Towards a new system of protection

by Notis Lebessis

The perception of minority issues in the European Community has never been an easy matter. The Community and its Member States have, for example, had considerable problems with the resurgence of minority issues in the former Soviet empire now the situation created at Yalta has come to an end. These problems are of three different origins.

-Some are the result of individual historical developments, all of which have culminated, sometimes through violence, in a nation-state, in which a political frame of reference and a 'cultural frame of belonging' are superimposed, as the French philosopher Jean Marc Ferry put it.

-Some, clearly, come from a different perception of where minority interests lie, which has more to do with history than with any vision of their future.

-And some are related to a difference in the philosophical concept of citizenship, either a Rousseau-type view of the social contract or more community-oriented approaches. Although there is inevitably something artificial about these standard ideological classifications, they are reflected in the definition and scope of minority rights in the Member States. They are therefore also behind the varying attitudes and sensitivities displayed by the Community countries recently in the attempt to strike a balance between the right of peoples to self-determination and protection of the territorial integrity of the state. These differences of conception seem also to be to blame for the snail's pace at which national policies on immigrant minorities are converging- despite the fact that convergence would both make the policies more effective and make it easier to create the European social area which will complete the unification of the markets.

A challenge for the Community and the continent as a whole

A resurgence of the minority issue in Eastern Europe, difficulties created by the new minorities emerging from the waves of immigration and an upsurge of new regionalist movements (the Italian Leagues, for example) have come to add to the time-honoured calls for autonomy from one or two 'historical' minorities, in most cases by way of reaction to the campaigns waged by the central powers of nation-states attempting to unify their national territory. They represent a considerable challenge to the Community.

Even supposing that, in a world where the force of interdependence gets more complex all the time, there is some point in distinguishing between those challenges that are inside and those that are outside the Community, that distinction is of course bound to fade under the effect of the probable enlargement of the Community to include the countries of Central Europe-which means both those, such as Poland and Slovakia, with strong national minorities on their soil and those, such as Hungary, with large sections of 'their' population concentrated in places beyond their frontiers. So the Community and the rest of the continent of Europe are also concerned by the question of minorities and the challenges that go with it.

Institutions and regulatory machinery which are ill-suited to interdependence make things worse

In most cases, let us not forget, be they internal or external, these difficulties are underlaid with and above all aggravated by economic depression combined with internationalisation, making national systems of regulation inadequate and the crisis of representative democracies worse. And economic depression and internationalisation heighten the crisis of integrating institutions such as the family, the school and the welfare state, those perpetuators of social links, and fuel feelings of alienation and egoism. Take an example in the Community, where, when cultural minorities created by migration are also victims of social exclusion, there is a strong probability that they will become inward-looking and radical and react by rejecting those sections of the native population with whom they have to compete on the job or housing market. A climate of this sort impedes the Community's progress towards integration and undermines its internal cohesiveness. The same goes for the countries of Eastern Europe, which also have to grapple with the problems of transition to a market economy.

Faced with these challenges, and despite the above differences and divergences, the Community already provides a framework and a model which can reduce, if not go beyond, the incompatibility of a people's right to self-determination and desire for autonomy with maintenance of a national state system. We shall illustrate this briefly, before outlining an hypothesis involving transposing this model and various legal arrangements from the Community to greater Europe. We shall then discuss the Community's possible contribution to the emergence of a pan-European minority protection system and look at what action this might involve.

The Community model-an example with limitations
The Community extends the means of solidarity

The Community's first contribution to bettering the situation of national minorities involves expanding the framework and means of solidarity which it makes possible. With the internationalisation of techniques, the emergence of transnationals and all the challenges of a profoundly inegalitarian and interdependent world, the Community constitutes its Member States' collective response to the need to boost prosperity and ensure a collective return to political control over the economy that will serve a proper plan for society. The internal market and economic and monetary union are ways to a general improvement of prosperity in the present conditions of interdependence and the politics of cohesion are the way to take solidarity far further than would ever be possible in states in isolation or, of course, in the weaker of them.

What could Greece or even Spain do to support the Xanthi or Basque regions- to take two examples of places with minority problems-if they were not in the Community? Let us not forget that Community solidarity, in the shape of development aid, accounts for more than 3% of Greece's GDP and something like 11% of its annual investment effort.

The Community embarks on a new partnership to transcend the incompatibility between the call for autonomy and maintenance of the state framework

Let us look at the consequences of expanding the terms of solidarity by reference to the Basque country, where the separatist movement and the creation of the Basque Nationalist Party go back to the end of the last century (1893) and the reaction to Madrid's abolition of administrative, legislative and tax freedoms (the famous fueros of 1846). Now that Spain belongs to the Community, the Basque call for home rule-which Spain has to some extent gone along with- ceases to seem incompatible with or directed against the national system of the state. On the contrary, it is the state, as the political frame of reference, which enables the Basques to have the benefit of solidarity and access to a wider area, both of which would be out of the question without this double membership. By being a member of the Community, Spain is ensuring the internationalisation of it and its components, becoming the link on which such regions depend if they want genuinely to increase their autonomy and reappearing as the guarantee of coherence vis-a-vis the interior and the exterior, thereby being an essential interface, in the eyes of the Basque authorities included. Do they not need a Spanish Prime Minister to thump his fist on the table and tell his equals how essential it is to channel more resources into cohesion policies? Belonging to the Community opens the way to a new partnership, in which three partners need each other. This is how it attenuates and, ultimately, makes it possible to go beyond the divergence between calls for independence (going as far as separatist movements) on the part of cultural communities, and maintenance of the state framework. By supporting regional coopration across frontiers, the Community is also making a happy contribution to bringing Spanish and French factions in the Basque country together.

