Standard-Setting in the Field of Minority Rights: From Soft Jurisprudence to Hard Law?
In international discourse often reference is made to “international” or “European standards” in the field of minority protection but in practice it is very difficult to say what these standards precisely are and how they come into being. For the enlarging European Union, for instance, this issue is of particular relevance as it has to assess the degree of adherence of candidate countries to the political accession criteria, one of which is the respect for minorities. The presentation sets out to show which role the monitoring mechanisms of bi- and multilateral instruments play in the development of such a European standard in the field of minority protection. It shows that at the multilateral level the Advisory Committee on the Council of Europe’s Framework Convention for the Protection of National Minorities plays the central role even though a study of the opinions of the first two cycles makes clear that there is no “one” standard for each purpose and all countries, but a flexible hierarchy of commitments, from minimum standards, to developing standards and best practice. The presentation further argues that the soft jurisprudence of the Advisory Committee holds the potential to develop into hard law. It therefore suggests that the Advisory Committee takes a more normative approach when adopting thematic commentaries.
Bilateral agreements (concluded mainly by neighboring states in Central, Eastern and Southeastern Europe after the collapse of communism to protect their kin-minority living in the other state) and their monitoring mechanisms (the Joint Intergovernmental Commissions) contribute to standard setting in so far as they confirm and reinforce the standards that can be identified through the analysis of the Advisory Committee’s opinions. The function of these Commissions, rather than in the standard setting, lies more in the prevention and regulation of conflicts, thereby being perfectly complementary to multilateral instruments.
Keywords: Minority Rights, Council of Europe, Framework Convention for the Protection of National Minorities, Bilateral Agreements
Senior Researcher, Institute for Minority Rights, European Academy Bozen/Bolzano (EURAC)