Definición de "emoción"
5.4.4 Selección y desarrollo de materiales y actividades
1. Minority Protection in the European Union through the Prism of Its Main Institutions
Unlike the situation in most individual countries, there is no clear majority in the European Union (EU) as a whole. In other words, "majorities thus exist at the Member state, not at the EU level".581
578 Council of Europe: Committee of Ministers, Resolution on the Council of Europe Commissioner for Human Rights, Res (99)50, 7 May 1999.
579 The mandate of the Council of Europe Commissioner for Human Rights is available at:
http://www.coe.int/en/web/commissioner/mandate .
580 See particularly: Commissioner for Human Rights, Report by Thomas Hammarberg, following his visit to Greece on 8-10 December 2008, Issue Reviewed: Human Rights of Minorities, 19 February 2009, CommDH (2009)9; Commissioner for Human Rights, Report by Thomas Hammarberg, following his visit to Bulgaria on 3-5 November 2009, Issue Reviewed: Human Rights of Minorities and of Children in Institutions, 9 February 2010, CommDH (2010)1.
581 Dimitry Kochenov, EU Minority Protection: A Modest Case for a Synergetic Approach, Amsterdam Law Forum, Vol. 3, Issue 4, 2011, pp. 33-53, p. 39.
Conversely, the situation of minorities in the EU is quite diverse, since they could be „community minorities‟, „third states‟ minorities‟ and „member states‟ minorities‟.582
Human rights and minority issues were absent from the initial treaties that established the European Economic Community (EC). Economic integration among nations in Europe was its main raison d‟etre, thus minorities and their needs were neglected. Concomitantly, “any consensus on this issue among the Members States is missing”, and unfortunately, even today, a “legal basis for minority protection action in the EU does not exist”.583
However, European integration encapsulated numerous fields, and it was perhaps inevitable that, at least occasionally, the main EU institutions would venture into “the grey zone” of human rights issues and minority protection. It is worth noting that initially the European Parliament was the main minority-sensitive EU institution. It passed several resolutions with respect to linguistic and cultural minorities in member-states, and sporadically called for a more active role and resolute action across the EU. Its Resolutions on a Community Charter for Regional Languages and on a Charter for Rights of Ethnic Minorities from 1981 provided a pretext for the European Parliament to create a European Bureau for Lesser Uses Languages (EBLUL).584 In its 18 years of activity (1982-2010), EBLUL strongly promoted linguistic diversity within the EU, favoring linguistic rights for autochthonous communities in the member-states.
In contrast, the European Court of Justice (ECJ) in its early years adamantly rejected the possibility of interpreting EEC law through a human rights prism, due to the latter‟s omission from basic treaties. However, the Court later began referring to treaties for the protection of human rights, and subsequently invoked the ECHR‟s articles as an inspiration for developing a system of human rights protection in the EU.585 In the case of Bickel and Franc Case (1998), the ECJ went further and stated, for the first time, that protection of minorities may constitute a legitimate aim.586 Here the Court assessed whether linguistic rights granted to a particular minority in one EU member state may be enjoyed by nationals of other member states.
582 See: Gabriel von Toggenburg, Minorities (…) the European Union: Is the Missing Link as „Of‟ or „Within‟?, Journal of European Integration, Vol. 25, Issue 3, 2003, p. 273-284.
583 D. Kochenov, EU Minority Protection: A Modest Case…, supra note 581, p. 37.
584 See: Robert Webber, Individual Rights and Groups Rights in the European Community‟s Approach to Minority Languages, Duke Journal of Comparative & International Law, Vol. 17, 2007, pp. 361-413, at p. 375.
585 See: Kyriaki Topidi, European Union Standards and Mechanisms for the Protection of Minorities and the Prevention of Discrimination, in Mechanisms for Implementations of Minority Rights, supra note 380, pp. 183-202, at p. 185.
586 R. Webber, Individual Rights and Groups Rights in the European…, supra note 584, at pp. 399-404.
Finally, we should note that the European Council in 1991 adopted a Declaration on Human Rights, giving particular importance to “respecting the cultural identity as well as rights enjoyed by members of minorities”.587
2. Human Rights and Minority Protection within EU Law
The level of minority protection within the EU may be determined through analysis of several articles in basic EU treaties establishing principles and prescribing rights of relevance for minorities.
First, we should recall the essential principles that lay the foundation of the EU. Article 2 of Treaty of the EU, after its amendment with the Treaty of Lisbon (Reform Treaty) (2007), reads as follows:
“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”.588
Clearly these „rights of persons belonging to minorities‟ are derived from a wider notion of
„human rights‟ and are formulated in a strictly individualistic manner. The imposition of the “dreaded word „minorities‟ into a text of primary EU law” marks a milestone in the history of European integration.589 Anyway, the effects of this provision for minorities in the EU are yet to be seen.
