The Protection of National Minorities within the Council of Europe: An Analytical Review

According to the preamble of the Framework Convention for the Protection of National Minorities (which entered into force on February 1, 1998) minority rights are an integral part of fundamental human rights. universal level that taken on great importance in addressing the challenges of minority protection in evolving and increasingly diverse societies. So, this survey has an analytical approach to the protection of minorities within the Council of Europe and for this, especially, focuses on the Framework Convention: namely its content, its rights-holders, and alsothe most important point of viewthe problems, challenges and tasks that this legally instrument faces with it in practice. One must take into account that the Framework Convention has passed 13 years of its born and the authors aim to analyze its achievements and in the same time, its challenges as well. Thus, we reiterate once more that our method is analytic to examine the topic.


Introduction
After the Second World War, the idea of the protection of minorities prevailed in 1945-6 that the protection of minorities had failed to pacify the relationships between States (particularly States where national minorities are located and their kin-States) and that it would become unnecessary in the light of the emergence of an international protection of human right. 3 However, there exists, since the 1990s, an increasing convergence between minority rights and human rights. Minority rights, as acknowledged now, are human rights. New instruments have been adopted to protect minority rights 1 PhD Student of International Law, University of Tehran (E-mail: jabbar968@yahoo.com , Tel: 0098 9188715411). as such-in particular, the Framework Convention on the Protection of National Minorities of 1 February 1995 4 and European Charter for European or Minority Languages of 5 November 1992 were both adopted within the Council of Europe. Remarkably, these instruments follow the model of classical human rights instruments, rather than that of the earlier treaties on minorities: the lesson has apparently been learnt that, in the absence of mechanisms of protection, the most generous clauses on the protection of minority rights will remain a dead letter. In addition, an increasingly voluminous body of jurisprudence has emerged from human rights bodies that protect minorities through human rights such as the right to respect for private life, freedom of religion, the right to education, or the right to property, either alone or in combination with the requirement of nondiscrimination. It would hardly be an exaggeration to say that human rights have legitimized and made politically a revival of minority rights acceptablethat minority rights have reentered the field of international law through the channel of human rights protection. 5 Indeed, it is the extension of human rights that has encouraged an increasingly generous reading of 'minorities' protected under international law. Minorities are traditionally (although still controversially) defined as 'a group of persons who reside on the territory of a State and are citizens thereof, display distinctive ethnic, cultural, religious or linguistic characteristics, are smaller in number than the rest of the population of that State or of a region of that State, and are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language.' 6 But there has been a tendency, particularly within the Human Rights Committee (in its interpretation of article 27 of the International Covenant on Civil and Political Rights and within the Advisory Committee 7 established under the 4 It must be pointed out that this Framework Convention -which entered into force on 1 February 1998-is the first-ever legally binding multilateral instrument devoted to the protection of national minorities in general and till now it has been ratified by 39 States, in exception to Turkey, France, Andorra and Monaco The Advisory Committee is the independent expert committee responsible for evaluating the implementation of the Framework Convention in State Parties and advising the Committee of Ministers. The results of this evaluation consist in detailed country-specific opinions adopted following a monitoring procedure. This procedure involves the examination of State Reports and other sources of information as well as meetings on the spot with governmental interlocutors, national minority representatives and other relevant actors. The Advisory Committee is composed Framework Convention for the Protection of National Minorities, to broaden the scope of the provisions protecting minority rights, so as to ensure that minority rights benefit all those under the jurisdiction of the State who present certain distinct characteristics evolution would result in defining minority rights as human rights, thus in principle to be enjoyed by all, whether or not they are found to belong to a minority under the classical definition of this term. This tendency has been strongly opposed by certain States. 8 According to statements mentioned above, this survey seeks to focus on the legally-binding Framework Convention for the Protection of National Minorities (hereinafter FCMN) -as the first binding treaty between European States and its mechanism to protect persons belonging to national minorities within the Europe as a whole. For this, we consider and examine the following issues respectively: a) The definition of minority; b) Historical background and the significance of the FCMN; c) The nature and content of minority rights; d) who are the right-holders and beneficiaries; e) Improvement and Development of minority protection within the Council of Europe: Challenges and Problems, f) Kosovo: The Crucial Situation Before COE and finally, the article will be terminated with a conclusion and some possible recommendations in this regard.

