text: May 2001 Bolzano draft report on bilateral agreements (English only) PROTECTION OF NATIONAL MINORITIES THROUGH BILATERAL AGREEMENTS IN SOUTH-EASTERN EUROPE ______ Draft report prepared by the European Academy of Bozen/Bolzano ______ prepared by Emma Lantschner and Roberta Medda under the supervision of Prof. Joseph Marko for the 8th Meeting of Government Offices for National Minorities, Strasbourg, 21-22 May 2001 _____ CONTENTS Introduction I. The Agreements II. International instruments as texts of reference for bilateral agreements III. Respect and inviolability of state borders and territorial integrity IV. Substantive rights included in the treaties i. The right to identity ii. Linguistic rights iii. Education rights iv. Media v. The right to establish organisations vi. Participation in decision-making processes vii. Other rights granted viii. Duties V. Implementation and monitoring bodies of bilateral treaties VI. The role of the international community in the negotiation, drafting and monitoring process VII. Sensitive issues related to bilateral agreements VIII. The limits of bilateral agreements : minorities without a kin state IX. Financial assistance X. The effectiveness of bilateral treaties: achievements and conditions of implementation Final remarks and recommendations Annex 1 : List of Agreements *** 2 Executive summary The protection of minorities through bilateral agreements does not represent a new phenomenon in international law, as this instrument has already been used in previous centuries. The break-up of the communist regimes in Central and Eastern Europe led many countries to the conclusion of bilateral agreements on good neighbourly relations. These agreements aim, on one hand, at guaranteeing stability in the newly formed democracies by ensuring, among others, respect of existing borders and settlement of long lasting disputes. On the other hand, they establish commitments regarding the protection of national minorities living on their territory. The focus of this study will concentrate on the treaties concluded by Albania, Bulgaria, Croatia, the Federal Republic of Yugoslavia, "the former Yugoslav Republic of Macedonia", Hungary, Moldova, Romania and Slovenia. Germany and Hungary were the two countries that pursued with most energy the policy of concluding agreements on good neighbourly relations. The countries of former Yugoslavia, in particular the state of Bosnia Herzegovina and "the former Yugoslav Republic of Macedonia", have made more limited use of bilateral instruments. The rights included in most of the treaties are the following: · right to identity · linguistic rights · education rights · rights concerning media · freedom of association · right to participation in decision-making processes Some other rights are less often, or even not at all, included: · right to establish and maintain undisturbed contacts across the border with citizens of other states, with whom minority groups share a common ethnic identity · right to preserve their material and architectural heritage · collective rights or a form of autonomy · protection of minorities without a kin-state, such as the Roma The treaties, in general, also contain certain duties for persons belonging to national minorities: The same rights and duties flowing from their citizenship ought to be applied to persons belonging to national minorities as to any other citizens of the State concerned. Furthermore, it is often emphasised, that the protection of minorities does not imply any right to engage in any activity or perform any act contrary to the fundamental principles of international law, including the principles of the Charter of the United Nations. Duties of minorities are seen to suit, among others, the purpose of preventing secessionist attempts, and to guarantee the cohesion of States. One of the possibilities for monitoring implementation could be the use of domestic remedies. In order to ensure full awareness of existing standards, training programmes should be provided to judges, but also to politicians, local administrators and the 3 police. The Joint Intergovernmental Commissions, foreseen in a number of treaties, could become the most effective implementation mechanism. An obstacle to this may consist in the restricted mandate these Commissions have. They have no decision- making power. The participation of representatives of minorities should be aspired to in all Commissions. The existing bilateral agreements not disposing of any strong monitoring mechanism, nor sanctions in the case of non-compliance, effective implementation is mainly left to the political good will of the contracting parties and, to a certain extent, international pressure. The international community could be involved in negotiation, drafting and monitoring. Direct conflicts between two negotiating parties could be avoided or mitigated by the mediating role of an external body. Furthermore, their expertise acquired in the field of minorities could help in drafting the agreements. However, it is not enough to encourage countries to conclude bilateral agreements without monitoring their implementation. In this context, the potential role of the Framework Convention for the Protection of National Minorities, in particular of Article 18, has to be analysed. Bilateral agreements touch upon a number of sensitive issues. Although they tend to reduce tensions between kin and home-states, the bilateral approach may cause concerns that kin-states gain un unduly strong voice in the affairs of neighbouring states. Home-states may perceive it as interference in its internal affairs. To reduce such fears, it needs to be ensured that the minority issue is not exploited in order to suit geopolitical interests nor should it be used to encourage secession of a minority- populated region. Reference to collective rights or special territorial status of national minorities is in general avoided in the agreements. One of the limits of bilateral agreements, inherent to their structure, is that certain minorities may benefit more than other groups from their provisions, because usually state parties are interested in protecting certain kin-groups and not others. The situation of minority groups without kin-state, such as Roma/Gypsies, Gagauz, Tatar or Vlachs risk being ignored if too much emphasis is placed on the role of kin-states in the context of minority rights. A multilateral agreement as a means for the protection of Roma/Gypsies is a matter which could be examined in more detail, should the protection provided by the Framework Convention turn out to be insufficient. Direct assistance, especially financial assistance, from the kin-state can be a source of tension between states. However, it should be stressed that the question of financing is a vital factor for the effective implementation of minority protection. For a kin-state not to raise suspicion in the home-state, that its assistance supports secessionist claims, it is important that it provides appropriate assistance to the kin- groups in a transparent manner. Effectiveness: On the whole bilateral agreements constitute a useful and sometimes even essential addition to the international regime for the protection of persons belonging to national minorities. They usually contain provisions which reduce the fear of secession and thereby contribute to a more relaxed relation between home- and kin-state. Economic provisions included in bilateral agreements, in particular, enhance the overall situation of minorities settled in border regions, contributing, among 4 others, to reduce the rate of unemployment for national minorities which is often a consequence of the economic centralisation existing in many European countries. A relaxed climate of trust between sub-national entities and central authorities as well as mutual information and co-operation between the Central State and its entities seem to be a precondition for cross-border co-operation activities. A positive aspect of bilateral agreements is that they take into account the specific historical and traditional needs of the minority communities concerned, which is not the case in general minority regulations included in international and regional instruments. Furthermore, bilateral agreements give legal force, through confirmation and/or incorporation, to merely political declarations. A basic precondition for efficiency of an agreement is the involvement of the groups concerned in the preparation and conclusion of these treaties as well as in the implementation mechanism and in the work of the monitoring commissions. One of the major factors influencing trans-border co-operation in the short to medium term is accession into European and Euro-Atlantic institutions and, in particular, to the EU. The EU has made it clear that enhancing respect for minority rights and fostering good-neighbourly relations are important political criteria for entry. Overall, if effectively implemented, the substantive rights included in the existing bilateral agreements hold a considerable potential for the development of minority protection. These agreements have, however, yet to reach this potential. To conclude, a regional and multilateral approach should be enhanced, to avoid the risks of concentrating solely on a policy of selective bilateralism to the detriment of a regional strategy, which in some cases may be more effective. 5 Introduction The protection of minorities through bilateral agreements does not represent a new phenomenon in international law, as this instrument has already been used in previous centuries. Whereas up to the nineteenth century the protection regarded more religious rather than national minorities, in the twentieth century the protection of national minorities became predominant, due to the creation of new borders after each of the World Wars. After World War I, most of the bilateral agreements were incorporated in different peace treaties. However, the treaty between Finland and Sweden on the status of the Åland Islands (1921) is the only treaty to have survived the League of Nations Period. The idea of minority protection through bilateral agreements reappeared after World War II, for example in the Austro-Italian agreement on the status of South Tyrol (Gruber – De Gasperi Agreement of 1946). It has to be kept in mind, that the positive results from this agreement did not follow immediately. Full implementation took quite a long time and the years following its signature were not exempt from violent escalations of the ethnic conflict. Furthermore, as a result of bilateral negotiations, the situation of the minorities on both sides of the German-Danish border could be regulated through unilateral declarations of 1955 by Germany and Denmark on the rights of the Danish and German minority respectively.1 The break-up of the communist regime in Central and Eastern Europe which took place at the end of the 1980s, led many countries to the conclusion of bilateral agreements on good neighbourly relations. These arrangements aim, on one hand, to guarantee stability in the newly formed democracies by ensuring, among other things, respect for existing borders and by settling long lasting disputes. On the other hand, they establish commitments regarding the protection of national minorities living on their territory. For the countries of Central and Eastern Europe these agreements are also a means to progress towards full integration into the so-called European and Euro-Atlantic structures. It was in fact the European Union which in the early 1990s promoted the policy of concluding bilateral agreements, expressing the "common, continuing effort to prevent and put an end to threats of tensions and crises and to create an area of lasting good-neighbourliness and co-operation in Europe (…)". The European Union became aware of the fact that settling minority conflicts in a positive and peaceful manner, would contribute to the consolidation of political stability in the Eastern part of Europe. As a result of this, in 1993 the European Council decided to launch a "Pact on Stability"2: a joint action to promote good neighbourly relations and to consolidate frontiers and settle problems of national minorities. The initiative was initially concentrated on the countries of Central and Eastern Europe, particularly the six 1 Kinga Gál, Bilateral agreements in Central and Eastern Europe: A New Inter-State Framework for Minority Protection?, ECMI working paper 4, 1999, p.2-3. 2 The Pact on Stability (not to confound with the Stability Pact for South Eastern Europe) is also known as the "Balladur Plan" because it was proposed by the French Prime Minister Edouard Balladur. The Pact was adopted by the representatives of 52 member states of the OSCE at the conference held in Paris on 20-21 March 1995. It consists of a Declaration and a list of bilateral agreements which the participating states decided to include. For more details on the Pact on Stability, Declaration and Agreements included, see Florence Benoît-Rhomer, The minority question in Europe, Council of Europe Publishing, 1996, p. 30-36 and p. 81-90. 6 associated countries3, together with the three Baltic states, to help facilitate the rapprochement of these countries with the EU. It is interesting to consider the influence exerted by the Pact on Stability on good- neighbourly relations and co-operation among the states concerned. The Pact was an important initiative at the international level to promote good neighbourly relations and the conclusion of basic treaties. The impact of the Pact on Stability is, however, not clear. There is no doubt, that it was an incentive for the Hungarian negotiation with Romania as well as with Slovakia. The Hungarian-Slovak treaty was concluded on the eve of the adoption of the Pact. The Hungarian-Romanian treaty was concluded just over a year later. The Pact on Stability had no major impact on the relations between the Baltic States and Russia. Another EU initiative in this regional context was adopted on 10 June 1999 in Cologne: the Stability Pact for South Eastern Europe.4 In the founding document, more than 40 partner countries and organisations undertook to strengthen the countries of South Eastern Europe "in their efforts to foster peace, democracy, respect for human rights and economic prosperity in order to achieve stability in the whole region". Corresponding to these aims, three Working tables on different topics have been established. In the frame of Working table I on Democratisation and Human Rights a Task Force (Task Force I) on Human Rights and National Minorities was created. At the International Conference on Interethnic Relations and Minorities, that took place in Portorož, Slovenia, in March 2000, Stability Pact activities in this field were determined. Following the proposals of a Special Delegation of Council of Europe Advisors on Minorities, three of the proposed projects, among others, were selected to be presented to the first Regional Funding conference, which took place at the end of March 2000 in Brussels. The projects amount to a non-discrimination review, the acceptance and implementation of existing standards, as well as bilateral agreements. Given the role of bilateral treaties in reducing or preventing tension between kin-state and home-states of the minorities concerned, this third project aims at reinforcing and developing bilateral co-operation in the field of minorities in a way that is consistent and co-ordinated with the existing multilateral standards, and in particular those of the Framework Convention for the Protection of National Minorities. Two meetings of the Task Force I in 2000 focussed around the issue of bilateral relations. The first took place in May in Brdo, Slovenia and the second in December in Zagreb, Croatia. 