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					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.


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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.


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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)


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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.


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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




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