Initially, the Conference for Security and Cooperation in Europe (CSCE) was designed with a view to easing tensions and facilitating communication between the main ideologically opposed countries during the Cold War. Its status was upgraded from a conference to a permanent international political organization in 1994, when its official designation became the Organization for Security and Cooperation in Europe (OSCE). Admittedly, the Cold War era, the security issues prevailed on the agenda of what was imagined at the time to be solely an international conference instead of a permanent international organization.418
Concomitantly, though on the sidelines of this type of international engagement, human rights and rights of the persons belonging to minorities were not entirely neglected. These issues were embodied in the document with which the first conference was concluded, known as Helsinki Final Act of 1975.
Among the ten basic principles postulated to guide relations between the states involved in the Helsinki process, the seventh principle was devoted to respect for human rights. Its paragraph 4 deals with minorities in an equality-oriented manner, reading:
“The participating States on whose territories national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner, protect their legitimate interests in this sphere”.419
Prior to the promulgation of said document, the international community had more or less disregarded the pressing needs of minorities for almost three decades. Despite the ostensibly conceptual deficiencies in the quoted provision, this attempt to address the minority needs in the Cold War era was
418 See: Claus Neukrich, Katrin Simhandl, Wolfgang Zellner, Implementing Minority Rights in the Framework of the CSCE/OSCE, in Mechanisms for the Implementation of Minority Rights, supra note 380, pp. 158-181, p. 159.
419 OSCE, Conference on Security and Co-operation in Europe (CSCE): Final Act of Helsinki, 1 August 1975, Principle VII, para. 4.
undoubtedly a significant breakthrough.420 More positive interpretation even implies that positive actions on the part of the States could be deduced from the provision‟s content, basically with a view to ensuring equality in fact for members of minorities.421
In later years, the Vienna Concluding Document of 1989 offered new perspectives in the field of minority rights. The prescribed duty of the States to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of national minorities on their territory was a considerable advancement in the field.422 In the words of Symonides, "for the first time in the CSCE process the positive obligation to preserve the rights of minorities - their...identity - was recognized".423
1. The Copenhagen Concluding Document on Human Dimension of 1990
After the Cold War, the focus of the OSCE slowly shifted towards human rights and minority protection, although still from the perspective of their security impact in relations between various European countries. Or, as Helgesen pointed out, the minority question within the OSCE has “developed from a status of practically non-existence to a status of great importance and hyper-sensitivity”.424 Subsequently, the conferences on „human dimension‟, which emerged as a result of the Vienna Concluding Document, enabled various issues related to human rights and minority rights to be treated within the frame of OSCE. In particular, the second conference, in Copenhagen, and the Document on the Human Dimension was a milestone for minorities in Europe.
A considerable part of the Copenhagen Document is dedicated to the rights of persons belonging to minorities. Of special importance is the proclamation that, “to belong to a national minority is a matter of person‟s individual choice and no disadvantage may arise from the exercise of such choice”.425 After this proclamation, the often invoked 'state discretion' to determine whether some ethnic group could be qualified as a minority was highly disputed and even considered anachronistic.
Specific rights designed to address various aspects of minority identity are enumerated in the document.426 In essence, the bulk of them derive from the principles of non–discrimination and equality.
420 See: J. J. Preece, National Minorities and the European…, supra note 46, p. 117.
421 G. Petassuglia, Minorities in International Law: An Introductory Study, supra note 60, p. 140.
422 OSCE, Concluding Document of the Vienna Meeting 1986 of the Representatives of the Participating States of the CSCE, Vienna 1989, Part I, Principle 19.
423 J. Symonides, The Legal Nature of Commitments Related…, supra note 359, pp. 308-309.
424 Jan Helgesen, The Protection of Minorities in the Conference on Security and Cooperation in Europe (CSCE): A Note on the Helsinki Document 1992, in J. Packer, K. Myntti (eds), The Protection of Ethnic and Linguistic Minorities in Europe, supra note 56, pp. 15-22, pp. 16-17.
425 OSCE, Document on the Copenhagen of the Conference on the Human Dimension of the OSCE, 29 June 1990, Part IV, para.
32.
426 Ibid. The rights for persons belonging to minorities in the document includes: free use of mother tongue in private as well in public (para. 32.1), freedom of assembly (para.32.6), right to establish and maintain their own educational, cultural and religious associations (para. 32.2), the right to profess and practice their religion (para. 32.3), right to disseminate information in their
Linguistic rights, including the possibility for pupils to obtain instruction in minority language, are carefully formulated quite tentatively.427 Specifically, qualifications such as 'whenever possible and necessary' or 'adequate opportunities' leave these duties highly susceptible to circumvention by the states.
The document notes that, by establishing “appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of…minorities”, the states could offer advanced protection to some traditional minorities, and simultaneously foster integration of those communities feeling alienated from the dominant group.428 At the same time, any activity contrary to the basic principles of the UN Charter, including the principle of territorial integrity, is strictly forbidden.