3 Bulgaria, Czech Republic, Hungary, Poland, Romania and Slovakia. 4 For more information on the Stability Pact on South Eastern Europe see http://www.stabilitypact.org 7 I. The Agreements The position of the home-state5 when negotiating bilateral agreements touching upon minority rights is generally influenced by several factors, such as the domestic political situation or the strength of the unitary nation-state concept. The existence of real or artificial fears that minority groups might secede by evoking the principle of self-determination complicate the bilateral talks. However, the fact that most of the countries concerned have an interest in being integrated into European and Euro- Atlantic structures, contributes to the willingness to accept compromises. Germany and Hungary were the two countries that pursued with more consistency than others the policy of concluding agreements on good neighbourly relations. Both of them were not only concerned by the protection of their co-ethnics in neighbouring states, but also by the consolidation of the existing borders. The German-Polish Agreement is often regarded as a "model agreement" providing a wide range of minority rights. Many of the agreements concluded between other states are modelled on this treaty. The focus of this study will be mainly on the treaties concluded by Hungary6 and Romania with their respective neighbours, among others Slovenia, Croatia, Slovakia, Albania, Bulgaria, the Federal Republic of Yugoslavia, and sometimes also with other countries in South-Eastern Europe.7 Hungary and Romania are, in fact, the two countries that have most used this instrument as a means to regulate inter-state issues. Usually, minority issues are regulated by one or two provisions included in more comprehensive agreements on good neighbourly relations and friendship. However, in the case of Croatia and Slovenia, Hungary concluded separate conventions regulating the situation of their respective minorities. The countries of the former Yugoslavia, especially the state of Bosnia Herzegovina and "the former Yugoslav Republic of Macedonia", did not yet make much use of bilateral instruments, except agreements concluded by the Federation of Bosnia and Herzegovina with Croatia8 and by the Republika Srpska with the Federal Republic of Yugoslavia.9 Both of these agreements aim primarily at establishing economic co- operation and reconstruction, but touch also upon education and culture, information and, in the case of the agreement concluded by the Federation of Bosnia and Herzegovina with Croatia, also upon the development of regional and local administration and self-rule. An interesting point to be highlighted in both agreements 5 A home state is a state where minority groups live. A kin-state is a state where co-ethnics of these groups live and form the majority of the population. 6 See Fernand de Varennes, Language, Minorities and Human Rights, The Hague/Boston/London: Martin Nijhoff Publishers, 1996, pp. 365-380 and at: http://www.htmh.hu/bilat-frame.htm for the full text of bilateral agreements concluded by Hungary. See also Arie Bloed/ Pieter van Dijk, Protection of Minority Rights Through Bilateral Treaties. The Case of Central and Eastern Europe, The Hague/Boston/London: Kluver Law International, 1999, p. 337. 7 See Annex for a list of the existing bilateral agreements touching upon minority rights in Albania, Bosnia and Herzegovina (at Entity level), Bulgaria, Croatia, the Federal Republic of Yugoslavia, Hungary, Moldova, Romania and Slovenia. 8 The Agreement on Special Relations between the Republic of Croatia and the Federation of Bosnia and Herzegovina, was concluded in Zagreb, on 22 November 1998. Full text to be found at http://www.ohr.int/docu/d990512a.htm 9 The Agreement on the Establishment of Special Parallel Regulations between the Federal Republic of Yugoslavia and the Republika Srpska, was signed in Banja Luka on 5 March 2001. 8 is the very detailed description concerning the Joint Council for Co-operation established for the purpose of implementing the agreement. In no other agreement are there such clear definitions of competence, composition and working procedures as in these agreements. In the agreement between the Republika Srpska and the Federal Republic of Yugoslavia in particular, the Office of the High Representative is also involved in its implementation. It is important to note, that the treaties have been concluded by the two entities and not by the state of Bosnia and Herzegovina itself, and do not contain any specific measure regarding the protection of minorities. This makes it rather unlikely that the provisions will have a direct impact on the overall situation of their respective minorities. The Federal Republic of Yugoslavia and Croatia concluded an Agreement in 1996 on the Normalisation of Relations, which followed the Agreement of Erdut10 and further contributed to the stabilisation of the relations between the two countries. Besides the consent to conclude other agreements in various fields (such as communication, transport and culture), the Agreement on Normalisation contains provisions on the return of refugees and the minorities living in both states (articles 7 and 8). In general, both parties commit themselves to ensure a free and safe return of refugees and displaced persons, return of property or compensation as well as state support. Particularly interesting is the non-discrimination clause of article 7(5). According to this article, properties belonging to persons having the citizenship of the other State party, are granted the same legal protection as that provided to their own citizens. The real minority clause is contained in article 8, which states that the Serbs and Montenegrans in Croatia and the Croatians in the Federal Republic of Yugoslavia are guaranteed all the rights foreseen by public international law. Apart from these agreements, there was recently the signature of the Agreement between the "former Yugoslav Republic of Macedonia" and the Federal Republic of Yugoslavia on the demarcation and determination of borderlines. As discussed below, the border issue is often raised alongside the question of minorities, as a result of the concern of individual States to safeguard their territorial integrity. The signature of the agreement between the "former Yugoslav Republic of Macedonia" and the Federal Republic of Yugoslavia should be seen as an expression of good political will and commitment to solve the continuing problems between the two countries. Especially for the countries of former Yugoslavia it would be useful to create a legal framework in which these countries could assist each other in the reconstruction of their economy and civil society. Such treaties could include provisions regarding the return of refugees and displaced persons, similar to Article 7 of the Agreement between Croatia and the Federal Republic of Yugoslavia. 10 Basic Agreement on the Region of Eastern Slavonia, Western Simiria and Baranja, signed between Croatia and the Serb minority living in Croatia on 12 November 1995. 9 II. International instruments as texts of reference for bilateral agreements The standards set up by international organisations, such as UN, OSCE and Council of Europe, serve essentially as a basis for the drafting of provisions concerning minorities in bilateral agreements. The most often quoted documents are the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992), the relevant OSCE documents in general, and the Concluding Document of the Copenhagen Meeting of the Conference on the Human Dimension (1990) in particular, art 27 of the International Covenant on Civil and Political Rights (1966), and the Recommendation 1201 (1993) on an additional protocol on the rights of national minorities to the European Convention on Human Rights of the Parliamentary Assembly of the Council of Europe. In some of the more recent agreements reference is also made to the Council of Europe Framework Convention for the Protection of National Minorities, which was opened for signature in February 1995.11 In many cases the agreements refer to and/or use phrases that are evidently borrowed from standards set out in these instruments. According to Bloed and van Dijk, "except in cases where a bilateral treaty provides for a level of protection that is higher than in the (…) multilateral standards, the bilateral treaty's reference to multilateral standards is to be preferred over a separate, detailed formulation of each specific right", even if comparable or identical. Otherwise there would be a danger of diverging interpretations and the suggestion that unincorporated elements or provisions do not apply.12 Experience, however, shows that even if the parties refer to international documents, they tend to give them their own, generally restrictive, interpretation. This was the case with regard to Recommendation 120113, which was, after lengthy and involved discussions, included in the Hungarian-Slovak treaty, as well as in the Hungarian- Romanian treaty: Slovakia, after having signed the treaty, added a unilateral declaration stating that Recommendation 1201 did not grant collective rights or the right to autonomy or self-government14. In the context of restrictive interpretation of international instruments, particularly Recommendation 1201, and the sometimes disruptive impact third actors can have on bilateral negotiations, it is worth mentioning the treaty between Romania and Hungary, which was negotiated at a time of tension between Hungary and the US. 11 On 11 May, 2001, the Federal Republic of Yugoslavia ratified as the last of the countries concerned in this report the Framework Convention for the Protection of National Minorities, bringing to 34 the total number of States that have ratified this Convention. 12 Arie Bloed/Pieter van Dijk, op.cit., p. 14. 13 Article 11 of the Recommendation 1201 states: "In the regions where they are in a majority the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching the specific historical and territorial situation and in accordance with the domestic legislation of the state". For an interpretation of this article see Opinion of the Venice Commission, CDL-INF (96) 4. 14 "The Government of the Slovak Republic emphasises that it has never accepted and has not enshrined in the Treaty any formulation that would be based on the recognition of the principle of collective rights for the minorities and that would admit the creation of autonomous structures on (the) ethnic principle." Statement by the Government of the Slovak Republic on the Treaty with the Republic of Hungary, Bratislava, 18 March 1995. 10 The Hungarian government supported the joint declaration of Hungarians abroad to drive for autonomy and self-government. The US Government declared that although it supported the aspiration of Central European minorities to preserve their cultural heritage, it rejected any drive for territorial autonomy based on ethnic criteria. Hungary, under this external pressure and fearing for its success in joining NATO, had to agree on the restrictive interpretation given by Romania to the Recommendation 1201. The Romanian Government, similar to the Slovak government, rejected any interpretation of Recommendation 1201 granting the Hungarian minority collective rights or the right to set up autonomous territorial structures based on ethnic criteria.15 Restrictive interpretations of mostly the same provisions of bilateral agreements on collective rights and autonomy do not detract from the fact, that a political document, such as the Recommendation 1201, becomes legally binding once incorporated into a bilateral treaty. The legally binding force of such international instruments is not, however, always very clearly expressed. In the Hungarian-Slovak treaty, for example, the situation is non-ambiguous (bearing in mind the aforementioned problems with regard to Recommendation 1201): "The Contracting States declare (...) that (...) they shall apply, in defending the rights of persons belonging to the Hungarian minority in the Slovak Republic and the Slovak minority in the Republic of Hungary, the norms and political commitments laid down in the following documents as legal obligations."16 It then quotes the Copenhagen Document, the UN Declaration of 1992 and Recommendation 1201 of the CoE. In other treaties, the obligation is not so obvious. Formulations like "starting from the principles laid down in international documents" does not necessarily mean that the parties agreed on applying them as legal obligations. However, the fact that they are quoted in the treaties, mostly in the preambles, implies, at least, that these documents were the source of inspiration of the drafters and that the aims pursued by the documents should also be reached through the implementation of the bilateral agreement. In this way, they might also contribute to the formation of a regional customary law on minorities. This aspect will be further examined in this report from the point of view of the influence exerted by bilateral agreements. 15 Michael Shafir, A Possible Light at the End of the Tunnel, Transition, Vol.2, No. 19, 20 September 1996, 29-32; Sándor Vogel, A Comparison of the Hungarian-Slovak and the Hungarian-Romanian Basic Treaty, Ethnos Nation, 4, 1996, p. 118. 16 Article 15 (4)(b) 11 III. Respect and inviolability of state borders and territorial integrity Most of the treaties concluded by Hungary contain a self-executing provision concerning common borders. The treaty with Slovenia states that "no provision of the present Convention shall be interpreted in a way that it harms the territorial integrity of each Contracting Parties".17 Whereas the Croatian treaty contains a similar general clause18, in the treaties with Romania19 and with Slovakia20 the parties are more explicit and confirm that "they have no territorial claims on each other and that they shall not raise any such claims in the future." Also the Romanian treaties with the Federal Republic of Yugoslavia21, Albania, Croatia and Bulgaria ensure that the existing borders are respected as definitive and inviolable. This issue is of great concern to the parties, especially to the ones who fear a secessionist movement from within large minorities living in their countries. Romania for example insisted in including such a clause in its bilateral treaty with Hungary, even though the inviolability of state borders is already one of the principles included in the Helsinki Final Act to which Hungary adhered.22 It is important to note that the border issue has been also taken into account by both, the Copenhagen Document in paragraph 37 and the Framework Convention for the Protection of National Minorities of the Council of Europe in its article 21. In general, states are not willing to agree to develop the right of minority members without a guarantee that their own territorial integrity will not be endangered.23 However, the respect of sovereignty, territorial integrity and independence has to be considered as a duty of all citizens, not only of persons belonging to national minorities. Nevertheless, such provisions have tended to stick in the area of minority rights in part because of fears or confusion surrounding the implications of rights for self-determination.24 In spite of these considerations, the inclusion of border clauses is still extremely important for States and contributes to more relaxed relations between neighbouring countries. 