One scholar considers Article 151 of the EC Treaty to be “the only hard treaty law...even acknowledging the existence of minorities within the EC”.590 Its provisions instruct the EU to “contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore”.591 In other words, EU has a duty to respect and promote the diversity of cultures that exist in the member-states. To date, however, this promising provision does not appear to have been properly utilized for the benefits of minorities.
Furthermore, Article 13 of the Treaty of Amsterdam (1999) prescribes the EU to “take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief,
587 Gaetano Petassuglia, The EU and the Protection of Minorities; The case of Eastern Europe, European Journal of International Law, Vol. 12, No. 1, pp. 3-38, p. 8.
588 European Union, Consolidated version of the Treaty on the Functioning of the European Union, 13 December 2007, 2008/C 115/01, Art. 2.
589 Gabriel von Toggenburg, A Remaining Share or a New Part The EU‟s Role vis-a-vis Minorities after the Enlargement Decade, in M. Weller, D. Blackbock, K. Nobs (eds.), The Protection of Minorities in the Wider Europe, supra note 411, pp. 95-127, at p. 100.
590 R. Webber, Individual Rights and Groups Rights in the European…, supra note 584, p. 376.
591 European Union, Treaty establishing the European Community (Amsterdam consolidated version), Article 151 - Article 128 - EC Treaty (Maastricht consolidated version).
disability, age or sexual orientation”.592 The Council‟s Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (Race directive) is based on this provision. The Race directive, at its core, explicitly prohibits both direct and indirect discrimination on the ground of ethnic origin in the fields of employment, education, housing and social protection.593 It is crucial that Directive‟s provisions are applied both vertically and horizontally, which means both public and private sectors are obliged to not discriminate in said fields. Though positive actions for disadvantaged ethnic or racial groups are not proscribed, “it is questionable whether far-reaching measures, like minority quotas for access to public employment or education, would be compatible with the Directive”.594 Nonetheless, considering the continuous negligence of minority rights across the EU, the Race directive presents a considerable advance in the human rights and non-discrimination framework in the EU‟s legal system. As Kochenov observes, “the first component of minority protection (i.e. non-discrimination based on belonging to a minority) is incorporated into the Community legal order via the Race directive”.595 It appears that what is missing is the second pillar of minority protection, clear prescriptions of specific rights for the benefit of minorities.
Finally, note that Article I-8 of the Lisbon Treaty stipulates that “EU shall accede to the European Convention of Human Rights and Fundamental Freedoms”.596 Achieving this commitment would greatly enhance the possibilities for the EU to build a more coherent system of minority protection.
3. Charter of Fundamental Rights
The EU Charter of Fundamental Rights was solemnly proclaimed in December 2000, during the Nice European Council, after a year of work on the document by the EU‟s main institutions. Among others, the Charter contains three articles, formulated in a non-discrimination manner, which might be and are of relevance for minorities within the EU.
Article 20, with its equality clause, proclaims that “everyone is equal before the law”.597 Article 21 is of special importance for minorities, enumerating the grounds on which discrimination is prohibited.
It states that, “any discrimination based on any ground such as sex, race, color, ethnic or social orig in, genetic features, language, religion or belief, political or any other opinion, membership of a national
592 Treaty of Amsterdam Amending the Treaty on European Union, Art. 11.
593 European Union, Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Art. 2.
594 Bruno De Witte, Eniko Horvath, The Many Faces of Minority Policy in the European Union, in K. Henrard and R. Dunbar (eds.), Synergies in Minority Protection, supra note 301, pp. 365-384, at p. 372.
595 Dimitry Kochenov, A Summary of Contradictions: An Outline of the EU‟s Main Internal and External Approaches to Ethnic Minority Protection, Boston College International & Comparative Law Review, Vol. 31, pp. 1-51, at p.10.
596 European Union, Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, 2007/C 306/01.
597 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, Art. 20.
minority, property, birth, disability, age or sexual orientation shall be prohibited ”.598 Kochenov cites Article 14 of the ECHR, as well Article 6 (2) of the EU Treaty and Article 13 of the EC Treaty as the main legal inspirations for this clause.599 Nevertheless, unlike the clause limiting application of Article 14 to the rights set forth in the ECHR, "the right to non-discrimination here applies within the whole framework of the treaties and is not confined to the provisions of the charter ".600 A progressive interpretation was offered by Pentassuglia, who invoked the HRC‟s reasoning on non-discrimination to argue that this Charter‟s article might allow for differential treatment and even imply positive actions for persons belonging to minorities.601 Moreover, the use of the term „national minority‟ rather than the more general „minority‟ legally transposes the term into the EU law, rendering it subject to interpretation by the European Court of Justice.602
Finally, Article 22 envisages that the EU shall respect cultural, religious and linguistic diversity.
