İ.Ü.Siyasal Bilgiler Fakültesi Dergisi
No: 23-24 (Ekim 2000-Mart 2001)
I. In the documents adopted by the
Conference on Security and Cooperation in Europe (CSCE/OSCE) , the United Nations and the
Council of Europe[1] since the
beginning of 90’s, although a general definition of the concept of “minority” is
not given, the demands aiming to preserve the cultural identity of persons who
display distinctive ethnic, linguistic or religious characteristics differing
from those of the majority are regarded in the context of the “minority
question”, for which the solution requires the granting of specific rights to
minorities.
In the background of this approach
lies the effort of finding a solution to the destabilising effects of the
“ethnic factor”[2]. In this respect,
minority rights, to a certain extent, aim to suppress, pacify ethnic
conflicts.
The various international
instruments on minority protection all include two types of measures to this
effect[3]:
1.
Expression of
minority rights as individual rights of “persons belonging to
minorities”: This formula is used as a measure against “collective
rights” that could be associated with the right of self-determination
or would enable the minority rights to acquire a
political rights dimension other than that of a cultural rights
dimension, such as, provision of group
representation in decision-making mechanisms. This is
due to a fear that collective rights might bring along other demands ranging
from local autonomy to secession .
2.
The condition of
“the territorial integrity of states”: The obligation to respect the states’
territorial integrity, included in every
international document on minority rights, is the clearest
imprint of the policies aiming at stability. Designed to counterbalance the granting of
specific rights to minorities (persons belonging to minorities), this is what shapes the fundamental philosophy of
minority rights preventing them to develop
into secessionist
demands.
At this point it seems necessary to
clarify the distinction between the right of self-determination of
“peoples” recognised in international documents and minority rights: The
qualitative difference between the two is that while the right of
self-determination, covering all the rights in the cultural, economic and
political spheres, in essence, is the right “to determine the political
status freely”, minority rights, on the other hand, take shape around the
right of “cultural identity”[4].
However, this distinction rather
makes sense with respect to the external aspect of self-determination
which includes “the right of secession”. The emphasis on “territorial
integrity of states” in international instruments on minority rights shows
clearly that minority rights do not include self-determination in the sense of the right to
secede.
On the other hand, presently, the internal aspect of self-determination
is on the agenda. The General Comment on self-determination issued by the Human
Rights Committee, regarding Article 1 of the UN Covenant on Civil and Political
Rights, acknowledges that the “realisation” of “the right of self-determination
is an essential condition for the effective guarantee and observance of
individual human rights” and adds that “States Parties” in their reports
“confine themselves to a reference to election laws”, but they “should describe
the constitutional and political process which in practice allow the exercise of
self-determination”[5].
Although not explicitly stated in the General Comment,
it is claimed that this approach stressing the internal aspect of
self-determination has relevance to the minorities question as
well.
The OSCE High Commissioner on
National Minorities Max van der Stoel, when in İstanbul for the OSCE Summit
(1999), stated that the concepts of “internal self-determination” and
“non-territorial autonomy” together were about ensuring a more effective
participation of minorities in public life without prejudice to the territorial
integrity of the states.
In this context, possibly the
following might be said: When the right of internal self-determination is
associated with minority rights, beyond the right of equal political
participation, development of methods that would empower the minorities to be in
a decision-making position in the areas of
protecting their own cultural identities becomes
crucial.
Whereas the international instruments on minority rights
are not exactly clear on this issue, Article 15 of the Framework Convention for
the Protection of National Minorities states 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”.
In the Explanatory Report on the
Framework Convention, some of the measures that the states could take within the framework
of their constitutional systems in respect to this article are mentioned[6]:
-
“consultation
with these persons, by means of appropriate procedures and, in particular,
through their representative institutions, when Parties are contemplating
legislation or administrative measures likely to affect them
directly;
-
involving these
persons in the preparation, implementation and assessment of national and
regional development plans and programmes likely to affect them
directly;
-
undertaking
studies, in conjunction with these persons, to assess the possible impact on
them of projected development activities;
-
effective
participation of persons belonging to national minorities in the decision-making
processes and elected bodies both at national and local
levels;
-
decentralised or
local forms of government.”
When the Article 15 of the Framework
Convention is read together with the Explanatory Report, these provisions designed to ensure
the effective participation of minorities in public life, in public affairs,
even though they are expressed on an individual level, are in essence provisions
that recognise and protect the collective
existence of minorities.
Also when the Framework Convention
is taken as a whole, the consequence of considering the recognition of rights to
protect the cultural identities of persons belonging to minorities together with
the positive obligations of states and the prohibition of assimilation is the
protection of “group identity”, and in all international instruments on minority
rights, even though the subject is the individual, the rights carry a collective
dimension.
That is where the problem emerges.
II. The French
Constitutional Council stated in its Decision No 99-412 of 15 June 1999
on “The European Charter for Regional or Minority Languages” that
granting collective rights to any group on the basis of origin, culture,
language or religion were in conflict with the
fundamental principles of French Constitution.