17 Article 14 18 Article 15 19 Article 4 20 Article 3 21 Article 2 22 Michael Shafir, op.cit., p. 29. 23 Jan Barcz, Poland and its Bilateral Treaties, in Bloed/van Dijk, op.cit., p. 119. 24 Patrick Thornberry, op.cit., p. 154. 12 IV. Substantive rights included in the treaties This part will provide a comparative analysis of the above mentioned agreements with regard to their provisions concerning minorities.25 i. The right to identity The right to identity is one of the basic rights granted to minorities. It protects minority cultures and codifies the international understanding of the necessary legal framework which permits cultures to survive and develop. Article 5 (1) of the Framework Convention for the Protection of National Minorities takes this importance into account.26 Many rights in the agreements result from this general provision.27 The right to identity is expressed in different degrees in most of the analysed treaties. In some of the agreements the parties "commit themselves to apply the international standards regarding the protection of the ethnic, cultural, linguistic and religious identity of the persons belonging to national minorities and to undertake no activities which do not comply with this treaty".28 Others apply a stronger language, stating that "persons belonging to national minorities shall have the right, individually or in community with other members of their group, to express, maintain and develop their ethnic, cultural, linguistic or religious identity."29 The treaty between Ukraine and Moldova adds "the right to be safe from any attempts of assimilation against their will."30 Also the Hungarian-Slovak31 and the Hungarian- Croatian32 treaties contain the provision that the parties will refrain from any assimilation or alteration of the proportions of the populations in areas inhabited by persons belonging to national minorities.33 This provision is especially important with regard to the administrative division of regions inhabited by minorities, that might result in a disadvantage for them. The difficulties, and sometimes the lack of will in fulfilling the provisions regarding the protection of identity and non-alteration of proportions, are well illustrated in a case involving the Slovakian government. Shortly after having signed the treaty with Hungary, Slovakia has enacted a new administrative division of the country, 25 Note that this report does not take into consideration the agreements on co-operation in the fields of Culture and Education. Croatia, for example, has concluded Agreements on the co-operation in the field of Culture and Education with, amongst others, Romania (1993) and Slovenia (1994). Albania concluded an Agreement on Cooperation in the Fields of Education, Culture and Science with Slovenia in 1993. A very recent agreement on culture has been concluded by Slovenia with Austria. 26 Article 5 (1) states: "The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage." 27 Patrick Thornberry, op.cit, p. 147. 28 Article 17(3) of the Romanian-Croatian treaty; article 20(2) of the Romanian-Federal Republic of Yugoslavia treaty; article 20 of the Romanian-Slovak treaty; Hungarian-Bulgarian Declaration. 29 For example Article 15(2) of the Romanian-Hungarian treaty, Article 15(2)(c) of the Hungarian- Slovak treaty. 30 Article 7(2) 31 Article 15(2)(d) 32 Article 9(2) 33 Article 16 of the Framework Convention for the Protection of National Minorities takes position on this issue: "The Parties shall refrain from measures which alter the proportions of the population in areas inhabited by persons belonging to national minorities and are aimed at restricting the rights and freedoms flowing from the principles enshrined in the present framework Convention." 13 disadvantageous for the Hungarian minority. Divisions, in which they previously formed the majority, are split up in such a way, that Hungarians are now in the minority, rendering the exercise of some of the rights enshrined in the bilateral agreement more difficult. This example shows that prohibition of demographic manipulation is closely connected with the right to existence and identity.34 In this context it should be mentioned that Slovakia has put in process a comprehensive reform of its public administration, as a result of which the current administrative division may also be affected. ii. Linguistic rights Linguistic rights are included in all bilateral agreements concluded by Hungary.35 The exact content of these rights goes from the right to use one's mother tongue in private and public to the right to register and use the names and surnames, to display topographical indications, and to use the minority language in contacts with public administration and justice. The size of a minority group within a territorial unit and its claims are decisive, especially regarding the right to use the minority language in contacts with local authorities and justice. Article 4 of the Hungarian-Slovenian Convention combines all the aforementioned rights by stating: "The Contracting Parties shall ensure for the members of the national minorities the free use of their own language in their private and public life, including the free use and registration of their original surnames and given names. The Contracting Parties undertake to ensure within the territory historically inhabited by their respective national minorities the equal use of both languages especially in regard to geographic names and public signs, in the local administration, in oral and written communications, in front of administrative and judicial organs and in public institutions." This article contains similar wording to Articles 10 and 11 of the Framework Convention for the Protection of National Minorities. A difference can be seen in paragraph 2 of article 4 Hungarian-Slovenian treaty, which requires that the territory is "historically inhabited by their respective minorities" as a condition for the exercise of the right. According to Article 10(2) of the Framework Convention for the Protection of National Minorities the presence of a minority in "substantial numbers" might already be enough, without further recourse to a historical presence. A positive point to mention in article 4 Hungarian-Slovenian Convention is the fact that it is not limited by restrictive clauses. 34 Parliamentary Question for Oral Answer no. 12, Parliamentary Assembly of the Council of Europe, 23 April 1996, Doc. 7535; Géza Jeszenszki, Hungary's Bilateral Treaties with the Neighbours and the Issue of Minorities, in Ethnos Nation, 4, 1996, p. 127-128; Sándor Vogel, op.cit., p. 120-121; Bart Driessen, A New Turn in Hungarian Slovak Relations? An overview of the Basic Treaty, in International Journal of Minority and Group Rights, 4, 1997, p. 40. 35 Article 9 of the Hungarian-Ukrainian treaty (does not include the right to use the minority language in relations with public administration and justice); article 4 of the Hungarian-Croatian treaty; article 4 of the Hungarian-Slovenian treaty; article 15(2)(g) of the Hungarian-Slovak treaty; article 15(3) of the Romanian-Hungarian treaty. 14 The restrictive wording "in conformity with domestic legislation", found in other treaties, especially with regard to the right to use the mother tongue in administration and justice,36 considerably reduces the effectiveness of the provisions by leaving room for implementation to be circumvented. The lack of an unambiguous right to use the mother tongue in judicial proceedings has been considered by certain authors as one of the reasons why the Hungarian-Romanian treaty does not reach the minimal standard of international and European minority rights,37 basing the right to use the mother tongue in judicial proceeding on Article 9 of the European Charter for Regional or Minority Languages. The Language Charter has been ratified so far by 13 countries. The parties undertake to apply at least 35 paragraphs or sub-paragraphs chosen from among the provisions of Part III, which includes article 9. Even if they have to choose one provision from Article 9, there are several provisions, that do not require the use of the mother tongue in proceedings. It is, therefore, questionable whether this facultative provision can be considered as a minimum minority rights standard. iii. Education rights Education rights are in general extensively debated. Even in well functioning and well established systems, like the one of the South Tyrolean Autonomy, the issue consistently raises new debate.38 The right of education is not necessarily associated with the question of language. In addition to the right to learn or be taught in the minority language, a general compulsory curriculum should be developed, which also includes the teaching of the history, culture and tradition of national minorities and is worked out in co-operation with representatives of these groups.39 In some cases, a complete review of educational materials is required. An extensive provision can be found in article 2 of the Hungarian-Slovenian treaty: "The Contracting Parties (…) shall promote the institutionalised learning of and studying in their mother tongue in pre-school, elementary, secondary and higher education and the knowledge of the culture, history and present reality of the mother nation and the national minority. To this end, they shall endeavour the exchange of experience in the educational system of the national minorities especially the bilingual teaching and the alternative use of the school-books of each others. In addition, they shall promote the exchange of teachers and students, educational work-help materials and instruments, organisation of courses and professional training, mutual granting of state and foundation scholarship for full, partial and post-graduate education, especially education for teachers and theologists. 36 for example Article 15(3) of the Romanian-Hungarian treaty. 37 Sándor Vogel, op.cit., 120. 38 South Tyrol has two separate school systems, a German and an Italian one. The local government, in which the German speaking minority forms the majority, argues in favour of retaining the status quo, fearing that any change might result in the assimilation of the German group. 39 See the Hague Recommendations Regarding the Education Rights of National Minorities, October 1996. 15 Beside it, they shall encourage the study and learning the language, culture and history of the national minorities and their mother nation by individuals belonging to the majority nation." All Hungarian treaties and the Romanian treaty with Albania contain, if not the same strong wording, at least the provision, that persons belonging to minorities shall have the right to be taught in their language. The rights are often based upon the demands of the minorities. Romania amended in 1999 the Law on Education no. 84/1995, which constituted a legal obstacle to the establishment of multicultural institutions. The right to be taught in one's mother tongue is often coupled with the requirement that this must not prejudice the learning of the official language or the teaching in this language.40 This provision exactly reflects the content of Article 14(3) of the Framework Convention for the Protection of National Minorities.41 The Moldavan treaties with Bulgaria and Ukraine and the Romanian treaties with Bulgaria and the Federal Republic of Yugoslavia just assure the right to learn the minority language. The mutual recognition of school certificates and academic degrees comes within the context of education. This was one of the points upon which the Hungarian-Romanian negotiations could not find a solution, leading to the following paragraph: "The Contracting Parties shall take the necessary measures in order to have the competent authorities of the two countries examine the issue of recognition of diplomas with a view to conclude an appropriate agreement in this field."42 The Slovak treaty foresees recognition but is also quite reserved in this regard. Article 12(5) states that the "Contracting Parties shall, on the basis of the respective agreements, recognize certificates on school and professional education as well as on academic and research degrees of the other Contracting Party, issued in accordance with the respective domestic legislation. Also the Romanian-Federal Republic of Yugoslavia agreement leaves the regulation to a specific agreement. None of the other bilateral agreements even addresses the issue. A recent Hungarian draft bill on granting special status to ethnic Hungarians abroad caused again reactions in the neighbouring countries concerned by the proposed law, i.e. where Hungarian minorities live. According to the bill, ethnic Hungarian families with at least two children will receive a minimum annual benefit of 70 USD, if they send their children to Hungarian-language kindergartens or schools.43 iv. Media Provisions on media can contain the following: access to public media and minorities' own media for dissemination and exchange of information in the minorities' mother tongue, access and ability to apply to printed materials, radio and television, co- operation among the mass media, concrete measures and support for initiatives to 40 Article 15(2)(g) of the Hungarian-Slovak treaty. 41 Article 14(2) states, that persons belonging to national minorities should have, under certain conditions, "adequate opportunities for being taught the minority language or for receiving instruction in this language." Paragraph 3 adds, that "Paragraph 2 of this article shall be implemented without prejudice to the learning of the official language or the teaching in this language." 42 Article 12(5) 43 RFE/RL Newsline Vol. 5, No. 56, Part II, 21 March 2001. 