The Community can provide many more examples of cross-border regional cooperation calming tension between minority and state. With continental integration on the horizon, the Community's support for this type of initiative is gradually being extended to regional cooperation across the Community's external frontiers too. The existence of external third states in which some national minorities may sometimes find an echo does nothing to undermine the force of this, for if the state commands its minorities' respect, it is because it enables them to thrive.

That, then, was an outline of the new possibilities of belonging to a larger

Community-which, despite its difficulties, is still a pole of attraction for the whole continent and beyond.

A model for association and sovereignty sharing

Now let us look at the legal, political and administrative aspects of the Community's treatment of minorities. Is the Community not the first free association of different peoples of unequal power who are nonetheless equal under the rules they have laid down for themselves? Is Luxembourg not a case of positive discrimination in favour of a 'minority' in as central a field as the sharing of sovereignty?

Freedom of movement

The dynamics of Community integration are far from being propelled by the action of the states alone and a legal system has to get into step with trends in society sooner or later.

Left to the drive of economic forces alone, the dynamics of European integration (like internationalisation) even tend to trigger movements aimed at standardizing or harmonising singular features which could fuel fears of loss of identity and encourage an identity complex or even egoism on the part of the well-off. So the political powers have to step in, both to provide a framework for the forces of the economy and to arbitrate. But the Community order- particularly the four freedoms of movement and various aspects of the way the sharing of sovereignty is organised- contains what could be significant responses to the problem of minority rights, particularly for the countries of Central and Eastern Europe, where the neighbours are nearly always involved. What would be the point, say, of Romania preventing its Hungarian minority from producing a Hungarian-language newspaper when the free movement of goods meant that (currently limited numbers of) papers from Hungary were already available? Think for a moment of what the implications would be for minorities and their collective rights and for the free movement of television programmes, students, films, tourists-and ordinary people. Does not freedom of movement always go with greater freedom in general? A twist in history would give us an inversion of the traditions of the Austro Hungarian Empire-individual attachment to a territory combined with recognition of cultural pluralism. This could be achieved through either a genuine extension of the Community system to the countries of Eastern Europe (which will be joining the Community sooner or later) or a gradual transposition of it within the framework of a reworking of the architecture of the continent.

Emergence of a pan-European system of protection

The Community model, as we have seen, may not provide the answer to the minorities issue, but it is not entirely devoid of useful messages. There is still a long way to go before the Community can guarantee the rights of its historical and immigrant minorities. There is more to collective rights than free movement, decentralisation and greater solidarity and making progress with them means going beyond the problems related to the different conceptions mentioned earlier. The facts, and the methods of work forged from a combination of ideas and experience, invite and will probably lead the Community to make this progress.

Drivingforce in the Council of Europe and the Conference on Security and Cooperation in Europe?

Various specialists have suggested that there is no point in the Community having legal instruments of its own. The more specialised Council of Europe has been busy with a remarkable piece of work in this field for some time now, devising European legal frameworks for the protection of the collective rights of minorities, plus the relevant control and arbitration machinery. It would be progress indeed if the Community joined the systems now being set up.

Think how much faster the Council of Europe itself could go with coordinated involvement by the Member States of the Community (once they have fixed on a common philosophy). It would make the Community a real driving force in the Council of Europe. And the same goes for the Conference on Security and Cooperation in Europe, which now has the best prevention, mediation and dispute settlement machinery-but has not yet had the opportunity to prove its efficiency. What it needs now is a driving force.

Let us not overlook the greater credibility which progress in this field would bring the Community in its injunctions to neighbouring European countries where minorities are getting a bad deal. This of course harks back to the general principle of coherence which applies in everything the Community does. There is nothing speculative about it. There have been cases of our partners in Eastern Europe pointing to the treatment of minorities in the Community when we have invited them to respect the rights of their own minorities.

Wielding political and economic influence in particular cases

In addition to this contribution to the creation and consolidation of a panEuropean minority protection system with its own rules (some of them statutory) and prevention, conciliation and arbitration machinery, the Community has other ways of helping improve the situation of Europe's minorities.

First of all, it can use its political and economic influence to get the countries of Eastern Europe to join the European minority protection systems. Almost all these countries want to join the Community and are polarised by it and it was no doubt this prospect which, for example, prevented Hungary from even thinking about the re-establishment of a state combining all the Hungarian minorities now living in Slovakia, the former Yugoslavia and Romania. In some cases, this Community incentive may be official. The association agreement with Romania, for example, contains a clause referring to the final act of Helsinki and the Charter of Paris, providing for association arrangements to be suspended if minority rights are not respected. This is obviously something which should be done whenever the Community is involved in a contractual agreement of this kind.

The Community can also use its influence in special situations such as that of the former Yugoslavia. Whatever the shortcomings of its action in that instance, it would be unfair to overlook the effort it put into getting the combatants round the negotiating table. And there have of course been other attempts at arbitration too-with the Guimaraes declaration and the follow-up to President Mitterand's proposal, to mention but two recent ones. The Community's influence in this kind of international arbitration will no doubt gain ground as the common external and security policy of European union takes shape and develops.
N.L.