The Definition of Minority: A Longish Dilemma
Several definitions of minorities or national minorities have been proposed within international organizations. Mr. Francesco Capotorti drafted a study in 1977 for the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. 9 Mr. Jules Deschenes was tasked in 1985 by the same body with the study of the question of the definition of minorities. 10 Although these definitions are not legally binding, they serve as a reference to determine the meaning of the notion of a 'minority' in international law. Although states of 18 independent experts elected and appointed for four years. In accordance with Resolution (97)10 of the Committee of Ministers, members of the Advisory Committee shall have recognized expertise in the field of the protection of national minorities. They shall serve in their individual capacity, shall be independent and impartial and shall be available to serve on the Committee effectively. 'Minorities' (Council of Europe) <www.coe.int/minorities> accessed 1 March 2013. 8 Germany, for example, argues that 'the objective of the Framework Convention [for the protection of national minorities] is to protect national minorities; it is not a general human rights instrument for all groups of the population which differ from the majority population in one or several respects (ancestry, race, language, culture, homeland, origin, nationality, creed, religious or political beliefs, sexual preferences, etc.). Rather, the members of the latter groups are protected by the general human rights and if they are nationals by the guaranteed civil rights'. Third State Report, ACFC/SR/III ( 2009) para. 8.. have recognized a margin of appreciation in identifying the 'minorities' which exist under their jurisdiction, they may not use this margin of appreciation in order to evade their obligations under international law. Thus, international bodies have been led to note that the qualification of 'minority' is a matter of fact and not of law. 11 A group has to be recognized as a 'minority' in the sense of international law when it possesses all the characteristics, independent of whether it is recognized as such by national law. In its General Comment on article 27 of ICCPR, the Human Rights Committee states: The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.' 12 In the absence of a consensus among states on the definition of a minority, neither the FCNM, nor any other legally binding international instrument contains any such definition. 13 The Advisory Committee on the Framework Convention recognizes that the states parties have a margin of appreciation to determine the personal scope of application of the FCNM in order to take the specific circumstances prevailing in their country into account. However, it notes that this margin of appreciation 'must be exercised in accordance with general principles of international law and the fundamental principles set out in article 3 of the Framework Convention. In particular, it stresses that the implementation of the Framework Convention should not be a source of arbitrary or unjustified distinctions.' 14 It is this latter requirement which is crucial. Where certain specific rights or protections are granted only to groups which are recognized as 'minorities' or to individuals under the condition that they are considered members of 'minorities', the definition relied upon by the states should not lead to arbitrary distinctions being introduced, which would be the source of discrimination. For instance, a state defining 'minorities' under its jurisdiction as a group of 11 persons who reside on the territory of a state and are citizens thereof, who display distinctive ethnic, cultural, religious or linguistic characteristics, are smaller in number than the rest of the population of that state or of a region of that state, and are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language, although it would be resorting to a definition which appears dominant in Europe, should not be allowed to rely on that definition to exclude non-citizens from a full range of protections granted to its own nationals, even where these protections contribute to the preservation of 'minority rights'. As recalled by the UN Committee on the Elimination of Racial Discrimination in its General Recommendation 30 on 'Discrimination against non-citizens', although some fundamental rights 'such as the right to participate in elections, to vote and to stand for election, may be confined to citizens, human rights are, in principle, to be enjoyed by all persons. States parties are under an obligation to guarantee equality between citizens and noncitizens in the enjoyment of these rights to the extent recognized under international law'. 15 Neither should such a state be allowed to use such a definition in order to reserve to the category of citizens certain rights, while imposing excessive barriers to the access to nationality for persons who are under its jurisdiction, and have strong and permanent link to the state.