16 facilitate access to culture. Article 9 of the Framework Convention for the Protection of National Minorities contains a wide range of principles regarding media. The treaty between Moldova and Ukraine includes a provision according to which the identity of the respective minorities can be developed through "providing favourable conditions for (…) radio and television programmes in the mother tongue"44. The provisions foreseen in the Hungarian treaties with Ukraine, Slovenia, Slovakia and Romania are all similar to the wording of the Croatian treaty:45 "The Contracting Parties recognise the right of both minorities to receive information through printed media, radio and TV broadcasts in their mother tongue. In compliance with their domestic legislation the Parties shall: - enable regular radio and television broadcasts in their mother tongue in an appropriate length of time - encourage the adoption and distribution of radio and television programs of the mother nation - support the minorities to exercise their own information activities" It is important that minorities have the opportunity to be provided by both, kin-state and home-state with media in their language. In general, home-states initiative and financial support in this context contributes to improve good relations between state and minority. In addition to facilitate the minority media, home-states should take care of avoiding the use of hate speech and prejudice in public media, which increases the potential for violence between majority and minority groups. v. The right to establish organisations The right to establish and run their own organisations, associations, as well as educational, cultural and religious institutions is also granted in most of the treaties. The possibility of organising itself is essential for strong representation and effective participation of minorities in public life. The Romanian-Slovak treaty contains a provision according to which the right to establish their own organisations, must not be used against the interest of the other contracting party.46 Only few bilateral agreements include the right of minorities to establish political parties.47 This point leads immediately to the next right: participation in decision-making processes. 44 Article 8 45 Article 5 46 Article 20 (4) 47 For example article 15 (2)(e) of the Hungarian-Slovak treaty. 17 vi. Participation in decision-making processes Effective participation in decision-making can be displayed at various degrees, going from informal or formal consultation to the right to be represented in Parliament. Depending on the size of the minority group it should be contained in these various degrees in bilateral agreements. Article 15 of the Framework Convention for the Protection of National Minorities foresees that "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." Normally, provisions concerning this right appear only in the treaties where strong minority communities exist in the territory of at least one of the contracting parties.48 The Hungarian-Croatian and the Hungarian-Slovenian Conventions foresee "appropriate participation of the national minorities in adopting decisions at local, regional and national level concerning the rights and situation of the national minorities and their members".49 Again there can be found the restrictive reference to the "conformity with their national legislation" The treaties between Hungary and Romania, and Hungary and Slovakia contain similar wordings. The Romanian treaty emphasises in its Article 15(5) the right to "participate, individually or through their parties or organisations" in the political, economic, social and cultural life. It is, to some extent, contradictory that the following sentence states: "Both Contracting Parties shall, in the process of decision- making concerning questions related to the protection and enforcement of the national identity of these persons, consult the organization, political parties or associations of these persons according to democratic decision-making procedures as provided by the law". It is odd that they should participate in political life, but with regard to decisions, even when there are questions related to their protection, they only have to be consulted. The Romanian Constitution grants to minorities the right to be represented in Parliament50 thereby providing the chance to participate directly in the decision-making process. This Constitutional provision, certainly helps in the interpretation of article 15(5) of the bilateral treaty with Hungary. In addition to the right to participate in decision-making processes at the national level, in the Hungarian-Croatian and the Hungarian-Slovenian Convention parties commit themselves to "ensure the participation of the representatives of the national minorities in the conclusion of treaties directly concerning the situation and rights deriving from this Convention"51, which implies participation of members of a minority at the external level, also. Their exclusion from negotiations, especially in bilateral talks, has been heavily criticised.52 48 Kinga Gál, op.cit., p.9. 49 Article 8 Hungarian-Slovenian Convention; article 9 Hungarian-Croatian Convention. 50 Article 59(2) of the Romanian Constitution states as follows: "Organizations of citizens belonging to national minorities, which fail to obtain the number of votes for representation in Parliament, have the right to one Deputy seat each, under the terms of the electoral law. Citizens of a national minority are entitled to be represented by one organization only." 51 Article 11 Hungarian-Slovenian Convention; article 12 Hungarian-Croatian Convention. 52 See in particular Kinga Gál, op.cit., p.17-18. 18 Both levels of participation, national as well as external, are quite a new phenomenon in public international law. If states fully respected this right, minorities would finally be involved in decisions affecting them directly. vii. Other rights granted The aforementioned rights can be considered as the core rights, which can be found in most of the bilateral treaties and which already allow, if implemented, a satisfactory level of minority protection. Some other rights are less common in the bilateral treaties, but it does not mean that they cannot have a significant impact on the overall situation of a minority. For example, the right to establish and maintain undisturbed contacts across the border with citizens of other states, with whom minority groups share common national origins53, can be implemented by the readiness to open new border posts.54 Sometimes cross-border contacts clauses are not formulated especially for persons belonging to minorities, but even then these provisions might turn to their advantage. The language used in the treaties between Hungary and Slovenia goes even beyond UN, OSCE and Framework Convention terminology (rights of 'persons belonging to minorities'), referring simply to 'contacts for the minorities', including contacts of an official nature.55 In some cases, when countries do not share a common border, they commit themselves to facilitate travels and visits of their respective citizens,56 which might also be favourable for persons belonging to national minorities. Only few consider the right to preserve their material and architectural heritage.57 Separate articles of certain treaties condemn xenophobia and manifestations of racial, ethnic or religious hatred and declare that the parties will take effective measures in order to prevent any such manifestations.58 In the treaties between countries which have been affected by a recent war contain provisions on the free and safe return of refugees and displaced persons.59 Contracting parties are particularly careful when collective rights or any form of autonomy is claimed. Autonomy is not expressly recognised as a right of minorities in positive international law, but the concept is well-known in OSCE texts, such as the Copenhagen Document, as well as in Recommendation 1201(1993) of the CoE.60 The treaties concluded immediately after the World Wars and the ones concluded in the last decade have a completely different approach to this question. Whereas the older treaties deal with minorities as such and include different concepts and provisions of autonomy, the recent bilateral treaties explicitly provide individuals 53 Article 17(1) of the Framework Convention for the Protection of National Minorities refers to this issue. 54 Article 11 of the Hungarian-Slovak treaty; article 19 of the Hungarian-Romanian treaty. 55 Article 10 of the Hungarian-Slovenian Convention. Thornberry, op.cit., p. 152. 56 Article 13 of the Romanian-Albanian treaty; and article 18 of the Romanian-Croatian treaty. 57 Article 15 of the Romanian-Albanian treaty; article 10(4) of the Romanian-Bulgarian treaty; article 3(3) of the Hungarian-Croatian Convention; article 13 of the Hungarian-Slovak treaty. 58 Article 14 of the Hungarian-Romanian treaty. 59 Article 7 of the Croatia-Federal Republic of Yugoslavia agreement; article 10 of the Hungarian- Croatian treaty. 60 Patrick Thornberry, op.cit., p. 143-145. 19 belonging to national minorities with certain individual rights and rarely envisage autonomies as an instrument of protecting minority rights. However, the examples of the Åland Islands and South Tyrol prove that bilateral agreements may be appropriate for establishing autonomies and/or special status for regions inhabited by national minorities, or for establishing personal autonomy where the minorities live spread. 61 It is also true, that both examples took quite a long time to work properly and, as in the South Tyrolean case, were not exempt from violent escalations of the ethnic conflict. Except in the special agreement concluded by Hungary with Croatia62, the parties never accepted any autonomy provisions. The autonomy issue, as well as the question of collective rights, was especially debated during the negotiations and also after the signature of the treaties concluded by Hungary with Slovakia and Romania, which led Slovakia and Romania, as mentioned in previous paragraphs, to add interpretative restrictive declarations.63 The Hungarian-Slovenian treaty is the only one that mentions collective rights.64 All the other treaties pay a great deal of attention to constant use of the wording "persons belonging to national minorities" and not minorities as such. The protection of the Roma group is especially difficult as they don't have any kin- state who might back their claims. In fact, the issue was never addressed in the existing bilateral agreements. This topic will be more extensively discussed further in the present paper. viii. Duties Formulations like "The Contracting Parties agree that the same rights and duties flowing from their citizenship shall be applied to the persons belonging to national minorities as to any other citizens of the State concerned"65 can be found in some of the treaties.66 This kind of provision is not objectionable in general. Only the Hungarian-Slovak treaty causes some problems of interpretation, because it refers, in its next paragraph, to the Framework Convention for the Protection of National Minorities, article 20, which provides: "In the exercise of the rights and freedoms flowing from the principles enshrined in the present framework Convention, any person belonging to a national minority shall respect the national legislation and the rights of others, in particular those of persons belonging to the majority or to other national minorities." According to the Hungarian-Slovak treaty this article should be applied "as regards the rights and obligations of persons belonging to national minorities." The following questions should thus be raised: What if national legislation is oppressive or does not 61 Kinga Gál, op.cit., p. 22. 62 Article 9 (4). The Republic of Croatia shall confirm to ensure, in accordance with its domestic legislation, the right of the Hungarian minority to cultural autonomy. 63 See p. 6 of the present report. 64 See the Preamble of the Hungarian-Slovenian Convention referring to special individual and common rights for national minorities. 65 Article 15(3) of the Hungarian-Slovak treaty. 66 Article 15(8) of the Hungarian-Romanian treaty; article 1 of the Hungarian-Ukrainian Declaration; article 17(2 )of the Romanian-Croatian treaty; article 20(2) of the Romanian-Slovak treaty. 20 respect minority rights? Why should members of minorities be placed under an obligation to respect when others are not? The provision carries the unfortunate suggestion that minority rights are a kind of privilege, instead of simply the natural working through of the principle of equality.67 Although the treaty states: "unless their domestic legal systems provide for a broader protection of rights of persons belonging to national minorities than the Framework Convention" the restricted reading remains untouched as the article refers only to rights and not to obligations. Another point to mention with regard to duties is, that some of the positive treaty provisions are immediately followed by a restrictive sentence, which implies a duty to the members of minorities. Such provisions can be found for example in the Hungarian-Slovak treaty which associates the right of learning and being taught in the minority language, to the condition that this should happen "without prejudice to the learning of the official language or the teaching in this language".68 As will be examined further at a later stage, these duties suit the purpose of preventing secessionist attempts and preventing discrimination against other groups.69 67 Patrick Thornberry, op.cit., p. 155. 68 Article 15(2)(g); see p. 16 of the present report. 69 See p. 28 of the present report. 21 V. Implementation and monitoring bodies of bilateral treaties The implementation of bilateral treaties can be examined from the political as well as the legal perspective. Whilst effective legal protection mechanisms are lacking in most cases, the political aspects of the implementation mechanisms have received primacy over the legal possibilities.70 There are four possible procedures for the implementation and monitoring mechanisms. Most of the treaties analysed in this study have been incorporated in the Pact on Stability. Article 16 of the Declaration of the Pact states that "the States party to the OSCE Convention establishing the International Conciliation and Arbitration Court may refer to the Court possible disputes concerning the interpretation or implementation of their good- neighbourliness agreements". The role conferred in this context to the OSCE has been, however, the subject of lively controversy. Some OSCE States consider that the guarantee mechanisms provided for, in particular the opportunity given in certain cases to third states to raise disputes, could be abused especially by the kin-states of the minorities referred to in the bilateral agreements. So far, OSCE countries have never made recourse to this provision. Article 15 of the Pact on Stability further states that the parties "with regard to the observance of (…) commitments in the implementation of the agreements and arrangements included in the Pact, (can) resort to the instruments and procedures of the OSCE, including those concerning conflict prevention, peaceful settlement of disputes and the human dimension." This also includes the opportunity to consult the High Commissioner on National Minorities on problems regarding the implementation of bilateral agreements. This provision has never been applied either. Use of domestic remedies in the form of court proceedings might be another possible monitoring instrument, so long as the constitutional system allows treaty rules to operate directly in domestic law, and the rights are self-executing. Since self- executing provisions in bilateral agreements are rare, there is little likelihood of rights included in a bilateral agreement being effectively invoked before a court. Moreover, as the Decision no. 114 of 20 July 1999 of the Romanian Constitutional Court illustrates, sometimes even Constitutional Courts, do not know that States have ratified instruments for the protection of minorities. In a specific case, the court remarked that the Framework Convention for the Protection of National Minorities has not been ratified by Romania,71 despite the fact that Romania had already done so in 1995. In addition, many politicians, lawyers, local administrators and police officers are not fully aware of the existing standards or ill informed. Specific training programmes on multilateral as well as bilateral minority instruments should thus be provided.72 70 Kinga Gál, op.cit., p. 13. 