The Council decided that granting of
specific rights to “groups” speaking regional or minority languages in those
regions where these languages are spoken was contrary to the indivisible
integrity of the Republic, to the equality of
all citizens before the law without distinction of origin, race or religion and
to the
principle of the unity of French people to which the Council ascribed
constitutional value.
The Constitutional Council also
decided that some of the provisions of the Charter were in conflict with the
Article 2 of the Constitution that states “The language of the Republic shall be
French”: The European Charter provides for the facilitation and/or encouragement
of the use of regional or minority languages, in speech and in writing, in
public and private life by states parties. According to the Council, provisions of this kind are contrary to
the Article 2 of the Constitution as they acknowledge the right of using a
language other than French not only in the sphere of “private life”, but also in
the sphere of “public life”, in relations with judicial authorities,
administrative authorities and public services.
However, the Constitutional Council,
mentioning that the Article 2 of the Constitution should be read together with
the Article 11 of the 1789 French Declaration of Human and Citizen’s Rights
which enshrines the right to freedom of expression, did not find the other
provisions France undertook to implement in spheres of education, media (printed
media, radio, television) and cultural activities by signing the Charter
contrary to the Constitution. According to the Council, most of these provisions
do not go beyond the already existing practices regarding the use of regional
languages.
The Turkish Constitutional
Court acting on similar grounds is more rigid on this issue. The Court
states that the use of local languages in “all private premises, in workplaces, in
the press and in works of art and literature” is not prohibited, but their
recognition as “a means of common communication and contemporary education” is
contrary to the Constitution.
According to the Constitutional
Court, the purpose of the regulations to protect the indivisible integrity of
the state with its territory and nation is “not to prohibit the differences
existing in the country and their languages and cultures”; “what is prohibited
is not the expression of cultural differences and richness, but their
utilisation to create minorities on the territory of the Republic of Turkey for
the purpose of undermining national unity and founding a new state order on that
basis”. Consequently, what is feared is that the demands of the recognition of
cultural rights later may instigate “a tendency to break off from the whole”.[7]
III. The conditions of accession to
the European Union for the applicant States known as Copenhagen Criteria
were set by the Copenhagen European Council Summit Meeting in June 1993. These
criteria, stated in a paragraph of the Conclusions of Presidency, have three
components[8]:
-
Political
criteria: The
stability of institutions guaranteeing democracy, the rule of law, human rights,
and respect for and protection of minorities;
-
Economic
criteria: The
existence of a functioning market economy and the capacity to cope with
competitive pressure and market forces within the Union;
-
Ability to
fulfil the obligations arising from the membership: To be able to take on the obligations of
membership including adherence to the aims of political, economic and monetary
union.
In 1997 European Union Luxembourg Summit it was decided
that compliance with the Copenhagen political criteria is a
prerequisite for the opening of any accession negotiations[9]. In this regard,
“protection of minorities” becomes to be one
of the important issues of Turkey’s accession to the European
Union.
It is possible to observe the
significance of minority rights with respect to Copenhagen Criteria in the
European Union Commission’s regular reports on Turkey. The Commission, in 1999
Regular Report on Turkey’s Progress Towards Accession quotes the following from
January 1999 report of the Committee on the Honouring of Obligations and
Commitments by Member States of the Council of Europe: “The essential point is
that any such group [Turkish citizens of Kurdish origin] should have the
opportunity and material resources to use and sustain its natural languages and
cultural traditions in circumstances and under conditions now clearly and
reasonably defined by two important Council of Europe Conventions: the
Framework Convention on the Protection of National Minorities and the European
Charter for Regional or Minority Languages”.
This implies that the standards of
the Council of Europe on minority rights are the standards accepted by the
European Union. In its 1998 Regular Report, the Commission stated that “a civil
solution could include recognition of certain forms of Kurdish cultural identity
and greater tolerance of the ways of expressing that identity, provided it does
not advocate separatism or terrorism” and highlighted that the use of Kurdish is
not allowed in spheres of ‘political communication’, education and
radio/television broadcasting.
The principle of “territorial
integrity of states”[10], which comprises
the fundamental philosophy of all the international instruments on minority
rights, including the Framework Convention for the Protection of National
Minorities, the first legally binding multilateral instrument devoted to the
protection of national minorities in general, is a principle, also not
questioned by the European Union. But as mentioned earlier, the problem wraps
around the collective dimension of rights conferred on minorities. In the
examples of France and Turkey, the protection of cultural differences by means of “minority rights” is regarded to be in
conflict with the constitutional fundamental principles.
Maybe at this point, a change of
perspective could help: The Framework
Convention, on the basis of principles of equality and non-discrimination, to
which there are no objections, promotes the protection of cultural diversity as
a source and a factor, not of division, but of enrichment for each society; so
the proposed principle of positive discrimination, in this respect, is not an
alien concept with regard to human rights law. It aims that the cultural
differences benefit from a full and effective equality in a pluralistic and
democratic society.
In the context of protection of
cultural identity, provisions on linguistic freedoms are again based on a
fundamental right: the protection of freedom of
expression. Additionally, the provisions of the Framework Convention are mostly
programmatic provisions that leave the States
a measure of discretion in the implementation of its objectives by enabling them
to take particular circumstances into account.