Nevertheless, Arie Bloed sees the Copenhagen Document as “undoubtedly still the most far-reaching international instrument in qualitative terms”, which actually “contains provisions which relate to all important aspects on the international protection of the rights of national minorities ”.429 Conversely, without underestimating its significance, Preece is of the opinion that out of twelve articles pertaining to national minorities in the Copenhagen document, eight merely restated provisions of earlier human rights texts and hence did not go the prevailing global minimum standard.430
Geneva expert meetings on national minorities offered some clarifications with respect to the rights stipulated in the Copenhagen Document. One excerpt of the meeting's report is widely quoted, namely the proclamation that "issues concerning national minorities, as well as compliance with international obligations and commitments concerning the rights of persons belonging to them, are matters of legitimate international concern and consequently do not constitute exclusively an internal affair of the respective State".431 These developments, taken in conjunction with a rising climate of internationalizing minority rights, added fuel to the argument, invoked by many countries, for the allegedly exclusive domestic jurisdiction of questions related to minorities to be clearly surpassed in the forthcoming years.
There are some peculiarities with respect to the legal status of the OSCE, arising mainly from the political character of the organization. First and foremost, it is clear that OSCE generated documents are politically binding rather than legally binding instruments. At the same time, as Pentassuglia noted, whereas “non–compliance with a non-legally binding commitment may not per se generate international legal responsibility, a violation of ‟politically‟ binding agreements is thus as unacceptable as a violation
mother tongue (para. 32.4) and the right to establish and maintain trans-frontier contacts with people with whom they are ethno-culturally related (para. 32.5).
427 Arie Bloed, The OSCE and the Issue of National Minorities, in A. Phillips, A. Rosas (eds.), Universal Minority Rights, supra note 338, pp.113-122, p. 115.
428 Copenhagen Document, supra note 425, para. 37.
429 A. Bloed, The OSCE and the Issue of National Minoriites…, supra note 427, p. 114.
430 J. J. Preece, National Minorities and the European…, supra note 46, p. 133.
431 OSCE, Report of the CSCE Meting of Experts on National Minorities, Geneva, 1991, Chapter II, para. 3.
of norms of international law”.432 Finally, we must acknowledge that the OSCE‟s commitments “are not constructed primarily for individuals or private institutions, but represents a referen ce for state actors”.433
2. High Commissioner on National Minorities
This part closes with some brief remarks on the mandate and work of the OSCE High Commissioner on National Minorities (HCNM). According to John Packer, the fierce civil wars in some of the former Yugoslav republics served as an impetus for OSCE‟s countries to establish the HCNM, tasked with preventing these kinds of conflicts in other OSCE member states.434
According to the Helsinki Document of 1992, with which the participating states established the High Commissioner, the mandate is to provide "‟early warning‟ and, as appropriate, „early action‟ at the earliest possible stage in regard to tensions involving national minority issues which have not yet developed beyond an early warning stage, but, in the judgment of the High Commissioner, have the potential to develop into a conflict within the CSCE area, affecting peace, stability or relations between participating States".435
A textual interpretation of the HCNM mandate, taking the ordinary meaning of its terminology, supports a view that its involvement "does not extend to all minority-related issues, but is limited to those having security aspects of implications".436 That is, rather than attempting to resolve ongoing conflicts involving national minorities, the role of the HCNM is to assess the situations involving minorities with a view to preventing a potential conflict in its pre-initial phase from developing into a large-scale conflict.
To this end, High Commissioner can collect information from various sources, including NGOs.437 To collect information on national minorities, HCNM can visit countries, discuss the various issues with state representatives and minority activists and promote dialogue and confidence-building measures among them.438 It is worth noting that HCNM visited every post-socialist country in Europe faced with imminent minority problems.
The former HCNM, Max van Der Stoel, from its outset promoted a quite unique approach to developing working instruments that gave him a considerable scope for creativity and action possibilities.
432 G. Petassuglia, Minorities in International Law, supra note 60, p. 140.
433 C. Neukrich et al, Implementing Minority Rights…, supra note 418, p. 179.
434 John Packer, The Language of Equity: The Origin and Development of the Oslo Recommendations Regarding the Linguistic Rights of National Minorities, International Journal on Minority and Group Rights, Vol. 6, 1999, pp. 329-350, at p. 330.
435 OSCE, CSCE Helsinki Document 1992: The Challenges of Change, 10 July 1992, para. II – 3.
436 Krzystof Drzewicki, The Enlargement of the European Union and the OSCE High Commissioner on National Minorites, in M. Weller, D. Blackbock, K. Nobs (eds.), The Protection of Minorities in the Wider Europe, supra note 411, pp. 154-170, at p.155.
437 Helsinki Document 1992, supra note 435, para.. II 23.
438 Ibid, paras. II 11-12.
Such working instruments were: issuance of specific recommendations to governments, general recommendations with respect to abstract minority norms, issuing statements and hosting problem-solving workshops and projects in response to crises in majority/minority in a given state.439 The three well-known general recommendations issued on the request of HCNM, namely the Hague Recommendations regarding the Education Rights of National Minorities, the Oslo Recommendations regarding the Linguistic Rights of National Minorities and the Lund Recommendations on the Effective Participation of National Minorities in Public Life, though legally and politically non-binding documents, have revealed the underlying importance of these three targeted areas for unimpeded development of minorities and maintenance of their identities in the society as a whole.440