71 For more details see Gabriel Andreescu, Romania – Shadow Report: June 2000, p. 4-8. 72 Alain Phillips, in his speech held during the Seminar of Stability Pact Working Group II, on Legal Aspects of Rights of National Minorities, Zagreb, 4-5 December 2000. 22 In the light of the above, the Joint Intergovernmental Commissions, foreseen in a number of treaties,73 could become the most effective implementation mechanism. According to the Hungarian-Slovenian Convention, the Joint Commission should have meetings twice a year. In this Commission, a representative of both minorities is appointed upon the proposal of their organisations.74 In this way they have the opportunity of directly influencing the Commission's work. The composition, as in the Hungarian-Slovenian agreement, is considered adequate. The real problem is, that the Commission has no decision-making power. The Croatian agreement contains a very similar wording to the Slovenian treaty. In both, the mandate is clearly described: "The tasks of the Joint Committee are the following: - to discuss the current issues relevant to the two minorities - to evaluate the implementation of obligations under the present Convention - to prepare and adopt recommendations for their respective governments concerning the implementation and in case of necessity the modification of this Convention."75 It can only address recommendations to the Government, and therefore again, the degree to which the proposals are taken into consideration, depends on the good will of the Government. It should be noted that the protocols of the Commission's meetings are not confidential and this could contribute to the implementation of the agreements. The international community or other monitoring bodies can consult them and, if necessary, put pressure on the national Government and Parliament to take the requested measures. The Hungarian-Romanian treaty does not refer to either composition or mandate of the Commission. The parties constant allegations of other non compliance with obligations flowing from treaties, make the work of the Intergovernmental Expert Commission76 difficult. It is not yet clear how the change of government which occurred in Romania at the end of last year, will influence the works of the Commission. With regard to the composition of the implementation system, the Hungarian-Slovak treaty states that the parties "shall set up an Intergovernmental Joint Commission, entitled to make recommendations, consisting of sections whose composition will be determined as they deem necessary". This makes the participation of representatives of national minorities at least potentially possible. To conclude, the participation of representatives of minorities should be aspired to in all cases and is, so far, respected in the existing Joint Committees. As discussed 73 Hungary's treaties and Conventions concluded with Ukraine (article 16 and Protocol to the declaration), Slovenia (article 15), Croatia (article 16), Slovakia (article 15(6)) and Romania (article 15(8)). 74 The Hungarian-Slovenian treaty foresees a joint commission composed by 5 governmental representatives for each party and 1 minority representative for the respective groups. 75 Article 16(3) of the Hungarian-Croatian treaty. 76 Romania and Hungary had a long discussion on this point. First the Romanian side refused to accept the establishment of such a commission at all, then the discussion turned around its name. The reason for that was obviously the composition of the commission. For more details see Sandor Vogel, op. cit., p. 119. 23 above, it depends on the good political will of the contracting parties whether they take the recommendations of the Committee into consideration or not. This will again depend on the internal development of the state in question, and its general state of democracy. In light of the deficiencies of the monitoring of the bilateral agreements, one might have the impression, that whether the minority provisions were included or not, the situation would not change very much. To a certain extent this might be true, as the monitoring bodies do not have any decision or sanctioning power. Nevertheless, the existence of these bodies justifies itself through having established a discussion forum where minority issues can be addressed and where the ground for decisions, that will then be taken at a higher level, can be prepared. Furthermore, an ongoing dialogue to channel and refocus debate in a productive manner has thus been created.77 In light of the above, one has to draw the conclusion, that the existing bilateral agreements do not dispose of any strong monitoring mechanism, nor sanctions are foreseen in the case of non-compliance. Effective implementation is therefore left to the political good will of the contracting parties and, to a certain extent, international pressure. 77 Patrick Thornberry, op.cit., p. 159. 24 VI. The role of the international community in the negotiation, drafting and monitoring process The international community can play an important pro-active role in the negotiating, drafting and monitoring process. Some of the aspects concerning the role of the international community will be examined in other parts of this report. There are pros and cons for the involvement of the international organisations in the process of negotiating bilateral agreements. A positive factor is their effective, or anticipated, neutral position. Direct conflicts between two negotiating parties could be avoided or mitigated by the mediating role of an external body. Furthermore, their expertise acquired in the field of minorities can help in drafting the agreements. These external actors, third countries, OSCE, EU, Council of Europe etc., can assist in encouraging co-operative bilateral relations. In fact, the first Stabilisation and Association Agreement concluded recently between EU and "the former Yugoslav Republic of Macedonia" focuses, amongst other things, on the development of good neighbourly relations, democratic principles and human rights, as well as minority rights78. This agreement should be an incentive for "the former Yugoslav Republic of Macedonia" to work positively on its relations with the neighbouring countries. So far, "the former Yugoslav Republic of Macedonia" has not yet signed either an agreement on good neighbourly relations or a bilateral convention for minorities. The disadvantage of involving international bodies arises from the danger that their pressure might push countries to the premature conclusion of treaties. Haste in drafting entails the risk of not taking due consideration of the knowledge already gained in the field. Another problem when giving too much weight to international pressure, is that countries might sign bilateral agreements containing minority rights, not because they are concerned about their minorities, but because they aspire to membership of the European and Euro-Atlantic structures.79 It is not, therefore, enough to encourage countries to conclude bilateral agreements without then overseeing proper implementation. Some countries commit themselves to applying the rules of the Council of Europe and the Organisation for Security and Co-operation in Europe in monitoring the implementation of their commitments in the field of protection of national minorities.80 External actors can help in monitoring implementation of minority policies, and facilitating dispute resolution. In this context, the potential role of the Framework Convention for the Protection of National Minorities, in particular its Article 18, has to be analysed. 78 Note that negotiations on SAAs are underway with Croatia, and talks are prepared with FRY and Bosnia and Herzegovina. 79 This was most probably the case in the Hungarian-Romanian treaty, where the parties, especially Hungary, did not want to endanger its prospects for NATO membership. The Hungarian-Slovak treaty was signed under the pressure of the Pact on Stability and does not represent in all respects a sound compromise between desires, concerns and fears of the two sides. In some cases the parties put it quite clear, that they share the interest in acceding to these structures: article 6 Hungarian-Slovak treaty states "The Contracting Parties confirm that their interests and endeavours are identical in relation to their integration into the European Union, the North Atlantic Treaty Organisation and the Western European Union and in relation to the Council of Europe and the Organisation for Security and Co-operation in Europe (...)". 80 See for example Article 15(6) Hungarian-Slovak treaty. 25 The Framework Convention provides in its article 18(1): "The Parties shall endeavour to conclude, where necessary, bilateral and multilateral agreements with other States, in particular neighbouring States, in order to ensure the protection of persons belonging to the national minorities concerned." It thereby contributes to fostering the conclusion of bilateral agreements, but does not have a direct competence to monitor implementation. Nevertheless, the Advisory Committee on the Framework Convention for the Protection of National Minorities and the Committee of Ministers are not excluded from supervising the implementation of bilateral agreements, as they include many provisions also enshrined in the Framework Convention, which most of the States have ratified. In this way, by monitoring the implementation of the provisions of the Framework Convention, the bilateral agreements would also be taken into consideration. An analysis of the state reports81 indicates, that the Advisory Committee does not receive very detailed information on bilateral treaties and their implementation. States and NGOs could be encouraged to provide more information in the State reports and Shadow reports respectively (such as the protocols of the meetings of the Joint Commissions), in order to enable the Advisory Committee and the Committee of Ministers to comment and also to express their recommendations on the proper implementation of bilateral agreements. Real good neighbourly relations and friendship cannot be established by signing a bilateral agreement alone. Time, amongst other things, plays an extremely important role. Both parties and the international community should be aware that in most cases time is needed in order to appease emotional disputes and to achieve the normalisation of relations. 81 All state reports are public and available on the internet site of the Council of Europe. See http://www.humanrights.coe.int/Minorities/Eng/SiteMap.htm. 26 VII. Sensitive issues related to bilateral agreements Problems involving minorities and kin-states across borders were, and still are frequent source of tension between states. Bilateral relations are frequently complicated by various factors, only one of which might be minority issues. Often there is the historical legacy of war, military occupation, or imperial domination, all of which might contribute to mutual suspicion at the bilateral level, particularly in the contemporary context of regional insecurity. Although bilateral agreements tend to reduce tension between kin and home-states, the bilateral approach may present the undesirable aspect of giving kin-states a direct legal and political interest, and thus a voice, in the affairs of neighbouring states. The kin-state's role can thus be seen either as a constructive or as a disruptive force in the relations between minority population and the ethnic-majority policy-makers of the state in which it resides. Bilateral initiatives can also have the effect of worsening inter-state relations, complicating regional co-operation, and imperilling the minorities themselves. Usually, the purported aim of the kin-state initiatives – from the kin-state's perspective – is to use official leverage to effect improvements in the home-state's minority policies. If conducted in the context of across-the-board bilateral co- operation, such initiatives can assist greatly in promoting the integration of a minority within the home-state while facilitating its cultural and linguistic ties with the kin- state. The greatest danger is, of course, that contacts between kin-state officials and minority groups in the home-state might be perceived as interference in the latter internal affairs. From the home-state's perspective, the principal fear may be that the kin-state is exploiting minority issues in order to suit its geopolitical interests, or even to encourage the eventual separation and incorporation of a minority-populated region. This problem is well illustrated by the "Resolution on the position of autochthonous Slovene minorities in neighbouring countries and the related tasks of state and other institutions in the Republic of Slovenia"82 which states: "The Republic of Slovenia draws attention to the harmfulness of the type of inter-country relations which see country attempts to settle open questions by putting pressure on autochthonous national minorities". Even though there are historical cases of minorities participating in secessionist movements that posed a risk to the state, in general, minorities have fostered economic, cultural and social co-operation across borders and thus supported the normalisation of relations between States. In particular, with regard to the balance between the fear of secessionism and the need for minority rights, bilateral agreements to encourage both minority protection and, at the same time, respect for the territorial integrity of States, in order to prevent the recognition of minority rights being exploited by the minorities to claim a change of borders. 82 See article 3, Chapter 1 of the Resolution published in the Official Gazette of the Republic of Slovenia, No. 35-2280/1996. 