2-The Framework convention: Its Historical Significance
Since its inception, the Council of Europe (hereinafter COE) has obtained the leading role in the development of minority rights standards. The first text in this field was adopted by the COE's Parliamentary Assembly back in 1957. 16 However, the work of the COE was of limited effectiveness. The main reason for this was that neither content nor the holder of these rights was clearly defined. This is why the approach to minority rights remained largely in line with the old concept and notion of minority rights as special privileges which a State might bestow to some groups. This selective approach -where minority rights were considered, as a matter of fact was characteristic for all old systems of minority protection. 17 Also within the COE, attitudes towards different minority situations were crucially dependent on the real political context, political strength of the States involved and effectiveness of lobbying and political exchanges. In the first half of 1990s, adoption of two important 15 Committee on the Elimination of Racial Discrimination, General Recommendation 30 UN Doc. CERD/C/64/Misc.11/rev.3 para 5. 16 Resolution 136(1957) on the position of national minorities in Europe <www.coe.int/minorities/ html> accessed 1 March 2013. 17 The prominent example for these old systems are minority Treaties under the League of Nations system. instruments namely, the FCNM and the European Charter for Regional or Minority Languages, marked a commencement of a new stage in minority protection. Entry into force of the Framework Convention (as the first ever legally binding instrument on minority rights) has radically changed the situation. Both instruments and the outstanding work of the Advisory Committee 18 substantially clarify the ever evolving content and notion of minority rights and to some extent give the answer to the question of the rightholder.

What is the Content of Minority Rights?
If we want to examine the content of minority rights as enshrined in the Framework Convention, it is better to say that minority rights are integral part of fundamental human rights 19 and not to be taken into account as special privileges which a state might bestow to some groups by its own choice 20 . As such, minority rights must be implemented without any discrimination based on sex, language, race, religion and other similar criteria. Also, minority rights are understood as individual rights which, however, may often be enjoyed in community with other individuals. Of course, it should be noted that minority rights are not, in nature, group rights. The concept of minority rights is complementary to the fundamental principle of non-discrimination. It is possible that one might define minority rights as a second generation of nonediscrimination legislation. Formally equal treatment is sufficient to ensure equality only in equal situations. The main goal, as formulated by the Framework Convention, is full and effective equality 21 . Minority rights are to be applied in the situations when different treatment is needed to ensure full and effective equality. Therefore, non-discrimination and equal treatment cannot be used as a pretext for non-recognition of minorities and for denial of minority rights. The Framework Convention is a legal treaty, not a political declaration and in fact we can name this instrument as 'a document of principles' because it offers only basic principles of minority protection that may be implemented differently in different States, according to their situations and their legal system at whole. Compliance and accepting of these concrete and tangible methods with the letter and spirit of the Framework Convention is verified through monitoring procedures carried out by competent expert body, and improved using constant 18 'the Committee of Ministers shall be assisted by an Advisory Committee, the members of which shall have recognized expertise in the field of protection of national minorities. The composition of this Advisory Committee and its procedure shall be determined by dialogue, consultations with all parties involved, and taking into account good practices. There is no doubt that the key aspect of modern understanding of minority rights is the principle of participation of minorities in decision-making on the issues directly affecting them. 22 Numerous and multiple conditions included into the provisions of the Framework Convention must be interpreted in 'good faith' 23 , not as pretexts for declining minorities' claims but as an obligation to take into account minorities views. It must be noted that the rights envisaged in the Framework Convention should not be automatically imposed; the persons belonging to minorities must have the right to choose whether to be treated differently or not. 24 It is very important to ensure that this choice is indeed free, not made under government's pressure, and that indeed no disadvantage results from this choice.

Who is the Right-Holder?
