultural feature of a minority is the language, often the reader comes across the term 'linguistic minority' or group (http://conventions.coe.int/Treaty/EN/Treaties/Html/148.htm). In contrast to Asia, in the whole discussion in the European reality there is nearly no reference to religious and caste-related minorities, but in a few cases the 'national' character of a minority is derived from an identity construction based on religious issues too (e.g., the Bosniaks in Bosnia, the Catholic Irish in Ulster, the Jews in some European regions or cities). In view of the difficulties of precisely carrying over the existing great variety of terms into the most important European languages, the Council of Europe, when editing the 'Framework Convention for the Protection of National Minorities' (see chapter 4.2), has chosen to simplify the terminology and decided to use the expression 'national minority' in a representative manner. Hence, also in the following this will be the dominant term when referring to ethnic communities in a minority position within a given state.

This "Short Guide" can be ordered directly from the Institute for Minority Rights of the EURAC: minority.rights@eurac.edu.