Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 3, Issue Special, May 2013
Articles

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

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  • Jabbar Aslan
    ,
  • Khabbat Aslani
Jabbar Aslan
University of Tehran
Bio
Khabbat Aslani
University of Tarbiat Modares
Bio

Published 2013-05-31

How to Cite

Aslan, J., & Aslani, K. (2013). The Protection of National Minorities within the Council of Europe: An Analytical Review. Kathmandu School of Law Review, 3(Special), 141–156. Retrieved from http://kslreview.org/index.php/kslr/article/view/1011

Abstract

According to the preamble of the Framework Convention for the Protection of National Minorities, which has entered into force on 1 February 1998, minority rights are an integral part of fundamental human rights. This instrument is the ever legally binding treaty in the regional and also universal level that taken on great importance in addressing the challenges of minority protection in evolving and increasingly diverse societies. So, this paper 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 also- the most important point of view - the 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 birth and the authors aim to analyse its achievements and in the same time, its challenges as well. Thus, we reiterate once more that our method is analytical to examine the topic.

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References

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  2. 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
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  4. See, for example Coucil of Europe, Parliamentary Assembly, Recommendation 1201 (1993) proposing the adoption of an additional protocol on the rights of national minorities to the European Convention on Human Rights; F. Capotorti, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities (United Nations 1991) 568; J. Deschenes, ‘Proposal concerning the Definition of the Term “Minority”’ E/CN.4/Sub.2/1985/31 14 May 1985).
  5. 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 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) accessed 1 March 2013.
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  16. The prominent example for these old systems are minority Treaties under the League of Nations system.
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  18. See FCNM, s 1, art 1.
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  21. 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. FCNM, art 15; See also J.A. Frowein & R. Bank, ‘The Participation of Minorities in decision-Making Processes’ (Expert study submitted on request of the Committee of Experts on Issues Relating to the Protection of National Minorities (DH-MIN) of the Council of Europe by the Max-Plank Institute for Comparative Public Law and International Law, Heidlberg 2000) 1.
  22. ‘provisions of this Framework Convention shall be applied in good faith ...’Ibid art 2.
  23. Ibid art 3.
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  28. Council of Europe, Parliamentary Assembly Recommendation 1623 (2003) on the rights of national minorities.
  29. Ibid.
  30. These three States are: France, Turkey and Monaco. See ‘FCNM’ accessed 1 March 2013.
  31. Council of Europe, Parliamentary Assembly Resolution 1301 (2002) on the protection of minorities in Belgium.
  32. ‘A State may formulate a reservation unless:… (c) in cases not failing under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.’. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (Vienna Convention) art 19(c).
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  36. 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.
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  41. Commonwealth of Independent States (CIS) was created in December 1991. In the adopted Declaration the participants of the Commonwealth declared their interaction on the basis of sovereign equality. At present the CIS unites: Azerbaijan, Armenia, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Uzbekistan and Ukraine. See generally (Commonwealth of Independent States) accessed 1 March 2013.
  42. ‘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.
  43. Report Submitted By the United Nations Interim Administration Mission in Kosovo (pursuant to Article 2.2 Agreement Between UNMIK and COE related to the Framework Convention For the Protection of National Minorities, Strasbourg 02 June 2005)
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