As noted above, minority rights are recognized as integral part of fundamental human rights, so they must be implemented without any distinction. In this view, the approach which was widespread within the COE until very recentlythat is to say distinction between 'traditional' or 'historical' minorities, and 'migrant minorities'-needed to be seriously reconsidered and must be precisely taken into account. Indeed, the scope of application of the Framework Convention remains probably the most complicated and politically sensitive issue related to its implementation. A number of States Parties made declarations upon ratification which define particular groups to enjoy protection under the Convention. These declarations contain either definition, flowing from the proposal included in Parliamentary Assembly Recommendation 1201 (1993) 25 , or the list of concrete groups residing within the territory of a State Party to the Framework Convention or, in some cases, simply deny the existence of national minorities within their territories at all. However, there are three major problems that related to the scope of application of the Framework Convention that need to be considered and analysed because if one could understand these challenges precisely, then one will be able to determine the scope of the issue. So, these triple problems are read as bellow: The first one is the coherence with the United Nation mechanism of minority protection. All States Parties to the Framework Convention are in the meantime State Parties to the International Covenant on the Civil and Political Rights (ICCPR), and as such are bound by its famous article 27 on the rights of minorities. The scope of applicability of this provision is determined by the United Nations Human Rights Committee 's General Comment No. 23 (1994). This well known comment explicitly denies the possibility to introduce any restrictions on enjoyment of the rights enshrined in Article 27 of ICCPR. It would be rather unfortunate and also ill-fated if the European standards of minority protection appear to be more restrictive in nature than the universal standards as mentioned above, Article 27 of ICCPR is anyway binding for all states parties to the Framework Convent and no one can deny it.
The second problem is of rather legalistic nature. As mentioned before, the Framework Convention considers minority rights as individual rights. In the mean time, the definition included in Recommendation 1201 is worded in terms of group rights -a minority is defined as a group as a whole. This makes practical application of this definition problematic. In practice often a part of persons belonging to a certain minority group has been living in a certain country for centuries, while a substantial number of other members of the same group migrated to the country relatively recently. For instance, 40% of ethnic Russians in Latvia have been registered as citizens on the basis of the 'restored citizenship' concept; which means that their ancestors lived in Latvia for centuries. In the meantime, almost 60% of ethnic Russians arrived in Latvia after the Second World War. 26 In this case and also a number of similar cases, the question arises whether it is appropriate to deny the protection under the Framework Convention to a number of individuals who fully qualify even under Recommendation 1201's definition, solely because other members of the same group arrived to the country later?
Perhaps the most significant and important problem in this field, is directly related to universal nature of fundamental human rights and the principle of non-discrimination. Minority rights as integral part of fundamental human rights must be implemented without any discrimination. Only the citizenship criterion, indeed, is explicitly excluded from the list of prohibited grounds for 26 The Republic of Latvia, Instrument of Ratification, Reservations and Declarations (Deposited 6 June 2005) para 4. distinction in a number of international non-discrimination instruments. 27 Any additional preconditions for enjoyment of minority rights give rise to legitimate concerns about violation of the principle of equality of citizens. However, even with regard to the citizenship criteria, an effective approach was suggested by Asbjorn Eide 28 . He examines the minority rights provisions of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992 on the article-by-article basis, with the aim to analyse where limitation of minority rights merely to citizens would be discriminatory. Clearly, most of the provisions of the Framework Convention should also apply to all persons to minorities, simply because they in fact transpose fundamental principles of equality, freedom of expression, freedom of association and etc., to specific situations.