27 In this context it has to be emphasised that, as already seen in previous paragraphs, bilateral agreements impose duties on minorities, on the one hand to stop secessionist attempts, and on the other to guarantee the national cohesion of States. Most bilateral agreements indicate that the protection of minorities does not imply any right to engage in any activity, or perform any act, contrary to the fundamental principles of international law, including the principles of the Charter of the United Nations,83 and in particular of the sovereign equality, territorial integrity and political independence of States Another sensitive issue which might nourish the fear which some States may have of secessionism and border changes, is the reference to collective rights or special status of national minorities.84 Bilateral agreements, in general, do not mention collective rights which can be exercised by the entire minority group, and do not provide the national minorities concerned with any form of self-government or autonomy. They speak of "persons belonging to national minorities", and not of minorities as such85. Following the CSCE Copenhagen Document86, many bilateral agreements state, however, that "persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined individually as well as in community with others". In addition to the provisions of the bilateral agreements which refer to the duties of members of minorities, and to the provisions solving the controversy concerning individual versus collective rights, it is possible for confrontational bilateral relations to be transformed along more co-operative lines by developing opportunities for co- operation at the regional level and by involving the international community that might mitigate the disruptive behaviour of kin-state. In fact, kin-state activism at the multilateral level is often less disruptive than pressure at the bilateral level, and international organisations and concerned third-party states should further develop a framework for moderating such disruptive activism87. In the first instance, preventive engagement by multilateral agencies in problematic minority-related situations, particularly by the OSCE High Commissioner on National Minorities, as a neutral yet credible third party having an inter-governmental mandate for conflict prevention in situations of ethnic tensions, can help minimising overbearing kin-state activism that could otherwise escalate tensions.88 For this very reason, the High Commissioner on National Minorities has taken a keen interest in the role such treaties could play in situations of potential conflict, 83 See art. 37 of the Copenhagen Document (CSCE 1990); Article 21 of the Framework Convention for the Protection of National Minorities; see p. 12 of the present report. 84 See p. 19 of the present report. 85 This problem is well illustrated by the interpretative declaration attached by the Romanian government to the treaty concluded with Hungary. See p. 11 of the present report. 86 See article 32 of the CSCE Copenhagen Document which states, "persons belonging to national minorities can exercise and enjoy their rights individually as well as in the community with other members of their group", and article 3 (2) of the Framework Convention for the Protection of National Minorities with a similar wording. 87 Arie Bloed/Pieter van Dijk, op. cit., pp.38-39. 88 Ibidem 28 particularly by assisting in encouraging co-operative bilateral relations, monitoring implementation of minority policies, and facilitating dispute resolution.89 Bilateral treaties constitute important instruments for the prevention of conflict between states, by providing a clear framework for contacts and contributing to transparency in the actions of the kin-state in support of the minority in question. Nevertheless, international and/or regional organisations, as objective and neutral third parties, should be involved to minimise direct, bilateral confrontations, and to moderate possible disruptive kin-state activism. In this context, it should be mentioned that a more intense and effective co-operation between the Council of Europe, the European Union and OSCE should be fostered. This co-operation will reduce the conflicts of competence and overlapping of activities, which in turn will minimise the risk of wasting financial and other means. Moreover, the members of the Council of Europe and of the European Union are all members of OSCE. They all participate to the OSCE activities and this guarantees a harmonisation of the various points of view from among the three organisations. 89 Konrad Huber/Robert W. Mickey, Defining the Kin-State, in Bloed/van Dijk, op. cit.,p.45. 29 VIII. The limits of bilateral agreements : minorities without a kin state One of the limits of bilateral agreements, inherent in their structure, is that certain minorities may benefit more than other groups from their provisions, because usually state parties are interested in protecting certain kin-groups and not others. Even if this attitude may not be unexpected or unreasonable, considering that the purpose of these agreements is to alleviate tensions among kin-and home-states, the situation of minority groups without kin-state, such as Roma/Gypsies, Gagauz, Tatar or Vlachs risks being ignored if too much emphasis is placed on the kin-state as the guarantor of minority rights. Minorities with a kin-state have the possibility of continually improving their conditions through kin-state institutions and other similar supports but, from a human rights perspective, minority groups without kin-state and other groups in similar positions often need more protection than kin-groups. In particular, since these groups usually do not benefit directly from bilateral treaties, the importance of international co-operation must be underlined and a multilateral treaty on the protection, for example, of Roma, a real pan-European minority, could be proposed for signature. Bearing in mind the difficult position of the Roma in many European countries, the possibility of such an agreement could be analysed by all countries in which the Roma people live,90 in consultation with the Roma. In addition to this multilateral approach, it should be also possible to incorporate the provisions on the rights of the Roma people in various bilateral agreements in those countries where the Roma live as a national minority.91 The Roma issue is and will continue to be the most problematic issue in the framework of overall minority protection in the region of Central, Eastern and South- Eastern Europe. Therefore, in addition to bilateral and multilateral treaties concerning the Roma minority, specific national and interregional programmes and projects on and for the Roma, should be developed in South-Eastern Europe (economic development, social integration, education, housing, etc.). In fact, the Stability Pact has already indicated that a comprehensive regional strategy for the promotion of the status of the Roma population should be introduced, and that countries should give formal recognition to the Roma minority and introduce positive programs for the elimination of their discrimination.92 This approach, multilateral as well as bilateral and programmatic, could also be envisaged for other groups in a similar position. 90 At the multilateral seminar on "the Role of National Minorities in Bilateral Relations" held last year in Brdo (Slovenia) Bulgaria, Romania and Croatia have expressed an interest in the draft of an agreement on the Roma people. 91 In this context it is also relevant to stress that there is a growing consensus in many countries to consider the Roma as a national minority, coming thus under the Framework Convention. See Milena Klajner, Report on Bilateral Agreements, p. 3, Seminar on Legal Aspects of Rights of National Minorities, Stability Pact, Report for the Working Group II, Zagreb, 4-5 December 2000. 92 See Regional Table of the Stability Pact, held in Thessaloniki on 8 June 2000, Working Table I - Human Rights and National Minorities and the Joint Statement and Framework Program of Action adopted by the Portorož Stability Pact Conference on Inter-Ethnic Relations and minorities in South Eastern Europe (16-17 March 2000). 30 All these groups are certainly covered by the Framework Convention for the Protection of National Minorities and will therefore be taken into consideration by the Advisory Committee and the Committee of Ministers. It is not yet clear to what extent this recently established monitoring mechanism will impact upon minority groups without a kin-state. However, it could represent an alternative to a multilateral treaty devoted exclusively to the Roma issue. In general, it is important to emphasise that a bilateral agreement should be worded in a way that, apart from ensuring the rights to national minorities covered by it, it does not at the same time place into a less favourable position other groups of inhabitants, whether or not they have a kin-state, thereby discriminating against other minorities. In the event that bilateral agreements result in discrimination between groups within a country, it should be argued that any benefits conferred upon a kin-group, should also be extended to all minorities within the country concerned.93 93 Milena Kajner, op. cit., p.3. 31 IX. Financial assistance Direct assistance, especially financial assistance, from the kin-state can be a frequent source of tension between states. However, it should be stressed that the question of financing is a vital factor for the effective implementation of minority protection. Direct kin-state assistance to kin-groups includes, for example, the provision of media and educational material in the shared language, opportunities for university-level or advanced professional training in the kin-state, sponsorship of cultural events and exchange visits, humanitarian aid, and economic and infrastructural support at the community level. Although varying enormously in their impact, these kin-state initiatives share a cross- border character which might be perceived by home-states as a fundamental violation of a country's sovereignty, and/or territorial integrity.94 Even a kin-state's apparently innocuous cultural, educational, and linguistic assistance can be considered in a highly political light: it can be viewed by some home-state as a direct challenge to the home- state's policies in these spheres, if not a more or less open support for minority secessionists.95 As already mentioned in previous paragraphs, when kin-states provide resources, financial incentive and support for the ongoing development of co-ethnics in a home- state, or even the eligibility for citizenship or forms of residency that enable them to emigrate to, or work in the kin country, there is not only the possibility, that the number of persons declaring themselves as members of this minority increases considerably, but also the risk that this preferential treatment generates tensions and acute jealousy among the rest of the population, including other minority groups living in the home-state leading to strong resentment and anti-minority feelings on the long run. Resentment might also result when a kin-state is poorer than another kin- state, as the former may be unable to provide resources and financial assistance.96 Assistance by kin-states, however, can be considered as legitimate under international and regional documents – including the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities, the OSCE's Copenhagen Document, and the Council of Europe's Framework Convention for the Protection of National Minorities – which recognise the rights of persons belonging to minorities to "establish and maintain, without any discrimination, (...) contacts across frontiers with citizens of other States to whom they are related by national or ethnic, religious or linguistic ties.97 For a kin-state not to raise the suspicion, in the home-state, that its assistance supports secessionist claims, it is important that it provides appropriate assistance to the kin- 94 Konrad Huber/Robert W. Mickey, in Bloed/van Djik, op.cit., p. 34. 95 See in this report, note 43, the reaction to the recent Hungarian draft bill on granting special status to ethnic Hungarians abroad. 96 Minority Rights Group International, The Role of Minorities in International and Transborder Relations in Central an Eastern Europe, 1999, p. 7. 97 See article 2(5) of the UN Declaration in the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities and article 17 of the Council of Europe's Framework Convention for the Protection of National Minorities. 32 groups in a transparent manner. In this way, material assistance from the kin-state should be provided to co-ethnic communities with the full knowledge of the respective home-state authorities. Ideally, such assistance could be jointly financed and administered by home- and kin-ministries concerned, thereby guaranteeing financial double check and enhancing confidence-building processes. This kind of joint assistance will contribute to maximise the effectiveness of this aid.98 Jointly financed and administered institutions, such as educational facilities and research centres, should receive official encouragement. Inter-state co-operation on educational issues would, furthermore, be greatly facilitated by the conclusion of formal agreements on mutual recognition of academic requirements, qualifications, and diplomas. Co-operation between kin- and home-state media outlets is especially important, in view of the serious misconceptions that incorrect news reporting on minority issues can provoke. Joint fact-finding and reporting by mixed teams of analysts could help dispel such misconceptions, and establish a shared understanding of a specific problem. In the context of financial support for minority groups, it is worth mentioning the recent Recommendation No. R (2000) 1 of the Committee of Ministers of the Council of Europe on fostering trans-frontier co-operation between territorial communities or authorities in the cultural field, whereby member States are encouraged to examine whether financial support could be provided to those frontier territorial communities or authorities which carry out experimental joint projects on cultural matter, and which have a highly favourable influence on good-neighbourly relations. The Recommendation also indicates some strategies for encouraging local or regional media and chambers of commerce and industry, as well as creating bilateral intergovernmental funds between various ministries of neighbouring states and informing frontier territorial communities or authorities about European financial instruments available for financing trans-frontier projects, such as those of the Council of Europe and the European Union. In light of the tensions that might result from kin-state assistance at the bilateral level, the importance of the role to be played by multilateral mechanisms as impartial and authoritative third-parties that can help resolve minority-related tensions in a more de- politicised fashion, should be stressed. It can also be argued that it would perhaps be better to put resources into empowered local initiatives on a non-ethnic basis in order to support overall developments and ensure an equal standard of living for all.99 98 Konrad Huber/Robert W. Mickey, in Bloed/van Dijk, op. cit., p.45. 99 Minority Rights Group International, op. cit., p.7. 