Political Participation of National Minorities: Standards and State Practice in the Implementation of Article 15 of the Council of Europe’s Framework Convention for the Protection of National Minorities
Political Participation of National Minorities: Standards and State Practice in the Implementation of Article 15 of the Council of Europe’s Framework Convention for the Protection of National Minorities

Author(s): Kiran Auerbach
Contributor(s): Edin Hodžić (Editor)
Subject(s): Politics, Constitutional Law, Governance, Government/Political systems, Ethnic Minorities Studies
Published by: Analitika – Centar za društvena istraživanja
Keywords: BiH; minorities; political participation; political representation of minorities; Constitution; Article 15;
Summary/Abstract: In the European context, the Council of Europe’s Framework Convention for the Protection of National Minorities (hereinafter: Framework Convention or FCNM) from 1998 is the chief treaty dealing with minority rights, and it has been adopted by more than forty state parties across the continent. The Framework Convention deals with the subject of participation of national minorities in public affairs as part of Article 15; however, the text itself is ambiguous and offers little guidance on its practical implementation. In response to the growing recognition of participation in public affairs as an important aspect of minority rights, in 2008 the Advisory Committee on the Framework Convention for the Protection of National Minorities (hereinafter Advisory Committee or AC) - the expert body that monitors the implementation of the Convention - issued a detailed commentary. This Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs offers its interpretation of fundamental standards for the realization of Article 15, reflecting its findings from the state reporting procedure. The Advisory Committee has without doubt made valuable contributions to the awareness of minority participation in decision-making and to the establishment of standards in this area. This report analyzes both its Commentary and the most current reporting cycles from each state party to the Framework Convention in order to elucidate the meaning of effective participation in decision-making and to identify models of best practice. As a framework encapsulating institutional mechanisms of participation and common issues that must be taken into consideration in designing them, the report looks at coordination between the mechanisms and on different levels of governance, including the local level, which has been prone to neglect in most of the relevant scholarship. Apart from its general purpose, the report particularly intends to promote and offer guidance for implementing minority inclusive governance in Bosnia and Herzegovina and other Balkan states. This latter dimension of orientation of this report is due to the often noted lack of understanding of the concept of political participation of minorities and often uncertain and winding routes towards truly multicultural governance that these states, to varying extents, are currently taking. The analysis also recognizes two factors that affect the work of the Advisory Committee in standard-setting and evaluating state practice. The first is the broad margin of appreciation afforded to state parties in designing systems of minority political participation as well as the individualized approach of the Advisory Committee, which takes contextual specificities (e.g. current level of minority inclusion, historical and socio-political factors) into account when evaluating these systems. The second factor is the Advisory Committee’s limited mandate, as the agenda of the reporting procedure is for the most part set up by the state parties themselves: the AC relies on the cooperation of states and lacks an enforcement mechanism to ensure compliance with its recommendations. This study therefore investigates the impact of these factors on standard-setting and on its individual opinions on state parties’ implementation of minority political participation. It incorporates illustrative examples from the state reporting procedure to highlight and further elucidate standards; however the analysis also aims to quell some of the optimism towards the AC’s work in light of noticeable gaps, influenced in part by the limitations to its mandate. Following the introductory section, Chapter 1 examines criteria commonly used by states to determine the existence of national minorities under domestic law against the AC’s prescriptions. The very term “national minority” is a primary example of the margin of appreciation, as there exists no common, universally accepted definition in the Convention. Despite this leeway, the AC stipulates basic principles by which state parties should abide; namely, this means maintaining an inclusive and flexible approach in granting national minority status. Arbitrary exclusion or differentiation between groups based on ancestral presence in a country, territorial ties to a geographic area, and numerical size are seen as unjustified by the AC. Importantly, it also insists that citizenship should not be grounds on which to exclude persons belonging to national minorities (although few states have incorporated this principle), as many articles of the FCNM, including Article 15, do not require a citizenship dimension. In particular, the AC is resolute that citizenship should not be a requirement to vote or run for office on local and regional levels. The findings of this section resound in subsequent chapters of the report, as official recognition as a national minority is directly linked to entitlements to special participatory rights reserved for persons belonging to national minorities. The next chapter analyzes the tripartite institutional structure of minority participation in political affairs. This includes representation in elected positions such as in parliament and local councils; consultative or advisory bodies; and employment in public administration. Representation in elected bodies and positions is generally the most direct means for minority representatives to take an active part in decision-making. Some of the principal measures that may be used to increase the representation of national minorities in elected bodies include allowing minority-specific political parties, electoral designs with separate voting lists, threshold exemptions, quotas and reserved seats, and special voting rights such as minority veto powers. Consultative bodies are another institutional mechanism, serving as forums where minority representatives may engage in dialogue with each other and governmental authorities. These bodies have an advisory function and may initiate and amend legislation affecting national minorities. Employment in public administration is another means of including minorities in public affairs, and the recruitment of national minorities has significant implications on raising general awareness of minorities in the state amongst majority and minority populations, and inspiring trust in government institutions from persons belonging to national minorities. Beyond these three principal mechanisms, the AC calls on specialized governmental bodies within the executive, such as ministries or departments for minority rights, to coordinate, monitor, and mainstream minority issues on all levels of governance. Specialized governmental bodies are tasked with coordinating a state’s policy towards national minorities and are in charge of monitoring implementation and results, as well as liaising with minority representatives, minority organizations, and relevant bodies where minorities participate in order to facilitate communication. In this sense, specialized governmental bodies mainstream minority issues throughout the entire institutional framework and state apparatus. Lastly, decentralized forms of government such as regional autonomy and self-government can be a useful means to give national minorities control over their interests, especially on local and regional levels. The second part of Chapter 2 elaborates upon overlapping issues concerning the effectiveness of the institutional mechanisms. This includes the legitimacy and pluralism of national minority representatives and additional interlocutors (such as relevant NGO representatives, scholars, or other experts) to advocate on behalf of persons belonging to national minorities; the range of issues beyond culture, education, and language in which representatives may be involved in decision-making, including budget allocation; their impact and voice in decision-making, which highlights the importance of being able to substantively participate as opposed to having a mere presence in governmental bodies; and mainstreaming minority issues into state policies and governmental institutions. These issues form the core standards of participation and must be incorporated into the structure of a state’s institutional framework to ensure that participatory mechanisms have the effect of empowering persons belonging to national minorities to participate in decision-making. These standards are then questioned in Chapter 3, as the study evaluates the consistency of the Advisory Committee's performance. One foremost gap is the disjointedness between explicit criticisms and amorphous recommendations that the AC issues in its opinions. Chapter 3 links the two previously-mentioned factors - margin of appreciation and individualized approach; limited mandate and reactive approach - to account for some of this disparity. Observations of additional gaps are also explored, including: common criticisms towards states with different practices; inconsistencies and leniency; promising alternative methods for coordination and mainstreaming of minority policy displayed by selected states that contrast with the prescriptions of the AC’s own Commentary; and inconsistencies in the Advisory Committee’s reaction towards trade-offs whereby a state party displays unequal development in the three types of participatory institutions or in different levels of governance.

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