The experience of the Advisory Committee's work makes us conclude the following: The states, in fact, have a margin of appreciation in respect of determining persons and groups to enjoy protection as national minorities within their territories. However, this right must be exercised in accordance with general principles of non-discrimination, in consultation with those concerned, and no arbitrary or unjustified distinctions can result from this decision. The evolution of the texts adopted by the Parliamentary Assembly illustrates the same way of thinking. Recommendation 1492 (2000)

Achievements of Minority protection within the COE: Challenges and Tasks
One of the major tasks on the agenda of the COE is to make the Framework Convention really universal in Europe and legally binding for all member States. Although the number of signatures and ratifications quickly exceeded even the most optimistic forecasts, seven signatory states have substantially delayed ratification, and three member States of the COE  the Convention so far. 31 . In a number of recommendations, the Parliamentary Assembly urged all member states to swiftly sign and ratify the Framework Convention, without reservations and declarations. In its Recommendation 1492 (2001), it did not hesitate to ask the states which have not signed the convention, notably Turkey and France, to bring their constitutions into harmony with the European standards in force in order to remove any obstacle to the signature and ratification of the convention. In the latest Recommendation 1623 (2003), the Parliamentary Assembly went further and suggested certain practical measures to encourage member states to ratify the convention without delay. In particular, the Assembly recommended the Committee of Ministers to consider holding tour de table on signature and ratification of the Framework Convention. Moreover, the Parliamentary Assembly decided that persistent refusal to sign and or ratify the Framework Convention, or to implement its standards, should be the subject of particular attention in the monitoring procedures of the COE. It remains to be seen whether the Committee of Ministers will support the efforts of the Parliamentary Assembly to elevate the status of the Framework Convention within the hierarchy of the COE instruments and to actively promote its ratification by all member states. Broadening the scope of application of the Framework Convention in line with the principle of non-discrimination is another aspect of making it really universal.
One cannot but admit that success in this field is more than limited. Despite the Parliamentary Assembly's repeated calls for states parties to drop reservations and restrictive declarations, none of them has been revoked so far. In the meantime, the view of the Parliamentary Assembly regarding the reservation which accompanied signature of the Framework Convention by Belgium deserves attention. In its Resolution 1301 (2002)  compliance of the reservations and declarations entered by states parties with the purpose and object of the Framework Convention, at the stage when ratification instrument is deposited, might become an important tool to strengthen the convention's mechanism. This is particularly important at the current stage, when some signatory States -like Latvia -are discussing possible substantial reservations to be made upon anticipated ratification. An ultimate ambitious goal could be defined as follows: not only ratification, but also fair implementation of the Framework Convention must become a necessary precondition for membership in the COE, as is the case today with the European Convention of Human Rights and its Protocol No.6. The current monitoring procedure of the Framework Convention is legal in nature, but not judicial. Opinions of the advisory Committee are based on careful legal analysis; however, they are not binding on the states Parties. Political backing given to these opinions by the Committee of Ministers remains their main strength. Perfectly and ideally, it is better to strive to make the rights enshrined in the Framework Convention justifiable, at the end of the day. In other words, the persons belonging to minorities should have an opportunity to invoke these rights before the court.
In fact and frankly, it will not be an easy task in a foreseeable future. Although the European Court of Human Rights does have some relevant jurisprudence 34 , it is of course bound by the provisions of the European Convention of Human Rights, and not by the Framework Convention. Because of the wording of Article 14 of the European Convention on Human Rights, the Court has very limited opportunities to invoke minority rights standards. Some judgments 35 substantially contributed into interpretation of some minority rights. In the meantime, some other judgments 36 caused certain dissatisfaction among the defenders of minority rights. This situation will probably change after the Protocol No. 12 to the European Convention on Human Rights enters into force. Unfortunately, states' reluctance to swiftly ratify this protocol gives serious rise for concerns. In the meantime, some interim measures could improve the situation. In particular, the Parliamentary Assembly in its Recommendation 1623(2003), reiterated its proposal to confer on the European Court of Human Rights the power to give Advisory opinions on its interpretation of the Framework Convention. The Court itself, in its opinion, permitted such a possibility. Another important measure is to encourage the Advisory Committee to consider thematic issues and to comment on them. Both measures, while obviously being far from introducing a real procedure of individual complaints, would nevertheless facilitate uniform interpretation of the Framework Convention's provisions, and would make consideration of concrete situations and cases more effective.
Another feasible task is to achieve better co-operation and synergy between different COE bodies dealing with the issues relevant to the protection of minorities. Because of the central role of the Framework Convention in the system of minority protection developed by the COE, any kind of competition is clearly inappropriate. The task is not an easy one, because the minority protection is a multi-faceted and complex problem. In particular, in the Parliamentary Assembly, at least five different committees deal with various aspects of minority protection. 37 The problem is even more urgent in respect of co-ordination of activities of several bodies beyond the Parliamentary Assembly. It is extremely essential to further develop complementarity between the Framework Convention and the European Charter for Regional or Minority Languages, and also between the Advisory Committee and the Charter's Committee of Experts. However, it is necessary and of course essential to develop uniform understanding of minority rights as a genuine part of non-discrimination agenda. It must be noted that the role the Advisory Committee could be institutionalized in the monitoring procedures carried out by the Assembly and the Committee of ministers. This would allow also certain involvement of the Advisory Committee in the states which have not yet ratified the Framework Convention. At the end and finally, we can say that better co-operation and synergy the COE and other European institutions and organs should be promoted.