33 X. The effectiveness of bilateral treaties: achievements and conditions of implementation On the whole bilateral treaties constitute a useful, and sometimes even essential, addition to the international regime for the protection of persons belonging to national minorities. The conclusion of these treaties often reflects a remarkable relaxation of tensions between treaty parties, and their implementation can further stimulate a climate of good-neighbourliness and co-operation. In general, the circumstances prior to the agreements are often tense with even the possibility of escalation into ethnic conflicts and the endangerment of stability in the respective regions. The often quoted models of ethnic accommodation in the Åland Islands or South Tyrol are the outcome of tensions, long debates and often criticised compromises. Bilateral treaties usually contain provisions which reduce the fear of secession and have a significant impact on the situation of minority communities. They refer, amongst other things, to the mutual recognition of borders, provisions on territorial integrity of states and reinforcement of the inviolability of borders, measures regarding co-operation and mutual understanding, as well as the readiness to open new border posts in order to increase the openness of the frontier, thus influencing the rights of members of a minority to maintain contacts with the main body of their nation. In spite of limits and risks, trans-frontier co-operation contributes to strengthen mutual understanding and confidence between peoples living in frontier areas, thus enhancing democratic stability. Economic provisions included in bilateral agreements, in particular, enhance the overall situation of minorities settled in border regions, contributing, amongst other things, to reduce the rate of unemployment for national minorities which is often a consequence of the economic centralisation existing in many European countries. In the context of trans-frontier co-operation, an important reference is the Council of Europe European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities which entered into force in 1981.100 The Convention is intended to encourage and facilitate the conclusion of cross-border agreements between local and regional authorities within the scope of their respective powers. Such agreements may cover regional development, environmental protection, the improvement of public services, etc., and may include the setting up of trans- frontier associations or consortia of local authorities. To allow for variations in the legal and constitutional systems in the Council of Europe's member States, the Convention sets out a range of model agreements to enable both local and regional authorities as well as States to place trans-frontier co-operation in the context best suited to their needs. Under the Convention, Parties undertake to seek ways of eliminating obstacles to trans-frontier co-operation and to grant to authorities engaging in international co-operation the facilities they would enjoy in a purely national context. 100 Note that, among the States concerned by this report, the Convention has been ratified by Bulgaria, Hungary and Moldova while Albania, Croatia, Romania and Slovenia have signed it, and "the former Yugoslav Republic of Macedonia" has not yet signed it. 34 It has to be noted that, when drafting new bilateral agreements, not only should kin- and home-states relations be taken into consideration, but also the relation between sub-national entities and central authorities. As Palermo and Woelk put it : "a relaxed climate of trust, mutual information and co-operation between the Central State and its entities seem to be a precondition for cross-border co-operation activities, given that the issue of borders still remains quite a sensitive one: States that see their sovereignty questioned by secessionist tendencies will hardly promote co-operation that create links across their borders"101. Examples of trans-frontier relations, which could serve as models, are the Euroregions, such as the Alp-Adriatic (Italy, Austria, Slovenia) or the Carpathian Euroregion (Poland, Slovakia, Hungary, Romania, Ukraine) or the Tyrol Euroregion between the provinces of Trento and Bolzano and the Land Tyrol. Another positive example of trans-frontier co-operation, relating also to the preservation of national minority ways of life, can be the bilateral agreements preserving reindeer-grazing rights of the Sami across Norway's borders with Sweden and Finland. 102 One of the positive aspects of bilateral agreements is that they take into account the specific historical and traditional needs of the minority communities concerned, which is not the case in general minority regulations included in international and regional instruments. However, as mentioned in previous paragraphs, this restrictive perspective also has the disadvantage that the minority-related provision do not refer to all the minorities in the respective country, but only to a specific minority group. In addition to strengthen confidence and stability among/and in border regions, bilateral treaties give legal force, through confirmation and/or incorporation, to international instruments such as the UN Declaration on Minorities (1992), the CSCE Copenhagen Document (1990), as well as the Council of Europe's Parliamentary Assembly Recommendation 1201 (1993) which are not legally binding documents. The political undertakings and standards set out in these documents are in fact raised to the status of legal obligations in bilateral treaties drawn up between various states of South-Eastern Europe. These treaty obligations might eventually acquire customary status at regional level because the confirmation or incorporation of these standards 101 Francesco Palermo/Jens Woelk, Border Co-operation as Indicator for Institutional Evolution of Autonomy, 2001, p. 27. 102 Among examples of co-operation the following must be mentioned. In 1946 Austria and Italy signed in Paris the so-called Gruber/De Gasperi agreement, aiming at regulating the fate of the German minority in South Tyrol. According to this agreement, the German speaking minority living in the Province of Bolzano and in the neighbouring municipalities have benefited from several rights, such as the right to be taught at the primary and secondary school in their mother tongue, the right to use Italian and German in the relations with the administration, in official documents and in the toponymy, and the right to re-establish German family names as well as the equality in the access to the public sector with the proportionality system. Moreover, a large administrative autonomy was conferred to the province of Bolzano where the German speaking minority is the majority of the population. The German Federal Republic and Denmark agreed on a common policy on their respective minorities living in their border provinces. In 1955 these countries made official commitments towards the Danish and German minorities living in their territories by recognising several rights, such as the right to use the minority language, the right to establish institutes for education, and the right to enter into religious and cultural contacts with the kin-state. 35 expresses opinio iuris ac necessitatis in a great number of states.103 It is evident that this development could be of enormous practical significance for the protection of national minorities. Usually bilateral treaties, especially their minority regulations, reflect the actual political orientation of the states concerned, and are subject to strong political influence. The basic precondition for efficiency of an agreement is the political will to apply that agreement in practice because the legal provisions enshrined in bilateral treaties can be easily curtailed by government decrees or circumvented by local decrees dependent on the political formation and political will of the actual government104. Moreover, there is no possibility of effective sanctions if one side refuses to implement the content of the treaties. Hence, the situation of the minorities communities depends directly on the goodwill of the governments and, in general, on their democratic order.105 Another condition for the effective impact of bilateral agreements upon the protection of minority rights, is the involvement of the groups concerned in the preparation and conclusion of these treaties as well as in the implementation mechanism and in the work of the monitoring commissions. However, in most cases these treaties are negotiated in the absence of the minority community they were designed to protect. States with a larger minority community tend to be reluctant to involve the minorities, while the kin-states expressly enforce their involvement. In particular, the composition of the monitoring committees is often debated between the governments to such an extent that it even hinders their convocation. The case of the Romanian-Hungarian Treaty has already been referred to in this paper as a good example of the problems that the question of joint committees can raise.106 Until the Hungarian party proposed the name " intergovernmental joint commission", the Romanian side argued for an "expert working group".107 However, it must be noted that the same treaty represents a positive example because in its framework , ten sub-commissions have been established to supervise the implementation of the treaty's provisions on minority rights and the ethnic Hungarian and Romanian minorities are invited to participate in their discussions. Nevertheless, the work of these sub-commissions and its effectiveness depend, as illustrated above, on the political good will of the parties involved. It must be emphasised once again that it is extremely important to include national minorities in the process of drafting, concluding and monitoring the implementation of bilateral agreement, because members of national minorities are the ones who know their needs best and can greatly contribute to bilateral activities. In addition, the groups' non-participation in the preparation and conclusion of bilateral agreements runs counter to the basic rules on equal enjoyment of all human rights and non- 103 See Report of the Committee on Legal Affairs and Human Rights (Rapporteur M. Binding), Doc. 8920, Parliamentary Assembly, Council of Europe, 29 January 2001. 104 Kinga Gál, op.cit., p. 17. 105 Ibidem, p.22. 106 See note 76 of the present report. 107 Kinga Gál, op.cit., p. 19. 36 discrimination. Minorities rights standards have indeed established the right of persons belonging to national minorities to have a serious say in national affairs affecting their position in society.108 Finally, one of the major factors influencing trans-border co-operation, in the short to medium term, is accession into European and Euro-Atlantic institutions and, in particular, to the EU. The EU has made it clear that enhancing respect for minority rights and fostering good-neighbourly relations are important political criteria for entry109. The accession negotiations with the European Commission had and continue to have a stimulating role in the process of concluding treaties between neighbouring countries. Regulation of the status of national minorities could be regarded as resulting from the political will to establish good neighbourly relations among countries and, the consequent, stabilisation of their geographical position in Eastern and South-Eastern Europe is clear requirement for any step towards European and Euro-Atlantic integration. In particular, the Stabilisation and Association process opens a window of opportunity for all the countries concerned and outlines a clear roadmap for their integration into the EU. It also provides a strong incentive for these countries to introduce necessary reforms and to make possible the opening of negotiation and the conclusion of the relevant agreements. These strong incentives require, of course, compliance with more demanding conditions, both political and economic, as well as increased emphasis on the need for regional co-operation. Among the main conditions for opening negotiations are respect for, and protection of, minorities and proven willingness towards good neighbourly relations, while prominent among the conditions for concluding negotiations are proven co-operation and good neighbourly relations. It is clear that most of these objectives cannot be achieved on a purely bilateral basis. Most of the countries of South-eastern Europe not only share the same aspirations for closer relations with the EU, but also face many of the same problems, and their economies are linked in various degrees of interdependence. The countries themselves and the EU therefore place much emphasis on co-operation, both bilateral, multilateral and regional. The EU encourages and requires the countries concerned to work together, as well as with their neighbours in the wider region and the EU, to promote their economic development. The most recent example in this context is the Stabilisation and Association Agreement (SAA), which after a process of negotiation lasting just over two years, was signed with "the former Yugoslav Republic of Macedonia" on 9 April 2001110. This Agreement focuses, inter alia, on the respect of international peace and stability, the development of good neighbourly relations, democratic principles and human 108 See for example article 2 of the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities; or article 15 of the Framework Convention for the Protection of National Minorities See Gudmundur Alfredsson, Disadvantages of Bilateral Agreements, in Bloed/van Dijk, op.cit., p. 171. 109 The Copenhagen political criteria (1993) include : democracy, the rule of law, human rights and respect for and protection of minorities. 110 See p. 25 of the present report. 37 rights, minority rights, international law principles and the rule of law. The political significance of the Agreement is very high as it confers upon "the former Yugoslav Republic of Macedonia" the status of potential candidate, thus opening up the possibility of future accession to the EU. It has to be mentioned that if the EU Stabilisation and Association process constitutes an incentive for aspiring members to promote of co-operation and good-neighbourly relations, yet a number of risks associated with integration can be identified that could have a negative impact on some minority communities. The EU integration process might indeed have negative implications for minority communities and trans-border relations, because minority groups may be separated across new frontiers when some countries enter the EU and others stay outside.111 In this context, the conclusion of bilateral agreements between EU members and non- member states, providing for the right to freedom of movement across their frontiers, might contribute to overcome this problem. Furthermore, a certain frustration is felt among countries aspiring to EU-membership because, by acceding they will lose part of their sovereignty without having participated in the development of EU policies, including those pertaining to trans-border relations such as the restricting Schengen and Dublin instruments on visa requirements112. In the context of regional co-operation, the South East European Co-operation Process (SEECP) is worth of mention.113 The initiative was taken at the meeting of the Foreign Ministers of South East European countries held in Sofia in June 1996. The main commitment is to promote and strengthen good neighbourly relations among the South-Eastern European countries in order to transform the region into an area of peace, security, stability and co-operation as well as the full integration of the region into the European and Euro-Atlantic structures. 