Despite its “strong minority-related genesis”, Toggenburg argues that it presents “a hopelessly vague provision that does not provide for any sort of right, either individual or collective ”.603
It is important to recognize that the Charter of Fundamental Rights was adopted as a legally non-binding document. However, in the Treaty of Lisbon, EU recognized the rights, freedoms and principles set out in the Charter to have the same legal value as other treaties.604
4. Minority Protection and the EU‟s Enlargement Process
The EU‟s minority protection standards distinguish internal and external groups. While “the latter are broader in scope”, the former, according to Kochenov, are “hardly articulated”.605 Indeed, in the 1990s “minority protection ha[d] become a pillar in the human rights conditionality imposed on states that aspire to membership of the EU”.606
Political criteria for countries wishing to join the EU were formulated by the Copenhagen European Council of 1993. It emphasized the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.607 By accepting the legacy of human rights law, the „rights of persons belonging to minorities‟ in the prescribed values of the EU (Article 2 of the Treaty of the EU) are regarded unambiguously as part of a wider concept of human rights. Furthermore,
598 Ibid, Art. 21.
599 D. Kochenov, An Outline of the EU‟s Main Internal and External Approaches to Ethnic Minorities, supra note 595, p.11.
600 K. Topidi, European Union Standards and Mechanisms for the Protection of Minorities, supra note 585, p. 192.
601 G. Petassuglia, Minorities in International Law, supra note 60, p. 150.
602 See: G. Toggenburg, The EU‟s Role via-a-via Minorities after the Enlargement Decade, supra note 589, p. 102.
603 Ibid.
604 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community.
605 D. Kochenov, An Outline of the EU‟s Main Internal and External Approaches to Ethnic Minorities, supra note 595, p.48.
606 De Witte, Horvath, The Many Faces of Minority Policy in the European Union, supra note 594, p. 377.
607 European Union, Copenhagen European Council, Conclusions of the Presidency, European Union Bulletin No. 6, at p. 13.
Drzewicki points out that “the Copenhagen criteria upgraded the position of the minorities issue by separating it and putting it on an equal footing with human rights”.608
It is worth noting that issues of minority protection “first appeared in EU enlargement law during the fourth enlargement and dealt with the rights of the Sami people and, to a lesser extent, with the Swedish-speaking population of the Aland Islands”.609 Minority protection, as a general condition on which candidate countries are assessed, only began to be applied after the Copenhagen criteria were adopted. Thus, countries from Central and Eastern Europe, as well those of the Balkans that sought full-fledged membership in the EU, had to meet these conditions.
The European Commission is responsible for assessing the fulfillment of political criteria by candidate countries annually. Progress reports issued by the European Commission, among others, monitor the minority rights records for each candidate country. Minority rights issues such as those of Hungarian minorities in Hungary's neighboring countries, the situation of Roma communities, the Turkish minority in Bulgaria, the Albanian community in Macedonia etc. were regularly assessed in individual candidate countries‟ progress reports. In these documents, the European Commission referred primarily to the rights and principles enshrined in ECHR, FCNM, Recommendation 1201(1993) of the Council of Europe‟s Parliamentary Assembly as well as to some bilateral agreements on good neighborliness and cooperation.610 Article 27 of ICCPR and the UN‟s Declaration on Minorities, although articulating global standards for minority protection, are omitted from this assessment process.611 Some authors have argued that the European Commission failed to apply the conditionality to all candidate countries in an equal manner, and therefore some violations of minority rights were not completely resolved (human rights of the Russian-speaking minorities in Estonia and Latvia, the Macedonian minority in Bulgaria etc.).612
The minority protection approach in EU external relations is often subject to criticism. Some authors contend that its approach establishes “double standards, since it entails requiring third states to comply with standards that the EU does not impose on its own member states”.613 Another criticism is that the pre-accession conditionality of minority protection means that the “EU could be less influential vis-à-vis the acceding countries once they have entered, than it was before they became full-fledged members”.614 At the same time, it does not prevent the possibility of „importing‟ unresolved minority
608 K. Drzewicki, The Enlargement of the European Union…, supra note 436, at p. 161.
609 D. Kochenov, An Outline of the EU‟s Main Internal and External Approaches to Ethnic Minorities, supra note 595, p. 17.
610 See: G. Petassuglia, The EU and the Protection of Minorities…, supra note 587, pp. 20-21.
611 Ibid, p. 23.
612 D. Kochenov, An Outline of the EU‟s Main Internal and External Approaches to Ethnic Minorities, supra note 595, pp. 22-48.
613 De Witte, Horvath, The Many Faces of Minority Policy in the European Union, supra note 594, p. 380.
614 Christophe Hillion, Enlargement of the European Union – The Discrepancy Between Membership Obligations and Accession Conditions as Regards the Protection of Minorities, Fordham International Law Journal, Vol. 27, 2004, pp. 715-740, p. 717.
issues through EU's enlargement process or the emergence of new majority-minority tensions within member-states.615
E. Bilateral Agreements and Minority Protection in Europe: Case of East/Southeast European