Co-ordination with the Organization for Security and Co-operation Europe (hereinafter OSCE) 38 is really complicated and, to some extent, vague. This is 37 These five committees are: The Committee on Legal Affairs and Human Rights; The Committee of Political Affairs; The Committee on Culture, Education and Science; The Committee on Migration, Refugee and Population and the Monitoring Committee. 38 Organization for Security and Co-operation of Europe. The OSCE is the world's largest regional security organization with 56 States from Europe, Central Asia and North America. It offers a forum for political negotiations and decision-making in the fields of early warning, conflict prevention, crisis management and post-conflict rehabilitation, and puts the political will of its participating States into practice through its unique network of field missions. The OSCE has a comprehensive approach to security that encompasses politico-military, economic and environmental, and human aspects. It therefore addresses a wide range of security-related concerns, including arms control, confidence-and security-building measures, human rights, national minorities, and democratization, policing strategies, counter-terrorism and economic and environmental activities. See generally (Organization for Security and Co-operation of Europe) <www.osce.org> accessed 1 March 2013. mainly because of different priorities in minority protection set by these two institutions. For several years, the OSCE High Commissioner on National Minorities (hereinafter HCNM) was considered the most effective mechanism for handling minority related disputes, and this definitely was the case. However, the mandate of the HCNM allows intervention not when minority rights are violated, but only when violation of minority rights can trigger violent conflicts. However, this strategy seems that HCNM rarely if ever refers to excellent recommendations 39 elaborated under his office's auspices. Apparently, today the HCNM has different priorities and different tasks formulated by the OSCE. All the more reason for the Council of Europe to take the lead in ensuring standards of minority protection in Europe. More effective co-operation with the subregional organization, such as the Council of the Baltic Sea States 40 , the Central European Initiative 41 , or even the Commonwealth of Independent States 42 , can also be on agenda for achieving better protection of minorities. It must be reminded that all these organizations have their own instruments and mechanisms for minority protection and synergy with the COE could enhance and improve their effectiveness. However, increased co-operation with the European Union seems to be a priority. In its Recommendation 1623 (2003) the Parliamentary Assembly recommended that the Committee of Ministers take the necessary measures to continue co-operation with the European Union, with a view to achieving common policies in the field, including the ongoing process of enlargement and the evaluation by the European Commission of measures taken by the candidate countries. Normally, we are well aware that the European 39 'Recommendations by The Hague, Oslo and Lund Universities' <www.unhcr.org/refworld/docid/3dde546e4.html> accessed 17 November 2011. 40 The Council of the Baltic Sea States (CBSS) is an overall political forum for regional intergovernmental cooperation. The members of the Council are the 11 states of the Baltic Sea region as well as the European Commission. The CBSS was established by the region's Foreign Ministers in Copenhagen in 1992 as a response to the geopolitical changes that took place in the Baltic Sea region with the end of the Cold War. Since its founding, the CBSS has contributed to ensuring positive developments within the Baltic Sea region and has served as a driving force for multi-lateral co-operation. See generally (Council of the Baltic Sea States) <www.cbss.org> 1 March 2013. 41 The origin of the Central European Initiative lies in the creation of the Quadrangular which was established by Italy, Austria, Hungary and the Socialist Federal Republic of Yugoslavia (SFRY) in Budapest on 11 November 1989 (two days after the fall of the Berlin Wall). Now the CEI counts eighteen Memeber States. Initially established to build up regional cooperation and to promote complementary development among four countries, the Initiative developed into the largest forum for regional cooperation among countries of Central, Eastern and South Eastern Europe. Furthermore, the extension of its membership has refocused its priorities in helping the transition countries and assisting them in their preparation process for EU membership. Union does not have its own system of minority protection but in spite of this formal and systemic gap, respect for and protection of minorities have been included and stipulated in the Copenhagen criteria for enlargement. The question is how the compliance of the candidate states with this criterion is evaluated. The European Union has neither its own instruments, nor institutions, procedures nor experts to conduct a professional analysis.