114 To conclude, a regional and multilateral approach should be pursued in order to avoid the risks of concentrating solely on a policy of selective bilateralism to the detriment of a more effective regional strategy. 111 Minority Rights Group International, op. cit., p. 2. 112 Ibidem 113 Full participants are, among others, "the Former Yugoslav Republic of Macedonia", Albania, Bulgaria, the Federal Republic of Yugoslavia and Romania , while Bosnia and Herzegovina and Croatia are observer countries. 114 It has to be mentioned that the Stability Pact Special Co-ordinator Bodo Hombach participated at the SEECP forth Summit in Skopje in February 2001and that to strengthen co-operation and stability in the region, the Heads of State/Government of the SEECP countries adopted a Charter of Good- Neighbourly Relations, Stability, Security and Co-operation in South-Eastern Europe" (SEECP Summit of Bucharest, February 2000). 38 Final remarks and recommendations Every minority situation presents its own particular characteristics and there is consequently no standard means of resolving the multitude of concrete problems, which each case presents in a national context. Yet, some remarks and recommendations can be provided. Overall, if effectively implemented, the substantive rights included in the existing bilateral agreements hold a considerable potential for the development of minority protection. However, for the time being, bilateral agreements have not significantly improved the protection of the minorities concerned and the domestic legislation, in particular, has rarely been modified upon the conclusion of these treaties. This study has highlighted some of the limits and dangers of bilateral agreements. Concerns have been raised on the risk that these treaties might lower international and regional standards, the recognised entitlement of kin-states to a direct legal and political interest in the affairs of neighbouring states with possible destabilising effects, the concern of states that bilateral agreements might support secessionist claims and border changes, the lack of group consultation and group consent, the risk that bilateral treaties might place other groups of inhabitants into a less favourable position, in particular minority groups without a kin-state, as the Roma, thereby risking the creation of tensions among minority groups within a given country. Further concerns arise as a result of vague wording and formulations potentially obstructing the effective implementation of the provisions, the risk of disregarding acquired expertise on minority rights as a consequence of hasty drafting processes and the strong political influence to which these treaties are often subject. The implementation procedures and the monitoring mechanisms are still unsolved issues. The analysis of the current praxis illustrates that the joint Committees, when provided for in bilateral treaties and effectively established, apart from forming a forum for discussion, have not exerted any significant influence on the protection of the minority groups concerned. A positive example could be taken by the German- Hungarian Joint Commission, which developed a detailed programme, including cultural centres, libraries, media agencies and others. It is important that these structures are open also to the majority population in order to foster integration and not segregation. Notwithstanding reservations and limits, the importance of bilateral agreements should not be underestimated. In general, they have contributed to minority protection, to respect for States' territorial integrity and the fostering of economic, cultural and social co-operation across borders, hence supporting the normalisation of relations between States. In this context, reference is made to the provisions referring to the mutual recognition of borders and territorial integrity and to the reinforcement of the inviolability of borders. To strengthen the effectiveness of bilateral agreements, the participation of minority representatives in the negotiations, drafting, implementation and monitoring commissions has been emphasised as one of the factors which contribute to guarantee that issues of particular concern for minority communities are actually taken into 39 consideration by the decision-makers, hence Governments and/or Parliaments of the contracting States. With regard to the suspicion that kin-states' assistance might support secessionist claims, it could be advocated that kin-state's support should be provided to the kin- groups concerned in a transparent manner and with the full knowledge of the appropriate home-state authorities. Ideally, such assistance should be jointly financed and administered by home- and kin-states' authorities in order to maximise its effectiveness. By providing a clear framework for contacts among States and by contributing to the transparency in the actions of the kin-states in support of minority groups, bilateral treaties can contribute to enhance good-neighbourly relations and even prevent conflicts between States. However, it is clear that these goals cannot be achieved on a purely bilateral basis. Most of the countries of South- Eastern Europe face many of the same problems and their economies are linked in various degrees of interdependence. The difficult position of the Roma, as a minority without a kin-state, but living in many European countries, and in particular in the South- Eastern European region, is an issue which could be significantly improved by the conclusion of a multilateral treaty. A regional and multilateral approach should therefore be enhanced to avoid the risks of concentrating solely on a policy of selective bilateralism to the detriment of a more effective regional strategy. The Stability Pact is one step in this direction. Indeed it pursues the aim of strengthening countries in South Eastern Europe in their efforts to foster peace, democracy, respect for human rights and economic prosperity, in order to achieve stability in the whole region and to co-operate towards protecting minorities and preserving the multinational and multiethnic diversity of countries in the region. Assistance by the international community in cases where no bilateral agreements have been concluded yet, could consist in expert advise and technical assistance in the drafting of the texts, starting from the international standards and including the experience of some well functioning bilateral agreements (for example the treaties concluded by Germany with Poland or Hungary). The settlement of border disputes and the fostering of economic co-operation figure among the most important points to be included. Considering the great variety of situations, the drafting of a model agreement would appear difficult. Furthermore, the international community should endeavour to mitigate overt or latent controversial issues and support cross-border co-operation, especially in the economic domain. The proposal to create a common economic market in the region should be strongly supported, and the recent decision on bilateral free trade agreements adopted by SEECP States as well as the Action Plan on Economic co-operation adopted within the Stability Pact, are directed along these lines. The co-ordinated co-operation between the Council of Europe, OSCE and the European Union is an important step towards the creation of an effective regional framework, with the participation of the countries concerned, under the supervision, 40 and with the support of, the international community. In this context, the Stability Pact on South Eastern Europe provides a forum to avoid the overlapping of activities, and to maximise the assistance in the region. The projects of the Council of Europe within the frame of the Stability Pact are directly linked with each other. As emphasised in the paragraphs on the implementation of the agreements, training programmes on multilateral as well as bilateral minority instruments could be provided to judges, lawyers, local administrators or the police. But also the general public, and minority groups in particular, need to be informed about existing standards in order to be able to develop an effective strategy to ensure that decision-makers listen to minority concerns, and do not ignore the rights enshrined in agreements they have ratified. The awareness raising campaign and the project on implementation of existing standards go hand in hand therefore with the one on bilateral agreements. A further impetus for bilateral agreements could come from the non-discrimination review, as the bilateral agreements should be included in the list of instruments to be taken into consideration when checking national legislation. Finally, one of the major factors influencing neighbourly relations among countries of South-Eastern Europe is integration into European and Euro-Atlantic institutions and, in particular, to the EU. The EU Stabilisation and Association process constitutes an incentive for aspiring members to promote co-operation and good-neighbourly relations. By acceding to a broader structure, such as the EU, the destabilising character of the border issue might be diminished. Furthermore, the EU has made it clear that enhancing respect for minority rights and fostering good-neighbourly relations are important criteria for entry. *** 41 Annex 1 : List of Agreements Agreements ratified by Albania - Treaty on the mutual understanding, co-operation and good neighbourhood between Romania and Albania (11 May 1994) Agreements ratified by Bosnia and Herzegovina (at Entity level) - Agreement on the Establishment of Special Parallel Relations Between the Federal Republic of Yugoslavia and Republika Srpska (5 March 2001) - The Agreement on Special Relations between the Republic of Croatia and the Federation of Bosnia and Herzegovina (22 November 1998) Agreements ratified by Bulgaria - Treaty on Friendly Relations and Cooperation between Bulgaria and Moldova, (7 September 1992) - Treaty on the friendship, co-operation and good neighbourhood between Romania and Bulgaria, (27 January 1992) - Common Declaration between the Republic of Hungary and the Republic of Bulgaria on the Basis of Relations, (18 April 1991) Agreements ratified by the Republic of Croatia - The Agreement on Special Relations between the Republic of Croatia and the Federation of Bosnia and Herzegovina (22 November 1998) - Treaty between the Republic of Italy and the Republic of Croatia on the rights of minorities, (5 November 1996) - Agreement on the normalisation of the relations between the Federal Republic of Yugoslavia and the Republic of Croatia, (23 August 1996) - Agreement between the Republic of Croatia and the Republic of Hungary on the protection of the Hungarian minority in the Republic of Croatia and the Croatian Minority in the Republic of Hungary, (5 April, 1995) - Treaty regarding the friendship and co-operation relations between Romania and Croatia, (16 February 1994) - Treaty between the Republic of Hungary and the Republic of Croatia on Friendly Relations and Co-operation, (16 December, 1992) 42 Croatia has Agreements on cooperation in the fields of Culture and Education with many neighbouring countries, for example - Article 4 of the Treaty on cooperation between the Government of the Republic of Croatia and the Government of the Republic of Romania in the field of education, culture and science - Article 10 of the Agreement on cooperation in the fields of Culture and Education between the Government of the Republic of Slovenia and the Government of the Republic of Croatia Agreements ratified by the Federal Republic of Yugoslavia - Agreement on the Establishment of Special Parallel Relations Between the Federal Republic of Yugoslavia and Republika Srpska (5 March 2001) - Agreement on the normalisation of the relations between the Federal Republic of Yugoslavia and the Republic of Croatia, (23 August 1996) - Treaty on friendship, good neighbourly relations and co-operation between Romania and the Federal Republic of Yugoslavia, (16 May 1996) Agreements ratified by the Republic of Hungary - Treaty on Understanding, Co-operation and Good-Neighbourliness between the Republic of Hungary and Romania, (16 September 1996) - Agreement between the Republic of Croatia and the Republic of Hungary on the protection of the Hungarian minority in the Republic of Croatia and the Croatian Minority in the Republic of Hungary, (5 April 1995) - Treaty on Good Neighbourliness and Friendly Co-operation between Slovakia and Hungary, (19 March 1995) - Treaty between the Republic of Hungary and the Republic of Croatia on Friendly Relations and Co-operation, (16 December, 1992) - Agreement on Ensuring Special Rights for the Slovenian National Minority Living in Hungary and the Hungarian National Community Living in Slovenia, (6 November 1992) - Declaration on the principles of cooperation between the Republic of Hungary and the Ukrainian Soviet Socialist Republic in guaranteeing the rights of national minorities (31 May 1991) - Common Declaration between the Republic of Hungary and the Republic of Bulgaria on the Basis of Relations, (18 April 1991) 43 Agreements signed by Moldova - Treaty on Good Neighbourly Relations, Friendship and Cooperation between Ukraine and the Republic of Moldova (23 October 1992) - Treaty on Friendly Relations and Cooperation between Bulgaria and Moldova, (7 September 1992) Romania signed a treaty with Moldova, which is not yet ratified by the Romanian Parliament Agreements ratified by Romania - Treaty on Understanding, Co-operation and Good-Neighbourliness between the Republic of Hungary and Romania, (16 September 1996) - Treaty on friendship, good neighbourly relations and co-operation between Romania and the Federal Republic of Yugoslavia, (16 May 1996) - Treaty on the mutual understanding, co-operation and good neighbourhood between Romania and Albania, (11 May 1994) - Treaty regarding the friendship and co-operation relations between Romania and Croatia, (16 February 1994) - Treaty on friendly relations between Romania and the Slovak Republic, (24 September 1993) - Treaty on the friendship, co-operation and good neighbourhood between Romania and Bulgaria, (27 January 1992) Romania has an agreements on cooperation in the fields of Culture and Education with neighbouring countries, for example - Treaty on cooperation between the Government of the Republic of Croatia and the Government of the Republic of Romania in the field of education, culture and science, of 1993 Romania signed a treaty with Moldova, which is not yet ratified by the Romanian Parliament Agreements ratified by Slovenia - Convention on providing special rights for the Slovenian minority living in the Republic of Hungary and the Hungarian minority living in the Republic of Slovenia, (6 November 1992) 44 Slovenia has Agreements on cooperation in the fields of Culture and Education with neighbouring countries, for example - Article 10 of the Agreement on cooperation in the fields of Culture and Education between the Government of the Republic of Slovenia and the Government of the Republic of Croatia 45