For example, the use of minority
languages in relations with the administrative authorities: This
provision has been worded very flexibly; only in the condition of the existence
of a “real need”, which is to be assessed by the State, the States Parties
shall endeavour to ensure, as far as possible, the conditions
which would make it possible to use the minority language in relations between
the persons belonging to minorities and the administrative authorities[11].
There is a similar statement in the
article referring to the teaching of and instruction in a minority language: If
there is “sufficient demand”, the States Parties shall endeavour
to ensure, as far as possible, the teaching of or the instruction in the
minority language. This provision is at the same time conditioned to be
implemented without prejudice to the learning of the official language or the
teaching in this language[12]. However the
Framework Convention recognises the rights of persons belonging to minorities to
set up and manage their own private educational and training establishments and
institutions; but the exercise of this right does not entail any financial
obligation for the States[13].
These examples show what is
understood when “minority rights” are mentioned. So, as a solution, a
compromising formula which would recognise the principles covered by the
Framework Convention, on the basis of individual human rights, without referring
to the concept of “minority”, could be
developed.
Such a formula can be found in the Bulgarian Constitution (1991)[14]:
Article 54/1 of the Constitution of
the Republic of Bulgaria reads:
“Everyone shall have the right to
avail himself of the national and universal human cultural values and to develop
his own culture in accordance with his ethnic self-identification, which shall
be recognised and guaranteed by the law”; and Article
36/1-2:
“The study and use of the Bulgarian
language shall be a right and an obligation of every Bulgarian citizen. Citizens
whose mother tongue is not Bulgarian shall have the right to study and use their
own language alongside the compulsory study of the Bulgarian
language”.
Article 2 of the Bulgarian
Constitution protects “the territorial integrity of the Republic of Bulgaria”;
Article 3 accepts Bulgarian as the official language; Article 6 contains the
classical principle of non-discrimination; Article 11/4 prohibits political
parties that are founded on ethnic, racial or religious lines or which seek the
violent usurpation of state power; and according to Article 44/2 “No
organisation shall act to the detriment of the country’s sovereignty and national integrity, or the unity of
nation, nor shall it incite racial, national, ethnic or religious enmity”. Also
it is necessary to add that Bulgaria accepts the ethnic elements on its
territory as part of the Bulgarian nation, and like Turkey, reserves the term of
“minority” only to groups of persons defined and recognised as minorities on the
basis of multilateral or bilateral legal
instruments to which Bulgaria is a party.
***
To conclude this should be
underlined: Today Turkey is yet more distant than France that acknowledges the
use of “regional languages” in education and radio/television
broadcasting limited to the sphere of private life, with respect to the right of
freedom of expression. Therefore, in these circumstances, it is quite difficult to envisage a process of accession
devoid of problems in the relations between Turkey and the European Union,
taking into account that compliance with the Copenhagen political criteria is
its prerequisite.
* This paper is based on a
speech delivered to the symposium “Copenhagen Criteria” [“Criteres de
Copenhague: Denominateurs Communs de l’Union Europeenne et du Conseil de
l’Europe?”] held in Istanbul on 24-25 June 2000
** University of Istanbul,
Faculty of Political Sciences.
[1] CSCE Copenhagen
Document (1990), UN Declaration on the Rights of Persons belonging to National,
Ethnic, Religious and Linguistic Minorities (1992), Framework
Convention for the Protection of National Minorities (1995; 1998).
[2] Heinrich Klebes,
“The
Council of Europe’s Framework Convention for the Protection of National
Minorities”, 16 Human Rights Law Journal (1995), p. 92.
[3] See Naz Çavuşoğlu,
Uluslararası İnsan Hakları Hukukunda Azınlık Hakları (Minority Rights in
International Human Rights Law), Bilim Yayınları, Istanbul,
1999.
[4] Cf. Patrick Thornberry,
“Self-Determination, Minorities, Human Rights: A Review of International
Instruments”, (1989) 38 International and Comparative Law
Quarterly, p. 880.
[5] Ibid., pp. 883-884.
[6] Framework Convention
for the Protection of National Minorities and Explanatory Report , in: 16
Human Rights Law Journal (1995), pp. 98 ff.
[7]The
Turkish Constitutional Court, stating “the principle of ‘indivisible integrity’
of the State requires the integration of sovereignty with a single State
structure composed of the unity of the nation and the territory”, claims that
the Constitution is closed to a federal system where the sovereignty is
exercised by constituent units as much as it is closed to forms of autonomy and
self-government for regions ( See Decision No. 1994/2, in: Official Gazette, 30
June 1994).
[8] Bull. EC 6-1993,
p. 13.
[9] Bull. EU 12-1997,
p. 10.
[10] Article 21 of the
Framework Convention.
[11] Article 10/2 of the
Framework Convention.
[12] Article 14 of the
Framework Convention.
[13] Article 13 of the
Framework Convention.
[14] “Constitution of the
Republic of Bulgaria”, in: The rebirth of democracy; 12 constitutions of
central and eastern Europe, Council of Europe Press, 1995, pp. 9
ff.