In the meantime, the principles of the Framework Convention are not completely irrelevant to European Union legislation. Although minority rights are not directly mentioned in the European Union Charter of Fundamental Rights, the Charter contains a non-discrimination clause. If we admit that minority rights are second generation of non-discrimination legislation, they become relevant. So, denial of minority rights, under certain and special circumstances, may qualify as discrimination prohibited by the Charter. Moreover, the concept of indirect discrimination stipulated by the European Union Race Equality Directive 43 has a lot in common with the Framework Convention's interpretation of minority rights as a means to achieve full and effective equality. Therefore, forthcoming jurisprudence on the Race Equality Directive might open the door to better coherence with the COE standards of minority protection.

Kosovo: The Crucial Situation Before COE.
The very special situation of Kosovo within the COE is considered by this organ as a sensitive case and till the presence of United Nation Interim Administration Mission in Kosovo (hereinafter UNMIK) the protection of national minorities in this area always remained as a serious agenda for COE. The co-operation of UNMIK and the COE in this regard has a legal base 44 and in addition to this the COE could obtain appropriate achievements and good progress in spite of shortages and existent challenges. It must be pointed out that the Advisory Committee of the Framework Convention has issued its second opinion on Kosovo which has been adopted on 5 November 2009 and published on 31 May 2010 by the COE 45 and has explained the situation of this area in detail. The analysis is as follows: 43 'an apparently neutral provision, criterion or practice which would put persons of a racial or ethnic or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary'. European Union Race Equality Directive 2000/43/EC. Since the adoption of the Advisory Committee's first Opinion in November 2005, efforts have been made to improve the legislative framework by adopting new legislation pertaining to minority protection. Steps should nonetheless be taken and financial resources allocated to ensure that the existing legislation is fully and effectively implemented. Moreover, serious shortcomings in access to justice and domestic remedies of persons belonging to minority communities need to be addressed as a matter of priority. Inter-ethnic relations, in particular between persons belonging to the Serbian and Albanian communities, remain tense. Separate education systems 46 and increasingly apparent language barriers aggravate the existing ethnic divisions. Resolute action needs to be taken to improve inter-ethnic dialogue and build trust among persons belonging to all communities, with a particular emphasis on overcoming linguistic divisions and encouraging inter-ethnic activities among young persons. In spite of some activities implemented to promote inter-ethnic dialogue, including specific action by the police, more efforts need to be made to combat effectively ethnically and religiously motivated crimes. There is also a need to pursue the work on the reconstruction of damaged Serbian Orthodox religious sites. An Integration Strategy for Roma 47 has been devised with a view to improving the situation of these persons in a number of areas. The strategy needs to be implemented fully and effectively in practice. The fact that no appropriate solution has been found so far for those living in the leadcontaminated camps in Northern Kosovo is a serious source of concern. Notwithstanding projects initiated to facilitate the reintegration of returnees, further efforts are needed to ensure adequate conditions for safe and sustainable return. Positive initiatives in the field of minority education have been taken. Particular attention needs to be paid to provide a balanced and pluralistic environment to history teaching. Moreover, opportunities for persons belonging to minority communities to learn the official languages in minority schools should be expanded. There is a need to identify further ways to ensure the effective participation of persons belonging to minority communities in socio-economic life, including in the economic development, the privatization processes and the return of property 48 . Their representation in public services should also be improved. 46 Sjur Bergan and Hilligje van't Land, Speaking across borders: the role of higher education in furthering intercultural dialogue (ISBN 978-92-871-6941-9, 2010).